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Copyright in the Digital Age
October 14, 2004
FEDLINK Membership Meeting
Carrie Russell, Copyright SpecialistALA Office for Information Technology
Policy
Brief Review of Copyright
• Purpose: to benefit the public by advancing the progress of science and the useful arts
• Not a natural right • Limited, statutory monopoly• Exclusive rights• Exemptions for users <fair use, making
copies, classroom use, etc.>• Public domain
Exclusive Rights
• Right to reproduce copies• Right to distribute copies• Right to display a copy publicly• Right to perform a copy publicly• Right to create a derivative work
based on the original
Fair Use
• Copyright can be infringed because strict application of the law is unfair and stifles creativity.
• Fair Use is based on years of judicial decisions (case law).
• Fair Use is codified in Section 107 of the copyright law.
• Fair Use is a defense in an infringement case, but it is also a user right.
Fair Use • You don’t have to pay a fee or ask
permission if your use is a fair use.• Fair use cannot be quantified or “set in
stone.”• “Fair Use Guidelines” are not part of
Section 107. • Fair use is supposed to be
“technologically neutral.”• Fair use is an unauthorized, but lawful,
use of a copyright. (The DMCA complicates this fundamental tenet).
First Sale (Section 109)
• Limitation on the right to distribute a work.
• Once one lawfully acquires a copy of a work, one can distribute that copy.– Loan– Rental– Sale
• “Digital first sale” is not explicitly noted in Section 109. Reproduction right is also implicated.
A Word about Licensing…
• Licenses are governed by state contract law, not federal copyright law.
• “Copyright language” is often included in a contract.
• It’s unclear whether federal law “trumps” state law.
• Most electronic resources are licensed, and not owned.
Copyright Protection Broadened
• “Automatic” copyright• Copyright term extended 11 times in last
40 years• Digital Millennium Copyright Act
– online service provider liability (institutions as copyright enforcers)
– copyright management systems eliminate fair use in digital world
– criminal and civil liability
• Guilty until proven innocent
Other Control Mechanisms• Rise of licensing and push for automatic,
non-negotiated contracts• Digital rights management enforce license
terms and restrict use of copyrighted works• Attempts to legalize private hacking • Cease and desist letters, threats of
litigation• Attempts to pass database legislation • Attempts to mandate technology
(broadcast flag, INDUCE Act)
The Digital Millennium Copyright Act of 1998
• Attempts to deal with copyright and digital works
• Lots of litigation, lots of proposed legislation to “fix” the DMCA
• Some believe there should new, separate legislation for the protection of digital materials
• Messy; we know most digital works are licensed
• Should federal legislation help protect fundamental user rights to info in a licensed world?
Online Service Provider Liability
• Protects OSPs from third party liability• OSPs must comply with copyright
holder demands to get the exemption• Like “cease and desist,” now in
statutory language• Used effectively to direct the
copyright policy of higher educational institutions
Copyright Protection and Management Systems
• Anti-circumvention of technological measures• Cannot break an access control measure without
authorization• Cannot use an circumvention tool to gain access• Cannot create a circumvention tool to gain access
or copy• Civil and criminal penalties (educational
institutions, libraries exempt from criminal penalties, potential remission of statutory damages)
• Can one exercise fair use in this environment?
Web Sites, E-Mail, Blogs
• Must assume copyright-protected• Provide copyright notice
information where appropriate• “Open” nature of Web, “implied
license” status of posted materials• Creation of compilations• More peer-created works
Peer-to-peer Controversy
• Legitimate concerns, over-zealous response
• Technology not inherently evil• Threat to innovation• Unintended consequences• “Betamax” court ruling under fire• Looks like a consumer issue, but has
broader public policy implications
What About You?
• Creating bibliographies, path finders
• Building databases• Marketing your library and using
copyrighted works?• Work-for-hire concerns• Your idea here….
Contact Me
Carrie Russell, Copyright Specialist
202.628.8421Buy the Book!
Complete Copyright: An Everyday Guide for Librarians
