White Paper- A Mixed Bag

By Laura N. Gasaway

I n early September the long-awaited White Paper on Intellectual Prop- erty in the National Information

Infrastructure was released by the Task Group on Intellectual Property. Offi- cially titled Intellectual Property and the National Information Infrastruc- ture: The Report of the Working Group on Intellectual Property Rights, it is based on the draft report, com- monly referred to as the Green Paper. The final report, the White Paper, makes a number of important recom- mendations for amendments to the copyright law. It also contains lengthy discussions about a variety of copyright issues in the digital environment about which no recommendations are made.

The White Paper is the product of the Clinton Administration and re- flects its interest in the National Infor- mation Infrastructure (Nil). Secretary of Commerce Ronald Brown chairs the Information Infrastructure Task Force which was appointed to "articulate and implement the Administration's vision for the NII." The Working Group on Intellectual Property Rights is one of several teams formed to deal with spe- cific issues affecting the NII. Chaired by Bruce Lehman, Commission of the Patent and Trademarks, the Working Group's charge was to discuss current copyright laws and their application to the Nil and to recommend amend- ments to the law only when absolutely essential for updating and conforming U.S. law to the needs of the global in- formation society. The Working Group drew upon the experience and knowl- edge of various participating federal

agencies, held public hearings and so- licited written comments from indi- viduals and organizations. Following the issuance of the Green Paper in July 1994, further opportunities for public comment were provided including four days of public hearings, written comments were submitted by more than 150 individuals and organizations.

T he report is written from a com- mercial perspective (not surprising

for a document that originated in the Department of Commerce) and the rights of copyright holders appear to take precedence over the public's in- terest. The report finds than an effec- tive intellectual property regime must ensure user access to the broadest variety of works while recognizing the legitimate rights and commercial expec- tations of copyright holders. Clearly, before commercial publishers and producers will make their copyrighted works available via the Internet, they must be assured that the works will be protected. The paper takes the position that protection of the copyright owners is the basis of copyright law. Thus, the entire focus of the report is to facilitate intellectual property rights in the NII. Library associations and librarians gen- erally believe that the copyright law is

Laura Gasaway is Director o f the Law Library and Professor o f Law at the University o f North Carolina, Chapd Hill, North Carolina.

grounded in the Constitution which provides that copyright is designed to promote learning; in turn, this supports the notion that wide dissemination of works should be facilitated by the copy- right laws which the Constitution em- powers Congress to enact. This impor- tant philosophical difference is evident throughout the report.

The White Paper characterizes the proposed amendments as minor, but if enacted, their impact on the library community may be major. The direct amendments affecting libraries are quite positive, but mention of the public's interest in copyright is missing. The Green Paper contained important statements concerning preservation of fair use in the electronic environment. For example, "The Copyright Act exists to benefit the public," and "Public li- braries and schools, and the access to information they provide, have been important safeguards against this na- tion becoming a nation of information 'haves' and 'have nots.' " Unfortunately, these statements disappeared in the White Paper. Although such acknowl- edgments of the public's interest may not have been central to the proposed legislative changes, they framed the recommendations in a much more bal- anced fashion. It is disappointing that assurances - - such as holding the right to browse online equivalent to the right to browse off-line - - were dropped in the final report. While the Green Paper was not a completely balanced docu- ment, the omission of these statements from the White Paper makes it one- sided indeed.

This column is sponsored by the AECT Copyright Committee and is coordinated by Hope R. Botterbusch, Chairperson. The ar- ticles are designed to address the questions and concerns of our members regarding copyright issues in education and training-- questions and suggestions for topics to be discussed in further issues are welcome. You may write to the Copyright Committee through the AECT Headquarters Office in Washington, D.C.

6 TECHTRENDS NOVEMBER/DECEMBER 1995

Educational Uses of Copyrighted Works

While the document contains some discussion of educational uses of copy- righted works and the limitations on the copyright holder's exclusive rights for nonprofit educational uses, it is noticeably silent on important issues concerning education and training to- day. The performance and display of copyrighted works in face-to-face teaching found in .%110(1) of the Act is recounted along with the very nar- row exemption for educational broad- casting which permits the performance of only nondramatic literary and musi- cal works and the display of any work for educational broadcasting found in .%110(2). it is puzzling why a report that focuses on copyrighted works and uses of these works in the digital envi- ronment contains no substantive dis- cussion of the use of digital works for distance learning. This oversight is of considerable concern since most col- leges and universities view distance learning as the growth area for educa- tion in the future.

Additionally, there is no discussion of the creation of multimedia works by faculty for use in teaching, and by stu- dents as class projects. While commer- cial publishers will produce multime- dia works for the education market, they cannot possibly meet all faculty needs for multimedia works in their courses. As the technology continues to facilitate the development of multi- media works for classroom use, faculty members will want to take advantage of the technology and create their own multimedia works to improve students' learning and their own teaching. Re- producing portions of existing copy- righted works for inclusion in multi- media teaching materials is problematic under current law. As works are in- creasingly available in electronic format only, Faculty and students will want to include portions of these works in multimedia. The White Paper should have addressed this important issue if education is indeed a national priority. Further, it should have indicated that fair use of copyrighted works includes incorporating portions of traditional and digital works in multimedia works for use in the classroom by individual faculty and students. Rather, the paper refers to ongoing attempts to develop

vohmtary guidelines b on Fair Use.

There is no broad public's interest in wk and use of copyrightet tion. In fact, the only est statement appears sion on libraries. "There is an important public intcrest in exempting certain library uses of copyrighted works and that public interest is no less important - - and, indeed may be more important - - when such use in- volves digital technology." The report goes on to say, however, that there is an equally important interest in recog- nizing that copyright owners have le- gitimate interests in licensing their works.

Library Uses of Copyrighted Works Tile White Paper recognizes that librar- ies have fair use rights in addition to the exemptions provided in .% 108. The paper recommends that the library exemption be expanded by interpreta- tion to permit digital as well as analog reproduction under the conditions specified in .% 108. Additionally, libraries have Fair use rights. The legislative changes that the White Paper proposes regarding library uses of copyrighted works are very helpful. For example, the proposed amendment to .% 108(a) expands the number of copies a library may make from one to three, but only one copy may be used at a time while the other is archived. Amendments to .% 108(b)-(c) would permit libraries to take advantage of scanning technology for creating digital copies as well as the currently permitted facsimile copies, of unpublished works for preservation purposes. Further, after making a reasonable effort to determine whether an unused copy of a work is available at a fair price to replace a lost, damaged, stolen, or deteriorating work, a library would be permitted to make digital copies of the work as a replacement

A minor but important amend- ment would remove the requirement that libraries must include notice of copyright on copies it reproduces (un- der .%108) if the original work does not include a notice of copyright. When the United States joined the Berne Convention at the end of 1988, the requirement that copyright holders in- clude notice of copyright on their works was eliminated. Libraries how-

p rovicl*e' st~ch. The White Paper also contains dis-

cussion about interlibrary loans and the existing C O N T U (National Com- mission on the New Technological Uses of Copyrighted Works) Interlibrary Loan Guidelines but recommends no statutory change to .% 108(g)(2). The report indicates that libraries should be able to make digital copies of works for interlibrary loan and not be bound by current reproduction technology. It goes on to state that licensing agreements could restrict a library's ability to loan digital works through interlibrary lending. This is true today, however, and not just for digital works. Through a valid license agreement, a publisher may restrict use of its works to the purchasing library. This has not been done frequently with printed works, but often is done for audiovisual works. Thus, the major acknowledgment is that libraries be able to make digital copies of work.

Reproductions for the Visually Impaired Another important statutory recom- mendation affecting education would permit nonprofit organizations to re- produce and distribute to visually im- paired individuals Braille, large type, audio, or other editions of previously published literary works. Before an organization can take advantage of this proposed exemption two requirements must be met: (1) the copyright owner has not entered the market for such editions during the first year following the initial publication of the work, and (2) the edition designed to assist the visually impaired must be distributed at cost. The proposal recognizes that the NII will present a variety of new solutions for the visually impaired and that nonprofit organizations should be permitted to assist the visually im- paired in preparing such works for nonprofit distribution of works.

Transmissions as Displays The White Paper makes it clear that transmissions of a digital work consti-

NOVEMBER/DECEMBER 1995 TECHTRENDS 7

that such transmissions currently con- stitute a display of the work, it is not absolutely certain. The report recom- mends that the statutory definition of "transmission" in c}101 be amended to include the following wording: "To transmit a reproduction is to distribute it by any device or process whereby a copy or phonorecord of the work is fixed beyond the place from which it was sent."

First Sale Doctrine The first sale doctrine embodied in

109(a) of the Copyright Act provides that the owner of a copy of a copy- righted work is free to dispose of that particular copy without the payment of further royalties to the copyright owner. Whether it is possible to dis- pose of a copy of a digital work that is transmitted was questioned in the White Paper. Although no amendment to the law was proposed concerning the first sale doctrine, the discussion section takes the position that it is not possible to exercise the first sale doc- trine with respect to distributions by transmissions. Library associations and others who submitted testimony after the release of the Green Paper objected to this position, believing that it is pos- sible for the owner of a digital copy of a work to transmit the work and to de- lete the original copy. The White Paper focuses on the fact that the owner of the digital copy does not dispose of the possession of that particular copy be- cause, in order to transmit the work, the work must be reproduced.

Liability for Online Services Operators The Working Group declined to rec- ommend reduced liability for copyright infringement for operators of online systems (BBS operators). Recent litigation has indicated that these sys- tems operators may be liable for a sub- scriber who uses the system for libel or to copy software or other copyrighted work. The White Paper discusses whether a statutory recommendation on this subject is warranted, but con- cludes by taking no position on BBS

In fact, the report o early to consider nendation for reduced _~here has been too :o date to make any

s relationship" that exists between the online system op- erator and the user is stressed by the report. The fact that online systems operated by educational institutions and libraries are unlikely to have any type of business relationship, and that the systems operated by nonprofit enti- ties are for nonprofit purposes, might be used as justification to exclude them from any liability even without a specific statutory exemption.

Devices that Circumvent Copyright Management Systems O f considerable concern to many tech- nology advocates is the proposed amendment to the Act to add criminal provisions for the development of de- vices or products which have as their primary purpose defeat of technological methods for preventing unauthorized use of copyrighted works. This provision would prohibit the "importa- tion, manufacture or distribution of any device, product or component in- corporated into a device or product, the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent..." any system of copyright management that pre- vents the violation of the owner's ex- clusive rights. This is very much akin to the recommendations made in the early days of videorecorders to prohibit their manufacture and sale in order to prevent their use for copyright in- fringement. The U.S. Supreme Court found that VCRs were also capable of non-infringing use and therefore there was no contributory infringement. The question remains whether the require- ment that such devices have as their "primary purpose" infringing use creates a similar possibility for non- infringing uses as in Sony Corporation o f America v. Universal Studios (1984)?

T he proposed statutory amend- ments contained in the White

Paper will soon be introduced in Con- gress. Education and library associa- tions must make their voices heard on these important issues if the public's important rights are to be preserved in the digital world. •

STATEMENT OF OWNERSHIP, MANAGEMENT AND CIRCULATION (Required by 39 U.S.C. 3685)

1A. Title of Publication: 7~chTrends - - l~br Leaders in Education and Training. 1B. Publication No. 87563894. 2. Date of Filing: October 1, 1995.3. Frequency of Issue: 6 times per year. 3A. No. of Issues Published Annually: six. 3B. Annual Sub- scription Price: $40.4. Mailing Address of Known Office of Publication: 1025 Vermont Avenue, NW, Suite 820, Wash- ington, DC 20005. 5. Mailing address of headquarters or general business office of publisher: same as above. 6. Names and Mailing Address of Publisher, Editor, and Managing Editor: Publisher-Stanley D. Zenor, 1025 Vermont Avenue, NW, Suite 820, Washington, DC 20005. Editor- Mary M. Twillman, 1025 Vermont Av- enue, NW, Suite 820, Washington, DC 20005. 7. Owner: Association for Edu- cational Cmnmunications & Technology, 1025 Vermont Avenuc, NW, Suite 820, Washington, DC 20005. 8. No bond holders, mortgagees, or other security holders owning or holding one percent or more of total amount of bonds, mort- gages, or other securities. 9. The purpose, function, and nonprofit status of this or- ganization and the exempt status for fed- eral income tax purposes has not changed during the preceding 12 months. 10. Ex- tent and nature of circulation. Average number of copies each issue during the preceding 12 months: A. Total number of copies, 6,567; B. 1. Sales through deal- ers and carries, street vendors, and counter sales, 0; B.2. Mail subscriptions, 6,184; C. Total paid and/or requested circulation, 6,184; E Free distribution by mail, car- rier, or other means, samples, complimen- tary, and other free copies, 132; G. Total distribution, 6316; H. Copies not distrib- uted: H.1. office use, left over, unac- counted, spoiled after printing, 251; H.2. return from news agents, 0; 1. Total, 6,567. Actual number of copies of single issue published nearest to filing date: A. Total number of copies, 6,200; B. Paid circulation: B. 1. Sales through dealers and carriers, street vendors, and counter sales, 0; B.2. Mail subscription paid and/or re- quested, 6,079; C. Total paid circulation, 6,079. E Free distribution by mail, car- rier or other means, samples, complimen- tary, and other free copies, 90; G. Total distribution, 6,169; H. Copies not dis- tributed: H.1. Office use, left over, unac- counted, spoiled after printing, 31; H.2. Return fi'om news agents, 0; G. Total, 6,200. 11. I certify that the statements made by me above are correct and com- plete. Mary M. Twillman, Editor.

8 TECHTRENDS NOVEMBER/DECEMBER 1995