ERIC Identifier: ED456862
Publication Date: 2001-10-00
Author: Russell, Carrie
Source: ERIC Clearinghouse on Information and Technology Syracuse NY.
Libraries in Today's Digital Age: The Copyright Controversy. ERIC Digest.
Libraries are public institutions committed to equitable access and the free flow of information to meet the needs of the public. For libraries, copyright law - through its incentive model, a rich and robust public domain, fair use, and library and user exemptions-aids in ensuring that information is both created and made accessible. While digital technologies and an ever- expanding communication network infrastructure have enhanced creation and wide distribution of information to the public, these same technologies can be used to control or restrict public access to information.
The purpose of the copyright law is to advance the progress of science and the useful arts to benefit the public. It does this by awarding to creators a set of exclusive rights - a limited, statutory monopoly over reproduction, distribution, display, performance, and adaptation of the created work-in order to provide creators an economic incentive to create. The law also sets aside numerous exceptions to creators' right to ensure that users of copyright materials can read and lawfully use the materials in other ways.
In recent years, a copyright legislative battle has ensued between copyright holders (primarily represented by the publishing, entertainment, and software business industries) and those who wish to use or have access to copyright materials (primarily represented by library, educational, and public interest communities). Copyright holders argue that they will not make their copyrighted works available to the public in digital formats unless the law is revised to prevent piracy and protect the marketplace for intellectual property by controlling access and use. Libraries argue that users rights to information should be upheld regardless of technological innovation and digital formats. The big question: Can copyright law continue to balance the interests of both copyright holders and users in the digital environment?
In an attempt to update the law to encompass new digital environments and to allay copyright holders' fears of widespread piracy, Congress passed the Digital Millennium Copyright Act of 1998 (DMCA), an amendment to the copyright law that has been the source of much controversy. Interestingly, the DMCA has not sufficiently addressed the digital environment, because digital technologies continue to evolve at a rapid pace. For example, Congress did not anticipate the development and popularity of file sharing technologies, like Napster. At the same time, the DMCA has furthered a trend to erode the "balance" of copyright law by awarding more rights to copyright holders while restricting the rights of public who wish to enjoy the same user rights to digital information resources as were enjoyed in the print environment. Thus, copyright law and its adaptability in the digital environment continues to be fraught with uncertainty. This ERIC Digest will focus on the continuing ambiguities libraries and their users face in dealing with copyright in the digital environment.
Digital copies are easy to create, modify and manipulate, and extremely easy to distribute widely over networks. Therefore, digital copies are more difficult for copyright holders to manage and control. Digital copies are also created by accident. When individuals access the World Wide Web, "incidental copies" are automatically created in the random access memory of their computers, at least temporarily.
In addition, digital copies have a transitory nature. Unlike a book you can Purchase and own, digital copies you may access today, may not be there tomorrow. Thus, for libraries, traditional functions that depend on the ownership and relative permanence of a copy, like library lending, collection development, and preservation have been radically altered by digital technologies.
FIRST SALE, THEN AND NOW
In the print world, the library could loan copies to patrons. During the loan period, the copy was, obviously, unavailable to any other library user. In the digital environment, digital copies can be loaned to users as well, but without the library temporarily losing access to the copy. Copyright holders fear that libraries will greatly reduce their purchases of digital works since they can easily make exact copies (the right of reproduction)-and distribute those copies electronically. The great fear of publishers is that one library will buy an expensive digital work and make unlimited copies for scores of other libraries and library users who wish to avoid purchasing the work themselves.
For libraries, lending material to library users is a core public service. First sale allows libraries to share their lawfully acquired copies with users. Moreover, interlibrary loan is vital to libraries with limited collection development funds. Poorer libraries can borrow copies from bigger libraries to meet user requests. As more materials become available in only digital formats that cannot be loaned, libraries fear that they will be unable to meet the information needs of users. Libraries cannot afford all materials and rely on sharing. New business models for electronic works are being considered and tested. Already, many libraries are purchasing electronic books and pay prices formulated on the number of lending transactions rather than the purchase of one copy of an electronic book.
Unlike a print periodical subscription, however, where the library retains ownership of the periodicals once they are paid for (hence, the long runs of Time magazine in so many libraries), libraries lose all access to the digital materials if the subscription is not paid each year. Thus, a library may have access to a full-text database that covers numerous journals, magazines, and periodicals, but only if the annual fee is maintained. If the license fee is not paid, the library loses access to all of the content, even the earlier content that had been licensed and paid for.
LICENSING VS. COPYRIGHT LAW
Some library associations and consortium have developed licensing guidelines to help libraries work out the best possible license terms. But there is recognition that since the licensor (the vendor or publisher) crafts the initial license terms and generally has more expertise with contracts and negotiations than the licensee, he has a bargaining advantage. In addition, many vendors and publishers are promoting state legislation that would make non-negotiated licenses legally binding agreements. Non-negotiated licenses restrict or eliminate any opportunities for contract bargaining. In sum, since libraries cannot purchase digital materials outright, they must rent the access, and negotiate user terms comparable to the user and library exemptions in the copyright law.
THE PRESERVATION PROBLEM
Should vendors be responsible for preservation? Some vendors do not find that it is their best interest to preserve their older digital holdings, due to space and time constraints and ongoing budget obligations. They may also have constraints placed on them from publishers and authors who still retain copyright but allow vendors to digitally distribute their works, not to store the works indefinitely.
Also, if a vendor goes out of business, the company may not have resources to maintain a digital archive. Furthermore, it is unclear how best to preserve digital materials. If digitally archived, care must be taken to select and update technology that will endure into the future. And, who makes the decision to preserve what materials and when should this be done? For example, should web sites be archived? If so, how can one archive sites that are constantly changing?
TECHNOLOGICAL PROTECTION MEASURES
It is now an infringement of copyright (punishable by a fine and jail time) to access a password protected or encrypted work without the prior authorization of the copyright holder. In other words, publishers and other copyright holders can use technological measures to deny access to the public of published works. This allows copyright holders the option of charging a fee for access. Most importantly, copyright holders can use technology to enforce license terms on the public.
Members of Congress were concerned that this provision might lead to a "pay-per use" environment or unduly restrict fair use. The Fair Use Doctrine is the most wide reaching user exception to the copyright law since it allows that copyright can be infringed under certain circumstances without the prior permission of the copyright holder and without paying a fee. If, according to Chapter 12, users must get permission prior to accessing and using a digital work, fair use is impossible without breaking the law. Congress included a provision in the chapter however, to allow for the technological protection provision to be studied every three years in order to evaluate the negative impacts it has on the exercise of fair use.
A COMMITMENT TO BALANCED COPYRIGHT LAW
American Library Association. Washington Office. Copyright. "The Uniform Computer Information Transaction Act (UCITA)." Available: http://www.ala.org/washoff/ucita.html
Crews, K. (2000). "Copyright essentials for librarians and educators." Chicago: American Library Association Editions.
Hoffman, G. (2001). "Copyright in cyberspace: Questions and answers for librarians." New York: Neal-Schuman Publishers, Inc.
Litman, J. (2001). "Digital copyright." Amherst, NY: Prometheus Books.
Lutzker, A. (1999). "Primer on the digital millennium: What the Digital Millennium Copyright Act and the Copyright Term Extension Act mean for the library community." Available: http://www.ala.org/washoff/primer.html
National Research Council. (2000). "The digital dilemma: Intellectual property in the Information Age." Washington, DC: National Academy Press.
Patterson, L. Ray, and S. Lindberg. (1991). "The nature of copyright: A law of users' rights." Athens: University of Georgia Press.
United States Copyright Act. Available: http://www.law.cornell.edu/uscode/17/