ERIC Identifier: ED381177
Publication Date: 1995-04-00
Author: Bruwelheide, Janis H.
Source: ERIC Clearinghouse
on Information and Technology Syracuse NY.
Copyright Issues for the Electronic Age. ERIC Digest.
In the 1990s, the term "digital age" is commonplace. Computers allow us to
translate text and visual information into digital format and give us the
ability to create and share new information seamlessly. This Digest will focus
on a variety of issues confronting copyright law in the digital age.
CURRENT COPYRIGHT LAW
Because information is now so freely
available, particularly in electronic form, does that mean we are free to use
that information in any way we want? Current copyright law was adopted in 1976
and went into effect in 1978. It is difficult to imagine how the authors of the
1976 Copyright Act could have foreseen so many new technologies. However, they
did attempt to cover all of the bases by using language which was intended to be
somewhat elastic in Section 102 (a) of the law:
"Copyright protection subsists...in original works of authorship fixed in any
tangible medium of expression, now known or later developed, from which they can
be perceived, reproduced, or otherwise communicated, either directly or with the
aid of a machine or device."
POSSIBLE LEGISLATIVE CHANGES
A current report by the U.S.
Department of Commerce, commonly referred to as the "green report," has set
forth some preliminary recommendations for dealing with digital information. The
"green report" was published in July, 1994, and hearings were held in the fall
of 1994. A final report, the "white report," expected in May, 1995, may result
in proposed legislative changes to the Copyright Law.
Several areas of special interest to educators are included in the report.
One is the discussion of a definition of multimedia. The report has suggested
that "mixed" or "multiple" media is a more accurate term, and better describes
the variety of rights which need to be acquired. A second area being addressed
is "transmission." An additional right of transmission may be added to the
existing rights of copyright owners. The terms "transmit" and "transmission" may
be added to existing definitions in section 106, rights of copyright owners.
Section 106 (3) might be modified to include distribution "by transmission." The
definition of "transmit" may be expanded to include reproductions of a work as
well as performances and displays. In addition to proposed changes in Section
106, the definition of "publication" may be expanded to include "by
transmission" in addition to physical copies.
Another area needing clarification according to the "green report" is section
108 of the Law which addresses library exemptions. For example, the legal
implications of "browsing" through electronic documents, scanning, uploading,
and document transfer may be of concern to copyright holders. The American
Association of Publishers has issued a strong statement against digitizing
without licensing. Professional organizations such as the American Library
Association and the Association of Research Libraries have taken a strong pro
Until guidelines and clarification are developed for digital information, it
would be prudent to be cautious--especially about digitizing. However, educators
must also realize that there are exemptions provided in the existing law which
should be exercised.
QUESTION & ANSWERS ABOUT EXISTING COPYRIGHT LAW
Q: What is copyright?
A: Copyright is a statutory privilege extended to creators of works fixed in
a tangible medium of expression.
Q: What are the rights of a copyright owner?
A: Copyright involves five separate rights (section 106):
1. The right to reproduce or copy the work;
2. The right to prepare derivative works;
3. The right to distribute copies of the work to the public;
4. In the case of audiovisual works, the right to perform the work publicly;
5. In the case of literary, musical, dramatic and choreographic works,
pantomimes and pictorial, graphic or sculptural works, the right to display the
These exclusive rights may be transferred by the copyright owner as
individual rights or as a "bundle of rights."
Q: What is meant by fair use (section 107)?
A: Four factors are to be considered in determining whether or not a
particular use of a copyrighted work is fair:
1. Purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
2. Nature of the copyrighted work;
3. Amount and substantiality of the portion used in relation to the work as a
4. Effect of the use upon potential market for or value of the work.
Q: What is meant by the "classroom exemption?"
A: This exemption (section 110) refers to performance or display of
copyrighted works in a classroom setting. The language in the law reads:
"...performance or display of a work by instructors
or pupils in the course of face-to-face teaching activities of a
nonprofit educational institution, in a classroom or similar
place devoted to instruction, unless, in the case of a motion
picture or other audiovisual work, the performance, or the
display of individual images, is given by means of a copy that
was not lawfully made...and that the person responsible for
the performance knew or had reason to believe it was not lawfully
made...(is not an infringement)."
Q: Is a work without a copyright notice considered to be in the public
A: No, not if it was published after March 1, 1989. There is a lack of
awareness among educators concerning an important change for copyright notice
which occurred at that time. As of March 1, 1989, placement of a copyright
notice on works became optional when the U.S. joined the Berne Convention.
Placement of notice is certainly recommended; it is very difficult to locate a
copyright owner when the notice is absent. However, just because the notice is
absent, we cannot assume that anything published since March 1, 1989 is in the
public domain unless specifically told so. Now we assume, unless the works are
specifically in the public domain or meet a few other criteria, that a work is
copyrighted when it is fixed in a tangible medium. Of course, this includes
postings on electronic bulletin boards, Internet messages, etc. unless told it
may be reposted.
Q: May a library scan and store its reserve works into a database to
reproduce copies on demand or store them on a network for students to access
A: Not in all cases. If approval is obtained, original works by instructors
such as syllabi, sample tests, etc. could be scanned and stored. However, course
readings could not be stored without permission, licensing, or royalty fees.
Q: May a library circulate computer software to patrons?
A: Yes. However, as of 1990, the following notice must be permanently
attached to the disk or permanent packaging for the software (notice the
"Notice: Warning of Copyright Restrictions--The
copyright law of the United States (Title 17, United States Code)
governs the reproduction, distribution, adaptation, public
performance, and public display of copyrighted material. Under
certain conditions specified in law, nonprofit libraries are
authorized to lend, lease, or rent copies of computer programs to
patrons on a nonprofit basis and for nonprofit purposes. Any
person who makes an unauthorized copy or adaptation of the
computer program, or redistributes the loan copy, or publicly
performs or displays the computer program, except as permitted by
title 17 of the United States code, may be liable for copyright
infringement. This institution reserves the right to refuse to
fulfill a loan request if, in its judgment, fulfillment of the
request would lead to violation of the copyright law."
This notice must be attached by means of a label in permanent fashion to the
disk(s) or the box, reel, cartridge, cassette, or other container used as a
permanent receptacle for the copy of the program. A font size must be used which
is legible, comprehensible, and readily apparent to the user of the program.
An act for the general revision of the
copyright law, Title 17 of the United States code, and for other purposes, (Pub.
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Bruwelheide, J. H. (1995). "The copyright primer for librarians &
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and learning: A technology leadership network special report." Alexandria, VA:
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