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.
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.
In the networked digital world, the basic
principles of copyright are more difficult to apply. Copyright law was drafted
with print format model in mind. At its heart, the law has always been based on
the notion of the "copy." One of the exclusive rights of copyright is the right
of reproduction, or the right to make a copy. Before digital technology, a copy
was a tangible, physical object that previously was difficult, labor intensive
or too costly to reproduce. Photocopy machines and videocassette recorders made
it easier to make copies, but digital technologies go even further.
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
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
FIRST SALE, THEN AND NOW
Once a library or an individual
has lawfully acquired a copy of a work, the first sale doctrine of the copyright
law (17 U.S.C. Section 109) allows that the library or individual may exercise
another exclusive right of copyright - the right to distribute the copy -
without the permission of the copyright holder. First sale enables libraries to
loan books or conduct interlibrary loan without committing copyright
infringement. Does the first sale exception transfer to the digital environment?
Currently, the answer is no.
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.
Libraries have had to shift their
understanding of collection development from an ownership model to an access
model. Generally, libraries cannot "purchase to own" materials that are only
available in digital formats. Instead, libraries "rent to access" digital
materials. This requires an ongoing subscription fee (much like a periodical
subscription fee) from the library to license the materials from vendors and
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
Licenses are private contracts
between two parties and are written to define what the library can or cannot do
with licensed materials. Once a license agreement is signed, the agreement takes
precedence over any rights libraries or users may enjoy under the federal
copyright law. Great care is taken by libraries to negotiate license terms that
are in the best interests of their library users, but better terms frequently
mean higher subscription fees. Some fees are too expensive for libraries so they
may settle for license terms that restrict access, lending and fair use
activities, like printing an article from a full-text database for personal use.
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
THE PRESERVATION PROBLEM
Historically, libraries have
preserved materials for the use of current and Future generations. Copyright
law, in fact, allows libraries to make copies of print and digital materials
specifically for preservation purposes. A major question is "who is responsible
for the preservation of "digital only" materials?" Libraries that license
digital materials may not have the contractual right to preserve materials.
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
TECHNOLOGICAL PROTECTION MEASURES
those industries that hold the rights to scores of Copyrighted works, like the
motion picture and recording industries and the publishing community, parlayed a
major victory in the Digital Millennium Copyright Act with the inclusion of a
new chapter to copyright law, called Copyright Protection and Management Systems
(17 U.S.C. Chapter 12). Many library associations, legal scholars, and public
interest groups believe this chapter expands the rights of copyright holders to
the detriment of the public.
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
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
committed to a balanced copyright law because without it, copyright cannot meet
its primary objective, "to advance the progress of Science and the useful arts" for the benefit of the public. Knowledge and discovery are dependent on access
to information, and equitable access can only be achieved when independent of
the ability to pay. Libraries pay for information to share with their
communities. As more information becomes available in only digital formats, it
is important that the public can enjoy the same information rights they
exercised with print formats.
American Association of Law Libraries, et al.
(1997). "Principles for Licensing electronic resources." Available:
American Library Association. Washington Office. Copyright. "The Uniform
Computer Information Transaction Act (UCITA)." Available:
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%20
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/%20%20%20