US Copyright laws: a librarian's perspective

[AAllan at AOL.COM]

>From the National Humanities Alliance, an association in Washington that
advocates support for the humanities and that ADS belongs to, comes this
report on developments in US copyright law. It's not directly related to our
discussions of language, but it is related to the research we do. - Allan
Metcalf

----------------------------

The Practical Realities of the New Copyright Laws: A Librarian's Perspective


Presented at the Modern Language Association Conference in New York
City on December 28, 2002 by

Duane Webster
ARL Executive Director


1.  Introduction

I am pleased to have this opportunity to engage in this dialogue
concerning the changes taking place in the system of scholarly
communication.

Librarians are often in the crossfire between publishers seeking more
control over their digital information resources and users seeking
easy, convenient, transparent access to needed information resources.

Frankly, academic research libraries are laboring to meet the
challenge of moving to the new publishing models and providing
robust, affordable electronic information services.

We face a bewildering array of legal changes and technological
innovations.  In effect, both the recipe and the ingredients in the
new smorgasbord of electronic information access are changing.

This combination of changing ingredients and recipe include:
extensive new copyright laws; new business models based on licenses
and leasing of information rather than owning of information; and the
introduction of technological controls over the use of these
electronic information resources.

This combination of factors has radically changed the traditional
landscape of scholarly publishing that has worked relatively well
since the passage of the Copyright Act of 1976.

Let me review the legislation.

In October 1998, Congress passed the Sonny Bono Copyright Term
Extension Act which extended the copyright period of protection by an
additional 20 years, resulting in a significant decline in works
entering the public domain and protecting the narrow financial
interests of the entertainment industry.

That same month, Congress passed the Digital Millennium Copyright Act
which creates rigorous compliance measures, introduces the domination
of technological controls of information over the exercise of fair
use, and through anti-circumvention measures generally threatens
basic copyright exceptions such as first sale, fair use, and
preservation.

And this year, Congress passed the Technology, Education, and
Copyright Harmonization Act (TEACH) which extends important fair-use
provisions into the distance learning arena but at a cost of
additional complexity and compliance requirements.

These laws take copyright principles into the digital information age
and establish complicated rules that most users do not yet fully
appreciate and libraries are scrambling to implement.

To reflect on the practical implications of these developments, I
will draw upon recent testimony provided to the Copyright Office by
an alliance of the five major library associations in the U.S.    The
full testimony is available from the ARL web-site http://www.arl.org/.

I want to start, however, by noting that research libraries have long
been among the nation's largest volume-purchasers of copyrighted
works. This last year, for example, ARL members in the aggregate
spent almost one billion dollars on information resources.  16% of
those expenditures went for electronic resources up from 5% just five
years ago.

Libraries and their staffs are also diligent law abiders.  Most of us
come from the generation that tries to understand and adhere to the
balance that the Constitution and copyright law have struck between
the rights of copyright owners and users.

I am not so sure that the younger generation is as willing to work
through this increasingly complex legal environment.  We may well be
heading toward a period when copyright laws are so complex that they
will be overlooked or simplified by these confused users.

I also want to note for you that libraries have invested considerable
time and effort in working on these legal issues with the scholarly
community, including the Modern Language Association.  One example of
these joint efforts is our work with the National Humanities Alliance.

2.  The NHA Principles on Use of Electronic Information

Five years ago, the National Humanities Alliance (NHA) adopted a
statement of "Basic Principles for Managing Intellectual Property in
the Digital Environment."    The statement was updated and simplified
this last year and is available as a handout today and on the NHA
web-site: http://www.nhalliance.org/ip/ip_principles.html.

This statement frames many of the issues I am addressing today:
assuring a balance of competing interests, ease of compliance, robust
public domain, and ready access to needed information resources.

Since the educational community encompasses such a wide range of
institutions and individuals who are creators, owners, and users of
intellectual property, there is a need for the educational community
to come to understand and advocate on these issues.  A recent article
in the Chronicle of Higher Education entitled:  "Copyright as Cudgel"
underscores the importance of faculty understanding what is at stake
in the move to the electronic environment.

Today, I will briefly examine five concerns librarians are struggling
with as we move into the digital environment: 1) availability of
digital works, 2) electronic interlibrary borrowing and lending, 3)
meeting our preservation responsibilities, 4) assuring the privacy of
our users, and 5) availability of a robust public domain.

3.  Availability of digital works

At the center of our concern with the new copyright laws and business
models that emphasize licenses is the impact these developments have
on the ready availability of digital works.

In the past decade, electronic distribution has grown into a dominant
method for publishing many kinds of copyrighted works.

The DMCA anti-circumvention and access rules encourage publishers to
distribute digital works by providing greater assurance to copyright
owners that those who abuse access barriers will be subject to severe
penalties.  This assurance comes in the form of technological
measures that control access to the information.

But, these technological measures, augmented by the threat of
criminal sanctions for circumventing those measures, permit
publishers to control uses in new and unprecedented ways.

Routine library practices permitted under copyright law, such as
interlibrary borrowing, lending for classroom or at-home use by
patrons, archiving, preservation, and duplication for fair use
purposes, have all been restricted, in some cases severely restricted
and in other instances barred by licensing agreements.

Digital publishers now have the ability to manage the kind of
day-to-day operational decisions that were previously within the
discretion of libraries.

Previously, as owner of a particular copy of a book, a library was
entitled to set the terms of patron access to that copy.  In the new
world of libraries as licensee of a digital work subject to
technological measures, the library may be denied such right.

Publishers can now block a lawful licensee's access to digital
content by activating a control device embedded into the code.

These access controls combined with anti-circumvention technologies
impose unprecedented limits on a library's ability to lend and make
fair use of lawfully acquired digital works.

The law also established unprecedented accountability for a library
or a university providing the network from which a user gains access
to digital works.

Mindful of the accountability imposed by these technologies,
libraries are asked to comply with licensing terms that effectively
restrict the time, place, and duration of private intellectual
engagement.

Moreover, one patron's misuse may be used as the pretense for
foreclosing access not just to the offending individual but to all
authorized users.  For example, one university recently had several
services turned off by the vendor because of "unusual patterns of
use" such as excessive searches and downloads by one individual.

The DMCA and its legislative history indicate that the prohibitions
on unauthorized access in the law were not to affect other rights,
remedies and limitations in the 1976 Copyright Act.   Presumably,
fair use, first sale, and library exceptions are protected.

However, any exercise of these rights is uncertain if the
technological measures used to control access also prevent use of the
underlying works in ways that have traditionally been permitted under
the first sale, fair use and library exceptions.

In light of the accountability and criminal penalties imposed by the
new laws, many individual librarians are understandably reluctant to
make the fair use judgment calls that previously were standard
management decisions or to expose patrons to the new sanctions.

Where uncertainty about permissible use exists, liability concerns
may lead librarians to forego uses that are actually permitted under
the copyright law.



4.  Interlibrary lending concerns

A specific aspect of our concern with the availability of digital
works is related to interlibrary borrowing and loan practices of
libraries.

Because information resources are costly and library budgets are
limited, few libraries can afford to acquire access to all the works
that are likely to be sought by patrons.  Interlibrary borrowing has
traditionally enabled libraries to supplement from each other's
collections on behalf of patrons seeking access to material that is
unavailable in the patron's local library.

Let me emphasize, interlibrary borrowing is not a substitute for
purchasing frequently needed material.  It is used to obtain material
infrequently requested by users.

Unlike printed books or journals, however, digital products are
generally made available via license agreements and these licenses
often prohibit making the information available through interlibrary
loan.  On many occasions print copies may substitute but often there
is no print equivalent.

Librarians around the country have provided detailed commentary on
the loss of this lending right:

    * "Most licenses do not cover inter-library loan privileges, and
must be negotiated. While we are able to ILL anything from our print
collection, publishers are reluctant to extend that provision to
electronic material."

* "The mish-mash of licensing terms has simply made inter-library
loan of digital materials impractical for us to provide to the
detriment of users around the globe with whom we otherwise share
scholarly material."


Interlibrary lending is a vital aspect of our educational system.
Acquired digital works should have the same status as their print and
analog companions when it comes to interlibrary loans.

5.  Preservation Concerns

I will now turn to our concerns with preservation of digital works.
The DMCA provides the most significant updating of library and
archival preservation rules since procedures to cope with photocopy
machines were established in 1976. The changes permit preservation
and storage of a copyrighted work in a digitized format.

There are important questions over whether the anti-circumvention
provisions of the DMCA may prevent libraries from working with
specific resources such as early PC software.

Much of this software is about to decay and it is not clear we are
allowed to circumvent technical protection measures to save it.
The DMCA may prevent libraries from saving some of the most creative
works of the 20th century from being lost.

In addition, as libraries obtain more electronic products under
license rather than purchase, they are losing control over archiving
and preservation.  This is because many licenses prohibit copying
digital works for archival or any other purpose, and because the
prohibitions on copying are enforced by technological measures.

 From the Libraries' perspective, works that exist only on content
providers' servers may be subject to corruption, sabotage, subsequent
alteration and selective preservation.  There are no firm statistics
on losses because the transition to digital publishing is still in
the relatively early stages.   Furthermore, it is entirely likely
that publishers will be reluctant to invest in archiving older works
that are no longer marketable on a large commercial scale.

Libraries have also expressed concern that they will lose access to
digital works in the event that publishers merge, cease operations,
or decide not to convert existing works into new formats as
technology evolves.

Libraries have been the persistent guardians of America's and much of
the world's literary heritage, but in the electronic environment they
are finding themselves increasingly at the mercy of publishers'
willingness to allow archiving and preservation.

6.  Privacy Concerns

Librarians also have significant concerns about the potential loss of
privacy that often accompanies use of digital resources.  This is a
critical issue since digital resources are often delivered over the
net from the publisher's server.

Despite Congressional efforts to protect privacy in the DMCA, Digital
Rights Management Systems ("DRM") technologies such as "digital
watermarks," "digital signatures," and "digital object identifiers"
give content owners an unprecedented ability to track ongoing use of
digital works.

These technologies allow publishers to monitor who is looking at a
work and exactly what the users are doing with it.

While the exact nature and extent of the detrimental effects remain
unclear at this time, there is a need for a full understanding of the
interaction between DRM and patron privacy.

The way these technologies are implemented may discourage use of a
library's digital resources for research in areas where anonymous
inquiry and the absence of a digital trail are critical. Of course,
this chill can affect not only scholarly researchers, but more
broadly faculty, students and the general public.

I should also mention another related piece of legislation, the USA
Patriot Act.  Like the copyright laws it is an extensive and complex
piece of legislation. Three specific areas that librarians are
concerned about are: 1) the expanded circumstances under which
surveillance and physical searches can be conducted, 2) the more
liberal definition of which records can be obtained from libraries,
and 3) the use of roving wiretaps and e-mail tracing.

America's libraries have always protected the right of patrons to
enter the library's facilities, access works lawfully owned by the
library, and use those works, often anonymously, as allowed by
copyright laws.  Any potential threat to this right will be
vigorously resisted.



7.  The threat to the public domain

Let me now turn to another concern - the threat of new laws to
limiting the growth and utility of the public domain.

Moving in tandem to the DMCA legislation was another copyright reform
bill-term extension. The nation's first copyright law, passed in
1790, gave creators copyright protection for a term of 14 years with
the possibility of a 14-year renewal. Congress has extended the term
of copyright protection 11 times over the last 40 years.  These
repeated extensions create, in practice, an unlimited term of
copyright protection.

The most recent copyright term law passed in October 1998,
retrospectively extends copyright protection of existing works by 20
years.   The copyright term is now the author's life plus 70 years.

The library community argues that the overwhelming majority of
copyrighted works are neither commercially exploited nor readily
accessible in the marketplace after several decades, much less 70
years after an author's death.

Yet, for researchers and scholars, access to such works from the
library's collection are important and no limitation should be made
on such noncommercial uses.

The new term extension law delays by decades the entry of substantial
numbers of works into the public domain.

This diminishment of the public domain has a profound and negative
effect on librarians and other scholars by prohibiting the
republication and dissemination of older works that have no
commercial value, yet are of strong interest to the scholarly
community.

On October 9th, four years after Congress passed the Term Extension
Act, the U.S. Supreme Court agreed to hear arguments in a challenge
to the Act's constitutionality.  The U.S. Supreme Court is expected
to issue its decision some time during the spring of 2003.

While the debate accompanying the Supreme Court's consideration of
this Act is encouraging, the library community is not optimistic
about the outcome of this process.  Ultimately, we believe, scholars
will need to find ways to build a "creative commons" that assures the
ready availability of their work to the educational and research
community.

8.  Closure

We are in the midst of a time where there is an accelerating
availability of digital formats.  Public policy has focused on
encouraging commercial interests to move to this electronic
environment.

The practical realities of the new copyright laws and their impact on
the traditional practices of fair use, first sale, personal use of
one's own materials, and preservation/access of electronic resources
is of great concern.

Librarians, faculty, and students are finding it difficult to
understand and implement the recent array of copyright laws with the
potential of widespread confusion and inconsistent application.
Under these new laws, usage for instructional resources that have
traditionally been readily available to teachers and students is more
restricted. Furthermore, the systems for compliance with these laws
are cumbersome, expensive, and slow.

The public domain, a rich resource for digital material in course
delivery, is severely reduced and is threatened with further
restrictions.  Contractual licenses are supplanting copyright laws
with content owners mandating more restrictions on who uses resources
and how these resources may be used.

The end result of all of these changes is a more complicated and
restricted environment for the teacher, the student, and the
librarian.

There is, however, opportunity for change and improvement.  The
Copyright Office must by law review every three years the impact of
1201 (the anti circumvention provision) is having and the ability of
the public to make fair use of works protected by technological
measures.

The recently enacted TEACH act holds promise for addressing some of
the difficulties caused by the DMCA in the distance education arena.

Congressman Rick Boucher, a Virginia Democrat, has introduced
legislation that would temper the more draconian aspects of the DMCA.
The Digital Media Consumers' Rights Act (H.R. 5544) would amend
Section 1201 of the DMCA to prohibit the circumvention of a
technological protection measure only when the purpose is to infringe
on the copyright of the work.  An act of circumvention for fair use
purposes would be lawful.

Most importantly, many in the faculty are becoming aware of the
increased restrictions and complexity these new copyright laws and
publisher's business models mandate.

Faculty advocacy on these issues could lead to improvements in
legislation, pressure publishers to modify their business practices,
and encourage authors to negotiate with publishers to retain some
control of their intellectual resources.

We hope the scholarly community finds ways to positively influence
the movement to digital publishing so that educational uses are
recognized as legitimate and beneficial for society.



12/27/02
dew

revised for distribution to NHA members
1/3/03