Copyright Issues in Special Libraries
by Steve Davidson
 

Table of Contents

Introduction

Historical Background

--England-1st Copyright Law

--United States-Early Copyright Law

--Copyright Act of 1909 and Copyright Act of 1976

--Berne Convention

--Title 17, USC, Section 108

Current Legislation

--Digital Millennium Copyright Act

--Sonny Bono Copyright Term Extension Act

Terms and Concepts

--Fair Use

--Public Domain

--Copyright Duration and Renewal Time Period

--Sonny Bono Copyright Term Extension Act

Creating a Copyright Policy

Resources in Copyright Information and Assistance

Pending Legislation and the Future

Endnotes

Bibliography

Introduction

The Webster's New World Dictionary, 3rd Edition, defines copyright as: "the exclusive right to the publication, production, or
sale of the rights to a literary, dramatic, musical, or artistic work, or to the use of a commercial print or label, granted by law
for a specified period of time to an author, composer, artist, distributer, etc.". It would be virtually impossible for anyone
centuries ago when the printing press was first invented to predict that an extremely complex set of laws would have to be
developed to protect both creators of published works and users of this vast amount of works.

As newer and more productive technology continues to be developed and become more wide spread and accessible, the state
of copyright law and its affects will certainly need to be reviewed, challenged, and ultimately re-created and adjusted to reflect
this new era of technology.

Historical Background

England-1st Copyright Law

England was the first country to legalize creative ownership; in 1710, the English Parliament passed the Statute of Anne, the first
copyright bill. This law did two things: It gave Parliamentary recognition to a royal decree of 1556, and it gave legal recognition
to a work's author as the ultimate holder of copyright. While contemporary copyright laws exist to encourage the creation of
new, original works and encourage their wide public distribution, the 1556 decree had a less noble purpose: repression of the
freedom of religion, in this case, the Protestant Reformation. Censorship, rather than free public dissemination of information
and thought, was the goal. By investing all publishing rights with the Stationers Company, which represented all major English
publisher, the Star Chamber (which controlled the Stationers' Company), hoped to control the flow of information to the
English people.

By 1710 authors and publishers were allies in the fight to retain or gain more control over the use of their creations. It was an
uneasy alliance because the authors were the true creators of the copyrighted works. As the creators, authors thought they
should have a greater share and say in the distribution of their works, and they thought the profits shouldbe more evenly
divided.

Before 1710, all rights resided with the publisher. With the enactment of the Statute of Anne, authors received a 14-year
monopoly on the publication of their works. An additional 14-year monopoly was possible, if the author was still living at the
end of the first term. (1)

United States--Early Copyright Law

The American colonies developed a copyright concept based on the English model. The concept was so much a part of
American legal thought that it became part of the U.S. Constitution, wherein Congress has the power "to promote the Progress
of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Respective
Writings and Discoveries."

Starting in 1790 and ending in 1891, Congress passed legislation granting exclusive rights to American authors and their
representatives, but it refused to grant copyright to nonresidents foreign authors. The original act covered only books, maps,
and charts. In 1831, Congress passed an act extending the copyright term-the new first term was for 28 years, and the second
term remained 14 years. By 1870, copyright also covered fine arts, musical compositions, photographs, "works of fine arts",
translation rights, and the right to dramatize nondramatic works. In 1887, performance rights for plays and musical
compositions received coverage. The Chace Act of 1891 finally granted copyright to nonresident foreign authors, if their work,
published in English, was printed in the United States. (2)

Copyright Act of 1909 and Copyright Act of 1976

This federal statute governed copyrights in the U. S. between 1910 and 1978. Works first published prior to January 1, 1978,
are still covered by the 1909 Act, unless the copyright has expired. The main practical differences between the 1909
Copyright Act and the 1976 Copyright Act (which replaced the 1909 act) are:

-The 1909 Act granted protection only to published works. The 1976 Act extends its protection to both published and
unpublished works.

-Protection under the 1909 Act could be permanently lost if even a single copy was distributed without the proper notice of
copyright. The 1976 Act provided that the absence of a proper notice could be cured under certain circumstances. Moreover,
since March 1989, there is no longer any requirement for a notice.

The Copyright Act of 1976 is a comprehensive federal statute that governs copyright protection for original works of
authorship created after January 1, 1978. Found in Title 17, United States Code, Section 100 and following, the 1976
Copyright Act (as amended from time to time), is the exclusive source of copyright law in the United States for works
published after January 1, 1978. It preempts (replaces) all state laws that affect rights covered by this Act.(3)

Berne Convention

Originally drafted in 1886, the Berne Convention is an international treaty that standardized basic copyright protection among
all of the countries signing it (currently over 100 member countries). For copyright purposes, a member country will afford the
same treatment to an author from another country as it does to authors in its own country. In addition, each member country
has agreed to protect what are called authors moral rights in the work (generally, the right to proclaim or disclaim authorship
and the right to protect the reputation of the work) and to extend copyright protection for at least the life of the author plus 50
years. No notice of copyright or other formality is required for basic copyright protection under the Berne Convention.

Under the General Agreement on Tariffs and Trade (GATT) treaty, enacted into U. S. law in December 1994, all signatories
to GATT must also adhere to the Berne Convention if they don't already do so.(4)

Title 17 United States Code, Section 108. Limitations on exclusive rights: Reproduction by libraries and archives

This code was a part of the Copyright Act of 1976. It provided the library community a limited exception from the exclusive rights of owners dealing with reproduction and distribution of copyrighted works. In order to qualify for an exemption to reproduce a work; three criteria must be met:

--there may be no direct or indirect commercial advantage to the library

--the library must either be open to the public or to researchers doing research in the same or similar field

--the reproduction must contain a notice of copyright. (5)

Current Legislation

Digital Millennium Copyright Act (DCMA)

On October 28, 1999, President Clinton singed the DCMA (Public Law 105-304) into U.S. law. This law made substantial changes to the existing copyright law in several areas that are important to information professionals. This law was the first substantial law involving copyright issues in over 20 years.

In 1993, when the Clinton Administration took office, one of their first goals was to bring a new order to what was developing as the National Information Infrastructure. It established a task force within governmental agencies and prepared an agenda for action. The goal was to define U. S. priorities and action points for domestic and international legal reforms. At the time, the Internet was clearly growing into an international communication medium.

For the following two years, this task force held hearings and finally released what is now called the White Report. This report stressed that U. S. copyright law was substantially fit for handling most important issues in the digital context; however, some work was needed to adjust the copyright laws to this growing technology. Core recommendations included:

--expanding the exclusive rights of copyright owners to include the right of transmission

--updating the library exemption in section 108 to permit making three copies of a work and allowing digital as well as facsimile copies

--creating new prohibitions on devices or services designed to circumvent mechanisms which protect the rights of copyright owners and which affect newly recognized copyright management mechanisms

The resulting hearings over this time period eventually resulted in the passage of DCMA. The DCMA takes copyright principles into the digital information age and establishes rules that many users do not yet understand. There is an impact of the DCMA on the library community. Briefly, some areas within the DCMA that libraries should be prepared for are:

--Technology Protection Measures and Anti-Circumvention:

Anyone accessing a copyrighted work protected by a technological protection measure without the consent of the copyright owner could be found civilly and criminally liable.  Many electronic works are distributed in encrypted form and format (CD, CD-ROM, etc.).  DCMA may ensure that these works come with licenses and with an obligation to pay for each use or access. Libraries should be prepared to review license contracts for acquisition of digital work more closely than ever before and bargain for full access rights. (Note: The formal initiation of the prohibition on accessing works protected by Technology Protection Measures has been stayed for two years. During those two years, the Librarian of Congress, in consultation with the Register of Copyrights and the Assistant Secretary of Commerce for Communications and Information, will conduct a study to determine whether users, including libraries and educational institutions, are, or will likely be affected in their ability to make non-infringing uses of a particular class of copyrighted works.)

--Study of Distance Education in Networked Environments:

Distance Education is the latest major area in which efforts to balance educational interests in a federal law that increasingly emphasizes the commerce of copyright.  Educational markets are at the center of many copyright owners' businesses. Distance Education was not originally a part of the debate involving the DCMA. It did become a topic of discussion because librarians and educational interests raised it. Their point was that it would be inappropriate to expand legal protection for commercial owners of digital works without remedying some of the legitimate concerns of librarians and educators who use copyrighted works and technologies in education.  A provision in the DCMA requires that the Register of Copyrights not later than six months after passage of the DCMA (April 28, 1999) to provide Congress with its recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users of copyrighted works. (6)

Section 108 Library Exemption Update:

The law for this exemption has been outdated for some time and was in need of reform.

Some of the key issues and changes in The DCMA are:

--Allows up to three copies of a covered work to be made. Prior to this change, a library that wanted to preserve a work which was in brittle condition could only make one facsimile copy. Now, a library can make three copies--one strictly for archival purposes, one as a master and a third as a use copy, from which other allowable copies may be made.

--The requirement that limited permissible copying to facsimile only copies has been eliminated. Now, libraries may employ current technology, including digital technology, in the making of copies.

--The DCMA provides that preservation copying, which had been limited to instances where a copy of work has been damaged, deteriorating, lost or stolen and a replacement copy is not available at a fair price, may also be preserved if the copy's format has become obsolete. "Obsolescence" occurs if the machine necessary to read the work is no longer being manufactured or cannot be acquired reasonably in the marketplace. (7)

Sonny Bono Copyright Term Extension Act:

This new term extension act added 20 years to the renewal terms of pre-1978 copyrights making them effective 95 years from first publication, life + 70 years for individual authors and 95 years from publication for corporate authors. Works published in 1922 went into public domain on January 1, 1998, but works published in 1923 that were still protected in 1998 will remain protected until January 1, 2019. The only exception is for very old, previously unpublished works. If such works remain unpublished until 2003, they will fall into the public domain. If they are published prior to 2003, they will remain under copyright until 2047. (8)

Terms and Concepts

Among the many copyright laws, both past and present, there are two terms associated with copyright law that librarians should make themselves knowledgeable and current.  Two terms of special note are "fair use" and "public domain". As both technology and laws change, so to will both of these concepts.

Fair Use

Fair use is a privilege. It permits authors, scholars, researchers, and educators to borrow small portions of a copyrighted work for socially productive purposes without asking permission or paying a fee. Fair use acknowledges that copyright is not an absolute right. The purpose of the fair use doctrine is to avoid rigid application of the copyright laws in ways that might stifle the growth of knowledge, as the growth of knowledge is the ultimate goal of copyright. (9) Certain uses of work protected by copyright do not require permission of the copyright owner when done for essentially noncommercial reasons.  The Copyright Act of 1976, as amended in 1992, authorizes any person to make "fair use" of a published or unpublished copyrighted work--including the making of unauthorized copies--in these contexts:

--in connection with criticism of or comment on the work

--in the course of news reporting

--for teaching purposes

--as part of scholarship or research activity

As a practical matter, fair use is primarily an affirmative defense to a claim of copyright infringement--that is, the defense is that no infringement occurred because the infringing activity was a fair use of the original work.  Whether or not a particular instance of copying without permission qualifies as a fair use is decided on a case-by-case basis and depends on four basic factors:

--the purpose and character of the use, including whether such use is of a commercial nature or for nonprofit, educational purposes

--the nature of the copyrighted work

--the amount and substantiality of the portion used in relation to the copyrighted work as a whole

--the effect of the use upon the potential market for, or value of, the copyrighted work

The fair use exception applies to unpublished as well as published works under a 1992 amendment. The fact that a work is unpublished weighs against a finding of fair use, since an unauthorized use tends to deprive the author of the right to decide when and how the work should be published. (10)

Public Domain

Copyright protection does not last forever--that's why copyright is often called a "limited monopoly." When copyrights grow old and die, the works they protect fall into the public domain. This means that anyone can use the work without obtaining permission from the author or the author's heirs. There are several common reasons why works may be considered to be in the public domain:

--the legal duration for the work's copyright has expired

--the work consists solely of facts or ideas (facts and ideas are not protected by copyright, although the means used to express them may be protected to some extent)

--the work was published before 1978 and lacked a proper copyright notice

--the work was published between 1978 and 1989, the notice on the work was defective and inadequate efforts were made to correct the defects (copyrights by non-U. S. authors covered by the Berne Convention that expire for this reason can be restored under GATT)

--the copyright owner deliberately placed the work in the public domain by making a statement to that effect

--the work was created by the federal government (11)

Copyright Duration and Renewal Time Period

With the passing of DMCA, new duration periods have been added to existing copyright time periods. The following guideline should clarify these copyright duration periods:

Date of Copyright and Copyright Duration:

--Created 1978 or later: Author's life plus another 50 years; no renewal required.

--Joint works created 1978 or later: 50 years after the death of the last surviving author; no renewal required.

--Anonymous works, pseudonymous works, and works for hire, created 1978 or later: 75 years from publication, or 100 years from the year created, whichever comes first.

--Published during 1964-1977: 28 years from date of publication; 47-year renewal term is automatic for a total of 75 years; renewal is optional.

--Published or registered prior to 1964, but less than 75 years ago: 28-year initial term from date of publication or registration; 47-year renewal registration filed in time, but if not, copyright has expired.

--Created, but not published or copyrighted, prior to 1978: Life plus another 50 years, or a 75-or 100-year term. (If work remains unpublished, copyright cannot expire prior to December 31, 2002, copyright cannot expire before December 31, 2027, no matter when the author died.)

--Published more than 75 years ago: Copyright has expired in the United States.

--Foreign copyrights: Governed by international treaties; work may be protected outside the United States, although public domain in the United States; some foreign works formerly in the public domain in the United States have been restored to copyright in the United States.

Sonny Bono Copyright Term Extension Act

When President Clinton signed the DCMA bill, the 1976 copyright term was also extended by a full 19 years. Under the Sonny Bono Copyright Term Extension Act (S.505), 20 years was added to the renewal terms of pre-1978 copyrights making them effective 95 years from the first publication, life + 70 years for individual authors and 95 years from publication for corporate authors. Works published in 1922 went into the public domain on January 1, 1998, but works published in 1923 that were still protected in 1998 will remain protected until January 1, 2019.

Creating a Copyright Policy

Understanding all of the complex issues surrounding copyright law today can be somewhat intimidating. The passage of DMCA now requires an understanding of how the digital environment must be addressed.  Lesley Ellen Harris is a copyright and new media lawyer. In the June 1998 issue of "Computers in Libraries" she addressed the issue of establishing a library or information resource center copyright policy. She listed 15 important steps that can aid in a copyright policy:

1. Appoint a Copyright Officer

2. Arrange Access to a Copyright Lawyer

3. Understand Basic Copyright Principles

4. Be Aware of How Copyright Applies to the Internet and CD-ROMS

5. Understand Permissions and Procedures and the Copyright Clearance Center's (CCC) Role

6. Start a Shelf for Reference Materials on Copyright Law

7. Use Copyright Information on the Net

8. Understand International Copyright Law

9. Keep Updated on Revisions to the Copyright Law

10. Attend Seminars on Copyright

11. Continuously Educate Others in Your Workplace

12. Learn About Negotiating Licensing Agreements

13. Keep Careful Records

14. Create a Separate E-Mail and Internet Policy

15. Consider Privacy Policies

Reading Harris' article, "Finding your way out of the copyright maze. (copyright issues inthe library), in its entirety is strongly recommended. She has provides some very-in-depth and detailed information in each of the aforementioned steps.(12)

Resources in Copyright Information and Assistance

1. Copyright Clearance Center (CCC). Should one find themselves in a position where copyright permission to reproduce a work is required, one must contact the copyright holder directly or go to his or her representative. The Copyright Clearance Center (CCC) in the United States is a copyright collective that allow one-stop permissions clearance for a large repertoire of materials from around the world. Go to their web site (http://www.copyright.com) for current information about copyright laws and how to obtain permission to use print works.

2. http://www.nolo.com Nolo Press offers self-help information about a wide variety of legal topics, including copyright law.

3. The U. S. Copyright Office at [http://lcweb.loc.gov/copyright]. This site offers regulations, guidelines, forms, and links to other helpful copyright sites.

4. Findlaw at [http://www.findlaw.com]. This search engine offers a comprehensive list of copyright resources on the Web.

5. Kuesterlaw at [http://www.kuesterlaw.com]. The Jeffrey R. Kuester law firm provides an online reference service that will lead one to other copyright resources on the World Wide Web.

6. University of Texas System at [http://utsystem.edu/OGC/IntellectualProperty/LIB_FAC.HTM]. An excellent online primer about copyright law. Provides extensive links to other copyright information sites. (13)

Pending Legislation and the Future

During the process which led to the passing of the DCMA, numerous discussions were held regarding the protection of databases. Inclusion of protection of databases was deleted from the final version of the DCMA on the condition that it would receive high legislative priority in 1999. Currently, databases have been open to copying without compensation. A key legal problem is that under U. S. copyright law "facts" (such as names, addresses, phone numbers, weather conditions, stock quotes, etc.) And "works of the federal government" cannot be copyrighted.

With the increasing availability of this information online, the concern has developed that publishers will be unlikely to continue to invest in assembling and maintaining information if electronic copiers can reproduce and republish it without compensation as soon as it is released. Companies that collect, organize and publish these data, including such companies as Lexis-Nexis, West Publishing and Elsevier, have traditionally charged steep premiums for access to their databases. (14)

During the DMCA formation process, drafts of proposals to address the database protection issued could not be satisfactorarily resolved. Critics, including commercial publishers who need access to published data in order to create their own databases and libraries and educational interests expressed concern that information would be unreasonably locked away.

H.R. 2652, the Collections of Information Antipiracy Act, has already been introduced into the current session of the House of Representatives. Some key elements previously discussed and sure to be re-addressed are:

--What would be the effect of legislation on fair use of copyrighted works, library preservation and other educational scientific or research uses?

--What is a database owner's "potential market" and how is that determined?

--What is the proper relationship between copyright law and the database proposal?

Copyright law is weighted toward protecting the interests of authors and publishers, with some leeway for educational fair use. In libraries the interest of for-profit and nonprofit will clash. Librarians cannot afford to ignore or violate the copyright code.

Endnotes

1. Evans, G. Edward. "Developing Library and Information Center Collections, Third Editions." Englewood, Colorado, Libraries Unlimited Inc., 1995. 489-90.

2. Ibid, 490.

3. Elias, Stephen. "Patent, Copyright, and Trademark." Berkeley, Nolo Press, 1997. 90-1.

4. Ibid, 78-9.

5. Ibid, 169.

6. Lutzker, Arnold P. "Primer on the Digital Millennium: What the Digital Millennium Copyright Act and the Copyright Term Extension Act mean for the Library Community." http://www.arl.org/info/frn/copy/primer.html

7. Ibid.

8. Harper, Georgia. "Copyright Law in the Digital Library" University of Texas System, http://www.utsystem.edu/OGC/IntellectualProperty/LIB_FAC.HTM

9. Jassin, Lloyd J., and Schechter, Steven C. "The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors, and Publishers." New York, John Wiley & Sons, Inc., 1998. 26.

10. Ibid, 42.

11. Ibid, 53.

12. Harris, Lesley Ellen. "Finding your way out of the copyright maze." Computers in Libraries, June 1998, v 18, n6, 20-25.

13. Saunders, Laverna. "Keeping up with copyright law to protect your library." Computers in Libraries, June 1998, v 18, n6, 41.

14. McKenzie, Matt. "U. S. digital copyright act gets the nod from the President." Seybold Report on Internet Publishing, Dec 98, vol 3, issue 4, 21-23.

Bibliography

Balas, Janet. "Online treasures: copyright in the digital era." Computers in Libraries, June 1998, v18, no 6, p28.

Elias, Stephen. "Patent, Copyright, and Trademark." Berkeley, Nolo Press, 1997.

Evans, G. Edward. "Developing Library and Information Center Collections, Third Edition." Englewood, Colorado, Libraries Unlimited Inc., 1995.

Flagg, Gordon. "ALA praises Internet copyright bill." American Libraries, January 1998, vol 29, issue 1, p 19.

Harper, Georgia. "Copyright Law in the Digital Library." University of Texas System,
http://www.utsystem.edu/OGC/IntellectualProperty/LIB_FAC.HTM

Harris, Lesley Ellen. "Finding your way out of the copyright maze." Computers in Libraries, June 1998, v 18, p 20-25.

Jassin, Lloyd J., and Schechter, Steven C. "The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors, and Publishers." New York, John Wiley & Sons, Inc., 1998.

Lutzker, Arnold P. "Primer on the digital millennium: What the digital millennium copyright actand the copyright term extension act mean for the library community." http://www.arl.org/info/frn/copy/primer.html

March, Jeff, and Childs, Marti. "Copyright protection applies to the Internet, too." Business First-Louisville, 02/01/99, vol 15, issue 27, p 38.

McKenzie, Matt. "U. S. digital copyright act gets the nod from the President." Seybold Report on Internet Publishing, Dec 98, vol 3, issue 4, p 3-7.

Rogers, Michael, and Oder, Norman. "New copyright laws reflect an online world." Library Journal, 03/01/99, vol 124, issue 4, p 21-23.

Rogers, Michael, and Oder, Norman. "Database provision dropped from bill." Library Journal, 11/01/98, vol 123, issue 18, p 14-16.

Saunders, Laverna. "Keeping up with copyright law to protect your library." Computers in Libraries, June 1998, v18, n6, p 41.


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