What's Happened to Copyright?
by Laura Gasaway
Laura Gasaway is the director of the law library and a professor at the University of North Carolina. She also writes "Copyright Corner," a monthly column featured in Information Outlook.
Copyright and the Digital Age
The digital world has confounded both copyright holders and the users of copyrighted works. Early in the development of the Internet, there were many who predicted the death of copyright1. Some believed that everything on the Internet should be free. Others believed that a system of micropayments would make paying for the use of copyrighted works so cheap that everyone would do so and give up any fair use claims. None of this has come to pass.
Instead of working together to embrace this new world and meet the needs of both owners and users, it often appears the owners of copyrights and users of these works are engaged in increasingly bitter disputes that engender negative feelings.
Copyright holders have some hesitation about making their works available on the Internet, a medium that permits easy copying. The user community has demanded works in electronic form. Of course, publishers and producers want to satisfy this need, but will not do so without controls to protect their works from unauthorized reproduction and distribution. Through statutory amendments, Copyright Office hearings, subsequent reports and court decisions, copyright holders have strengthened their ownership rights. On the other hand, some of the antics of copyright owners have angered users as never before and users are demanding change. It appears some members of Congress have recognized that perhaps the balance has swung too far in the direction of copyright owners. These legislators appear willing to buck the well-financed copyright holder community and amend the law.
At the same time, owners are concerned about loss of control over the works they develop and market since the exchange of digital copies among users is so easily accomplished. Powerful trade groups such as the Association of American Publishers, the Motion Picture Association of America and the Recording Industry Association of America have taken aggressive stances in lobbying before Congress to strengthen copyright protection for digital works. They have succeeded in convincing Congress that copyrighta form of intellectual propertyhas the same attributes as real property, thus increasing their rights to control access to works as never before.
Certainly, the danger of wide reproduction and distribution of their digital works is a serious issue, but many copyright owners seem to argue that the rights they were given in the 1976 Act are not sufficient. They continue to push Congress for more and more protection. Sometimes the arguments they raise are the very arguments copyright holders made unsuccessfully in 1976, but now Congress seems inclined to undo much of the balance between owners and users that the Copyright Act has historically provided.
Users of copyrighted works, libraries and educational institutions have also been at fault for failing to recognize and credit the fact that the Internet does provide increased risks for copyright holders. Moreover, some representatives of these groups appear to seek greater fair use rights than existed in the analog environment.
Thus, the overall environment has become increasingly negative, and it seems unlikely that the users, publishers and producers will come together and reach an agreement on many of these issues. Since January 2000 there has only been one amendment to the Copyright ActThe Works Made for Hire and Copyright Corrections Act of 20002. This amendment removed the recently added sound recording category from the definition of works for hire. In addition to Copyright Office recommendations to amend the statute, there are also pending amendments, a couple of serious proposals and a number of cases that are very important to special librarians all of which will be discussed below.
Statutory Proposals
The most important pending amendment for libraries is the TEACH Act3. TEACH would amend § 110(2) by broadening the exemption as to the types of works that may be performed by nonprofit educational institutions or government bodies. It would also relax the limitations on the place of reception. But there are restrictions and new requirements that must be met in order to take advantage of the expansion it offers. All categories of works could be performed with two exceptions: (1) works "produced or marketed primarily for performance or display as a part of mediated instructional activities transmitted via digital networks" and (2) performances or displays that use a copy or phonorecord that the institution knew or had reason to believe was not lawfully made or acquired.
Except for nondramatic literary and musical works, performances of other works are limited to "reasonable and limited portions," but less than the entire work. Displays are limited to an amount comparable to that typically displayed in the traditional classroom, except for nondramatic literary and musical works, on which there is no limit on the amount. Additionally, the performances and displays must be an integral part of the class session and must be comparable to ones that occur in the physical classroom. In the place of the existing classroom restriction, TEACH imposes a requirement that the transmission be made solely to students officially enrolled in the course or to government employees who receive the transmission as a part of his or her official duties.
The amendment introduces some new safeguards to protect copyright owners because digital transmission creates greater risks for copyright holders. Institutions must implement copyright policies, provide accurate copyright information to members of the university community, promote compliance with the law and provide notice to recipients that materials used in the course may be subject to copyright. For digital transmissions, the institution must apply technological measures that prevent: (1) the retention of the copyrighted work in an accessible form by recipients for longer than the class session and (2) further unauthorized dissemination of the work in accessible form. If there is no digital version available to the institution or if the available digital version is subject to technological measures that prevent its use for the distance education course, the institution may digitize the analog version. This is not a blanket right to digitize analog works, but it is subject to the limitation that such digitization may be only for the portion of such works authorized to be performed under § 110(2).
TEACH has passed the Senate. Despite the negotiated revision being agreed to by educational and library associations and the publisher and producer communities, the House of Representatives has taken no further action to revise the distance education provision of the Act. This pending amendment offers balance between the needs of copyright holders and the distance education community.
Database Legislation
For several years, bills have been introduced to provide protection for databases outside the copyright law. Although Congress has yet to pass such legislation, there is continuing interest on the part of database producers to enact a statute to protect databases as staple items of commerce. Following the Feist4 decision (which held that in order to qualify for copyright protection, factual compilations had to meet the originality requirement grounded in the U.S. Constitution), database publishers began to lobby for a new form of protection for their products. Based on the investment and effort of the database producer, compilations that are not original would be protectable under a non-copyright statute. The proposed amendment would offer 15 years of protection but would be renewable whenever the producer updates or expands the material. This is a matter of continuing concern on the part of library, education, research and scientific communities because of the need to have unfettered access to facts that are the building blocks of science and research. It is likely that a new database bill will be introduced this session.
Copyright Regulations and Reports
During the past two years, the U.S. Copyright Office has produced two significant reports as required by the Digital Millennium Copyright Act. The first deals with anti-circumvention5; the second addresses the first sale doctrine6 and backup and temporary copies7. The anti-circumvention provision of the DMCA supports copyright holders who use devices such as encryption or other methods to control access to their works. The provisions were immediately effective in 1998 against anyone who manufactured, distributed or trafficked in an anti-circumvention device, but not against anyone who used such a device.
In the DMCA, the Copyright Office was directed to conduct a study two years after the effective date of the amendment and produce a report that would determine "whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition in their ability to make noninfringing uses of a particular class of copyrighted work." The study was to consider the availability of copyrighted works for use, their availability for use for nonprofit archival, preservation and educational purposes, and the impact that circumvention technologies will have on fair use and on the market value of such works8. The result of hearings and the report9 was a rule that made the provisions effective against an individual user of an anti-circumvention device.
The announced rule details only two classes of works that are exempted from the anti-circumvention prohibition: "Compilations consisting of lists of Web sites blocked by filtering software applications and literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness." The first exemption applies only to users who want to evaluate Web sites for purposes of criticizing them. Access controls have an adverse affect on the ability to do this. The purpose of the second exemption is to permit users, including libraries, to have access to the works for which they have paid but for which some malfunction interferes with this use. The narrowness of these two classes makes them almost meaningless in practical terms.
Libraries and researchers had hoped that the more recent § 104 (DMCA) report10 would reaffirm that the first sale doctrine still had relevance in the digital environment and that it applied specifically to digital works. Instead, the report found that transmissions over the Internet reproduce a copy on the recipient's computer to which the first sale doctrine does not apply. Library associations made the argument that transmission followed by the immediate deletion of the original file from the transmitter's computer is the equivalent of the transfer of a physical copy. The report rejected this argument primarily because physical copies degrade over time while digital copies do not. Apparently, copy quality controlled whether the first sale doctrine had any application to digital works, rather than the social policies of the first sale doctrine. This disappointing holding segregates digital works from analog ones, even though Congress repeatedly said that the 1976 Copyright Act was technology neutral. Clearly, this is no longer the case.
The same study also dealt with buffer copies and backup copies of digital works. The very operation of a computer means that a copy of a work is reproduced and stored in random access memory (RAM), also referred to as buffer copies. The Register's § 104 report considered whether these sometimes called "effervescent" copies violate the copyright holder's exclusive right of reproduction. Buffer copies are a necessary incident of audio streaming on the Internet. The Register's Report recognized that a strong fair use case could be made for buffer copies that result from streaming. For clarity and predictability, the report recommended the Act be amended to preclude liability for temporary buffer copies, but only for those copies that are incidental to a licensed digital transmission of a public performance of a sound recording and any underlying musical work.
Backup copies of computer programs are permitted under § 117 of the Act for the owner of a computer program. He or she is permitted to make another copy of a program in two instances: when it is an essential step to utilize that program in conjunction with a machine, such as by loading the program onto the computer's hard drive and as an archival copy. The Register's Report clarifies that the archival exemption for computer programs does not permit making backup copies of other types of digital works and recommends an amendment to specify that the right to make an archival copy does not permit redistribution of these legally made backup copies.
CasesDMCA
There have been a number of important cases over the past two years that have interpreted the DMCA. The Napster11 litigation continues even as the judge has required Napster to shut down its Web site and negotiate with copyright holders for a license to reproduce the sound recordings. The 9th Circuit U.S Court of Appeals found Napster to be a contributory infringer because it knowingly encouraged and assisted in the infringement of the copyrights in sound recordings. In January 2002, the Napster judge announced that she would allow discovery to go forward on the copyright misuse issue raised by Napster, which had argued that the record companies misused their copyrights by imposing restrictive terms on licensing their music in violation of antitrust rules. The Justice Department is also conducting an antitrust inquiry into recording companies and has been doing so since the middle of 2000 because of the danger that the two powerful multinational rivals, EMI, BMG and AOL Time Warner (MusicNet) and Sony and Vivendi Int'l (Pressplay) could control pricing and eliminate competition from smaller independent record companies and online music providers.
The appeal of the DVD decryption case was decided by the 2d District Circuit Court recently12. It is being appealed to the U.S. Supreme Court, but there is no indication yet whether the Court will agree to hear the case. The DVD encryption code (called CSS) was originally broken by a 15-year-old Norwegian boy who made the DeCSS decryption program available for free on a Web site. The boy could not be sued in the United States; however, U.S. citizen Eric Corley, among many others, was sued for putting DeCSS on the 2600 Magazine Web site and for providing links where it could be found elsewhere on the Web. Corley claimed that the inability to put the DeCSS decryption code on his Web site abridged his rights of free speech. The court disagreed and held that the anti-circumvention provision is a permissible content-neutral restriction on free speech. However, for the first time a court did recognize that computer code was speech, much like any other publication. Corley also claimed that the DMCA was unconstitutional because it eliminated fair use, a right rooted in and required by the Constitution and the First Amendment. Again, the court disagreed. Bowing to pressure from the United States, the Norwegian government recently announced that it would prosecute the now 18-year-old developer of the DeCSS program for this circumvention activity.
Other Cases
The two most important copyright cases for libraries over the past two years are not DMCA cases. Both are U.S. Supreme Court cases: Tasini13, which was decided in June 2001 and Eldred v. Ashcroft14, which the Court has just agreed to hear next term.
Tasini held that when freelance writers transferred the copyright in their articles to publishers prior to 1995, the transfer did not include the electronic rights15. Thus, publishers of electronic databases must compensate authors if their compilations are to include these freelance authors without a specific transferal of the electronic rights to the publisher.
Eldred challenges the Copyright Term Extension Act16. This 1998 statute extended the term of copyright by an additional 20 years from life of the author plus 50 years, to life plus 70 years. The D.C. Circuit upheld the district court's decision that term extension was constitutional. Library associations had opposed term extension before Congress and the fact that the U.S. Supreme Court will now hear this case is encouraging.
What Lies Ahead?
Special librarians should monitor Congress to watch for passage of the TEACH Act, database legislation and for the proposal movie studios are making to Congress to include a device in each personal computer sold that will prevent the reproduction of copyrighted digital works. Representative Rick Boucher of Virginia announced earlier this year that it was time to amend the Copyright Act to restore the balance that the DMCA had tilted too far toward copyright owners. He lamented the fact that the balance had moved toward protection and away from the public availability of works17. He promises to introduce legislation to restore the balance in the Copyright. 
Footnotes
1 See "Copyright Corner," Information Outlook, March 2001.
2 Pub. L. 106-397 (2000).
3 See "Copyright Corner," Information Outlook, March - April 2002.
4 Feist v. Rural Telephone, 499 U.S 340 (1991).
5 See "Copyright Corner," Information Outlook, January 2001.
6 See "Copyright Corner," Information Outlook, January 2002.
7 See "Copyright Corner," Information Outlook, February 2002.
8 17 U.S.C. § 1201(1)(C) 2000.
9 U.S. Copyright Office, Exemption to Prohibition on
Circumvention Controls for Access Control Technologies,
http://www.loc.gov/copyright/fedreg/65fr64555.pdf.
10 U.S. Copyright Office, DMCA Section 104 Report, August 2001.
http://www.loc.gov/copyright/reports/studies/dmca/sec-104 -report-vol-1.pdf.
11 A&M Records v. Napster, 239 F. 3d 1004 (9th Cir. 2001) and see "Copyright Corner," Information Outlook, April 2000.
12 Universal Studios v. Corley, 273 F.3d 429 (2d Cir. 2001) and see "Copyright Corner," Information Outlook, July 2000.
13 121 S.Ct. 2381 (2001).
14 255 F.3d 849 (D.C.C. 2001); cert. granted 2002 U.S. LEXIS 640.
15 See "Copyright Corner," Information Outlook, September 1999, February 2000, September-October 2001.
16 See "Copyright Corner," Information Outlook, January 1999.
17 Rick Boucher, Time to Rewrite the DMCA, C/net News.com, January 29, 2002.
http://news.com.com/2010-1078-825335.html.
RSS
Feedback form
