Federal Library and Information Center Committee
Library of Congress
Washington DC 20540-4930

The FLICC Newsletter

Summer 1996

Table of Contents

FLICC Quarterly Membership Meeting Update

Profile: Longtime FLICC/FEDLINK Volunteer Fred Rettenmaier

Editorial Staff

FLICC Symposium Addresses Copyright Compliance in Digital Age

On May 21, FLICC held a day-long symposium, Copyright in the Digital Age: Issues and Applications for Federal Libraries, to update federal librarians and information center staff on these current copyright concerns.

Keynote speakers Pamela Samuelson of the Cornell University School of Law and Michael Remington of the law firm Leonard, Ralston, Stanton, and Remington addressed "Copyright for a Digital Age--Securing Rights and Promoting Progress." Kenneth Crews, Associate Professor of the schools of Law and Library and Information Science at Indiana University, moderated the day's panels.

In the morning session, "Fair Use and Other Issues for Creating Your Agency's Digital Library," representatives from writers' and publishers' associations and a federal information center presented their perspectives on the use of--and remuneration for--copyrighted materials. The afternoon session, "Managing Copyrighted Works on Your Agency-Wide System," focused on ways in which libraries can ensure that their information delivery systems do not violate copyright protections. This article focuses on the morning presentations; for more information on the afternoon session, see the July issue of FEDLINK Technical Notes.

Samuelson, a specialist in intellectual property law, serves on the Advisory Board for the LEXIS Electronic Authors Press and is a Fellow of the Electronic Frontier Foundation and of the Cyberspace Law Institute. She spoke about the balance between copyright protection and the "fair use" of materials that evolved in the analog culture, and threats to this balance in the new culture of digital information transmission.

The old balance, Samuelson suggested, was initiated by the founding fathers' concern for both securing rights and promoting the progress of "science and the useful arts." This balance has developed through time; the concept of "fair use" has been buttressed through judicial decisions. Historical accident also played a part in shaping current copyright law, suggested Samuelson; the nature of paper-based publications made it almost impossible to regulate private and non-commercial use of those works. This privacy is now threatened by the usage monitoring made possible by digital information tools.

Computerized transfer of information poses other threats to both users and creators.

"There's no question that the digital environment is very scary for publishers and authors," said Samuelson. "The first sale of a work might be its last sale, and that's no way to recoup investments." However, she pointed out, with no doctrine of "first sale," intermediary institutions such as bookstores and libraries cannot function. When courts protect the rights of copyright holders too stringently, users lose the right to browse works, and to lend works they've paid for. Creators also lose rights when they cannot use pieces from other works to create value-added products.

A new "grammar of usage rights" is needed, she suggested. Samuelson is a member of the Digital Future Coalition, which has proposed legislation supporting fair use, first sale, and browsing rights which might include a provision for disabling software when the user is "lending" it to a friend. "This seems to be the right approach," she said, "because it accords with general public expectations."

Samuelson urged the audience to participate in the creation of new intellectual property statutes, especially those which protect the privacy of the patrons use of information. "As librarians, you have a set of experiences which can be brought to bear in this debate," she concluded.

The second Keynote Speaker, Michael Remington specializes in intellectual property law, judicial reform, and government relations. He served as staff to the National Information Infrastructure Advisory Council, and held the post of Chief Counsel of the House Judiciary Subcommittee on Intellectual Property and Judicial Administration for nine years.

Copyright law is on a collision course with cyberspace, Remington observed, citing a number of prominent statesmen for the electronic revolution who have predicted the end of copyright protections. He asserted the need to defend copyright law.

Copyright has been a "big success story" in the US according to Remington, who even suggested that intellectual property laws are integral to efforts to reduce the deficit. "Copyright encapsulates the nation's true national resource--creativity," he said. "Property rights, properly calibrated, will benefit the public."

Libraries are also a success story and a mirror of copyright law. "Copyright and libraries are attached at the hip; separation may be fatal," Remington warned. The health of libraries-- especially publicly maintained libraries--should not only be salvaged, he suggested, but should be enhanced in order to equalize public access to information in the new economy.

Remington observed that some so-called "Netizens" have declared freedom from rules. "We need strong leaders to ensure respect for others and build global information infrastructure...balancing rights is integral to citizen respect of laws," he said.

Yet, he cautioned the audience, both excessive government censorship and corporate encryption of materials will continue to impede access and fair use.

Fair Use and Other Issues

The four factors used to judge fair use appear in Section 107 of the Copyright Act of 1976:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

It is important to understand, said Crews, that fair use is ambiguous, and that ambiguity creates an obligation to struggle with and adjust definitions of copyright protection. The Conference of Fair Use, sponsored by the National Information Infrastructure Task Force, meets regularly in DC so that the different stakeholders can work through copyright scenarios.

The principle of fair use is significant when libraries copy materials for patrons or ILL. Information and reproduction delivery issues are different for academic, corporate, and federal libraries and solutions will need to be negotiated in each case. Court cases such as Basic Books, Inc. v. Kinko's Graphics Corporation and American Geophysical Union v. Texaco have already limited the number and percentage of copies that corporations can legally make before compensating the publisher or author for lost profits.

Crews predicted that no consensus will be reached soon on the difficult issues associated with electronic duplication and dissemination of materials. In the mean time, however, intermediary agencies such as the Copyright Clearance Center have helped to facilitate the payment of authors and publishers for use of their copyrighted works.

The Author's Perspective

"The paramount issue is corporate power," said Tasini. "Technology is not demanding rights to reproduction...writers are being stolen from."

He compared computing and media moguls such as Bill Gates and Rupert Murdoch to the turn-of-the-century Robber Barons. He sketched out a number of "myths" that allow corporate interests to maintain control of money, technological resources, and intellectual property rights, while laying off workers and leaving authors, librarians, and academics to squabble over the "fair use" of information:

The Great Jobs Myth--Tasini argued that the idea that information technology will create jobs is a "conversation among elites." He projected that two million Americans will be unemployed or underemployed by the year 2000, and that information technology industries will not generate a sufficient number of jobs to fill this gap.

The Web Myth--He argued that hype about self publishing is hypocritical when large corporations still have a monopoly over channels of access to publicity, high-end equipment, and skilled publicists and designers. "Most of us will never be able to achieve the professional quality of corporate products," he surmised.

The Deregulation Myth--"As long as we play within their frame of reference," Tasini said, "we are losing."

He pointed out that projected revenues of a trillion dollars on the NII could yield a 1% tax intake of one hundred billion dollars that could then be earmarked for sustaining libraries. "Why shouldn't the people who are raking in the billions pay for the kind of society we need?" he asked. "We will be called Neo-Luddites, but democracy is not an abstract idea. People can't participate in democracy when they're just trying to stay alive."

Tasini is currently a plaintiff in a court case filed against one database operator and four media companies, including The New York Times Company. The suit claims that online services have appropriated published articles from magazines without paying writers for this additional use. The National Writers' Union and the UnCover Company--which runs the worlds largest full text magazine and journal article database--recently unveiled the first transaction-based writers royalty system in the new electronic media. The NWU has formed the Publication Rights Clearinghouse, which will clear copyrights and distribute royalties to writers, and approve fax delivery orders from UnCover.

The Publisher's Perspective

"I believe in the marketplace," said Risher. She defended publishers requests for the rights to license authors works for electronic and on-demand publishing. Examples from other media industries, such as the licensing of video clips for merchandising purposes, show that new opportunities continue to arise to sell portions of works which used to be copyrighted in their entirety for single instances of reproduction.

"The marketplace has changed what it wants from publishers," said Risher, and if publishers need to move towards document delivery as a revenue stream, they will find ways to compensate authors through reproduction rights organizations like the Copyright Clearance Center.

She spoke about publishers' apprehensions about the ease of reproduction and transmission of documents in cyberspace.

"Publishers want to do what the customers want," she suggested, but they need copyright protections while they are making the transition to on-demand and electronic publishing.

Risher offered the reserve rooms at academic libraries as an example of a way in which advances in reproduction technology have gradually impinged more and more on publishers' copyright protections. In the 1970s, photocopying machines still produced copies of sufficiently poor quality--and required a sufficient amount of tedious, page-by-page reproduction--that the copies that students made for themselves from books on reserve at the library did not threaten the sales of those published books. However, a contemporary library could scan the required chapters, and for the same per-page price as photocopying, allow students to print the pages.

This new application, explained Risher, requires a new analysis of the library's practices using the four factors in the Fair Use statute:

1. The nature of the work has not changed.
2. The nature of the use has changed, as the library itself would be scanning the book only once, instead of maintaining more than one copy of the work for students to check out and photocopy.
3. The portion used may not change.
4. However, this use may indeed affect the potential value of the work, as both the copy quality and the ease of access could discourage students from buying their own copies of the book.

The Federal Information Center Perspective

DTICs mission is to serve as the central repository and secondary distributor for Department of Defense related scientific and technical information (STI). They also provide controlled access to approved information products and networks; administer DoD Information Analysis Centers; and develop STI Program policies.

Their customers include DoD components, defense contractors, other government organizations, and foreign governments. Materials that they supply include technical reports and memos, studies, journal articles, conference proceedings, dissertations, and DoD patents, directives, and security classification guides.

In the past, DTIC provided photocopies, microfiche, and electronic copies to external customers on a cost-recovery basis. Documents included DoD sponsored or partially funded published research; US government official works; US government works "made for hire;" and works for which copyright interests transferred to the US government by assignment.

For copyrighted documents of interest to the DoD community, DTIC created a citation for "announcement only," referred customers to the publisher, and did not provide copies. Because DTIC is not a nonprofit educational institution, and because profit-seeking entities such as defense contractors might request copies, the information center could not in good faith provide such copies.

DTICs future plans for document delivery have been driven by customer demands for convenience, speedy delivery, reasonable cost, and copyright compliance.

For DTIC-held copyrighted information, the information center will announce the material in their database, supply the document on demand, and pay appropriate royalties through the CCC, commercial document delivery providers, and license agreements. Additionally, DTIC will have a written copyright policy, citations will include a copyright statement, and all materials will be issued with a copyright notice and warning.

When copyright research becomes necessary, DTIC will work with the LC Copyright office, generate a permission letter, and contact the publisher or copyright owner, while still supplying the document to the first requester.

Copyrighted documents will be scanned as images, available for downloading through Ariel, Mime, and the Internet. DTIC will secure permissions and/or pay royalties for copyrighted documents transferred as text through ftp, and will attach the copyright indicator, notice, and warning. DTIC is developing tracking mechanisms such as electronic signatures, automatic charging for downloads, and automatic royalty payments.

DTIC has assessed the risks of putting its document delivery program into place, and found them to be low. Possible costs could include damages ranging from $500-$100,000 per copyright infringement, and attorney's fees. Higher damage awards are generally based on willful copyright infringement.

Benchmark Fair Use Court Cases

(Excerpted from a handout on Fair Use authored by Kenneth Crews)

Encyclopaedia Brittanica Educational Corp. V. Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982). For-profit producers of educational motion pictures and videos sued a consortium of public school districts, which was systematically recording programs as they were broadcast on public television stations and providing copies of the recordings to member schools. The copying directly competed with the plaintiff's market for selling or licensing copies to the schools. The court had little trouble concluding that the activities were not fair use.

American Geophysical Union v. Texaco, Inc., 60 F. 3d 913 (2d Cir. 1994). The court ruled that photocopying of individual journal articles by a Texaco scientist for his own research needs was not fair use. The court found no evidence that Texaco reasonably would have purchased more subscriptions to the relevant journals, but the court did conclude that unpermitted photocopying directly competes with the ability of publishers to collect license fees. According to the court, the Copyright Clearance Center provides a practical method for paying fees and securing permissions; so the copying directly undercut the ability to pursue the market for licensing through the CCC. Despite an impassioned dissent from one judge who argued for the realistic needs of researchers, the court found three of the four factors weighing against fair use in the corporate context.

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FLICC Quarterly Membership Meeting Update

Guest speakers Nancy Cavanaugh of the National Library of Education, Laurie Stackpole of the Naval Research Laboratory Library and Information Center, and Carol Watts of the National Oceanic and Atmospheric Administration Library also described their work with internal and external library committees (for more details, see the Spring 1996 FLICC Newsletter).

Working Group Reports

Tarr announced that the National Library of Education has offered to house and lend the videotapes of previous FLICC programs. An observer from the National Technical Information Service (NTIS) also expressed interest in adding FLICCs tapes to the NTIS collection. A list of available videotapes was included in the recently mailed FLICC/FEDLINK Education Catalog. Stay tuned for more information on borrowing procedures.

Upcoming events sponsored by the FLICC Education Working Group include the September 24 program entitled "Dangerous Liaisons? Partnering With Computer Professionals to Create Digital Information Services," a December 10 program on library advocacy, and a series of Great Escapes tours of National Libraries.

Policy--Dan Clemmer of the Department of State stressed the importance of the study released on March 29 by the Government Printing Office concerning the transition to a more electronic Federal Depository Library Program (for more details, see the Winter 1996 FLICC Newsletter). Gil Baldwin of GPO stressed that the revised plan is expected to require five to seven years rather than the one to two years originally proposed.

Preservation--Suzanne Grefsheim of the National Institutes of Health reported that the Preservation Working Group is planning an extended program on digital preservation and an October 29 brownbag on assessment software. She also told the group that American Bindery East, which has served as the GPO binder, has changed its name to Mid-Atlantic and appears to be the likely winner of the next GPO binding contract.

Budget and Finance--Sami Klein of NIST reported that FEDLINK fees will remain the same in FY97 under the proposed FY97 budget. Increased rental and salary costs have been offset by a reduction in LCs indirect program costs and reductions in areas such as printing and interest paid. Total program costs in FY97 will be $93,174 below the current budget. The proposed budget was mailed out to FLICC and FEDLINK members, who approved it in July.

LC Report

FLICC Report

Tarr also reported on steps that FLICC/FEDLINK has taken to fulfill its 1996 Performance Plan:

• The Vision 2000 statement has been revised in response to FLICC member and Executive Board suggestions (see the Winter 1996 FLICC Newsletter). A final version will be issued before the next FLICC quarterly meeting on September 26, 1996.
• FLICC is pursuing efforts to promote library advocacy, including the sharing of anecdotes over listservs and a proposed discussion of outcomes measurement at the next FLICC quarterly meeting.
• FEDLINK has secured vendors who will offer technical processing services to members in FY97.
• A consultant is expected to be hired by the end of 1996 to perform a study comparing agency contracting and accounting costs to FEDLINK's 8% transfer pay fee.

Table of Contents

Profile: Longtime FLICC/FEDLINK Volunteer Fred Rettenmaier

Rettenmaier has served as a member of the FEDLINK Advisory Committee (FAC); as one of the FACs representatives to FLICC; as the liaison to the organizing committee for FLICC's Joint Spring Workshops; and as an organizer of educational events.

Most notably, Rettenmaier has been involved with the FLICC Education Working Group since 1987, serving as Chair from 1989-93. He describes the mission of the group as twofold: to plan specific educational opportunities for federal librarians and to promote the idea of continuing education for librarians as a necessary reaction to the changing functions of libraries.

Rettenmaier attributes his choice to volunteer for the Education Working Group to the fact that he briefly worked as a schoolteacher. "I really do believe in education, on so many levels. Personally, I think learning new things is exciting. Education is a way to advancement, both in terms of one's own self image, and as a part of a career path that may have a real dollars and cents payoff. The product that we as librarians bring to the workforce is not just our physical labor, but our ideas, and education really assists in the developing of ideas."

He cited a planned series of courses designed for library technicians as an example of training which might lead to "dollars and cents payoff" in a climate where paraprofessionals are often required to wear more than one hat.

"Much of the success of our operation stands on the day-to-day labors of our technicians, who are taking over more and more of the support operations," said Rettenmaier. "I don't think in today's environment one can sit behind a desk and just work. You may be totally successful at that, but your chances for advancement or the opening of new doors are a little slimmer. Hopefully, the types of programs sponsored by the education working group will enhance the knowledge base of our technicians."

Rettenmaier explained that the Education Working Group tries to provide educational opportunities that may be useful for both library staff and managers. The courses that FLICC organizes allow managers to sponsor developmental work, either to facilitate accomplishing the agency's mission or to provide experience for staff members. The group also plans courses that managers may themselves attend, such as programs about changes in copyright law or federal information policy.

His involvement with the Education Working Group has often involved hands-on participation in educational programs. As FLICC liaison, he worked with representatives from DC-based library and information center associations to plan two Joint Spring Workshops: "The Habit of Being: Toward Professional Effectiveness" in 1994 and "Reengineering: A New Approach to Change" in 1995. He also planned and presented the 1995 Brown Bag discussion, "Designing Library World Wide Web Home Pages--a First Look."

"Technology is a personal interest," he said. "But I haven't been able to get involved [with the FLICC Information Technology Working Group]. One can only do so much. We each have to sometimes contain our own enthusiasm, and look realistically at the things we can really accomplish well. For myself, it means trying to learn the lesson of not picking up every piece of candy in the candy store because it all looks wonderful."

Nonetheless, Rettenmaier suggests, it is very important for librarians to stay on top of the information revolution. "We have to really look at our role as information professionals supporting the developing and changing missions of our agencies in a time when many of the ground rules are changing," he said. "Three years ago we were talking about digitizing bibliographic materials; today there's word that the entire Federal Depository Library Program is looking to be digital next year. I seriously doubt that this will happen, but I honestly believe that its a real direction, and part of our job is to make that happen, to fund it, to provide the education all through the education chain down through the user."

He explained that his own work habits have been changed by information technology in many ways. E-mail allows him to respond to letters or zip off ideas that he might not have before. It also allows library patrons to quickly send him detailed requests for information. With the help of electronic resources such as the Internet and CD-ROM, Rettenmaier can research a request and reply to it with downloaded files or bibliographic information.

"Learning to apply these new tools means more than just physically using them," he says. "It also means learning how to adapt that technology to efficiently doing business. Everybody can be doing end-user searching, but a well-equipped agency has a number of information professionals who are probably best equipped to use those tools efficiently in partnership with the information user."

Federal librarians and others are welcome to become FLICC/FEDLINK volunteers. Please call Anna Bohlin at 202-707-4822 for more information about volunteer opportunities.

Table of Contents

Editorial Staff

The FLICC Newsletter is published by the Federal Library and Information Center Committee. Suggestions of areas for Federal Library and Information Center Committee attention or items appropriate for inclusion in the FLICC Newsletter should be sent to:

FLICC Newsletter
Federal Library and Information Center Committee
Library of Congress
101 Independence Avenue, SE
Washington, DC 20540-4930

FLICC Executive Director's Office
Phone: (202) 707-4800
Fax: (202) 707-4818

FEDLINK Fiscal Operations
Phone: (202) 707-4900
Fax: (202) 707-4999

EXECUTIVE DIRECTOR: Susan M. Tarr

WRITER/EDITOR: Jessica Clark

The Federal Library and Information Center Committee was established in 1965 (as the Federal Library Committee) by the Library of Congress and the Bureau of the Budget for the purpose of concentrating the intellectual resources present in the federal library and related information community. Its goals are:

To achieve better utilization of library and information center resources and facilities.

To provide more effective planning, development, and operation of federal libraries and information centers.

To promote an optimum exchange of experience, skill, and resources.

To promote more effective service to the Nation at large.

To foster relevant educational opportunities.

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