Copyright, Electronic Works,
And Federal Libraries:
1999 FLICC Forum on Federal Information Policies
A Summary of Proceedings
March 10, 1999Library of CongressWashington DC
TABLE OF CONTENTS
1999 Forum Call
Welcome and Presentation of FLICC Awards
Susan M. Tarr
James H. Billington
Electronic Works and Copyright Balance
Introduction to Afternoon
Re-Calibrating the Law
Building and Maintaining a Collection
Using Technology to Manage Copyrighted Resources
Providing GuidanceAn Agency Policy on Copyright
Web PublishingGovernment Websters and Copyright
Melissa Smith Levine
The Federal Library and Information Center Committee (FLICC) was created in 1965 as the
Federal Library Committee by joint action of the Library of Congress and the Bureau of the Budget (currently
the Office of Management and Budget).
FLICC is composed of the directors of the four national librariesthe Library of Congress,
National Library of Medicine, National Agricultural Library, and the National Library of Educationand
representatives of cabinet-level executive departments, legislative, judicial, and independent federal agencies
with major library programs, and is chaired by the Librarian of Congress.
FLICC's mission is to foster excellence in federal library and information services through
interagency cooperation and to provide guidance and direction for the Federal Library and Information
FLICC makes federal library and information center resources more effective through professional
development, promotion of library and information services, and coordination of available resources. FLICC
is also responsible for making recommendations on federal library and information policies, programs,
and procedures to federal agencies and others concerned with libraries and information centers.
FLICC's business subsidiary, FEDLINK, serves federal libraries and information centers as their
purchasing, resource-sharing, and training consortium. Library of Congress contracting officers negotiate
basic ordering agreements, or contracts for services, with commercial vendors of library and information
products on behalf of the federal agencies participating in the FEDLINK program. FEDLINK staff
administers these contracts. Arrangements for initiation and payment for appropriate services are authorized by
the Economy Act and are governed by interagency agreements executed by participating federal agencies
and the Library of Congress, acting on behalf of FLICC.
In addition to its procurement effort, FEDLINK provides accounting support to members and
regularly offers library automation and information science training for federal information professionals and
their technical staff.
FLICC/FEDLINK also functions as a center for evaluation and education about new library and
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- Emerging Issues on Managing Information Resources, February, 1984
- The International Flow of Scientific and Technical Information, February 27, 1985
- Federal Information Policies: Their Implementation and Implications for Information Access, February 12, 1986
- Views of a Concerned Community, February 25, 1987
- The Impact on Competitiveness, March 7, 1988
- The Congressional Initiative, March 22, 1989
- Access is the Key, March 20, 1990
- Building Information Superhighways: Supercomputing Networks and Libraries, February 15, 1991
- The Future of Government Technology: Money, Management, and Technology, March 17, 1992
- Government's Role in the Electronic Era: User Needs and Government's Response, March 25, 1993
- Information's Roles in Reinventing Government: Delivery of Government Information, March 22, 1994
- The Life Cycle of Government Information: Challenges of Electronic Innovation, March 24, 1995
- The Public's Information: Striking a Balance Between Access and Control, March 19, 1996
- Clear Signals? Telecommunications, Convergence, and the Quality of Information, March 6, 1997
- Adapting to Reinvention: Getting Results in Government Publishing, March 19, 1998
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The annual FLICC Forum on Federal Information Policies is arranged under the auspices of the
FLICC Education Working Group which was chaired in 1998-99 by Amy DeGroff, Smithsonian Institution
Libraries. Each year, volunteers from the FLICC Education Working Group serve on the Ad Hoc
FLICC Forum Planning Group which is composed of information experts. The ad hoc working group selects
the Forum topic, identifies speakers, and helps to prepare the Forum program. FLICC wishes to express
its appreciation to the FLICC Education Working Group; Georgette Harris, Network Program
Specialist, FLICC; Mary Berghaus Levering, Associate Register for National Copyright Programs, Library of
Congress; Lynne McCay, Assistant Director for Information Research Division, Congressional
Research Service, Library of Congress; Harold Relyea, Specialist in American National Government,
Congressional Research Service, Library of Congress; Meg Williams, Network Program Specialist, FLICC; and
Peter Young, Chief of Cataloging Distribution Service, Library of Congress.
Proceedings written by Jessica Clark
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American copyright law seeks a balance between rights and obligations of creators and users of
intellectual property to, in the words of the Constitution, "promote the Progress of Science and useful Arts."
Securing exclusive rights to their writings gives authors incentives to continue to create, while defining those
rights and limiting the period of exclusivity protect the interests of readers, who are also potential creators.
The resulting laws that have grown out of this constitutional foundation have led to a level of progress of
which the Constitutional Framers could only have dreamed.
As the medium for expression evolves from the tangible printed book to electronic forms of writing,
these changes stretch familiar concepts and threaten the balance between author and reader. The practical
limits of technology, our social understanding of "intellectual property" and the value of information, and
our institutional and legal framework seem inadequate for the electronic era. The 1999 FLICC Forum
on Federal Information Policies will address how authors, publishers, readers, libraries, and the
government are working to redistribute rights and obligations between authors and readers to restore equilibrium in
the copyright arena.
The Forum will begin with distinguished speakers from the U.S. Copyright Office and the Association
of American Publishers who will review the principles underlying American copyright law and consider
how the electronic age is testing these principles. Next, the Forum will examine the specific challenges to
our copyright regime identified in the Copyright Office's Project Looking Forward, namely, the new
subject matter, new uses, and growing potential for decentralized infringement characteristic of the
Forces of technology, social and market behavior, policy and law are all responsible for the shift in
equilibrium and are the very same tools that will restore it. The afternoon session will open with an update
on how the law is being revisited as the new Digital Millennium Copyright Act, other legislative
initiatives, and the proposal for a new section of the Uniform Commercial Code on licenses. Formal changes in
the legal framework may affect everything from library database services to shrink-wrap licenses for
mass market software.
These technological and legal changes manifest themselves throughout library operationsin
technical services, systems, and public services. The afternoon session continues by illustrating how concepts
such as the first sale doctrine, licensing, fair use, and other library, archival, and educational exemptions in
the copyright law play out in today's collection development, acquisitions, resource sharing, and
preservation activities. An industry speaker will then identify and explain the technology available to manage
copyrighted resources, protect works, assess charges, and limit and monitor access.
Afternoon speakers will highlight how government readers and authors must accustom themselves to
the new electronic intellectual property environment, and how to develop a formal agency policy on
copyright. Speakers will also describe how an agency might carry out and enforce such a policy and what the
policy should include. The Forum will then conclude with an in-depth look at one such issuegovernment
Web publishing and the issues it raises, including linking, framing, connecting to potentially infringing
sites, and securing permissions.
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Susan M. Tarr, Executive Director, FLICC
Federal Library and Information Center Committee (FLICC) Executive Director Susan M. Tarr
welcomed audience members to the 16th annual FLICC Forum on Federal Information Policies, and to the
first annual presentation of the FLICC Awards.
"FLICC's mission is to foster excellence in federal library and information services through
interagency cooperation. The membership of the committee represents all three branches of the government and
the full range of services provided by the more than 2000 libraries and information centers in the
federal sector. This morning, we wish to honor the many innovative ways federal libraries, librarians, and
library technicians are fulfilling the information demands of government, business, research, and the
American public," Tarr said.
Tarr then explained that the awards program developed through the direction of FLICC members
who volunteered to work on FLICC's interagency Awards Working Group, chaired by Mark Ziomek,
Director of the Holocaust Museum Library. The working group screened nominations for final selection by
the FLICC Executive Board.
Tarr then introduced James H. Billington, Librarian of Congress and Official Chair of FLICC, and
Winston Tabb, Associate Librarian for Library Services and Chair Designate of FLICC, to present the 1998 awards:
1998 Federal Library Technician of the Year
Connie Clarkston, David Grant Medical Library, Travis Air Force Base
Connie Clarkston was recognized for her outstanding, innovative and sustained achievements during
Fiscal Year 1998 in demonstrating a high level of commitment to service excellence in support of her
library's mission through exceptional technical competency, flexibility in changing conditions and effectiveness
in dealing with ambiguity. With a combination of independent judgment, competence, enthusiasm, and
vigor in managing the day-to-day affairs of the David Grant Medical Library, Clarkston has exhibited a
positive attitude and warm personal attention to library customers. Following the retirement of the
professional librarian at the library, Clarkston singlehandedly maintained service to the medical center staff and
clientele, expanded the library's on-line resources and improved its security.
1998 Federal Librarian of the Year
Joan Buntzen, Librarian of the Navy
Joan Buntzen was recognized for her professional achievements in Fiscal Year 1998 in the advancement
of library and information sciences, the promotion and development of services in support of her
agency's mission, and demonstrated professionalism. Buntzen's visionary approach in promoting
technological innovations and interagency cooperation within the federal library community led to the Navy
Virtual Library and the conceptualization of the Navy Knowledge Network. She also established a
partnership between the Navy and Marine Corps libraries, simplified Navy library procurement and promoted
the benefits of centralized information services to high-level Navy officials.
1998 Federal Library of the Year
National Institutes of Health (NIH) Library
This federal health sciences library was recognized for its initiative and vision in serving as a
single, virtual entry point into an integrated system of organized databases linked with collections for
information gathering, real-time electronic request capabilities, digital consultation with staff and instruction
modules for electronic resources. In 1998, the NIH library continually supported the biomedical and
behavioral research needs of its client community, providing comprehensive, innovative and value-added
information services and products designed for its customers' information needs. Suzanne Grefsheim, the library
chief, and Steve Ficca, NIH associate director for research services, accepted the award.
1998 Federal Information Center of the Year
Defense Technical Information Center (DTIC)
DTIC was recognized for its strong commitment to excellence, a customer-oriented focus and an
outstanding reputation for leading-edge use of technology and the Internet for information dissemination.
This center expanded the Department of Defense's investment in research and development by extending
access to and use of scientific and technical information. The resulting infrastructure encouraged individual
and collaborative uses and provided access to Department of Defense information worldwide. Kurt
Molholm, its administrator, accepted the award.
"I think we have a wonderful group of awardees for our very first year of these awards," Tarr said.
Before turning the podium over to Billington for the day's first keynote speech, Tarr acknowledged
the help of several people in creating and coordinating this year's FLICC Forum. She thanked Forum
planning committee members:
- Mary Berghaus Levering, Associate Register for National Copyright Programs, Library of Congress,
- Lynne McCay, Assistant Director for Information Research Division, Congressional Research Service, Library of Congress,
- Harold Relyea, Specialist in American National Government, Congressional Research Service, Library of Congress,
- Peter Young, Chief of Cataloging Distribution Services, Library of Congress,
- Georgette Harris, Network Program Specialist, FLICC, and
- Meg Williams, Network Program Specialist, FLICC.
Tarr also thanked several FLICC staff members:
- Anna Bohlin, Public Events Specialist,
- Lizzie Daniels, Public Relations Assistant,
- Robin Hatziyannis, Editor-in-Chief and Education Coordinator, and
- Mitchell Harrison, Editorial Assistant.
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James H. Billington, Librarian of Congress and ChairFLICC
James H. Billington, Librarian of Congress, congratulated the winners of the FLICC awards, and
greeted Forum attendees.
"It's a great pleasure to welcome you here as the transitory custodian of this wonderful institution, and
also the chair of FLICC," he said.
Billington noted that the FLICC Forum provides an opportunity for librarians to be recognized
and thanked for their contributions. "The work of librarians is often anonymous, and I often say to our
own staff, which I consider the Library's greatest treasure, that they don't get to hear the thanks that
people often express," he said. "There are so many people in the public sector and beyond that benefit from
your workI just want to say that we get continuous expressions of appreciation of all kinds."
The Forum also offers a platform for federal libraries and information centers to come together and
coordinate their policies and procedures. "The discussions among you are very important," Billington
said. "They inform the Congress, federal agencies, and others who are concerned with the government's role
in providing and regulating access to federal information. Ultimately, FLICC's efforts create an
environment for improvement and better use of federal information resources and facilities."
Since its beginning in 1984, the FLICC Forum has become an annual status report on access and
dissemination issues. During that time there have been precipitous changes in the technologies of
information retrieval and exchange. "A key question today is how new technologies of media affect the balance
of rights and expectations between the creators and users of intellectual property," said Billington. "Both
are essential to the health of our democracy. How do federal libraries respond to changes both in the law
and in technology?"
Billington outlined the precarious balance created through copyright law. Federal law grants
exclusive rights to authors, he explained, in order to fulfill the constitutional mandate to promote the "progress
of science and the useful arts." To bring works to the marketplace, creators often transfer their rights
to publishers, and these exclusive rights give authors incentive to create and publishers incentive to
disseminate. Users' interests are served by the proliferation of new works that result from the incentives
produced in our system. In the long run, he said, "users reap a further benefit from the expiration of
copyright protection, which ensures that these works become part of our common cultural patrimony."
"Libraries are a fulcrum in the copyright balancing act," continued Billington. "They offer access
to copyrighted materials when they are at the top point of their general interests, preserve materials that
have lost their market vitality, and keep materials that have entered the public domain. Libraries thus
equalize the tension between exclusive rights and broad public access to the fruits of intellectual endeavors."
Federal libraries in particular, he noted, establish an equilibrium as advocates for agency and public
users, watchdogs for creators' rights, and defenders or preservationists of the materials and resources themselves.
Digital technologies raise new issues for this balance of rights because they permit new ways of
creating, disseminating, and protecting works of authorship, while at the same time creating new risks of
widespread infringement. As technology advances, tensions play on the delicate copyright balance,
manifesting themselves throughout library operations.
"Our collections development, acquisitions, resource sharing, and preservation activities have always
been influenced by the precepts of copyright law, including concepts of licensing, fair use, and other
exemptions for libraries and archives," said Billington. "However, applying those precepts to technologies and
activities that were scarcely conceived of, or even dreamed of, when the law was written, is not a simple
task. Fortunately, copyright law has, over the years, proven itself to be highly adaptive to new
circumstances with occasional help and prodding from an attentive Congress."
Billington described librarians as "society's knowledge navigators," and commended them for
continuing to guide users to the useful and relevant information that they seek, in whatever form it is available.
"Librarians serve as the guardians of an institution central to democracy, where knowledge can ripen
into wisdom and where knowledge can also occasionally break through to fresh creativity at all levels.
From the simple gratification of curiosity to the invention or conception of something profoundly new for
our civilization, these are the exciting things that libraries play a role in."
In the current technological environment, librarians work to both clarify digital information and assess
its accuracy and usefulness and to combine digital resources with the knowledge stored in books and
other traditional forms. "This is an integrated process which is becoming more and more important,"
Librarians also assist their customers, or in the context of federal libraries, agencies, staff and the public,
in understanding their privileges and obligations under the copyright law. "Ultimately the care and
preservation of these works also rests with them, ensuring that the knowledge of today remains accessible
for future generations. Then, the process of constantly renewing democracy every generation, as Jefferson
and others spoke of, continues to transpire," said Billington.
He encouraged librarians to regard technological changes as a chance to generate new and better
information solutions. "In this most recent time of change, we can seize new opportunities, discover new ways
for the government and the citizen to work together to protect and enhance this now global balance
between creator and user," Billington concluded. "We must ensure that new technologies enhance the quality
and longevity of the information on which we rely, that they continue to reward today's creator and to
generate the spark of knowledge for those who will create tomorrow."
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Marybeth Peters, Register of CopyrightsU.S. Copyright Office
Keynote speaker Marybeth Peters, Register of Copyrights at the U.S. Copyright Office, confessed
to having a biasshe believes in copyright.
"I believe that the principle of copyright protection is a huge public asset," Peters said. "It is
through copyright protection that the user, the general public, is served."
Copyright recognizes the "importance and dignity of creative efforts," she continued. She offered
an excerpt from the Supreme Court's decision in Mazer v Stein, to illustrate the economic philosophy
It reads, "the encouragement of individual effort by personal gain is the best way to advance public
welfare through the talents of authors. Sacrificial days devoted to such creative activities deserve rewards
commensurate with the services rendered."
Copyrighted works are different from manufactured goods, Peters noted, because they grow in value
the more they are used. "Copyright owners can't recoup their investment unless what they created is used
again and again, in many markets and by many customers," she said. As long as authors are compensated for
all of these uses, consumers should be compensated with lower prices.
In addition to providing an economic incentive to create and innovate, copyright has traditionally
protected against certain unauthorized uses of works. As the Internet has grown, however, it has become a
pipeline through which vast amounts of copyrighted works are moved. Issues of copyright protection for the
content have become increasingly important. "Without some assurances that the value of authors' efforts
will not be appropriated the instant they seek to exploit their works, authors and publishers will look to
other activities," Peters said.
"Today, as in the past, because of the reaction to the technologies that have revolutionized human
communications, the principles of copyright law are under attack," she continued. "But technology has never
been the enemy of copyright; rather copyright law has always responded to new technologies and has been
a critical force in the creativity and investment that underlie further progress."
"Indeed, I believe that only by maintaining the principles of copyright can we assure that the
Internet reaches its full potential," Peters said. "The challenge of new technology is an opportunity to
explore innovative approaches to new issues."
During the past two years, many people have worked on doing just that, she explained. On October
28, 1998, the Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat. 2860 (1998),
became law. Peters outlined four aspects of the debate which currently surrounds copyright, three of
which are touched on by the DMCA.
1) The scope of the reproduction right
"The question is: when a work is transmitted from one computer to another, does it necessarily
implicate the right to reproduce copies?" said Peters.
The answer to this complex question has to do with whether the version of the work that is
automatically created in random access memory (RAM) of the recipient's computer is considered a "copy" for
purposes of copyright law. "The DMCA appears to confirm that temporary copies in RAM are covered by
the copyright law," said Peters, "although many of these copies may not amount to infringement" Instead,
she explained, they may be covered under the fair use provision, or their use may be implied.
The DMCA added several exceptions/limitations that cover certain types of temporary copies. For
example, Title III of the DMCA, the Computer Maintenance Competition Assurance Act, amends Title 17
of the United States Code to permit owners of a computer to make a copy of a computer program in
the course of maintenance or repair. This exemption implies that RAM copies implicate the reproduction
right, Peters said.
Title II of the DMCA also limits the infringement liability of online service providers for four
specified types of conduct. One such exception allows for "transitory digital network communications,
including temporary copies made in the course of those communications."
The status of temporary copies remains controversial. "Despite these changes to the law, the debate
about the scope of the reproduction right and the issue of temporary copies goes on in the U.S. and many
other countries," said Peters.
2) The scope of fair use
One of the questions raised during the discussions, but not addressed by the DMCA is whether the
concepts of "personal" and "non-commercial" use should be interpreted differently for the purposes of the
fair use analysis.
In the case of traditional technologies, Peters explained, the personal, noncommercial nature of a
use strengthens a fair use claim. Telecommunications networks may change the stakes, however, as may
the fact that accessing works through home computers could become consumers' primary mode of
obtaining those works. "The difference in economic impact may argue for different treatment in calibrating the
fair use balance," said Peters.
3) The use of technological protection measures
Recently, the U.S. ratified two World Intellectual Property Organization (WIPO) treaties that
require countries to prohibit the circumvention of technological protection measures and the impairment of
the integrity of copyright management information.Title I §1201 of the DMCA implements the
anti-circumvention requirements of the two treaties and it divides the universe of technological protection
measures into two categories:
- measures that prevent unauthorized access, and
- measures that prevent infringement, such as copying.
"With regard to access, the bill prohibits the act of circumvention as well as the provision of devices
or services for circumventing," Peters said. "With respect to infringement, the bill prohibits the provision
of devices or services but does not address a user's act of circumventing. This approach was taken to
address concerns about fair use."
Librarians and educational institutions protested that copyright owners' use of technologies to lock
up works in encrypted containers could potentially eliminate fair use, explained Peters. "How can one
invoke fair use when one must key in a response triggering payment of a fee in order to gain access to the
work?" She did warn the audience, however, that fair use is not a defense for obtaining unlawful access to a
Because of the concerns about fair use, the DMCA delayed the provisions concerning access controls
for two years, and ordered the Library of Congress to conduct an ongoing administrative rule-making
proceeding to evaluate the impact of the legislation. "We will consider whether there should be an
exception for any particular class of works," said Peters. "This is to be based on evidence that users are or are
likely to be affected adversely by virtue of the prohibition." The law also required consultation with the
Assistant Secretary of Commerce for Communication and Information, but the Librarian of Congress will
ultimately determine whether any class of work is to be exempted.
4) Exemptions and limitations that benefit librarians
"In recent legislation, there have been several exemptions made for librarians," said Peters. In the
revised Copyright Act, U.S.C. 17 §108, known as the "library photocopying section," now allows libraries to
make up to three digital copies of an item for preservation purposes, or to replace lost, stolen, or
destroyed copies. An amendment to the law also allows libraries to transfer digital works to new media when
old media become obsolete.
"I have heard from many librarians that these provisions do not go far enough," said Peters.
In addition to adapting to new laws, librarians are adopting a variety of new roles and
responsibilities, noted Peters. "Clearly, one of the key pieces is educating people who use computers about copyright,"
she said. Librarians are also becoming publishers. "All of the duties and responsibilities a publisher has to
face, librarians have to also. That's a lot of work." Like publishers, when librarians decide to put
information online, they must obtain electronic rights from authors, or risk being accused of infringement.
"Librarians aren't just lending a book when they put information online," warned Peters. "Publishers take risks
and librarians should be aware of those risks."
"Let me conclude by again emphasizing the challenge," she said. "It is to adapt copyright law to respond
to digital technologies in ways that are harmonious with the fundamental principles that have served the
U.S. so well in the past. These solutions must not only serve consumers but also preserve the values of
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Patricia Schroeder, President and CEOAssociation of American Publishers
Former Congresswoman Patricia Schroeder, now the President and Chief Executive Officer of the
Association of American Publishers (AAP), addressed digital copyright concerns from the perspective of
the publishing industry and stressed the importance of copyright law in America's
"Probably the last president we had who really understood the importance of copyright law and patent
law was Abraham Lincoln," said Schroeder. "He was a patent lawyer. He noted that the only place 'right'
is used in the Constitution was in copyright law because people knew how important it was to fuel the fire
of creativity in this great nation."
"We are just, as a country, beginning to think about these issues as we close out this millennium
and century and figure out where this great country will go in the next millennium for jobs," she
continued. "Copyright is the biggest job driver in this country; we need librarians to understand this and to
help people understand this, if we want our kids to have jobs."
Schroeder explained that she was teaching at Princeton when she was asked to work for the AAP.
Librarians and students there protested, but she noticed that the students were all preparing for jobs which
"I said to these young people, 'it is nice that you are here at Princeton, but what are you going to do
with your degree? Are you going to be steelworkers? Are you going to make shoes?'" In almost every
single thing they mentioned, it was essential to have copyright and patents...and no one had ever told them
that," Schroeder told the audience.
"There are so many wonderful fake populist slogans out there," she said, "like 'information is crying to
be free.' Fair use has been reinterpreted to mean free use 100 percent of the time."
Schroeder placed part of the blame for Americans' current opinions on the failure of the federal
government to keep statistics on the importance of copyright industries for the U.S. economy. "Copyright is
kind of buried all over the place," she explained.
For example, the production of books is tracked in the manufacturing statistics, "even though the
actual manufacturing of the book is just the teeniest sliver of the process."
Every year, the AAP joins with other copyright industries to reconfigure government information
around copyright. "If you pull out numbers, the 'copyright industry' has been growing faster than any other part
of the economy since 1996 on, growing at 3.5 times faster than the rest of this already hot economy,"
she said. "It is a huge part of our economy, and the people who are in copyright do not even think of it
"I worry that after the North America Free Trade Agreement (NAFTA) and the General Agreement
on Tariffs and Trade (GATT), if you think about what America's role is, Alan Greenspan is right,"
said Schroeder. "He testified over and over again that America's future is in jobs where you add value with
the brain, not the hand. Anything you do with your hands can be made offshore cheaper and faster and
we have lost out."
She also spoke about the role of America and its librarians in the age of digital information. "Globally,
85 percent or more of the people on the Internet are conversing in English, and they want librarians to
navigate for them," Schroeder said. "Librarians are the purest of the navigators...they are not trying to sell
you something, they are not trying to stuff you in a portal, they are not trying to push advertising.
Originally, you only had to navigate the Dewey decimal system and the shelves. Now, more and more, you are
going to have a navigation role throughout the entire Internet, and what people want is to plough through all
of the clutter and noise and find those nuggets they can rely on that are vetted, peer reviewed, etc."
"There will not be any of those nuggets out there," Schroeder warned, "because peer review costs
money, vetting costs money, editing costs money, and if the people who do the writing and editing do not
get reimbursed, that is the end of that." She predicted that the information dissemination model will change
to licensing or pay-per-view to address these additional costs. "Somehow the copyright industry has got
to find a way to exist," she said.
Schroeder reminded the audience that U.S. information sources are heavily usedoften
illegallyin countries around the globe. "People in the copyright community will tell you that we are being ripped
off all over the world 24 hours a day, and do not even know it," she said. "I do not want to sound like a
nag about this; I understand that I have a vested interest in it, and publishers have a vested interest in it, but
I think every American has a vested interest in it. The incredible thing about this nation has been this
creative genius we unleash. That is the engine of this economy."
Schroeder called the WIPO treaties "a good start," but said that they cannot address all of the instances
of global infringement of copyright. As an example, she mentioned a presentation in which Johnny
Cash demonstrated that all of his works are online at better-than-CD quality. The Web site containing his
works was in Slovenia.
"His option was to get on a plane, go to Slovenia, and hope that they had copyright laws and could
deal with it," she said. "With the Internet, international boundaries mean nothing."
Schroeder mentioned that the AAP has been working on creating a "Digital Object Identifier" (DOI)
which could serve as a common mechanism to integrate intellectual content management with Internet
technologies. She hopes that the DOI will become a global standard and will make copyright management
issues less complicated. "A large part of our mission is conversing with librarians, users, and everyone else
to figure out how we protect copyright in the most user-friendly way," she said.
She suggested that copyright management systems will eventually allow users to purchase different
chapters or sections of a work and put together their own "books" like course packs. She warned against
categorizing such uses under the rubric of "distance education."
"Traditionally, distance education has been connected to a classroom and a professor," said Schroeder.
"If we ever let it break out so that it is not [related to] the professor and anyone can declare themselves
as 'learners,' no one will ever say 'go ahead and charge me for those cookbooks, because I'm not really
learning to cook, I just want them on the shelf.' That will be the end of a lot of things as we know it."
"We are going to have to do a phenomenal educational program," Schroeder concluded. She
sympathized with librarians who are forced to explain copyright law to resistant users. "You are the interface and
they want to yell at you," she said. "Our real mission is to figure out how we sit down and work this out so
that you are not receiving the barbs, so that the American people understand this a whole lot better, so that
the Census Bureau and the Commerce Department collect the data differently so people really understand."
"If we give this up in the name of fair use, the world will celebrate," Schroeder said. "They all want
our content. But what have we got then? Please do not think of us as a nag...think about how we preserve
these creative juices in this incredible diverse democracy that's been created here. It is a real mission."
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Trotter Hardy, Professor of LawCollege of William and Mary School of Law
Law professor Trotter Hardy of the College of William and Mary School of Law provided Forum
attendees with a historical framework for understanding copyright issues that arise when new media technologies
He discussed typical copyright issues that can emerge when new communications and
entertainment technologies develop, various solutions for balancing the needs of copyright owners and media
consumers, and ways in which different technologies have benefited both producers and consumers of
Part 1: Types of issues
Hardy described three sets of concerns that accompany the intersection of new technology and copyright:
New subjects: New technologies can give rise to new subject matter which may or may not be
New uses: Technological innovation may also enable new ways of using existing media. Stakeholders
must determine if the new uses infringe on the copyright held by the creator of the original works.
Decentralized infringement: Some new technologies allow individual users to make copies of or
disseminate a work far more cheaply than was possible before.
Hardy presented several historical examples of technologies that have since become subject to
copyright law. When photography was first developed, he said, people wondered if a photograph could be a
subject of copyright. Movies presented a similar challenge to copyright experts, since the law at that time
covered only still images. Sound recordings, such as phonographs and piano rolls, provided another
copyright puzzle, as did computer programs and video games.
He also presented historical examples of technologies which provided new uses for existing works.
Photographic reproduction of art prints was one such instance, as was the phonographic recording of
music, since sheet music was the subject of copyright law. Many also debated copyright issues related to
radio broadcasting, cable-casting of TV broadcasts, and archiving of TV news shows. In each case, experts
had to develop solutions to protect the copyright of the original works, or to develop royalty structures for
use of those works.
Photocopy machines, tape recorders, VCRs, and other technologies which have helped individuals
reproduce and present copyrighted works have generated their own sets of questions and debates. Worries
about such "decentralized infringement" have grown more acute as the technologies of reproduction have
become less expensive and more sophisticated. Hardy proposed that the same sorts of copyright
concerns have risen to the forefront in the digital arena.
New subjects: The growth of the Web has spurred people to ask if a variety of new works might be
copyrighted. For example, Hardy mentioned that some questions still exist over whether an HTML
marked-up version of a public domain work can receive copyright protection. According to Hardy, collections
of links, the meat of many Web sites, can receive copyright protection if they fit the description of a
compilation. The structure of a Web site may also be protectedor at least the sequence of its linksif its
sequence is compared to the ordered progression of frames in a film strip.
Hardy referred to a court case involving Microsoft and Ticketmaster as an attempt to protect the
integrity of a Web site's structure. A Microsoft site linked users directly to event information posted on
the Ticketmaster site. Ticketmaster protested this practice, because the link to a subsidiary page allowed
users to bypass Ticketmaster home page, which carried the bulk of the site's advertisements.
Hardy explained that Ticketmaster sued Microsoft for unfair competition, not copyright infringement.
He argued that Ticketmaster's Web site could be compared to a film strip; under copyright law the
company could have the right of public display of sequence. By disrupting the sequence, according to this
argument, Microsoft infringed. Because the case was settled out of court, it did not set any new precedents.
New uses: The "framing" of sites serves as an example of a new technology which allows an existing
work to be used in a new way. Web designers can use framing technology to present a site's own graphics
or information as a border around the content of another site. Hardy described a court case involving the
use of frames by the "Totalnews" Web site. The Totalnews site linked to a variety of prominent newspaper
and magazine Web sites, displaying the content of those sites within the its frame.
Several of the sites whose content was displayed in this way, including CNN, Fortune Magazine, The
Los Angeles Times, Money Magazine, Pathfinder, Sports Illustrated, Sports Illustrated For Kids, Time
Magazine, The Wall Street Journal, The Washington Post, and Yahoo, sued the creators of the Totalnews
site under five separate counts, including misappropriation and unfair competition, federal trademark
dilution, and trademark and copyright infringement.
Again, this case was settled out of court with the requirement that Totalnews seek permission
before framing other sites' content. The settlement leaves the question of whether the practice of framing
constitutes an infringement. "This is a classic new use question," said Hardy.
Decentralized infringement: In terms of decentralized infringement in the digital age, Hardy said that
there are "too many examples to count." Users, system operators, and companies are all presented with
multiple opportunities to copy and disseminate information digitally which may or may not be protected by
Part 2: Types of balancing
"Copyrighted works are information resources, and like all resources that anyone cares about, they have
to be allocated," said Hardy. "But how?" he asked. "By lottery? At gunpoint? By the government?"
He noted that there is a range of possibilities, from total private allocation or anarchy, to total
government allocation, or communism. "What is best?" he asked. "Who knows...it is an old problem." Most
resources in the U.S. are privately allocated, he observed. This means that the balance between the user and
the producer is drawn on the basis of an individual transaction. Hardy quoted Madison, who said, "the
public good fully coincides with the claims of individuals." The theory behind that sentiment, explained Hardy,
is that individual buyers will not buy and sellers will not sell unless they are both happy with the
Despite this philosophy, there are many resources allocated by the government in the U.S., such as
utilities. "If you believe that Congress should be creating or preserving the balance between copyright
producers and users, you are assuming that the government should be involved," said Hardy. To the extent that
librarians seek Congressional balance and information producers see no need for it, the dilemma is the
familiar one of government resource allocation vs. market allocation, he suggested.
Hardy discussed another kind of balance which concerns producersthe balance between different
limits on unauthorized uses of works or information. Producers do not expect 100 percent assurance of
copyright protection, he said, but they need enough "to induce them to provide the information to the
marketplace." He displayed a pie chart which contained four multi-colored pieces representing different sources
- copyright law,
- the state of the art (including the practicality of copying a work and the quality of the copy),
- technological protections, and
- contract law.
The size of these different "slices" changes according to the type of product, Hardy explained. For
example, theNational Geographic Magazine would not need to rely on too many technological or
contract protections, but could instead rely on the low quality of photocopies to prevent copyright infringement.
In contrast, database services such as Lexis depend heavily on contract agreements to protect their products.
"How do digital works look to producers?" Hardy asked. Copyright law has about the same strength
in relation to digital works, but the state of the art for reproducing works has advanced tremendously.
Producers, therefore, want something else to fill the pie, he suggested, and the most obvious candidates
are technological restrictions and contract restrictions. Producers see increased contract and technical
restrictions as "keeping the balance," but users see them very differently because such restrictions come from
the producer and are usually "all or nothing."
Users are more empowered to copy and disseminate works with the technology that is now available
to them, but when the producer sets up contract restrictions, they are not empowering at all. "These
restrictions look like a change in the balance," said Hardy.
Part 3: Technology to whose rescue?
Hardy pointed out that while users are quick to protest when copying and dissemination rights are
taken away, they do not tend to lobby for copyright protections when new technologies shift the balance in
their favor. For example, in 1992, it became legal to copy music at home, but a tax was levied on
recording media. That tax did not apply to computer hard drives, however; digital and audio tapes were the media
in question. "So some users' rights are stronger now, but users don't seem to be trying to weaken them in
the name of balance."
While librarians may protest that technological protectionssuch as encryption, digital objects,
proprietary interfaces, and the use of serial numberscan violate fair use practices and invade users'
privacy, Hardy suggested that if producers cannot use them, they may not provide materials to libraries at
all. Technologies help producers "fill up the assurance pie," he said. "Technologies are also the most
likely solution for decentralized infringement."
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Winston Tabb, Associate Librarian for Library Services and Chair Designate, FLICCLibrary of Congress
Winston Tabb, Associate Librarian for Library Services, Library of Congress, and the Chair Designate
of FLICC, welcomed attendees to the afternoon sessions of the Forum.
"Not only have we illustrated the outstanding work of federal libraries this morning through the
FLICC Awards," said Tabb, "we have also learned that librarians' commitment to both user and producer
rights remains undiminished. We have been reminded anew that copyright is alive and very relevant in
this electronic age, which is an appropriate protection for the fruits of our intellectual creativity, but also a
very important element for the promotion and development of research and growth for our nations' learners."
Tabb outlined the topics to be addressed by the afternoon speakers. "We will learn how we, as
federal librarians, will adapt to evolutions in copyright application in our continuing efforts to maintain a
proper balance between the producers and the users of information," he said. While it is necessary to
debate national information policy, "the real challenge for us develops when we have to try to translate
new policies and laws into our practical, day-to-day operations. As federal librarians, we must
constantly combine an understanding of the needs of society and our agencies with an appreciation for the value
of information, all the while continuing to strike this equitable balance."
While there are new elements of the copyright law, Tabb said, they address the practices, but not
the principles of copyright. He told the audience that the afternoon's speakers would identify some of the
best approaches to applying both the long-standing and evolving copyright policies to access,
preservation, maintenance, and other library operations. Libraries and information centers need to serve all audiences
in ways that are efficient, economical, legal, and fair, Tabb said. "As we assume the mantle of leadership,
we have to serve as a positive role model for all that is happening in this brave new information world."
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Robert Oakley, Director of the Law Library and Professor of LawGeorgetown University Law Center
Robert Oakley, Director of the Georgetown Law Library and Professor of Law, responded to
Winston Tabb's comments. "I am glad to hear that copyright still alive and well in the digital age," Oakley
said. "Some of us might have been wondering if the whole world is moving toward licensing instead of
Oakley said that it was interesting to hear Pat Schroeder speak, and told the audience, "Just invert
her script, and that is my script for today."
Oakley's talk was titled "Re-Calibrating the Law." He said, "in truth, that is what is happening. There is
a major effort going on to re-calibrate the copyright balance to give copyright owners a much greater
control over the use of their works than they have had in the past. Necessarily, this tends to be at the expense
of those who use information." There are reasons for the increased focus on intellectual property law,
he suggested. The ease of copying and disseminating works online has caused content owners to worry
about the potential of the Internet to facilitate piracy. "At the same time," Oakley said, "high-level
policymakers have come to see intellectual property as an international trade issue, as least as much as it is a matter
of author's rights, There is a high-level interest in protecting U.S. authors and creators in overseas markets."
The challenge in the legislative process of amending the copyright act has been to enhance the
protection against piracy in a way that did not interfere with the reasonable, legitimate, and expected rights of
information users, researchers, and scholars. "Did we succeed? I think not," said Oakley. "The big
picture remains one of higher-level control for copyright owners and less flexibility for information users."
He described the legislation that was passed last year as setting the stage for licensing to replace sales
for many information products, and pay-per-view procedures to replace free public access to
information through libraries.
Oakley traced the trend of increased control of information by owners through four initiatives:
- the Term Extension Act,
- the Digital Millennium Copyright Act (DMCA),
- database protection, and
- Uniform Commercial Code proposed Article 2B
The Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827, passed October 27, 1998, declares a
20-year moratorium on any new works coming into the public domain, and increases the copyright term
for works created since 1978 to the life of author plus another 70 years. The act also increases the
maximum term for older and corporate works to 95 years from the date of first publication. "In my
judgement...the life of the author plus 70 more years is a period far longer than what any individual needs as an
incentive to create," said Oakley.
As a result of the act, works published in 1923 or after that are not already in the public domain will
not come into public domain for at least 20 more years. "Of course, there's no guarantee that at the end of
that term, another extension won't be passed," said Oakley, who pointed out that the 1920s and 1930s were
a fertile creative period for companies such as Disney, who are not ready to give up their copyright
protection. The fact that Europe has a longer copyright term, also played a role in the negotiations. "The
combination of powerful industries and an overseas precedent made it difficult to resist lengthening the
term," said Oakley.
"The longer copyright term has many implications," Oakley said. "The whole point of having a
public domain is to encourage that old works be used in new and creative ways...Term extension slowed
that process down by 20 years."
Digital Millennium Copyright Act
"The DMCA is the centerpiece of legislation designed to protect digital works through the use of
encryption systems that can close users out of uses that would be lawful today," Oakley said. The DMCA
implements WIPO provisions, and in the process it establishes what some may think is a new right for
copyright holders: the right of communication to digital users.
Oakley outlined the provisions of the DMCA. To implement the WIPO treaties, the act:
- makes it illegal to break through encryption technology to access a protected work even if your use of the work would be lawful under the copyright act;
- makes it illegal to create, import, sell, etc., technology to break through encryption or other technological protection measures; and
- makes it illegal to tamper with copyright information embedded in a digital work.
"These three things essentially allow copyright owners to have total control over the use of their
works," said Oakley. Although there are limitations and exceptions to the prohibitions, he said that they do
not change the basic picture of owner control.
The DMCA makes it illegal to "break the envelope," of encrypted digital objects, even for the purpose
of engaging in a legal use of the work. As a result of protests by scholars and others, there is a ban on
this anti-circumvention provision for two years. During this time, the Librarian of Congress and others
will consider whether the provision will have adverse affects on users and will recommend classes of
information to be excluded from this law for the next three years, at which point the evaluation will be repeated.
"All of that sounds good," said Oakley. However, it will be difficult for the user community to quantify
the harm that the anti-circumvention provision might do. "How do you quantify the articles that would
have been written differently if researchers had access to more information?" he asked. "This is very difficult
to show...[but] if the ban is not lifted, copyright holders will be able to dictate the terms of the use of
their works far more than they have in the past." Even if certain classes of information are exempted,
Oakley said, it will be difficult to obtain equipment or programs to decrypt digital protections because of the
law banning the manufacture or sale of such technologies. As a result, he said, "the copyright owner
can effectively deny access to the work except on his or her own terms."
The third provision prohibits tampering with or falsifying copyright information, including credits,
the copyright date, terms and conditions for use of the work, and payment mechanisms. These terms "set
the stage and provide the means to move towards a pay-per-view publishing environment," Oakley said.
What happens to fair use in the post-DMCA environment? "It's hard to see where it fits," said Oakley.
"In this system of high-level control by copyright owners, all of the rights and privileges given to users in
the copyright act seem to be superceded by owners' control." Oakley acknowledged that the DMCA
does provide some exceptions for libraries and others. Technological protections of copyrighted
information may be circumvented for security testing and encryption research, for reverse engineering, when
necessary to protect children from pornography, to allow libraries to evaluate materials, for law enforcement
purposes, and in a few other specified cases. There are also conditional exceptions which allow
Internet service providers to transmit, cache, store, and route materials, and to provide search engines and links
to other sites.
"As important as these exceptions are, they are all for very narrow, specified purposes," said Oakley.
"They do nothing for the general user of information."
Oakley listed a few other benefits for libraries in the new laws, including an update to the
preservation sections of the Copyright Act, 17 U.S.C. Previously, the act did not allow libraries to make digital
copies for preservation. The DMCA now provides for three digital copies, but places limits on their use. Also,
in the Term Extension Act, during the last 20 years of copyright, libraries are permitted to perform or
display works if doing so does not interfere with owners' "normal commercial exploitation" of the works.
Oakley said that this exception could prove meaningless, however, if the term "normal commercial exploitation"
is interpreted expansively by copyright owners.
For the past several years, Oakley explained, database companies have been seeking statutory
protection for their products. Because neither commonly available facts nor U.S. government information are
protected by copyright, the companies are concerned that the information that they have spent time and
money compiling and editing could be legally reproduced by other companies.
In the most recent session of Congress, proponents of database protection argued for the prohibition
of misappropriations of database information which cause harm to the market of the original compiler.
They proposed an initial term limit of 15 years, with the possibility that the term could be extended
indefinitely depending on the amount of time and money a company had invested in compiling the information.
Scholars and librarians are concerned that no fair use provisions were outlined in this bill and want
a clearer definition of "harm to the market," and "potential market." They worry about lack of access
to government information, especially in situations where there might be a de facto monopoly. "Despite
these concerns, this bill did pass the House last year," said Oakley. The bill is a high priority in the Senate
this year, with other versions of the bill in the House which contain some fair use provisions.
Uniform Commercial Code Article 2B
The Uniform Commercial Code is used in all 50 states to regulate contracts. Article Two deals with
contracts of sales for goods; Oakley explained that the new proposed Uniform State Law (§ 2B) would
cover software and digital information, creating default terms when no contract is specified.
The proposed U.C.C. Article 2B is controversial. From the consumer standpoint, the most
problematic issue is the validation of the "shrink-wrap" contracts, or licenses, which accompany digital works
or software. Such contracts involve no real negotiation between the producer and the consumer, Oakley
said, "in fact, the consumer often agrees to the terms without even reading them." In doing so, consumers
may unwittingly agree to give up some of their basic rights under the copyright act, such as permission to
quote or critique a work. Often this language is buried in the fine print of the license.
"The validity of the mass market license is a key part of the effort to restrict what users can do with
the information they have," warned Oakley. At this stage, the new section is just a proposal. If it makes
it through the committee stage, it will go to the 50 state legislatures for ratification.
Oakley summarized the positive news for libraries in recent developments related to copyright law:
- Updates to the preservation sections of the Copyright Act which improve the rules for digitally reproducing works;
- A two-year stay on the ban on circumventing encryption technologies and a narrow exception to the anti-circumvention provision for the evaluation of a work; and
- An uncertain exception for libraries to the Term Extension Act.
On the other hand, positive news for copyright owners includes:
- A 20-year moratorium on new works entering the public domain;
- The legitimization and protection of encryption systems, giving copyright owners much greater control and setting the stage for pay-per-view systems;
- The potential protection of databases; and
- Potentially restrictive shrink-wrap licenses.
"It sounds like a fundamental change in the equation," Oakley said, "largely abandoning the idea of
making an effort to define a balance, and relying instead entirely on a marketplace approach. These
changes seem like a windfall for the owners of information."
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Laura N. Gasaway, Director of the Law Library and Professor of LawUniversity of North Carolina at Chapel Hill School of Law
Laura Gasaway, Director of the University of North Carolina Law Library and Professor of Law,
spoke about building and maintaining a collection in the digital era. She addressed issues related to
acquisitions, new reproduction and preservation rules under the Copyright Act, 17 U.S.C. § 108, and resource
Libraries may acquire materials through purchase, gift, or licensing. Gasaway explained that libraries
are granted the authority to loan books through the Copyright Act § 109(a), which is known as the "First
This section does not, however, apply to many digital works. Instead, librarians must negotiate
license agreements in order to acquire access to a work or works for the library's users. Licenses vary from
product to product; they may restrict the scope of access or the reproduction or dissemination of a
work through interlibrary loan (ILL). If a contract is silent about ILL restrictions, Gasaway said, libraries
should be able to loan the work.
"If it does not contain that restriction, I do not think I would ask," she advised.
Gasaway encouraged librarians to follow discussions of proposed U.C.C. Article 2B. She referred
audience members to a set of licensing principles developed by six library associations, available at
http://www.arl.org/scomm/licensing/principles.html. She highlighted a few of these key principles, suggesting that a license agreement should:
- indicate access rights, including any time limitations;
- recognize and not restrict rights under copyright law, including downloading and printing;
- recognize IP rights of both parties; and
- not hold the licensee liable for unauthorized uses by users if the library notifies its community of use restrictions.
The licensee should take reasonable and appropriate methods to enforce the terms of the
agreement, Gasaway said. Libraries should "establish policies that permit authorized users to use the resource, and
a process for dealing with user violations of the agreement."
Reproduction and Preservation
Gasaway discussed the changes that the DMCA has made to the Copyright Act, 17 U.S.C. § 108.
These changes affect libraries' practices in providing copyright information on copies of works and in
reproducing works digitally.
Libraries are permitted by 17 U.S.C. § 108 to reproduce works under certain circumstances if the
work's copyright notice is included. The American Library Association had previously developed rubber stamps
to comply that read "Notice: May be protected by copyright." The DMCA addressed this requirement
more precisely. Gasaway quoted the appropriate section of the act, which now reads: "The reproduction
and distribution of the work contains a notice of copyright that appears on the copy that is reproduced,
or includes a legend stating that the work may be protected by copyright if no such notice appears on
She suggested that this change may require librarians to be more careful about locating copyright
information and including it with copies of works.
Now, § 108(b) allows libraries to make up to three copies or phonorecords of an unpublished work if
the purpose of such a duplication is for "preservation, security, or for deposit for research in another
library." This applies, however, only if the copy or phonorecord is currently in the library's collection, and
the reproduction is not distributed or made available to the public outside of the premises of the library
The Copyright Act § 108(c) also allows libraries to make up to three copies or phonorecords of a
published work if the purpose of such a duplication is to "replace a published damaged, deteriorating, lost, stolen,
or obsolete copy." This right only applies, however "after the library makes a reasonable effort to
determine that an unused replacement cannot be obtained at a fair price." Again, such copies may not be
distributed or made available to the public outside of the premises of the library or archives.
The act defines a format as "obsolete if the machine or device necessary to render perceptible a
work stored in that format is no longer manufactured or is no longer reasonably available in the
"This one was a good change...'reasonably available' is weasel wording which allows us to think about
this a little bit," said Gasaway. She explained that a "reasonable effort" to obtain a copy of a work
before creating a digital copy normally requires:
- recourse to commonly known U.S. trade sources, such as wholesalers, retail bookstores, and jobbers;
- contacting the copyright owner, or publisher of the work; and
- using an authorized reproducing service.
There are some differences between different groups' definitions of a "fair price" for replacing a
work, however. The Association of American Publishers defines "fair price" as the "suggested" or
"prevailing" retail price, while the ALA suggests that the "fair price" should either be the latest suggested retail
price, or the price as close as possible to manufacturing costs plus royalty payments. The ALA also notes that
the price of a full set of a multivolume work is not a fair price for one volume in that set.
A new section, 17 U.S.C.§ 108(h)(1998), was added to the Copyright Act through the Term Extension
Act. Now, Gasaway pointed out, in the last 20 years of the copyright term of a work, a library or
nonprofit educational institution may reproduce, distribute, display or perform the work if the following
conditions do not apply:
- The work is subject to normal commercial exploitation;
- A copy of the work can be obtained at a reasonable price; and
- The work's owner provides notice that either of the above conditions apply.
Gasaway concluded by discussing various ways in which libraries can share resources, including
ILL, consortia, and document delivery.
17 U.C.C.§ 108(g)(2) of the Copyright Act addresses ILL. "Nothing in this clause prevents a library
or archive from participating in interlibrary arrangements that do not have as their purpose or effect receipt
of copies in such aggregate quantities as to substitute for a subscription to or purchase of a work,"
She referred audience members to the Commission on New Technology Uses (CONTU) guidelines,
which suggest that libraries may make a limit of five copies of a work before they purchase it. Libraries
can provide copies to users, but cannot put copies in their collections. "Publishers have a justifiable
concern when we are evading the ILL provisions," she said. "Section 108 is not a collection building section."
Consortia are also permitted. "We can join all of the consortia we want, but borrowing must follow
ILL guidelines," said Gasaway. "There could be one consortia in the entire U.S. and we would not be
paying for anything, but that is not how it works." Gasaway noted that "document delivery...is a problematic
term for libraries," because publishers think of commercial document delivery and that impacts profit. In
the case of document delivery, copyright still applies. So, when a library obtains a copy of a work, is
either ILL and covered under the CONTU guidelines, or it is document delivery for which royalties should
be paid. "Recent legislation has not changed this much," she said.
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William Arms, Vice PresidentCorporation for National Research Initiatives
William Arms, Vice President, of the Corporation for National Research Initiatives spoke about the
pros and cons of using technology to manage copyrighted resources. He presented several examples which,
he said, "show that many of the things people do instinctually turn out to be wrong."
Arms broke his analysis of each example into four categories: the fear, the action, the result, and
Example: The Sony Betamax case.
The fear: Home videotaping of television would undermine revenue of filmmakers.
The action: Universal Studios, Inc. and The Walt Disney Company sued to have video recorders banned.
The result: They almost won; the Supreme Court ruled in favor of the Sony Corporation by one vote.
The conclusion: New technology creates new markets. "If the movie companies had won, they would
have lost money," said Arms.
Example: Copy protection of software for personal computers.
The fear: Copying of software from diskettes would undermine revenue for publishers.
The action: Companies such as Lotus Development Corporation created copy-protected diskettes.
The result: This was inconvenient for customers, who turned to products that were not copy-protected. Today most software is unprotected.
The conclusion: Happy customers are essential.
"If you notice the company that has made the most money out of software is Microsoft," said Arms. "What they discovered is that what matters is how many copies you sell, not how many copies you don't sell."
Arms also compared four different economic models for broadcast television:
- network broadcast: features open access and earns revenue from advertising;
- public broadcast: features open access and earns revenues from government and private funding;
- cable television: features restricted access, and earns revenues through subscription payment; and
- pay-for-view: features restricted access and earns revenues through payment by program.
The lesson from these different models, said Arms, "is that there are many ways to
create markets...economic forces will bring models that we don't expect to the fore." Customers do not like
pay-for-view, he explained; they prefer subscriptions, even if they do not use them. Similarly, while
many technical discussions are predicated on pay-by-unit schemes, people do not like them.
Historical reactions to reproduction and broadcast technologies provide insights into current
quandaries, said Arms. He presented a contemporary example: digitized music on the Internet.
The fear: Unlicensed distribution of high-fidelity music will undermine revenue for music publishers.
First attempt: music publishers sued to ban the Rio, a device for recording music from the Web. Federal courts ruled that the Rio is legal.
Second attempt: the formation of the secure digital music initiative which hinges on formats with copy protection.
The result: Nobody knows yet, but Arms wonders if customers will like the new format.
The conclusion: "Reasonable use by reasonable people will become acceptable in the long run," said
Arms. "From what I know of the product, I don't think customers will like it. I don't know any industry that
is quite so systematically rude to its customers as the publishing industry." He suggested that
publishers remember that "it is not how many people you stop using your stuff that counts, it is how many people
that buy your stuff that counts."
Arms then discussed technological processes for authorizing users to access digital works. He spoke
about the "dilemma of authentication"system operators must chose from authorization processes which
are crude and insecure, such as those which screen according to the address of user's computer, or are
expensive and intrusive, such as DNA testing. "You have some rough and ready things," said Arms. In
libraries, he suggested, the best strategy is often to choose inexpensive, crude methods.
Librarians may also need to worry about authenticating the works themselves, especially in the case of
law or research. Digital Object Identifiers allow for general purpose identification which can be used
for reference and citation, archiving and preservation, and acquisitions. "Unfortunately the AAP has
talked about this whole area as if the only reason for doing any of this is to make money," said Arms.
Authentication technology can support alternative market strategies, said Arms. In the case of
strong enforcement, the emphasis is on strict control by technical means. Subsequent use of a work is barred
by technology. In the case of weak enforcement, the emphasis is on customer satisfaction and market
growth. Technology is augmented by economic and social forces. "Social, economic, contractual pressures are the sort of things that we need," he said. With strong enforcement, the trustworthiness of law
enforcement comes into play, and the complexity and vulnerability of keeping key information is prohibitive.
Arms suggested that government policies that support encryption are misguided. "Everybody says 'use encryption,' but encryption is a mess."
"Technology doesn't solve legal and social problems by itself," Arms concluded. "In order to support
the policy rules, technology should be friendly to the customers and inexpensive to administer, and must
work in conjunction with social, economic, and legal incentives."
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John Raubitschek, Patent CounselDepartment of Commerce
John Raubitschek, Patent Counsel, Department of Commerce, discussed issues related to copyright
protection for government work.
Raubitschek explained that the Copyright Act, 17 U.S.C. § 101 and § 105, say that there is no
copyright protection of a work by government employees if the work is developed as part of their official duties.
He noted that the original prohibition against copyright, formalized in the 1909 Copyright Act, rose out of
the sale of printing plates of government reports; buyers made copies of the reports from the plates and
The prohibition, therefore, was not originally intended to put government information into public
domain. Rather, he suggested, its intent was to keep people from profiting from public information. "The law
has evolved to create this current situation," Raubitschek said.
Prior to the 1976 revision of the Copyright Act, the prohibition applied to government "publications."
The revision codified the law to apply to government "work." As a result, everything produced by
government employees is now in the public domain. There are exceptions to this law, however. The U.S. can accept
an assignment or transfer of copyright. Standard reference data is addressed in 15 U.S.C. § 290(e). Also,
the prohibition does not extend to foreign copyright. In the case of exporting U.S. government
materials, Raubitschek said, some agencies place a notice on the materials which says "International
copyright claimed" and a date of publication.
Raubitschek said that he had found few examples of countries which protect government works.
The United Kingdom protects some of their government works, but the British Library was not impressed
by the U.S. international copyright notice for government works. "People expect government information
to be in the public domain," Raubitschek said. Some agencies are trying to sell information abroad but keep
it free here. "That really does not work," he said.
Questions about copyright often arise when government authors want to publish works through
commercial publishers. The publishers generally have to craft a special agreement with the government
employee or their agency. Other questions arise when an infringer questions the validity of a copyright obtained by
a government employee, or when an employee wants to sell his/her work. In the latter case, the
employee generally has to obtain permission from his/her supervisor, Raubitschek said, especially if the work is
not publicly available. This issue comes up in relation to software, although much government
developed software is distributed by the government itself.
In the case of joint works created by government and private employees, there is more confusion. If
the non-government part of the work cannot be separated from the whole, some say that the whole
work should be protected and others say the whole work should be in the public domain. Raubitschek said
that there is no case law in this instance. The amount of work done by the government employee may
affect whether copyright exists, he said, as in the case of a State Department foreign service test, which
was found to be protected by copyright because questions contributed by the State Department were only
a small portion of the test.
Copyright guidelines for government contractors are different from those for government
employees, Raubitschek said. Before the 1976 Copyright Act, it was not clear if contractors were covered by
copyright prohibition. Reviewing the legislative history, it appears that contractors can retain copyright for
their works. Agencies, however, have negotiated different copyright agreements with contractors. For
example, Raubitschek noted, the Department of Education has in the past permitted grantees a five-year
copyright. The present policy is contained in the Federal Acquisition Regulation (FAR):
- Except for publishing in professional journals, contractors need permission to copyright works.
- There is a special works clause to develop data and materials for the agency's own use, such as movies about exhibits, histories, surveys, or investigatory reports. The contractor must request permission to copyright these works, and he/she may be required to assign copyright to the government in these cases.
"Lawyers tend to get creative," Raubitschek said. There have been other attempts to protect data.
For example, NASA created a contract to lease out software which included a provision which required
users to not make copies. The Paperwork Reduction Act, Pub. L. No. 104-13 (1995), however, eliminated
copyright-like protection related to government data.
Another way of protecting government information products is a trademark. This protects the name of
the agency, the publication, or the product, but not the content. "This is better than nothing," Raubitschek
said. Also, under the Federal Technology Transfer Act (FTTA), government data and software developed
under or in contemplation of a cooperative research and development agreement is exempt for up to five
years from the Freedom of Information Act (FOIA). "This exemption was sustained in a suit against the Department of Commerce," Raubitschek said. "This is a very controversial subject," he continued. "People just
do not like to see 'government' and 'copyright' in the same sentence."
Raubitschek noted that the government can patent and license technology, but cannot copyright it to
make money. Some agencies have tried to create options for the government to have limited copyright
through legislation. The Department of Commerce has twice proposed legislation which would allow the
government to copyright software it developed under a cooperative research and development
agreement (CRADA). "Neither bill passed and both drew a lot of negative comment from the information
industry," he said.
Government-developed software is distributed to the public by the labs, and sometimes sold through
the National Technical Information Service (NTIS). In some cases, government technology is even
exploited by the private sector and sold back to the government. Some have expressed concern that U.S. software
is being commercialized abroad to our disadvantage. The Army Corps of Engineers and the Defense
Mapping Agency have unsuccessfully sought protection for themselves.
Raubitschek closed his talk by addressing government liability for copyright infringement.
In 1960, 28 U.S.C., § 1498(b) was added; prior to that, the U.S. government was not liable for
copyright infringement. Now, the copyright provision in the statute allows copyright owners to sue the
government, with certain provisions:
- If an employee used government time, materials, or facilities, he/she cannot sue the government.
- The government can assert "fair" use, and there is a three-year statute of limitations for making a copyright claim against the government.
- Damages the government could owe may include minimum statutory damages of $500 if the work in question is registered.
There have been a few suits against the government since 1960, he noted, with a few settled, but
none which assigned liability to the government.
Government photocopying is subject to copyright laws, but not all government photocopying is subject
to fair use. However, much government copying is fair use, so blanket licenses are discouraged.
Raubitschek said that in 1998, an Executive Order on Software Piracy was issued. The software associations are
demanding site licenses, and Raubitschek advises agencies to go ahead and get them.
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Melissa Smith Levine, Legal AdvisorNational Digital Library Program, Library of Congress
Melissa Smith Levine, the Legal Advisor for the Library of Congress National Digital Library
Program (LC/NDLP), discussed legal concerns that federal librarians should consider when creating Web sites.
Digital publishing provides new audiences and new ways for agencies to do their jobs, noted Levine.
She proposed to examine questions of linking and framing by exploring court cases which deal them. "None
of them are controlling," she said, "but they are illustrative."
The first case she discussed involved the rival Scottish newspapers,
The Shetland Times and The Shetland
News. The News added links on their Web site which displayed articles from the
Times site. The article displayed the
Times logo, but the News site designers had removed an exterior frame which
contained advertising. The pages did not contain a notice that the user was looking at the
Times site, which created the effect of suggesting that the
News and the Times were affiliated.
The Scottish court found that the News infringed upon certain laws based on the regulation of cable
television. There was a clear possibility of loss of advertising revenue, and the argument that the
Times was getting more exposure was not found to be convincing. The
News was not barred from linking to the
Times site, but were required to include a credit line next to each headline, as well as a button with the
Times masthead image visible. Both of the links had to lead to the
Times headline page.
Levine offered another example which was described earlier in the day by Trotter Hardy: the
Ticketmaster v Microsoft case. Microsoft's links to the Ticketmaster site were set up in way that allowed buyers
to bypass Ticketmaster's home page and the advertisements on it. "The interesting thing about this case
was that Microsoft elected to create and maintain links to the Ticketmaster site after negotiations
with Ticketmaster had failed," said Levine.
Ticketmaster argued that by linking to pages within their site, Microsoft diluted their market and
weakened their ability to earn advertising revenues. They sought relief under the auspices of trademark, unfair
competition, and unfair business practice theories.
Microsoft argued that by participating in the Web, site owners invite people to link to their site.
Microsoft does not use or incorporate Ticketmaster sites, they said. They simply link their users to information
that they might find interesting. Microsoft defended themselves through theories of assumption of risk, fair
use, noncommercial use, and the protection of the first amendment in regards to providing information
about Ticketmaster. Despite these lofty defenses, Levine said, the suit was settled in favor of Ticketmaster.
Levine pointed out that each side offered many defenses and levied many charges to see what might
apply on either side. She described a similar pattern in the Totalnews case, also discussed by Hardy.
One of the plaintiffs in the Totalnews case was
The Washington Post. When a Totalnews user clicked on
a link to a Post story, part of the
Post site was displayed in a frame which included the Totalnews ads
and masthead. As a result, ads which appeared on the
Post site were obscured. The Post used several
legal theories to charge Totalnews, including misappropriation, trademark dilution and infringement,
false representations, false advertising, unfair competition, willful copyright violations, deceptive
practices, tortuous interference, and others. When the suit was settled, it prohibited Totalnews from framing any
page from the Post site and required Totalnews to use plain text links. Totalnews could neither use
Post images or videos on their site, nor create the illusion of affiliation with the
Post in any way, nor dilute the
"You begin to hear strands of arguments similar to those in the other cases, giving us a sense of
what's acceptable and what's not acceptable," said Levine. "Anything sneaky that is possible just because there
is technology which allows you to do it probably is going to cause problems," she said, and, companies
will use laundry lists of statutes to attack infringements by new technologies. Levine noted that William
Arms had suggested earlier that "reasonable use by reasonable people" should shape the laws dealing with
these issues. "I hope that's what will happen," she said.
Issues for Government Web Developers
While commercial Web developers must avoid copyright infringement and unfair competition when
framing or linking to other sites, developers of government Web sites must avoid creating the appearance
of endorsement. The status of a site as commercial vs. noncommercial is not a key factor when
deciding whether a government site should create a link, Levine said. Instead, the relevance and research value
of the site should be considered.
Levine noted that the NDLP site does not generally include other organizations' logos when linking.
Links to the NDLP Web site are permitted, but also should not give the impression that the LC is endorsing
that site or product. If a link was discovered which did not honor the mission or dignity of the LC, Levine
said that she would write a "Cease and Desist" letter. No such instances have yet arisen. Through
HotBot (www.hotbot.com) she said that she found 7300 or so links to the LC Web site, after scrolling through
the first 200 or so, had not found anything controversial. Nonetheless, she recommended establishing a
policy about such matters to "cut down on wear and tear of the staff."
She offered guidelines for securing permissions for linking to other sites from government Web sites:
- do not create anything that is misleading or misappropriates another's work;
- email requests or intentions to link to a site, especially in the case of commercial sites; and
- obtain permissions to copy work from a site for display on the agency/library Web site.
Whether or not it is necessary to obtain permission to display work from another site on the
agency's intranet depends on the use of the material. She suggested that Web developers consult fair use guidelines.
Levine described another disturbing problem for Web developers: misleading domain names. One
notorious example of a misleading domain name is www.whitehouse.com, which is a pornography site.
Another site, with the URL www.loc.com, reads "Are you looking for the Library of Congress? This domain
name is up for sale by owner." The owner is asking $30,000 for the domain name, which, Levine suggests,
may mean that they realized how easily the site could be confused with the LC site and are trying to
capitalize upon it. "They may be hearing from us," she said.
"Today, we've heard about tensions between publishers and librarians," Levine continued. "But
copyright and these other issues are all part of the same food chain and there are all kinds of new opportunities."
For example, in the American Memory project, they have films based on paper-print strips submitted to
LC when photos were eligible for copyright and movies were notroughly from 1900-1909. "The
technological fluke of having these around because of an inconsistency in the law that did not accommodate the
new technology is really interesting to me," she said. American Memory staff members have scanned the
strips and created digital movies with them.
"The law of unintended consequences is always with us, and finding the balance between copyright
owners and users is going to be an ongoing effort all around," Levine concluded.
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