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Copyright, Electronic Works,
And Federal Libraries:

Maintaining Equilibrium

1999 FLICC Forum on Federal Information Policies

A Summary of Proceedings

March 10, 1999—Library of Congress—Washington DC

Previous Forums
1999 Forum Call
Welcome and Presentation of FLICC Awards
    Susan M. Tarr
    James H. Billington
    Marybeth Peters
    Patricia Schroeder
Electronic Works and Copyright Balance
    Trotter Hardy
Introduction to Afternoon
    Winston Tabb
Re-Calibrating the Law
    Robert Oakley
Building and Maintaining a Collection
    Laura Gasaway
Using Technology to Manage Copyrighted Resources
    William Arms
Providing Guidance—An Agency Policy on Copyright
    John Raubitschek
Web Publishing—Government 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 libraries—the Library of Congress, National Library of Medicine, National Agricultural Library, and the National Library of Education—and 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 Network (FEDLINK).

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 information technologies.


Previous FLICC Forums

  • 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



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


Forum Call

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 electronic medium.

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 operations—in 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 issue—government Web publishing and the issues it raises, including linking, framing, connecting to potentially infringing sites, and securing permissions.


Welcome and Presentation of FLICC Awards:

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.



James H. Billington, Librarian of Congress and Chair—FLICC

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 work—I 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," Billington said.

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."



Marybeth Peters, Register of Copyrights—U.S. Copyright Office

Keynote speaker Marybeth Peters, Register of Copyrights at the U.S. Copyright Office, confessed to having a bias—she 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 behind copyright.

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 copyrighted work.

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 copyright."



Patricia Schroeder, President and CEO—Association 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 information-driven economy.

"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 require copyright.

"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 that way."

"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 used—often illegally—in 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."


Electronic Works and the Copyright Balance

Trotter Hardy, Professor of Law—College 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 are introduced.

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 information.

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 copyrightable.

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 protected—or at least the sequence of its links—if 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 copyright.

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 arrangement.

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 producers—the 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 of assurance:

  1. copyright law,
  2. the state of the art (including the practicality of copying a work and the quality of the copy),
  3. technological protections, and
  4. 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 protections—such as encryption, digital objects, proprietary interfaces, and the use of serial numbers—can 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."


Introduction to Afternoon

Winston Tabb, Associate Librarian for Library Services and Chair Designate, FLICC—Library 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."


Re-Calibrating the Law

Robert Oakley, Director of the Law Library and Professor of Law—Georgetown 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 copyright."

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

Term extension

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.

Database protection

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."


Building and Maintaining a Collection

Laura N. Gasaway, Director of the Law Library and Professor of Law—University 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 sharing strategies.


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 Sale Doctrine."

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 the work."

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 or archives.

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 commercial marketplace."

"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.

Term Extension

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.

Resource Sharing

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," said Gasaway.

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.


Using Technology to Manage Copyrighted Resources

William Arms, Vice President—Corporation 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 the conclusion.

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.

The actions:

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."


Providing Guidance—An Agency Policy on Copyright

John Raubitschek, Patent Counsel—Department 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 copyrighted them.

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.


Web Publishing—Government Websters and Copyright

Melissa Smith Levine, Legal Advisor—National 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 Post's trademarks.

"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 not—roughly 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.