The University Record, December 18, 2000

No easy answers for copyright issues, panelists report

By Theresa Maddix

James Hilton, left, deals with internal copyright issues for faculty while Jose-Marie Griffiths, in her role as CIO, responds to external copyright complaints, such as the recent request to ban Napster by attorneys for the rock group Metallica.
Five University panelists and a moderator came together Dec. 6 to “hash out” some of the day-to-day challenges of working with copyright issues at the U-M. Panelists addressing “Copy‘RIGHTS’ at the University of Michigan” were Jose-Marie Griffiths, James Hilton, Roberta Morris, William Gosling and Jonathan Alger. Paul Courant, associate provost and professor of economics and public policy, was the moderator.

The office of Jose-Marie Griffiths, university chief information officer (CIO) and professor of information, spearheaded the effort to put together the three-part “Copyright Dilemmas in the Information Age” symposium.

Griffiths noted that the need for discussion provided the impetus for the conference, saying she had decided, “We should discuss these issues. Copyright isn’t a simple issue. Perhaps the time has come for us to take a step back and air all sides of the discussion, to try to figure out the best approaches, not just as individuals but as a community.”

In her brief presentation, Griffiths put forth several questions she hoped would be addressed, if not in the panel discussion, then in future discussions about copyright. They include:

  • What are we trying to protect and what are we trying to promote in copyright law? Is it content? Is it form? Is it the medium?

  • Who owns computer-generated content?

    For example, who owns a computer program that processes a huge volume of text and presents a summary?

  • What about collections of facts/images?

    No one owns facts but collections can be copyrighted. Griffiths said she is particularly concerned with the large percentage of image files worldwide that are being collected and copyrighted by Microsoft, Time-Warner Inc and Disney.

  • What about the relationship of capturing and recording vs. publishing?

  • Who owns information generated by public funds?

    This is particularly a big issue for a large research university, such as U-M.

    However, the key issue, she said, is determining “how we are going to build trust—how we will understand notions of property as we engage in a changing social climate with each other.”
    Morris displays Article I, Section 8 of the U.S. Constitution. Photos by Martin Vloet, U-M Photo Services
    Hilton, special assistant to the provost for media rights, noted that, “For the last five years I have been plagued by copyright, a plague like a horde of locusts descending. Every time I turn around, there is a copyright problem that I don’t understand or I can’t get the answer to.”

    Hilton frequently receives questions about whether notes can be posted on the Web for a class, whether image files can be used for courses, whether a professor can share a copy of a journal article.

    When Hilton seeks answers to these problems from copyright lawyers, he typically is answered by “Interesting question. We don’t know.”

    Hilton emphasized that intuition is not the best thing to rely on to answer such questions. In fact, he has created “Hilton’s principle—The stronger your intuitions are about the answer to a copyright question, the more likely your intuitions are dead wrong.”

    Illustrating his principle, Hilton pointed out that many believe that if a name doesn’t have a copyright symbol, it’s in the public domain. Many believe copyright requires some authoritative act such as registration. On the contrary, anything that has any creativity—even the yellow pages vs. the white pages of the phone book, Hilton said, is protected by copyright.

    On the other hand, ideas are in the public domain once they’ve been shared with any other person. The expression of the idea can be protected, but not the actual idea.

    The biggest myth about copyright that Hilton encounters is the idea that “copyright exists to protect intellectual property.” Instead, though it does protect intellectual property, it has its origins in the U.S. Constitution. Constitutional framers built in copyright for “promoting discovery, promoting the expression of ideas and building on the expression of ideas, getting ideas out into the public eye,” Hilton said.

    In 1976, Congress attempted to address a growing imbalance between artists’ rights and the “production of the useful arts” by introducing the “Fair Use Provision” on copyright. “Fair use,” Hilton said, “is much broader than making copies. Fair use is the part of copyright that allows you to quote from someone when you’re criticizing them, even if they don’t want you criticizing them or quoting them. Fair use is what allows you to make a parody of something and the thing that allows you to make copies and do scholarly research even if the original author doesn’t want you to do it.”
    Courant
    A rising problem, according to Hilton is “a lobby and culture that increasingly sees copyright as exclusively about protecting property and losing sight of or arguing the irrelevance of promoting science and the arts. Fair use is a fundamental liberty at issue.

    “The framers got it right when they created copyright. As an institution, we must speak loudly about fair use,” Hilton said. “If we don’t use fair use, we will lose it.”

    Roberta Morris, adjunct professor of law, teaches copyright law and patent law. She focused on “educational fair use,” saying that universities have not been interested in fair use before now because they have never been sued. “The schools were not included in litigation,” Morris said, regarding the Michigan Document Service (MDS) case, and consequently “the courts said, ‘We can forget education.’”

    But, Morris said, “the professors and education community would do a better job than the courts at resolving copyright disputes” such as those raised in the copy centers case. “We can decide for ourselves what is appropriate for fair use,” Morris said, “We have all the constituents.”

    Faculty members are not only teachers, but many times also the very authors in question, Morris said. “The Copyright Act of 1790 set out to protect entrepreneurs. Authors should be rewarded, not publishing companies,” Morris said.

    What particularly concerns Morris with the MDS case is that “a third party is being asked to step in” to determine what is allowable. “Is copyright a big enough issue that we want to sacrifice our privacy?”

    William Gosling, director of the University Library, strongly emphasized the continuing role of the University libraries, “We take steps to ensure that services are offered to anyone who walks into the building, not just the faculty, staff and students here on campus. Within the context of fair use, we work to ensure legal access for a multiplicity of users.” The library also “assists people in a variety of ways to understand fair use and copyright as they use the collections.”

    This is done with a range of formats—books, film, sound, video recordings and electronic files. “The challenge is to guarantee ready access to all of this intellectual property.”

    The Library has worked for many, many years, Gosling said, to help people with copyright issues, while “avoiding saying anything that could be construed as legal advice.” Services include fair use guidelines posted at copiers and assistance in helping users track down author and publisher information.

    The Library continues to “monitor the copyright environment. The challenge of copyright law is that it is not clear in many cases,” Gosling said. Projects such as the “Making of America,” with its digital conversion of 19th-century material, have only been possible because the copyright dates of its works have expired.

    Jonathan Alger, assistant general counsel, has primary responsibilities in the areas of intellectual property, media rights and cyberspace law. He encourages everyone with legal questions on copyright at the University to immediately contact the Office of the General Counsel.

    “Law is not always neat,” Alger said. “That’s what keeps copyright lawyers in business. Copyright must be addressed on a case-by-case basis.” The University “cannot be afraid of the law here. We have to use it as a tool—we have to use the law as an ally. We can do that by educating ourselves and our community and working together.”

    Key to copyright cases, Alger said, is being able to “show a good-faith effort” for copyright education and an intent to stay within the law.

    “Getting back to our educational mission”—not treating the University as a corporation—will “help us get back to the spirit of copyright law,” Alger said.

    Ownership is a difficult issue. “The University doesn’t take ownership of articles or books written by professors. But how does that apply in the new environment?” Problem areas include multi-media projects, CD-ROMs and source code. “It’s harder to tell when individuals are acting on their own” rather than as an employee, Alger said. “The law doesn’t answer all these questions. It becomes largely an issue of individual universities’ policies.

    Jose-Marie Griffiths (from left) and William Gosling look on as attorney Jonathan Alger fields a question from the audience. Photos by Martin Vloet, U-M Photo Services
    “Copyright,” Alger added, “is a bundle of rights, not an all-or-nothing deal. It can be a win-win situation.” Alger encouraged those with intellectual property issues to bring them to his office from the inception of their project.

    “Touch base early, whether it’s the provost’s office with James, the libraries or the general counsel’s office,” he said.

    A lengthy question-and-answer session followed the individual presentations.

    One faculty member said the University administration needs to publicly support its faculty in copyright issues. Hilton responded that the University must do so on a case-by-case basis and that the administration must have any one who would be charged say to them, “‘I learned about fair use’ and ‘I believe this is fair use, and here’s why’” for the University to legally lend its support.

    Another asked Gosling why the Library is not objecting to the potentially monopoly-creating merger of scientific journal publishing giant Elsevier with Harcourt. Gosling responded that the U.S. Department of Justice is still involved and that the case is not settled. He said that he had recently been on the phone for one and a half hours with the Justice Department discussing potential ramifications of this very merger.

    A follow-up question on the selection process for peer-reviewed journals and the entry of electronic journals into the peer-review process was fielded by Griffiths and Courant. Griffiths stated that the process is different in different fields, and that in computer science, peer-review is being done with some newer forms of media. Courant stated that because of the very nature of the process, the University administration does not determine what is acceptable for “peer-review.” This must remain a peer-determined area.

    A staff member from the Law School asked for clarification on what can be posted in U-M Coursetools, noting that if she asked the general counsel’s office each time she had a copyright question, their number would be on speed dial.

    While encouraging her to call anyway, Hilton said guidelines for Coursetools are in the works.

    Hilton can be contacted at the Office of the Provost, (734) 615-5236 or Hilton@umich.edu. Alger can be contacted at the Office of the General Counsel, (734) 764-0304 or jonalg@umich.edu.


    U.S. Constitution, Article I, Section 8.
    The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.