Last in series of copyright discussions provides overview of pending legislation

Michael Waring discusses the latest copyright legislation. Photos by Marcia L. Ledford, U-M Photo Services

Pending legislation was the topic of the last copyright discussion of the year, held April 17 at the Michigan League. Michael Waring, executive director of federal relations and director of the University’s Washington, D.C., office, identified some of the major copyright and intellectual property issues that the 107th Congress is expected to address during its first session. Jonathan Alger, assistant general counsel for the university and a specialist in intellectual property, discussed issues of interest to the University.

Waring pointed out that the current focus of copyright and intellectual property legislation is on changes resulting from new digital technologies.

Alger noted, “At Michigan, we include people who use copyrighted work, those who create it, and those who market and sell it. From the University’s perspective, the concept of fair use—the notion that under some circumstances you can use a work even without permission—is especially important. It’s central to the work we do.”

The discussion centered around six major issues.

Database legislation

Waring reported that the House Judiciary and Energy and Commerce committees are working together to craft a bill, calling on representatives of both sides of the issue to help create legislation that copyright users and database owners both support.

Alger added that the position of the universities, expressed through the Association of American Universities (AAU), is that higher education recognizes the need for legitimate protection of databases, but not at the expense of access for research by faculty and students.

The AAU’s position is supported by higher education, libraries and some Internet groups. Those favoring greater protection for databases include organizations such as the National Association of Realtors, Reed Elsevier, Lexis/Nexis and eBay.

Jonathan Alger responds to a question.

Waring predicts that the two sides will come up with a compromise that both can accept. “In my experience, most copyright legislation has been negotiated by the parties concerned. Congress comes in at the end, puts it all in a bill, passes it, takes the credit and moves on,” he said.

Digital Millennium Copyright Act changes

The Digital Millennium Copyright Act, passed by Congress in 1998, deals with digital information and copyright. It created a new section of copyright law that limits the liability of Internet service providers (ISPs)—including the university—when copyright infringement occurs while using their networks.

However, some problems have arisen with the legislation. Its tough anti-circumvention measures severely penalize those who break through encryption to gain access to data.

Napster

The Senate Judiciary Committee has held hearings this year to examine issues raised by Napster, the online music sharing service. Recent court rulings found Napster liable for violating copyright laws.

Noting that several solutions to the problem have been proposed, Waring said, “Congress will be working hard to shove the recording companies and online sites together to work out a compromise.”

Alger said that several months ago, the University was asked to block access to Napster and other online music sites. “As a public university, we declined to do so, because there are plenty of legal uses for that material. Some faculty members have even posted their lectures on Napster. The question is whether this peer-to-peer technology has educational purposes that should be protected,” he said.

Distance education

A recently introduced Senate bill would make it easier to use copyrighted material in online instruction, allowing the same sort of fair use in distance education that one might find in a regular classroom setting.

Publishers oppose the legislation in its current form. Higher education interests, on the other hand, are seeking changes that include circumvention of encryption for fair use of copyrighted materials.

Anti-spam legislation

Waring reported that a bill dealing with unwanted commercial electronic mail, or “spam,” is currently in the House Judiciary Committee. Among other provisions, the legislation would make it a crime to send unsolicited commercial e-mail that contains false routing information and force those sending unsolicited commercial e-mail to include a valid electronic address so that recipients can contact the sender to be removed from the list.

The issue is not clear-cut, however. “The university gets about 2,000 spam complaints a year, representing many more separate incidents,” Alger said. “Obviously, it’s a significant problem. On the other hand, what’s the definition of ‘commercial?’ ”

State sovereign immunity

Based on recent federal court decisions, states can enforce their own copyrights against others, but they (and their institutions) may not be sued for infringing others’ copyrights. Increasingly, this disparity is being questioned as an unfair advantage, Waring said, and it is of increasing interest on Capitol Hill.

The discussion was the last in a series of meetings held to educate the University community about copyright issues and the appropriate use of computer resources. The series was sponsored by the School of Business Administration, the Office of the General Counsel, the Office of the Provost, the President’s Information Revolution Commission, the School of Information, the Technology Management Office, the Office of the Chief Information Officer, the School of Information, the Law School and the University Library.