The University Record, October 30, 2000

Copyright, fair use are misunderstood, Kornfield says

By Dan Krauth
News and Information Services

Many people experience fear and anxiety when someone utters the words “copyright law,” and they have a good reason for it.

“We are living in the dark ages now of the copyright law,” says Susan Kornfield, who recently spoke on “The Electronic Professor: Who Owns Lectures on the Net?” sponsored by Horace H. Rackham School of Graduate Studies, the President’s Information Revolution Commission and the Institute for the Humanities.

Kornfield, an adjunct professor at the School of Information this past spring and at the Law School in winter term 1997, is an attorney with Bodman, Longley & Dahling and an expert in copyright law.

“Now that the copyright owners have lobbied Congress to have the term of copyright extended well beyond the century, increased amounts of rights and penalties for infringement, and increased control over electronic works, U.S. copyright law now has more in common with the dark ages in England than with the age of enlightenment,” Kornfield said.

Many faculty members are baffled by what things are protected by copyright law. “Not everything in a lecture is going to be ‘protectable,’ ” Kornfield explained. “It may be valuable, illuminating and wonderful, but it’s not protectable, because that wouldn’t further the constitutional purpose of copyright, which is to advance learning.”

The Constitution, Kornfield noted, states: “Congress shall have the power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respected writings and discoveries.”

Copyright law meets the constitutional objectives in many ways. First, ideas are not protected.

“So a lot of the fights that go on in copyright infringement cases are these fights over whether or not I’ve used your idea or have I actually used the expression,” Kornfield explained. “An important point is that we talk about who own lectures on the Net, but nobody owns ideas from a copyright point of view.”

Second, facts are not protected under copyright law. “Copyright does not protect facts because facts are discovered, facts are not authored,” she said.

In 1991, the Supreme Court ruled, in a unanimous opinion, that facts are not copyrightable and that the contents of a telephone directory (names, addresses and telephone numbers), were not copyrightable. Until then, for 70 years, federal courts had held people liable for copying phone numbers and addresses from phone books. “This is evidence,” Kornfield noted, “that copyright law, and judges’ understanding of copyright law, continues to evolve.”

The Copyright Act also meets the constitutional objectives by not protecting works of the U.S. government and by not protecting works in the public domain. A public domain work that is recast from print to electronic format is not protected by copyright.

Last, the law meets the constitutional objectives by preserving fair use. Section 107 of the Copyright Act gives the public certain uses of other people’s work. The act states, “The fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright.”

“Many people’s interpretation of copyright law is putting the future of education at stake,” Kornfield said. “I know of professors who have made decisions to not make material available for classroom use because of the fear factor of litigation.”

However, she noted, the uses listed in the fair use section of the act are favored and exist outside the control of copyright owners. Also, it does not state how much you can use of the work, it’s about why and for what purposes you are using the material. Again, the purpose of the copyright law is to advance learning.

“The Copyright Act expressly contemplated that copying for classroom use was a favored use and was not within the control of the copyright owner,” Kornfield said.

Some of the confusion about copyright law arises because some people are unqualified to make decisions about what is protected, or they have the wrong information. Kornfield described an encounter with a copy clerk at the University who was responsible for determining whether materials that faculty members asked to have distributed could be copied.

“I asked if she’d had training in this area and she said that there are certain guidelines that she followed from the Association of American Publishers, which is not copyright law,” Kornfield explained. “I said to this person gently, ‘You are unqualified to make those decisions.’ But I talk to faculty members who confess that they sneak into offices, make copies of class materials and then turn off the machine so nobody will know that they used it.”

If two colleagues from separate institutions collaborate on a lecture or any other work, many ownership issues arise. “Historically, universities have not owned the professors’ literary work product,” Kornfield said. “The copyright law doesn’t speak about it directly, but judges have noted that professors’ work products have been viewed as outside the copyright claim of the university, typically for reasons of academic freedom.”

When a faculty member creates a lecture on the Internet, the faculty member will probably own the lecture. However, if the University hires a Web designer whose specific job description is to create a Web lecture, since that is their scope of employment, then the University will own the lecture. “But [with] faculty who are paid to do other things, and who also happen to do a lecture on the Web, the University is probably not going to own that lecture, but it probably will have the right to show that lecture to other students,” Kornfield said.

Kornfield predicts that future faculty contracts will contain detailed information specifying legal ownership of the faculty members’ works.

Individuals found legally responsible for infringement of copyright law suffer great consequences, Kornfield noted. “You’d have to give back all of the profits you made, you would have to pay the damages, yank the goods from the strain of commerce. There’s personal liability for people who are found liable for infringement.”

There are many things that are not protected by copyright, including an unoriginal aggregation of facts, stock characters, elements of a work dictated by externalities, when there are limited ways in which an idea may be expressed, and titles and short phrases.

If questioning whether or not something may be copied or reproduced, the best authority to refer to, according to Kornfield, is the Copyright Act and the cases interpreting the act.

Test your copyright knowledge

1. The purpose of U.S. copyright law is to:

(a) reward authors for their creative efforts

(b) provide an economic incentive to write and publish

(c) advance public learning

(d) provide legal remedies for infringement

2. U.S. copyright law is derived from:

(a) the Constitutional power of Congress to regulate interstate commerce

(b) the Constitutional power of Congress to promote the progress of science and arts

(c) the natural and moral rights of authors

(d) rights of personal property

3. The rights of a copyright owner under section 106 of the U.S. Copyright Act are:

(a) limited

(b) absolute

(c) exclusive

(d) nontransferable

4. Copyright does not exist in a fact because a fact:

(a) is not authored

(b) can be discovered by two individuals at the same time

(c) can be later disproved

(d) does not require effort to discover

5. Which of the following is not protected by copyright:

(a) new adaptation of Hamlet

(b) new sound recording of a rainforest

(c) Web-casted lecture about copyright law

(d) process for data compression

6. Copyright protection commences upon:

(a) embodying creative expression in some physical medium (i.e., paper, video, plaster, magnetic)

(b) conceiving an original, creative idea for a work of authorship

(c) publishing an original work of authorship

(d) registering an original work of authorship with the U.S. Copyright Office

7. Digitizing public domain print text into electronic text:

(a) results in a public domain work

(b) results in the creation of a derivative work

(c) results in copyright ownership by the digitizer

(d) requires permission of the publisher of the print work

8. Copyright registration:

(a) conclusively establishes copyright ownership

(b) confers procedural benefits, such as the right to seek attorneys’ fees as the prevailing party in litigation

(c) creates additional copyrights under section 106 of the Copyright Act

(d) prohibits the independent creation of a work identical to the work of another

9. The Copyright Act embodies First Amendment principles:

(a) by not protecting ideas

(b) by preserving fair use

(c) by not protecting facts

(d) by not protecting works of the U.S. government

(e) all of the above

10. The best source of legal authority for policies about electronic reserves is:

(a) University policy

(b) The Copyright Act and cases interpreting the Act

(c) Fair use guidelines for electronic reserves

(d) Current library procedures

(e) Publication for industry trade groups

Click here for answers.

Susan M. Kornfield, J.D.

Quick copyright quiz:

A commercial use of the work of another person is presumptively an unfair use of the work. T F

Joint authors are equal owners of copyright regardless of the amount of their contribution. T F

A compilation of uncopyrightable facts can be copyrightable. T F

Students, researchers, scholars and educators have a stronger claim to fair use than do for-profit corporations. T F

A successful defense of a copyright infringement claim advances the interests of copyright law as much as a successful prosecution of an infringement claim. T F

Permission to use a copyrighted work must be in writing in order to be legally effective. T F

Works posted on the Internet are less copyrightable than works distributed in print. T F

Good faith is relevant to a successful defense of fair use, to liability and to damages, in a claim for copyright infringement. T F

Click here for answers.

Copyright Self-Assessment, Susan M. Kornfield, J.D.