The University Record, March 11, 1998

Copyright: More Questions Than Answers

New forms of publishing, including multimedia and web-based works, complicate copyright issues. Photo by Bob Kalmbach


By Kerry Colligan

The Copyright Act of 1976 was written to be flexible. In the face of the personal computing revolution and countless other technological changes, Congress sought to draft legislation that could adapt to the changing environment. To promote the "progress of science and useful arts," the U.S. Constitution provides the foundation for the Copyright Act "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

How times have changed. The onslaught of Web-based and other electronic format works, as well as the handling of images, graphics and distance-learning tools, have pushed copyright protection issues to the fore. Faculty and staff alike face the prospect of obtaining copyright permission before using images in a presentation or using journal articles in a classroom.

The University Library, in conjunction with the Business School, the Office of the Vice President for Research, the Academic Outreach Program, the School of Information and LS&A, sponsored a copyright symposium last fall to discuss these and other issues. "Copyright and Fair Use: What You Need to Know to Stay Out of Trouble," included sessions on coursepacks, Web publishing, faculty publishing and use of digitized images.

"People eschew copyright because it is counterintuitive," says Jack Bernard, symposium participant and graduate student in education. Higher education stands squarely in front of copyright and its quirks.

Copyright and Fair Use: The Law

Drawing on the protections set forth in the U.S. Constitution, the 1976 Copyright Act protects original work "fixed in any tangible medium of expression." To such original work, the Act assigns rights of ownership, including the right to duplicate, perform, display, create derivative works, as well as establish "moral rights" to maintain the integrity of the work.

"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described."

That much is straight-forward. However, as quickly as the Copyright Act assigns privileges, it also provides limitations of the rights of the owner. Among those limitations is the right of libraries to duplicate or archive the work, provided it is done only for private study, scholarship or research.

The most controversial of the limitations are those titled "Fair Use." Fair use "depends on a multiplicity of circumstances" and is a quantitative and qualitative balancing test for copyright compliance, says Kenneth Crews, director of the Copyright Management Center at Indiana University-Purdue University at Indianapolis and keynote speaker at the symposium.

Four factors must be considered when determining fair use:

"The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work."

Generally, the courts have found uses to be in compliance if the sum of the factors weigh for fair use; the fair use clause, thus far, has not been interpreted as an all-or-nothing clause. Just because a use is educational does not mean it is fair use. Each of the four factors needs to be evaluated for a given set of circumstances.

This case-by-case analysis is exactly what Congress had in mind. Flexibility was built into the law in anticipation of technological changes.

Modifications and provisions have been heaped upon the law since its adoption. In 1988, Congress adopted the recommendations from the Berne Convention. Signed by more than 140 countries, the Berne Convention Implementation Act provides copyright protection in most foreign countries regardless of the notice printed on the work.

Most of the changes to the Copyright Act have been spurred by technological changes. "Copyright is a dynamic force that is changing under all kinds of pressure," Crews says. New technologies and innovations are raising questions about copyright in teaching, learning and research, he added. According to the U.S. Copyright Office, Title 17 of the U.S. Code (which incorporates copyright law) had been amended 29 times through September 1996. Eight of those changes deal directly with new or changing technology.

Fair Use in Action--Coursepacks: Basic Books Inc. v. Kinko's

"Most people think copyright is there to protect ideas, to show that someone owns the work, to protect it from theft, or because of the financial incentives. None of these is the real reason. Copyright is there to promote the public welfare by the advancement of knowledge. It is there to promote creativity and that's what universities are all about," Bernard said.

Promoting creativity is a noble goal. Copyright collides with that goal from a practical standpoint. Coursepacks have been the source of significant debate and legal action in recent years. In 1991, Kinko's was sued by publisher Basic Books Inc. for duplicating excerpts of copyrighted material for sale to university students. Kinko's argued that its use complied with fair use in that their use was for "nonprofit educational purposes."

The court's ruling puts the four factors to the test:

Kinko's purpose, the court ruled, was commercial, not educational.

However, the nature of the duplicating was found to be in compliance. In general, courts have looked more favorably on uses of scholarly and non-fiction works.

Kinko's copied between five percent and 25 percent of the works included in the coursepack in question. The court found that percentage excessive.

Finally, Kinko's duplication was found to be in direct competition with the copyrighted works themselves. Even though Kinko's lost the case, the ruling did not extend to all coursepacks. Rather, each item within the coursepack must be considered individually.

According to Crews, the Kinko's case is a perfect example not only of how fair use works but also of how it has been interpreted by the courts. Generally, Crews said, the courts have favored "transformative" uses, or those that take a piece of another work and make it something new.

Such "transformative" uses should not be confused with derivative works. The Copyright Act gives the copyright holder the right to make derivative works from an original. A derivative work is, according to the Copyright Act, "a work based upon one or more preexisting works, such as a translation, musical arrangement . . . or any other form in which a work may be recast, transformed, or adapted." From a legal standpoint, the difference is that the creator of a derivative work holds the copyright for the original, while the creator of a "transformative" work may not.

"I can't imagine a situation where a faculty member would draw heavily from his or her own original work that wouldn't be a derivative work," said Michael Kope, intellectual properties attorney in the Technology Management Office.

'A Modicum of Creativity'

The Constitution grants protection to authors and inventors for works in the sciences and useful arts. Because higher education encompasses both, some participants at the symposium wondered if the courts are acknowledging the balance between science and the useful arts.

While the Kinko's case put fair use to task, Feist Publications v. Rural Telephone Services Co. (1991) asked a different question of copyright law. When is a work considered original? Feist publishes a phonebook containing white pages. Rural used a listing of Feist's white pages without obtaining permission. The court ruled in favor of Rural, stating that "the U.S. Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable."

With that ruling, Crews said, the assumption that "sweat of the brow" mattered to the courts was thrown out. Many in the higher education community--and the publishing community as well--thought the court would look favorably on hard work, Crews said. In the Feist ruling, he said, it was stated clearly that "copyright exists to promote creativity, not hard work."

"The majority of the problems we have here are not legal problems. [The problem is] that we don't have a way of thinking about this, a common culture of dealing with these issues," Bernard said.

Whether there are legal problems or not, it is clear that the higher education community is not the focus of lawsuits. "I hope we're not here because we're worried about being sued. If we worry about lawsuits there's a very easy answer--just don't do it or do it very conservatively," Crews said. The real issue is exercising a balanced fair use in order to support higher education, he added.

Merging Cultures: The Web, Digital Images and Copyright

Legal changes further complicate copyright and fair use of digital images and Web-based data. "Web-based digitized collections are problematic, and they are going to be problematic for a while," said Barbara MacAdam, head of educational and information services in the University Library.

The Web presents a real dilemma, Crews said, because it implies an "ambiance of unrestricted free information. That's just not the case. The real dilemma here is an almost point-by-point conflict between copyright law and what the Web is supposed to do."

Consider the Mona Lisa. It is in the public domain; copyright ownership is held by the public. If a graphic artist modifies the original for a Web site, the modified Mona Lisa is then copyrighted, even though the original is in the public domain. Return to your surfing. To use the modified Mona Lisa for anything, you must meet the requirements of fair use or obtain permission from the owner.

When transferring work to the electronic environment, some faculty at the symposium questioned when that work would be considered a new work and when it would be a derivative work. "It has to be modified so that there is no expressive content of the original substantially left in that document" to be considered new, Kope said. "Quite frankly, in most cases this point is going to be moot."

In the electronic environment there is at least one constant: everything is changing. Laws, technology and creative uses of new mediums are all in flux. In the context of those changes, MacAdam said, timing and access are everything. "The very fact that you may have taken something and digitized it is not so much the issue," MacAdam said. "But because when you have something out and available to the world, or even to the university community, every minute that it's there, someone is going to be out there using and repurposing it. It is what worries the commercial community that produces these materials. And it should concern you, too."

Educational uses are less often the problem, according to MacAdam. "It's not so much that [faculty] use materials for scholarship and teaching, but that we like to draw in things and give them visual aesthetics. That purpose is very different." The line between educational use and aesthetic beauty is, like the line defining the amount of acceptable use, largely undefined. Line or no line, it is clear that educational use for scholarship, criticism, analysis and teaching is highly regarded, MacAdam said. However, potential boundaries arise as the amount, the ease of access and the duration of use increase.

To show a comic strip in a classroom for purposes of directing discussion is well within fair use. Although the entire work is being shown, the purpose clearly is educational, the audience is limited and the duration is short. To place that same comic strip on a Web site presents many more problems. Access is tremendously increased (even within the university community), as is the potential duration.

Distance Learning: A Dated Perspective

The Copyright Act, Section 110(2), states that certain performances and displays are not a violation of copyright if "the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and (C) the transmission is made primarily for (students or others with special circumstances necessitating such a transmission)."

At its core, the problem with copyright and distance learning is product-related. Is the university charging tuition for a product or is it selling a consumer product? "In other words, teaching is not as different from publishing as it used to be. It's a difference in degree now, not in kind," Kope said.

Either way, Crews said, Section 110(2) does not address the issues at hand. "Clearly what Congress had in mind was the technology they knew 20 years ago." According to Crews, Section 110(2) eliminates contemporary dramatic performances and music, and audio-visual work from distance learning, leaving a law "that isn't very credible," he said.

What's Next

Technology is changing the boundaries for copyright too fast for the legal system. Congress is, however, considering two bills: the Online Copyright Liability Limitations Bill (H.R. 2280) and the World Intellectual Properties and Organizations Copyright Treaty (H.R. 2281) are both in subcommittees.

According to Crews, H.R. 2281 secures the ability of the data provider to put technological restrictions on accessibility and utilization, and to put copyright information on the source of data. The supplier would be able to place restrictions on use even in circumstances that would otherwise be legal. H.R. 2281 also gives the supplier the power to enforce those restrictions.

It is a "black box" provision, Crews said, that "presents a clear and direct harm on efforts of higher education by directly undercutting resources and the ability to use those resources for such purposes as research and teaching." According to Stephanie Peters, minority counsel for the Intellectual Property Subcommittee of the Judiciary Committee, U.S. House of Representatives, H.R. 2281 says that "technology created to circumvent copyright is punishable by law."

H.R. 2281 is still in the discussion phase. All of the participants in the symposium asked for comments from the higher education community. "Have a voice before someone else has one for you," Kope said. "If you don't, all we can do is say, here's the law, and most of what you do is violating it."

Both Crews and MacAdam said there has been little effort to pursue legal proceedings against the higher education community. "Now is the time for us to take risks as it relates to copyright," Bernard said. True or false, now is the time to look carefully at copyright. "The only way to meaningfully address fair use is to address it critically," said Crews.

Though it is not clear whether the higher education community or Congress will take the lead in providing recommendations for copyright reform, the courts have stated that they will not. In the Princeton University Press v. Michigan Document Services (1996) case, the Sixth Circuit Court of Appeals summarized its position: "The changes in technology and teaching practices that have occurred over the last two decades might conceivably make Congress more sympathetic to the defendants' position today. If the law on this point is to be changed, however, we think the change should be made by Congress and not by the courts."

What You Should Do

In this environment, everyone is clamoring for change. It is important for the higher education community to develop a position, whatever it is, Kope said. "I'm not even sure that the university community knows, other than this general feeling of frustration . . . that there is a position on fair use that is not consistent with federal law right now and that it might be time to do something about it."

Stop worrying about lawsuits. Conversations with lawyers about the state of copyright contracts are illustrative, Kope said. "We know it's extreme. We would never enforce any of these terms against an author who was acting in good faith . . . but we want them to know how important it is that [authors] think about that." Both MacAdam and Crews reiterated Kope's assertion that there seems to be a move, though somewhat ill-defined, toward acting in good faith.

Many faculty rely on guidelines produced by universities and nationally recognized organizations to direct their activities. These guidelines, MacAdam said, can be viewed as anything from a safe harbor to talking points. Either way, "every single guideline may say what you're doing is perfectly reasonable and the publisher may still take issue. The more you step outside the classroom and the curriculum, the further you may be from educational fair use," she said.

Producers, the most conservative approach is to register your work with the U.S. Copyright Office. Though copyright is assigned automatically, producers should register their work if they anticipate the need for strong enforcement of copyright, according to the Copyright Management Center.

Consumers, given the multitude of factors weighing on your decision to use a work, "we're back to 'be responsible,'" Crews said. Where To Go To Stay Out of Trouble

There is a wealth of sources providing information about copyright. The symposium planning committee forwarded a request to the provost and president "that you move forward a process that will guide faculty in the application of copyright law, and that you support efforts to promote in Congress the copyright needs of higher education in general and the University of Michigan in particular." Additionally, the tapes of the symposium are available to departments at the Film and Video Library, or to individuals at the University Reserves.

For assistance:

 

Copyright Management Center: (317) 274-4400; http://www.iupui.edu/it/copyinfo

 

Technology Management Office: 764-4290; http://tmo.umich.edu/

 

United States Copyright Office: (202) 707-9100; http://lcweb.loc.gov/copyright

 

United States Patent and Trademark Office: (800) 786-9199; http://www.uspto.gov/

 

University Library Copyright Information Web Site:
http://www.lib.umich.edu/libhome/copyright/index.html