The University Record, April 24, 2000

Hilton helps unravel the mysteries of copyright

By Jane R. Elgass

James Hilton, special assistant to the provost for media rights, says universities, as creators, users and distributors of information, are uniquely positioned to help regulators find a way to balance the rights of authors/creators and users. Photo by Bill Wood, U-M Photo Services
Assumption: The material you are looking at does not have a copyright symbol. You can do anything you want with it, including publishing it on your Web site.

Assumption: In order to gain copyright protection for your book, you must publish it on paper and register it.

Wrong on both counts. Copyright happens at the moment of creation and the use of the symbol has not been required since 1988. That means that the majority of works we encounter in any form, from the written word to granite sculptures to videos on the Web, are protected by copyright.

Publication of written material on paper is not required. Registration is not necessary, but is useful in the event of litigation as it allows for the collection of statutory damages.

While that may appear to simplify discussions of copyright, there still are murky areas, especially as they relate to fair use, and James Hilton has spent the past several months exploring those areas as special assistant to the provost for media rights.

Hilton was driven to discover what’s legal and what’s not when frustrated at every turn—as a teacher, scholar and administrator—by copyright confusion. His probing into copyright questions resulted in his appointment as head of a task force and his appointment in January as special assistant. His task in that post is to make faculty and staff aware of the issues; develop a mechanism to coordinate current services that are based in multiple units, as well as develop new ones if necessary; and review current policies, practices and guidelines with an eye to making them easily understandable.

In a presentation to the Regents April 13 and a lecture co-sponsored by the Horace H. Rackham School of Graduate Studies and the University Library on April 17, Hilton destroyed some of the myths surrounding copyright and fair use, and outlined the challenges facing higher education as faculty strive to make a much larger array of information than has ever been possible available to their students.

In a capsulized lesson on the history of copyright, Hilton noted that in the late 1700s in the United States the focus of copyright was on promoting learning, with a later shift that balanced the needs of both authors and users, moving today in a direction that sees the trend shifting away from users. While the 1976 Fair Use Act appeared to restore the balance, Hilton said the only way to determine with absolute certainty whether your use is a “fair use” is to go to court. That’s because fair use requires weighing the nature of your use on four different factors. The four factors focus on the purpose and character of the use of the material, the nature of the work itself, the amount of material being used in relation to the work as a whole, and the effect of the use on the potential market for or value of the material. “Fair use was supposed to promote learning,” Hilton noted.

“I fear a ‘lock-down’ world,” he said, in which copyright is not the problem, but rather that “access is controlled.”

Hilton cited Bill Gates’ purchase of the 16 million-image Bettmann Archives. Gates’ software company had developed an application that would make such large databases easy to use, then realized that the money was to be made in the use of the archives, not the software. The solution: purchase the archives and charge for access.

A faculty member who attended the Rackham program cited a library with a collection of works valuable to researchers that now is difficult to access. While the works are in the public domain, the collection itself has been licensed, requiring permission to access it.

The increasing importance of the digital world and the Internet are placing copyright and fair use issues front and center for universities, Hilton noted.

“We are seeing a clash between the commodification of information and academic tradition. The information revolution is about commodification, investing in ideas rather than widgets. The content is where the value is and this clashes with academic culture. We care about credit, but we don’t want to lock up ideas.”

Hilton explained, by way of example, that ownership has nothing to do with copyright. “If I give you a scribbled note, you can sell it, frame it, rip it up, use it to deny me tenure. You can’t copy it, put it on the Web, publicly display it. I must transfer to you in writing the right to do those things.”

Copyright, Hilton explained, applies to all forms of expression “with a whit of originality that are fixed in some tangible medium,” and fixed can mean in the RAM of a computer. While ideas are not covered, the expression of ideas is protected. Also not covered are facts, titles, short phrases and works in the public domain.

Also driving the need for clear explanations is the growing focus on collaborative activities. Rackham Dean Earl Lewis noted in his opening remarks the creation of a new term, DTD—dissertations and theses in digital form. “There are issues we need to resolve,” he said, “such as what should be public domain, what should we retain for proprietary purposes and how does this affect scholarship. Do we need to modify our notion of a Ph.D. when it is a collaborative work?”

The regulatory world needs to move in a direction that returns a balance to the rights of users and rights of authors, Hilton said. And as “creators, users and distributors of information, universities are uniquely positioned to address the issues. This includes developing fair use policies that focus on both the public good and authors’ rights, along with guidelines to help faculty, students and staff determine if they are overstepping boundaries.”

“We need to make sure that what we do fosters a climate in which people want to create. We need to articulate principles of ownership, share the multiple rights that come with copyright and preserve flexibility to deal with the copyright challenges that collaboration brings.”

Hilton posed several questions higher education should address in determining policies and guidelines:

  • Is fair use a dead concept in the digital age?

  • What does it mean to “publish” something?

  • What is the relationship between authors/creators/copyright-holders in a collaborative environment?

  • What is the definition of a scholarly work?

  • More specifically, what is a work and what is a derivative?

    Hilton is available to speak on copyright any time, anywhere, and can be reached at hilton@umich.edu.

    Copyright through the years

    U.S. copyright law derives from the 1710 Statute of Anne in England, which was designed to encourage learning, covering only printed books for 14 years (renewable if the author was still living) and requiring registration.

    Framers of the U.S. Constitution adopted this approach, placing copyright in Article 1, 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.” Of the many powers granted in this Article (regulate commerce, coin money, declare war), “this is the only power that comes with an explanation of why it is granted,” notes James Hilton, special assistant to the provost for media rights.

    The year 1790 marked the first copyright statute, extending coverage beyond books to maps and charts and allowing a 14-year renewal. Authors and creators faced enormous hurdles, however, as they were required to register their work, record the title with a district court, publish the material in a newspaper for four weeks and deposit a copy with the secretary of state.

    Minor revisions were made during the 19th century, extending coverage to more published works, increasing the time from 28 years and renewable for 14 more years. Items now covered included dramatic compositions, with performance rights; photos, prints, paintings, drawings and sculpture; and musical compositions, with performance rights also.

    The 1909 Copyright Act saw a huge expansion, with copyright now covering all the writings of the author. Publication was still required, as was registration, and the work had to be printed domestically, signaling the need for international protection. Copyright protection was extended to 28 years plus 28 years and exhibitions, performances and oral delivery now were covered.

    The 1976 Copyright Act was a “watershed,” Hilton said, covering all original works, with copyright existing from the moment of creation, fixed in any tangible medium. Coverage was extended to the life of the author plus 50 years, unless it was a work for hire (75 years). Use of the copyright symbol [] and registration still were required, and there was explicit recognition of fair use limitation on the author’s rights.

    A 1988 amendment implemented international agreements (Berne Convention) on copyright. Use of the symbol now was optional, and registration was no longer required. Hilton noted that under the Berne Convention, only the United States and Britain frame copyright around learning and fair use. Other countries focus on protecting authors’ rights.

    The 1998 Term Extension Act granted protection for life plus 70 years (95 years for works of hire), meaning that works that would have entered the public domain in 1999—including Disney products and Gershwin’s works—now won’t enter until 2019. This raises a red flag for Hilton, indicating a trend toward limiting access and away from serving the public interest.

    The 1998 Digital Millennium Copyright Act preserves fair use, but has prompted a rise in the popularity of licensing. Hilton cautioned against licensing, noting that it is more restrictive than copyright and offers no room for negotiation. “If you license something, you can be prevented from sharing it with others,” Hilton noted, “and you lose access when the license expires.”

    Hilton also touched on the growing use of patents in place of copyright, citing method-of-doing-business (MODB) patents held by Amazon.com for “one-click” buying and Priceline.com for “buyer pricing.” There are 70 MODB patents pending for using multimedia in education, he noted, adding that “there is no fair use in patents.”