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Copyright in the Internet / Information Age: Ownership Issues & Fair Use


Rosemary Chase

University Copyright Officer
George Mason University Libraries

 

The World Wide Web has made it easy for anyone to be a publisher. Although it is relatively simple to publish or republish text, images and music on our own websites, it is not necessarily legal. Copyright law of the United States (1790) is based on the Statute of Anne which granted authors and inventors a fourteen year term of exclusive ownership with an option to renew for an additional fourteen years. Before the Statute of Anne, English law amounted to censorship of content and control of distribution by printers. Copyright law has come a long way since the Statue of Anne, and experienced many revisions, of which the Copyright Act of 1976 has been the most comprehensive. Writers and other creators of original works enjoy a set of exclusive rights that are granted by the Act, Title 17 of the U.S. Code, and only the creators can relinquish the rights to reproduction, adaptation, distribution, public performance, and public display.


The Act was accompanied by the Report of the House Committee on the Judiciary (H.R. No. 94-1476), which included the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions. These and many other fair use guidelines are available on the George Mason Copyright Office website to provide assistance in determining fair use. Quantitative guidelines are popular and well-used because many people "lack the experience needed for good judgment" (Orlans, 56). None of these guidelines has the force of law, but they can help us to decide whether our uses of materials found on the Internet are likely to be defensible as fair.


In Dean Taciuch's article, "Give It Away Before Someone Takes It (and Tries to Sell It Back to You)," such guidelines are given an unnecessarily strict reading. Guidelines are not laws and are not University policies, but they are tools for assessing whether or not your use is fair. The fair use statute, §107 of Title 17, suggests circumstances under which certain uses of copyrighted works could be defended as fair uses, provided that four factors are considered before a determination is made.


The famous four factors are purpose, nature, amount, and effect. Educational purpose (as in multiple copies of an article for classroom use) is more favorable than a commercial purpose. The factual nature of the material being used (versus fiction) also weighs in favor of fair use. A small amount, versus the entire book, novel, play, or journal is also considered fair, as long as the "small amount" is not judged as too substantial a portion (the guts) in relation to the whole. And finally, if there is no adverse effect on the market for the whole, then the educational use of an insubstantial portion of factual material can be defended as a fair use.


The Copyright Act of 1976 was written in the advent of the invention and wide-spread use of the photocopy machine. In 1978, the Agreement on Guidelines was endorsed and adopted as written by many educational institutions nationwide, including George Mason. The University of Wisconsin, Madison, revised the guidelines to better suit the needs of higher education, as did the American Library Association. As a result of a law suit in the early 1980s brought by the American Association of Publishers against New York University, NYU also adopted the Agreement on Guidelines as policy.


In the 1990s, at the conclusion of almost three years of meetings, the Conference on Fair Use (CONFU, 1997) presented guidelines for Distance Learning, Interlibrary Loan, Digital Images, Multi-Media and E-Reserves, most of which were never widely endorsed. Nevertheless, many universities apply them in lieu of making individual fair use assessments. The CONFU guidelines are suggestions for staying within fair use based on the 1976 statute.


At the time of the 1976 Copyright Act, high-quality digital reproduction of video and audio was not yet widely practiced. To accommodate new technologies such as web publishing, legislation was passed in 1998, the Digital Millennium Copyright Act, known as DMCA. Although there was hope that it would provide for fair use of digital materials, instead it spells out stipulations by which Internet service providers (ISPs) are bound in order that they be eligible for reduced liabilities for the actions of their patrons. The Sonny Bono Term Extension Act, also passed in 1998, amends § 102 adding twenty years of copyright protection, which means that no works will automatically fall into the Public Domain until 2019. It does not affect works already in the Public Domain, that is, any work published in 1922 or before. This does not mean that every creation published between 1923 and the present is protected by copyright, but the major corporate producers, like the Disney Company, made all scheduled copyright renewals prior to 1978 and enforce them regularly. The Technology, Education, And Copyright Harmonization Act (TEACH, 2002) amended § 110 (2) providing fair use of certain works in electronic access, but only for educational use in a Distance Education environment.


Items used for Distance Learning under the provisions of the TEACH Act must be integral to the course. Since course reserves are traditionally supplemental readings, Electronic reserves (E-Reserves) are specifically excluded from TEACH, regardless of their traditional one copy per student history. TEACH specifies that for a Distance Learning course, comparable amounts of copyrighted works may be put up electronically. Students can make a single, personal print copy (print-out) from a web page, but not a digital copy (download). Some digital downloading is prevented by the software, but not always. Students are not required to destroy their print copies at semester's end. TEACH says that ISPs should install "measures that reasonably prevent – (aa) retention . . .[and] (bb) unauthorized further dissemination." The institution is not required to guarantee that it cannot be "cracked."


The fair use guidelines are just that, guidelines. They are aids for the interpretation of the statute. There is nothing in the guidelines, no matter which ones you read, to prevent your including a passage from a novel, a film clip, (or a still), or a photo from an art exhibit for use in your online review or for educational purposes. These uses fall under "criticism, comment, news reporting, scholarship…"


Dean asks, "whose rights are being protected by copyright?" It is the publisher's right to make a profit on the distribution and sale of works whose authors have contracted with them for marketing and distribution of their works. Even though the author of the article for the scholarly journal is not paid, it is a commercial venture for the publishers, since they sell subscriptions to libraries to ensure broad access. GMU Libraries license many Electronic Journals using Library funds, (none of which comes from a student technology fee). These licensed electronic databases make it even easier to access thousands of journal titles, at the click of a mouse.


Publishers want the copyright protection to limit competition with other websites that might otherwise display your work, too. When authors or scholars want to be widely read, they sell their work to a publisher, whose rules must be followed. Scholars who contribute to academic journals almost always forfeit their exclusive rights in exchange for the distribution of the article by a prestigious publisher.


Publishers have a very narrow view of fair use, especially of their own titles. Naturally they restrict their authors' uses of others' copyrighted works, reflecting their low tolerance for any risk of an infringement suit. Many publishers require their scholars to obtain permission for any use of another's work, no matter how likely it is to be a fair use. The authors who wish to make comment and criticism are seemingly held hostage by the publishers who hold the purse strings. For this reason, some academics are by-passing the conventional publisher in favor of online venues.


However, most authors are not technicians, publishers, marketing agents or publicists. Therefore, publishers will probably enjoy many more years of commercial gain for their part in promoting talented writers and gifted scholars. We are all rights holders, and we all have choices about how, when, and with whom to share these exclusive rights. Distribution facilitators should be compensated for their experience and expertise. Authors have the option to donate freely for educational purposes.


The fair use guidelines found on Mason web sites are for educational fair use which does not include any commercial publication. However, if a student wants to publish a thesis, only the inclusion of dozens of copyright protected photographs, poems, or other complete works would pose a problem because the number would probably be considered beyond a "fair use for criticism, comment, or scholarship…" etc. This is not to say that she could not reduce the number of photographs or request permission to use the photographs.


Fair use is almost always possible as a defense for educational use. The statute is purposefully vague – its flexibility is valuable. At Mason, we interpret rather liberally, much more so than some of my colleagues across the country who will not copy a professor's own work without the permission from the publisher (book or journal) -- something we do quite regularly here.


The DMCA did NOT alter the fair use statute. Fair use will only be lost if we stop applying its principles to defend our educational uses. As Siva Vaidhyanathan says in Copyrights and Copywrongs " …a leaky copyright system works best…[it] allows people to comment on copyrighted works, make copies for teaching and research, and record their favorite programs for later viewing…But when constructed recklessly, copyright can once again be an instrument of censorship, just as it was before the Statute of Anne" (184).


Sources

Copyright Act of 1976 <http://www.copyright.gov/title17/>

Agreement on Guidelines, <http://www.copyright.gov/circs/circ21.pdf>

Harold Orlans, “Scholarly Fair Use: Chaotic and Shrinking” Change (Nov/Dec, 1999): 56.

CONFU and guidelines,<http://www.utsystem.edu/ogc/intellectualproperty/confu2.htm>

DMCA, <http://www.copyright.gov/title17/92appv.html>

Term Extension Act, <http://www.copyright.gov/title17/92chap3.html#304>

TEACH Act, <http://www.lib.ncsu.edu/scc/legislative/teachkit/teach.pdf>

Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, (New York: New York University Press, 2001)

 

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