With this issue, English Matters turns to face an important issue for all scholars, artists, researchers, teachers, students, creators, consumers, browsers, and owners of digital content: copyright. In short, anyone who comes into contact with digital content should be aware of the current situation concerning copyright. Traditional copyright today, that is, the type of copyright indicated by the circled c, is automatic, attaching the moment an idea is placed into tangible form (including the seemingly intangible form of digital media). It embraces us all; not even death can loosen its grip until (lo!) seventy years have passed.
I can safely assume that everyone reading these words is a copyright-holder. Anyone who has ever written anything— essays, notes, film scripts, poems, plays, shopping lists, web pages—holds a copyright on that content. Good for you. What do you want to do with this now-restricted content? The options are yours: sell it, license it, withhold it, grant it, give it away. Or you can do nothing. But content, unless otherwise labeled, is assumed to be completely protected. Such content is effectively (legally if not practically) withheld from the public. And that's fine; most people don't want their essays, shopping lists, what have you, available for public consumption. Nor does most of the public want to read your essays, shopping lists, etc.
Although copyright is automatic, it is not absolute. Among its limitations are First Sale, which allows the resale of copyrighted works without compensation to the copyright holder, and Fair Use, which allows for limited uses of copyrighted works without permission from the copyright holder. Traditional Fair Use allows reviewers, for example, to quote from a work under review; it allows scholars to use sources without requiring permission. Without Fair use limitations to copyright, content owners could deny permission to negative reviews, or prohibit scholarly discussion of their works. Neither art nor scholarship would fare well without Fair Use.
In 1998, the Digital Millennium Copyright Act (DMCA) gave special protections to content in digital media. Unlike content in a physical medium, such as paper or videotape, digital works can be endlessly, effortlessly, and perfectly copied. Content owners (who are not necessarily the content creators) had begun placing copy-protection on their works as early as the 1980s. Computer software, DVDs, and CDs have used various content-scambling and encryption systems, every one of which was broken or cracked very quickly. (For some reasons why, see Cory Doctorow's speech to the Microsoft Research Group.) In order to combat widespread cracking of these copy-protection or Digital Rights Management (DRM) schemes, the DMCA included an anti-circumvention provision. This provision makes it illegal to thwart any copy-protection system. This provision was included even though elsewhere in the DMCA, backup copies are specifically permitted.
The problem with anti-circumvention goes beyond the contradictory attitude towards backup copies, however. A content provider may place anything under DRM protection, with no traditional limits: DRM doesn't expire, and fair use doesn't apply. If a copy-protected e-book allows up to three 100 word passages to be copied, that's it. If it allows no copying, there's no recourse. This applies even to works already in Public Domain; a publisher can restrict usage of content in digital media much more effectively than physical media. Too often, the effect is to make the digital format less useful than physical formats such as print.
A case in point: a colleague of mine purchased several e-books on his home computer. He copied the files to a CD so he could read them on his office computer. But his office computer wasn't "authorized" to read the files. Similar situations exist with legally downloaded music files, which can only be played on "authorized" computers.
Another case: GMU subscribes to the netLibrary, which allows users to "check out" electronic copies of books. Once "checked out," the book remains available to the user for hours or days, depending on the option chosen. But while any one user has the "book" checked out, no other users can access it. On the one hand, this seems a good system: it allows a user to access material without a trip to the library. But the restriction on simultaneous access makes no sense in a digital domain. This is a restriction which applies to print. Applying it digital media misses the at least half of the benefits of digital media.
A print book, or an old-fashioned unprotected CD, can be used anywhere, by anyone. Digital media is, in general, more portable, more flexible, easier to copy, and easier to distribute than print. Yet content owners insist on making these new media only as good as, and at times, worse than, existing media. Cory Doctorow, an award-winning novelist, has placed his novels and a collection of short stories online in a variety of electronic formats, free of charge and free of DRM (in the parlance of open-source, the works are "free as in beer" and "free as in freedom.") He discusses his reasons for doing so (and other topics) in his English Matters interview.
The automatic grant of copyright presents its own set of problems as well. In the digital domain, content is more readily available than ever before. Millions of pages of newspapers, journals, official and unofficial web sites are freely available online. In what ways can this freely available resource be used? Can it be copied for use in a classroom? In corporate training? For personal use? As part of an artistic collage? Restricting use of resources should be of particular concern to scholars, as Siva Vaidhyanathan points out in a reprint of his article "Copyright as Cudgel," presented here under a Creative Commons license.
Traditional copyright is all-or-nothing. Unless the content owner states otherwise, all use is limited to Fair Use. But what is Fair Use online? Since digital works are so easily copied, those claiming Fair Use must make some effort to protect the work from further copying. This restriction, part of the TEACH Act (Technology, Education, and Copyright Harmonization Act) passed in 2002, makes it difficult to place even "fairly" used material online. I wrote about this in the last issue of English Matters, and GMU's Copyright Officer, Rosemary Chase, has responded in this current issue.
Much of the difficulty surrounding the use (fair or otherwise) of digital media can be alleviated by seeking alternatives. One alternative is to change copyright law to better suit the needs of users, especially as all content creators are also users. All creative works build on what came before them. One of the more popular alternatives is Creative Commons, which allows content creators to choose which rights they want to reserve and which uses they want to allow. This entire issue of English Matters is published under a Creative Commons Attribution — Non-Commercial license. The underlying copyright is not affected; the works are still protected by copyright, but certain uses (which would otherwise require the permission of the author or owner) are expressly permitted: in this case non-commercial use is permitted provided the original author is cited. Some of the benefits of the Creative Commons are illustrated (using public domain animation) in Creative Commons Illuminated, by GMU student Aaron Snitzer.
Other alternatives are represented by the MIT OpenCourseWare project, and various Open Source publishing efforts. These efforts are attempts to increase the sharing of information, particularly in the sciences. Electronic library databases are vital for research, but many of these databases are restricted to subscribers, and subscriptions are expensive. Most if not all of the financial benefit goes to the database owners, not the content creators. This makes sense, of course, as the database owners must maintain and update the databases constantly. But important research, including publically-funded research, is increasingly locked away behind subscriber-only login screens. The benefits of Open-Source science publication is explained in Scientific Research: The Publication Dilemma, by GMU Science Librarian Victorian Shelton.