Copyright law and organizing the Internet

Library Trends, Fall, 2003 by Rebecca P. Butler

ABSTRACT

UNITED STATES INTELLECTUAL PROPERTY LAW, specifically that covering copyright, has important implications for American libraries. This article considers the following: fair use and the Internet; current and prospective law and electronic media, especially concerning interlibrary loan and online reserves; publishers and users; and the impact that copyright law has on the role of the library and the issue of free access.

INTRODUCTION

Did you know that every e-mail you write, every Web page you create, anything that you generate in a tangible form is automatically copyrighted by United States law--whether you officially register it with the U.S. Copyright Office or not (Bruwelheide, 1995, p. 7)? Because the readers of Library Trends tend to be those of us associated with libraries, probably, yes, you do know this. Yet copyright law, especially that associated with electronic communications, continues to be a quagmire from which it is difficult to extract oneself, one's employment environment (library), or one's patrons.

Copyright is a serious matter that carries implications for organizing the Internet from both the viewpoints of the owners and publishers of a work to the work's users. This article will discuss several strands within the dilemma of the Internet and copyright: the law, including fair use; public domain; the Digital Millennium Copyright Act; the Technology, Education, and Copyright Harmonization Act; the Sonny Bono Extension Act; owners and users of copyrighted works and how the library and its role with respect to access comes into play; what we as librarians can do to make intellectual property a "smoother sell" to those with whom we work; and other intellectual property issues that may impact our interpretations of copyright law. Indeed, copyright law and organizing the Internet is a conundrum.

CURRENT LAW

Below is a discussion of some important areas (for those of us in libraries) of the current copyright law, along with examples. (1)

Please note that, in reference to this article, all examples will include some use of the Internet.

Fair Use

Those who work with and/or study copyright are well aware of the vagueness within the law. It is never more clear/unclear than when determining how much one can reproduce from a copyrighted work before being considered in violation of copyright law. Section 107 of the 1976 Copyright Act states that the amount of material we borrow from a copyrighted work depends on four factors:

* Purpose and character of use,

* Nature of the work,

* Part being copied, and

* Work's marketability. (2)

These four fair use factors must all be in place for a portion of an item to be considered to fall under fair use restrictions.

The first of the four fair use factors, purpose and character of use, covers what the borrower wants to do with the copied material. "Copying for nonprofit, educational, or personal reasons leans in favor of fair use ..." (Butler, 2001, p. 35). Thus, if you are an academic librarian, sending a personal e-mail with a paragraph from Statistical Methods for the Social and Behavioral Sciences (Marascuilo & Serlin, 1988) to a group of interested statistics students, you should be all set with factor one!

The second fair use factor, nature of the work, deals with the characteristics of the work one wishes to copy; in other words, "whether the work is fact or fiction, published or unpublished" (Butler, 2001, p. 35). Nonfiction and published media is most likely to fit this second factor. Thus, the academic librarian above is still in compliance, since Statistical Methods is nonfiction and was published in the 1980s.

The part of the work being copied, the third fair use factor, is a little more subject to debate. While the less amount one copies, the better, this factor is measured both quantitatively and qualitatively. Generally speaking, quantity is based on how much needs to be copied to achieve the objective and how much such an amount is in comparison to the total of the original. In addition, there is the issue of quality. Here the "heart" of the work comes into play. The heart of a work can vary from a tiny slice of an item to a huge portion. Therefore, if one sentence is the "heart" of Statistical Methods, copying it can be in violation (Butler, 2001, p. 35). Luckily for our academic librarian above, this does not seem to be the case with this particular copying example.

The fourth fair use factor is concerned with the marketability of the work, should copying of it occur. Chances are that e-mailing a group of college statistics students a paragraph out of Statistical Methods will not affect the sales of this book negatively, so here again our academic librarian is probably safe.

Remember, if you are not sure if you are in copyright law compliance when borrowing, it is still best to contact the owner of the work for permission. (3)

Sonny Bono Copyright Term Extension Act (CTEA)

In an effort to maintain consistency between the United States and the other members of the Berne Convention, (4) in 1998 Congress passed the Sonny Bono Copyright Term Extension Act (CTEA). So named because Congressman Bono was working on this at the time of his death, CTEA extends the duration of copyright in the United States retroactively from the life of the author plus fifty years to the life of the author plus seventy years and, in the case of works for hire and those under a corporate ownership, from seventy-five to ninety-five years or one hundred twenty years (whichever comes first) (Hoffman, 2001; Wikipedia, 2003b). This act was challenged as unconstitutional (Eldred v. Ashcroft) and brought before the Supreme Court in 2002. In January 2003, the Supreme Court found it constitutional (Wikipedia, 2003a). For libraries providing information via the Internet, CTEA means that we will have to get copyright clearance for much of what our patrons request for a longer period of time.