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COPYRIGHT AND IT: A PRIMER FOR INFORMATION PROFESSIONALS
Philip Doty

Intellectual property (IP) protection in the U.S. includes three major areas, all protected at the Federal level: copyright, patents, and trademarks. Related concerns, e.g., unfair competition, are addressed by the states.

Intellectual property in the United States has its genesis in the U.S. Constitution. Article I of the Constitution addresses the character and powers of the legislative branch (remember that the authors of the Constitution were themselves legislators), while Section 8 identifies some of the large-scale powers of the Congress. Specifically, Article I, Section 8, clause 8 states that the Congress shall have the power "[t]o 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."

There are a number of elements of this deceptively simple statement that deserve mention in the context of our class this semester:

  • The aim of granting of intellectual property rights is clearly the overarching social goal of the "Progress of Science," what we would call systematic study of all kinds, and "useful Arts," what we might call practical crafts, through the process of producing and distributing knowledge. Using more contemporary terms, the granting of intellectual property protection is to ensure the production and dissemination of information for society's general use, including the creation of subsequent works.

  • Thus, the financial incentives, the exclusive rights of the rightsholders, are clearly secondary. Two hundred years of American jurisprudence plainly supports this hierarchy of goals.

  • Intellectual property always involves some limitations on the amount of time the rightsholder, who is often the buyer of rights sold by the creator(s), can limit others' use of the creation.

  • Intellectual property springs from a number of Enlightenment assumptions accepted by the framers, i.e., about learning, progress, governmental action, and the economic and political status of the autonomous individual. These concepts were also joined with Romantic notions about the author, the unitary work, and creativity.

  • James Madison, author of the copyright clause, plainly made the assumption that private economic interest and public interest in knowledge and inventions/writings coincide.

  • Copyright itself is a product of the printing press.

These characteristics, while clear to some, are also contentious along some of their dimensions. The U.S. Office of Technology Assessment (1986) provides an invaluable perspective on intellectual property and its evolutionary character. It is the single most valuable resource I can refer you to for understanding this difficult topic.

There are many valuable sources online about copyright and related topics. Among the most useful are pages generated by Georgia Harper, one of our colleagues at the UT System General Counsel's Office. Georgia is an internationally known expert in copyright, especially its application to educational and other non-profit institutions, and she is also a strong advocate for fair use. Please see her Crash Course in Copyright (Harper, 2000). Also available is an online version of Ms. Harper's Crash Course in Copyright.

There are fifty (50) titles or topics in the United States Code, where many Federal public laws are codified, i.e., integrated with or said to supersede existing law. Title 17 of the USC addresses copyright, Title 35 patents, and Title 15 (on Commerce and Trade) trademarks. It is common to see conventions such as 15 USC 103, indicating that the reference is to Title 15 of the United States Code, Section 103, often shown as §103.

The rights of copyright holders

Copyright protection applies as soon as a work is "fixed in tangible medium of expression." That medium can be handwriting, a saved file on a computer's hard drive, a recording on an audio- or videocassette, and so on. The work must be sufficiently creative, itself a very contentious debate; see, e.g., the Supreme Court decision Feist v. Rural Telephone. When a work is copyrighted, all that is protected is the particular mode of expression, not concepts or ideas. For example, Shakespeare might have copyrighted Romeo and Juliet, but he could not have copyrighted the concept of two lovers caught between two warring families. Such a theme, of course, had already been used for millennia. This separation of ideas and expressions is another area that appears much simpler at first glance than it is in application to particular cases.

There are five exclusive rights reserved for copyright holders, who, as indicated above, are not always creators or authors themselves. These rights can be construed as both positive (the ability to do something) as well as negative (the ability to keep others from doing the same thing). These five exclusive rights in copyright are the rights:

  1. To reproduce the work and to exclude others from reproducing it

  2. To derive new works and to exclude others from so deriving, e.g., this right would include writing a novel then developing a screenplay from it

  3. To distribute copies of the work and to exclude others from copying it

  4. To perform the work publicly, such as a dance, and to exclude others from performing it publicly

  5. To display the work publicly, such as a painting, and to exclude others from so displaying it.

Since Fall 1998, the duration of copyright of newly created works is the life of the creator(s) + 70 years, an increase of 20 years. The length of time for protecting copyright is one of the most fractious elements in IP.

Fair use, a much discussed but little understood concept, is outlined in 17 USC 107. Fair use is "a privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner's consent, notwithstanding the monopoly granted to the owner" (Black's, 1990, p. 598). Fair use is opposed to misappropriation or infringement, which is unauthorized use of copyrighted material and often takes place without the knowledge or consent of the rightsholder. Unauthorized use does not have the permission of the rightsholder and it, too, often takes place without the knowledge of the rightsholder.

Generally speaking, fair use includes (§107) "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." The boundaries of fair use are deliberately difficult to ascertain. Before 1976, fair use was a matter of common law, i.e., in the judicial tradition of precedent informed by social mores and norms. Now fair use is a matter of black letter law.

Identifying whether a taking is fair use or misappropriation requires balancing a number of variables:

  1. The character and purpose of the use, including its commercial character - this variable has been among the most misunderstood, especially in our field. While each case is always decided on the facts at hand, commercial use is not always misappropriation, and non-commercial use is not always fair.

  2. The nature of the copyrighted work

  3. The proportion of the work that was taken

  4. The economic impact of the taking on the market for the work.

In addition to these time-tested criteria, courts have also added two others (Miller & Davis, 1990, pp. 349-350):

  1. The intent and motives of the defendant(s)

  2. The relationship of the taking to the First Amendment and the exercise of free speech

The relationship between copyright and free speech is very complex and evolving, e.g., a number of cases related to the Church of Scientology.

Reproduction by libraries and archives (Title 17 §108)

In order to qualify as non-appropriating under this provision of the law, use must satisfy the following criteria:

  • The use must be for no commercial advantage.

  • The institution must be open to the public.

  • Copying machines must include notice of copyright in the immediate vicinity, i.e., "the making of a copy may be subject to copyright law."

  • The use must generally adhere to what is known as the "Rule of five (5)" roughly delineated in §108, g, 2. The rule of five as developed in practice is that in one year, in the context of interlibrary loan, it is permissible for a library to request no more than five (5) copies of articles taken from the previous five years' run of a serial without paying royalties. If more than five are requested, the requesting library must either pay royalties to the rightsholder or buy a subscription to the serial.

As always, these are the general criteria. How and if they apply in any particular instance is determined on a case-by-case basis.

Transfer of a particular copy -- doctrine of first sale (Title 17 §109)

This doctrine maintains that someone other than the copyright holder can sell, lease, loan, destroy, display, or give away a legally obtained copy without the knowledge and/or permission of the copyright holder. Think of a book you own from a legitimate commercial sale - you can sell the book, you can rent it, you can give it away, you can even burn it without letting the copyright holder know or giving that rightsholder any fee. It is under the doctrine of first sale that lending libraries have the right to distribute copyrighted works.

The last omnibus (general) copyright legislation in the United States as the Copyright Act of 1976. There are several other provisions in the Act that were codified in Title 17 of particular interest to LIS that we will not explore here, but students are encouraged to follow these and other themes as their interests and needs dictate:

  • §302 on duration of copyright

  • §405 on omission of copyright notice

  • §408 on elimination of the need for registration.

How does IT make a complex picture murkier still?

As might be plain by now, the use of digital technologies pose some significant problems with IP generally and with copyright in particular. This is not the venue to explore them in any depth, but a brief mention of some of them may be of use.

There are two important bases of the issues involving copyright that digital technologies contribute to that we should mention here. The first is that distributed digital technologies upset the currently existing, if tension-filled, balance among the interests of the various stakeholders (or interested parties) in the copyright bargain. Chief among these stakeholders are creators, who often use the creations of others in their own work; for-profit and non-profit intermediaries, who are sometimes creators themselves, e.g., publishers, libraries, and museums; and the public.

  • Who can copy digital files and distribute them?

  • Can and should libraries make copies of digital files for archival purposes?

  • Does copying of software to RAM violate the spirit of copyright law?

  • What does it mean for the public policy purposes of IP if digital works can be changed and withdrawn from public view with ease?

  • What are the long-term implications of the increased use of licenses rather than sale of information products?

  • What is fair use in the digital environment?

  • What are the public policy interests in a hybrid world of paper and digital information?

  • Where should the public domain be in digital information? What should that domain be like?

  • Since writing policies to particular technologies inevitably leads to obsolescence of these policies even in the short term, how do we develop public policies addressing these and other questions that are still technology-independent?

This brief list gives a flavor of some of the conflicts current in discussions of copyright in digital environments; especially see National Research Council (2000). What is clear, however, is that LIS has some important insights into these problems. More importantly, our field's unquestioned dedication to the public interest in information demands that we participate in the formation of the public policy agenda and to the development, implementation, and evaluation of public policy related to copyright.

Sources

Black's law dictionary . (1990). (6th ed.). St. Paul, MN: West.

Feist Publications v. Rural Telephone Service Co.. (1991). 499 U.S. 340.

Harper, Georgia. (2000). Crash course in copyright. http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm#top

Miller, Arthur, & Davis, Michael H. (1990). Intellectual property: Patents, trademarks, and copyright in a nutshell (2nd ed.). St. Paul, MN: West.

National Research Council. Committee on Intellectual Property Rights in the Emerging Information Infrastructure. (2000). The digital dilemma: Intellectual property in the Information Age. Washington, DC: National Academy Press.

U.S. Congress. Office of Technology Assessment. (1986). Intellectual property rights in an age of electronics and information. Washington, DC: Government Printing Office.

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Last updated 2003 Jan 7 by R. E. Wyllys
 
© 2000-2003. The material displayed here is under copyright by the LIS 386.13 class team of the School of Information of the University of Texas at Austin, TX: Ronald Wyllys, Philip Doty, Quinn Stewart, Carlos Ovalle, Lori Eichelberger, Tony Cherian, and Don Drumtra. Appropriate educational and other non-profit use of the material is encouraged, provided that this copyright notice is appended, full attribution is given, and no fees are charged for access to the material. For-profit use is strictly forbidden.