Copyright: Whose Rights and for What?

by Robert C. Miller

While public attention at the national level has been focused for some time on budget balancing and welfare and health reform, a number of other public policy issues are also under congressional review. Few have greater potential impact on the academic enterprise for both teaching and research than copyright. Copyright, contrary to the impression given by some individuals in the commercial sector, does not have as its fundamental purpose the protection of publishers. Rather, the U.S. constitutional warrant for copyright in Article 1, section 8 enables Congress 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."

The impact of legislation in this area is felt in how faculty can utilize protected material in both their research and teaching; student use of photocopying; library course reserves; and the preservation activities of research libraries. While the current governing legislation, the copyright law of 1976 (written in a largely print environment), gave protection to authors and producers, it also embodied the concept of "fair use" which essentially recognized the rights of individuals to utilize protected materials on a limited basis for individual and scholarly use within guidelines. These 1976 guidelines, in judicial use since the mid-19th century, take into account "(1) the purpose and character of the use, including whether such a use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." Section 107 of the copyright law lists some specific purposes which might involve fair use.

As might be expected, the rapid development of electronic media and particularly networking and the World Wide Web has brought to the fore a number of concerns about the nature and impact of copyright in this new environment. To deal with these issues, a Working Group on Intellectual Property Issues was set up, chaired by Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks. Following a number of public hearings, the Group issued a draft report in July of 1994 which received broad-ranging comment from many organizations and individuals. The final report, available on the Web [http://iitf. doc.gov/], was issued in the spring of 1995 and included a number of recommended changes in the 1976 Copyright Law designed to address issues of the electronic environment. The issues in this area are complex, but instead of trying to deal with these in a constructive manner, the Task Force has essentially said that what is good for copyright holders is good for everyone. This approach is reflected in pending legislation (S 1284, HR 2441) which is based on the Task Force recommendations. The proposed changes in copyright, while claimed as minor, could dramatically affect copyright in the electronic environment. Essentially, they would greatly strengthen the position of copyright owners by treating digital transmission as distribution to the public; eliminate the concept of first sale which gives the purchaser the right to pass on a purchased copy; and eliminate fair use doctrine. The reportessentially looks to licensing as a way to provide to copyright holders complete control of materials, down to the sentence level, thereby abrogating any reader rights.

Of course, many of the same kinds of uses made by faculty, students and libraries with print materials have their electronic equivalents. Accordingly, a number of scholarly, educational and library organizations have taken strong stands against the proposed changes. While there is no unanimity of viewpoint in these communities -- the issues are too complex and the environment too fluid for that -- it is clear that copyright has immense implications for teaching and research. The academy cannot afford to have publishers dictate public policy in this area. Congressional hearings on the proposed legislation are currently planned for sometime early in the new year. A brief bibliography of materials on these issues is available from subject librarians and liaisons. I would urge all readers to familiarize themselves with the issues and make their voices heard through their elected representatives.