# Presentation: 079416

## Copyright in the Digital Age

- October 14, 2004
- FEDLINK Membership Meeting
- Carrie Russell, Copyright Specialist
- ALA Office for Information Technology Policy

## Brief Review of Copyright

- Purpose: to benefit the public by advancing the progress of science and the useful arts
- Not a natural right
- Limited, statutory monopoly
- Exclusive rights
- Exemptions for users <fair use, making copies, classroom use, etc.>
- Public domain

## Exclusive Rights

- Right to reproduce copies
- Right to distribute copies
- Right to display a copy publicly
- Right to perform a copy publicly
- Right to create a derivative work based on the original

## Fair Use

- Copyright can be infringed because strict application of the law is unfair and stifles creativity.
- Fair Use is based on years of judicial decisions (case law).
- Fair Use is codified in Section 107 of the copyright law.
- Fair Use is a defense in an infringement case, but it is also a user right.

## Fair Use 

- You don’t have to pay a fee or ask permission if your use is a fair use.
- Fair use cannot be quantified or “set in stone.”
- “Fair Use Guidelines” are not part of Section 107.
- Fair use is supposed to be “technologically neutral.”
- Fair use is an unauthorized, but lawful, use of a copyright. (The DMCA complicates this fundamental tenet).

## First Sale (Section 109)

- Limitation on the right to distribute a work.
- Once one lawfully acquires a copy of a work, one can distribute that copy.
- Loan
- Rental
- Sale
- “Digital first sale” is not explicitly noted in Section 109.  Reproduction right is also implicated.

## A Word about Licensing...

- Licenses are governed by state contract law, not federal copyright law.
- “Copyright language” is often included in a contract.
- It’s unclear whether federal law “trumps” state law.
- Most electronic resources are licensed, and not owned.

## Copyright Protection Broadened

- “Automatic” copyright
- Copyright term extended 11 times in last 40 years
- Digital Millennium Copyright Act
- online service provider liability (institutions as copyright enforcers)
- copyright management systems eliminate fair use in digital world
- criminal and civil liability
- Guilty until proven innocent

## Other Control Mechanisms

- Rise of licensing and push for automatic, non-negotiated contracts
- Digital rights management enforce license terms and restrict use of copyrighted works
- Attempts to legalize private hacking
- Cease and desist letters, threats of litigation
- Attempts to pass database legislation
- Attempts to mandate technology (broadcast flag, INDUCE Act)

## The Digital Millennium Copyright Act of 1998

- Attempts to deal with copyright and digital works
- Lots of litigation, lots of proposed legislation to “fix” the DMCA
- Some believe there should new, separate legislation for the protection of digital materials
- Messy; we know most digital works are licensed
- Should federal legislation help protect fundamental user rights to info in a licensed world?

## Online Service Provider Liability

- Protects OSPs from third party liability
- OSPs must comply with copyright holder demands to get the exemption
- Like “cease and desist,” now in statutory language
- Used effectively to direct the copyright policy of higher educational institutions

## Copyright Protection and Management Systems 

- Anti-circumvention of technological measures
- Cannot break an access control measure without authorization
- Cannot use an circumvention tool to gain access
- Cannot create a circumvention tool to gain access or copy
- Civil and criminal penalties (educational institutions, libraries exempt from criminal penalties, potential remission of statutory damages)
- Can one exercise fair use in this environment?

## Web Sites, E-Mail, Blogs

- Must assume copyright-protected
- Provide copyright notice information where appropriate
- “Open” nature of Web, “implied license” status of posted materials
- Creation of compilations
- More peer-created works

## Peer-to-peer Controversy

- Legitimate concerns, over-zealous response
- Technology not inherently evil
- Threat to innovation
- Unintended consequences
- “Betamax” court ruling under fire
- Looks like a consumer issue, but has broader public policy implications

## What About You?

- Creating bibliographies, path finders
- Building databases
- Marketing your library and using copyrighted works?
- Work-for-hire concerns
- Your idea here....

## Contact Me

- Carrie Russell, Copyright Specialist
- _[crussell@alawash.org](mailto:crussell@alawash.org)_
- _[www.librarycopyright.net](http://www.librarycopyright.net/)_
- 202.628.8421
- Buy the Book!
*Complete Copyright: An Everyday Guide for Librarians*