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##  Libraries in Today's Digital Age: The Copyright Controversy. ERIC               Digest.                                                                      

INTRODUCTION
Libraries are public institutions committed to                    equitable access and the free flow of information to meet the needs             of the public. For libraries, copyright law - through its incentive             model, a rich and robust public domain, fair use, and library and               user exemptions-aids in ensuring that information is both created               and made accessible. While digital technologies and an ever-                    expanding communication network infrastructure have enhanced                    creation and wide distribution of information to the public, these              same technologies can be used to control or restrict public access              to information. 
The purpose of the copyright law is to advance the            progress of science and the useful arts to benefit the public. It               does this by awarding to creators a set of exclusive rights - a                 limited, statutory monopoly over reproduction, distribution,                    display, performance, and adaptation of the created work-in order to            provide creators an economic incentive to create. The law also sets             aside numerous exceptions to creators' right to ensure that users of            copyright materials can read and lawfully use the materials in other            ways. 
In recent years, a copyright legislative battle has ensued              between copyright holders (primarily represented by the publishing,             entertainment, and software business industries) and those who wish             to use or have access to copyright materials (primarily represented             by library, educational, and public interest communities). Copyright            holders argue that they will not make their copyrighted works                   available to the public in digital formats unless the law is revised            to prevent piracy and protect the marketplace for intellectual                  property by controlling access and use. Libraries argue that users              rights to information should be upheld regardless of technological              innovation and digital formats. The big question: Can copyright law             continue to balance the interests of both copyright holders and                 users in the digital environment? 
In an attempt to update the law             to encompass new digital environments and to allay copyright                    holders' fears of widespread piracy, Congress passed the Digital                Millennium Copyright Act of 1998 (DMCA), an amendment to the                    copyright law that has been the source of much controversy.                     Interestingly, the DMCA has not sufficiently addressed the digital              environment, because digital technologies continue to evolve at a               rapid pace. For example, Congress did not anticipate the development            and popularity of file sharing technologies, like Napster. At the               same time, the DMCA has furthered a trend to erode the "balance" of             copyright law by awarding more rights to copyright holders while                restricting the rights of public who wish to enjoy the same user                rights to digital information resources as were enjoyed in the print            environment. Thus, copyright law and its adaptability in the digital            environment continues to be fraught with uncertainty. This ERIC                 Digest will focus on the continuing ambiguities libraries and their             users face in dealing with copyright in the digital                             environment. THE COPYIn the networked digital world, the basic            principles of copyright are more difficult to apply. Copyright law              was drafted with print format model in mind. At its heart, the law              has always been based on the notion of the "copy." One of the                   exclusive rights of copyright is the right of reproduction, or the              right to make a copy. Before digital technology, a copy was a                   tangible, physical object that previously was difficult, labor                  intensive or too costly to reproduce. Photocopy machines and                    videocassette recorders made it easier to make copies, but digital              technologies go even further. 
Digital copies are easy to create,              modify and manipulate, and extremely easy to distribute widely over             networks. Therefore, digital copies are more difficult for copyright            holders to manage and control. Digital copies are also created by               accident. When individuals access the World Wide Web, "incidental               copies" are automatically created in the random access memory of                their computers, at least temporarily. 
In addition, digital copies            have a transitory nature. Unlike a book you can Purchase and own,               digital copies you may access today, may not be there tomorrow.                 Thus, for libraries, traditional functions that depend on the                   ownership and relative permanence of a copy, like library lending,              collection development, and preservation have been radically altered            by digital technologies. FIRST SALE, THEN AND NOWOnce a                   library or an individual has lawfully acquired a copy of a work, the            first sale doctrine of the copyright law (17 U.S.C. Section 109)                allows that the library or individual may exercise another exclusive            right of copyright - the right to distribute the copy - without the             permission of the copyright holder. First sale enables libraries to             loan books or conduct interlibrary loan without committing copyright            infringement. Does the first sale exception transfer to the digital             environment? Currently, the answer is no. 
In the print world, the             library could loan copies to patrons. During the loan period, the               copy was, obviously, unavailable to any other library user. In the              digital environment, digital copies can be loaned to users as well,             but without the library temporarily losing access to the copy.                  Copyright holders fear that libraries will greatly reduce their                 purchases of digital works since they can easily make exact                     copies (the right of reproduction)-and distribute those copies                  electronically. The great fear of publishers is that one library                will buy an expensive digital work and make unlimited copies for                scores of other libraries and library users who wish to avoid                   purchasing the work themselves. 
For libraries, lending material to            library users is a core public service. First sale allows libraries             to share their lawfully acquired copies with users. Moreover,                   interlibrary loan is vital to libraries with limited collection                 development funds. Poorer libraries can borrow copies from bigger               libraries to meet user requests. As more materials become available             in only digital formats that cannot be loaned, libraries fear that              they will be unable to meet the information needs of users.                     Libraries cannot afford all materials and rely on sharing. New                  business models for electronic works are being considered and                   tested. Already, many libraries are purchasing electronic books and             pay prices formulated on the number of lending transactions rather              than the purchase of one copy of an electronic book. COLLECTION               DEVELOPMENTLibraries have had to shift their understanding of               collection development from an ownership model to an access model.              Generally, libraries cannot "purchase to own" materials that are                only available in digital formats. Instead, libraries "rent to                  access" digital materials. This requires an ongoing subscription                fee (much like a periodical subscription fee) from the library to               license the materials from vendors and publishers. 
Unlike a print             periodical subscription, however, where the library retains                     ownership of the periodicals once they are paid for (hence, the long            runs of Time magazine in so many libraries), libraries lose all                 access to the digital materials if the subscription is not paid each            year. Thus, a library may have access to a full-text database that              covers numerous journals, magazines, and periodicals, but only if               the annual fee is maintained. If the license fee is not paid, the               library loses access to all of the content, even the earlier content            that had been licensed and paid for. LICENSING VS. COPYRIGHT                  LAWLicenses are private contracts between two parties and are               written to define what the library can or cannot do with licensed               materials. Once a license agreement is signed, the agreement takes              precedence over any rights libraries or users may enjoy under the               federal copyright law. Great care is taken by libraries to negotiate            license terms that are in the best interests of their library users,            but better terms frequently mean higher subscription fees. Some fees            are too expensive for libraries so they may settle for license terms            that restrict access, lending and fair use activities, like printing            an article from a full-text database for personal use. 
Some                   library associations and consortium have developed licensing                    guidelines to help libraries work out the best possible license                 terms. But there is recognition that since the licensor (the vendor             or publisher) crafts the initial license terms and generally has                more expertise with contracts and negotiations than the licensee, he            has a bargaining advantage. In addition, many vendors and publishers            are promoting state legislation that would make non-negotiated                  licenses legally binding agreements. Non-negotiated licenses                    restrict or eliminate any opportunities for contract bargaining. In             sum, since libraries cannot purchase digital materials outright,                they must rent the access, and negotiate user terms comparable to               the user and library exemptions in the copyright law. THE                     PRESERVATION PROBLEMHistorically, libraries have preserved                  materials for the use of current and Future generations. Copyright              law, in fact, allows libraries to make copies of print and digital              materials specifically for preservation purposes. A major question              is "who is responsible for the preservation of "digital only"                   materials?" Libraries that license digital materials may not have               the contractual right to preserve materials. 
Should vendors be                responsible for preservation? Some vendors do not find that it is               their best interest to preserve their older digital holdings, due to            space and time constraints and ongoing budget obligations.  They may            also have constraints placed on them from publishers and authors who            still retain copyright but allow vendors to digitally distribute                their works, not to store the works indefinitely. 
Also, if a                  vendor goes out of business, the company may not have resources to              maintain a digital archive. Furthermore, it is unclear how best to              preserve digital materials. If digitally archived, care must be                 taken to select and update technology that will endure into the                 future. And, who makes the decision to preserve what materials and              when should this be done? For example, should web sites be archived?            If so, how can one archive sites that are constantly                            changing? TECHNOLOGICAL PROTECTION MEASURESCopyright                      aggregators, those industries that hold the rights to scores of                 Copyrighted works, like the motion picture and recording industries             and the publishing community, parlayed a major victory in the                   Digital Millennium Copyright Act with the inclusion of a new chapter            to copyright law, called Copyright Protection and Management                    Systems (17 U.S.C. Chapter 12). Many library associations, legal                scholars, and public interest groups believe this chapter expands               the rights of copyright holders to the detriment of the public. 
It            is now an infringement of copyright (punishable by a fine and jail              time) to access a password protected or encrypted work without the              prior authorization of the copyright holder. In other words,                    publishers and other copyright holders can use technological                    measures to deny access to the public of published works. This                  allows copyright holders the option of charging a fee for access.               Most importantly, copyright holders can use technology to enforce               license terms on the public. 
Members of Congress were concerned               that this provision might lead to a "pay-per use" environment or                unduly restrict fair use. The Fair Use Doctrine is the most wide                reaching user exception to the copyright law since it allows that               copyright can be infringed under certain circumstances without the              prior permission of the copyright holder and without paying a fee.              If, according to Chapter 12, users must get permission prior to                 accessing and using a digital work, fair use is impossible without              breaking the law. Congress included a provision in the chapter                  however, to allow for the technological protection provision to be              studied every three years in order to evaluate the negative impacts             it has on the exercise of fair use. A COMMITMENT TO BALANCED                  COPYRIGHT LAWLibraries remain committed to a balanced copyright             law because without it, copyright cannot meet its primary                       objective, "to advance the progress of Science and the useful arts"             for the benefit of the public. Knowledge and discovery are dependent            on access to information, and equitable access can only be achieved             when independent of the ability to pay. Libraries pay for                       information to share with their communities. As more information                becomes available in only digital formats, it is important that the             public can enjoy the same information rights they exercised with                print formats. REFERENCESAmerican Association of Law                      Libraries, et al. (1997). "Principles for Licensing electronic                  resources." Available: http://www.arl.org/scomm/licensing                       principles.html 
American Library Association. Washington Office.              Copyright. "The Uniform Computer Information Transaction                        Act (UCITA)." Available:                                                        http://www.ala.org/washoff/ucita.html 
Crews, K. (2000). "Copyright            essentials for librarians and educators." Chicago: American Library             Association Editions. 
Hoffman, G. (2001). "Copyright in                       cyberspace: Questions and answers for librarians." New York:                    Neal-Schuman Publishers, Inc. 
Litman, J. (2001). "Digital                     copyright." Amherst, NY: Prometheus Books. 
Lutzker,                           A. (1999). "Primer on the digital millennium: What the Digital                  Millennium Copyright Act and the Copyright Term Extension Act mean              for the library community." Available:                                          http://www.ala.org/washoff/primer.html 
National Research                      Council. (2000). "The digital dilemma: Intellectual property in the             Information Age." Washington, DC: National Academy                              Press. 
Patterson, L. Ray, and S. Lindberg. (1991). "The nature of             copyright: A law of users' rights." Athens: University of Georgia               Press. 
United States Copyright Act. Available:                                http://www.law.cornell.edu/uscode/17/ 
ABOUT THE AUTHOR 
Carrie               Russell is Copyright Specialist, Office for Information Technology              Policy, American Library                                                        Association ([email protected]). 
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This publication is funded in part             with Federal funds from the U.S. Department of Education under                  contract number ED-99-CO-0005. The content of this publication does             not necessarily reflect the views or policies of the U.S. Department            of Education nor does mention of trade names, commercial products,              or organizations imply endorsement by the U.S. government. Please               visit the Department of Education's Web site at: http://www.ed.gov/          **Title:** Libraries in Today's Digital Age: The Copyright Controversy. ERIC               Digest.                                                                      **Document Type:** Information Analyses---ERIC Information Analysis Products (IAPs) (071); Information Analyses---ERIC Digests (Selected) in Full Text (073); **Available From:** ERIC Clearinghouse on Information & Technology, Syracuse University,            621 Skytop Rd., Suite 160, Syracuse, NY 13244-5290. Tel:                        315-443-3640; Tel: 800-464-9107 (Toll Free); Fax: 315-443-5448;                 e-mail: [email protected]; Web site: http://ericit.syr.edu/ithome.             **Descriptors:**  Access to Information,  Copyrights,  Fair Use (Copyrights),                    Futures (of Society), Information Services, Information Technology,             Library Collection Development,  Library Services, Ownership,                   Technological Advancement                                                    **Identifiers:**  Digital Data,  Digital Technology, ERIC Digests                             
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