Copyright Permission In The Digital Age

With terms like TEACH, Fair Use and the Digital Millennium Copyright Act being tossed around, how is an in-plant manager to know when to get permission? Here's some help.

By Rosemary A. Chase

In the wake of numerous lawsuits filed by the Recording Industry Association of America (RIAA), copyright law has been in the spotlight a lot lately. And with the Web making it easy for anyone to be a "publisher" by simply putting other people's words, images and music on our own Web sites, we stand to see a lot more news about copyright infringement.

After all, the Digital Millennium Copyright Act (DMCA) has made it easy for rights holders to file infringement claims when they find their materials on unauthorized sites. If a university or a company internet service provider (ISP) is served a subpoena, the upper management there is likely to feel like a deer in the headlights. This is not the sort of publicity that a media relations office (or a legal department) relishes.

Copyright law of the United States is based on the Statute of Anne (1709) which granted British authors and inventors a fourteen year term of exclusive ownership with an option to renew for an additional fourteen years. Before the Statute of Anne, English law amounted to censorship of content and control of distribution by printers. Copyright law has come a long way since the Statute of Anne, and experienced many revisions, of which the Copyright Act of 1976 has been the most comprehensive.

The Act was accompanied by the Report of the House Committee on the Judiciary (H.R. No. 94-1476), which included the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions. The Copyright Act of 1976 was written in the advent of the invention and wide-spread use of the photocopy machine. In 1978, the Agreement on Guidelines was endorsed and adopted as written by many educational institutions nationwide.

In the 1990s, at the conclusion of almost three years of meetings, the Conference on Fair Use (CONFU, 1997) presented guidelines for distance learning, interlibrary loan, digital images, multi-media and e-reserves, most of which were never widely endorsed. Nevertheless, many universities apply them in lieu of making individual fair use assessments. The CONFU guidelines are suggestions for staying within fair use based on the 1976 statute.

Recent Legislation

To expand copyright law to include new technologies such as Web publishing, the Digital Millennium Copyright Act (DMCA) was passed. Although there was hope that it would provide for fair use of digital materials, it does not. Instead it spells out stipulations by which ISPs are bound in order that they may be eligible for reduced liabilities for the actions of their patrons.

The Sonny Bono Term Extension Act, also passed in 1998, adds 20 years of copyright protection, which means that no works will automatically fall into the public domain until 2019. It does not affect works already in the public domain, that is, any work published in 1922 or before. This does not mean that every creation published between 1923 and the present is protected by copyright, but the major corporate producers, like the Disney Co., made all scheduled copyright renewals prior to 1978 and enforce them regularly.

The Technology, Education And Copyright Harmonization Act (TEACH, 2002) provided fair use of certain works in electronic access, but only for educational use in a distance education environment. Items used for distance learning under the provisions of the TEACH Act must be integral to the course. Since course reserves are traditionally supplemental readings, electronic reserves are specifically excluded from TEACH, regardless of their traditional one-copy-per-student tradition.

TEACH specifies that for a distance learning course, comparable amounts of copyrighted works may be put up electronically. Students can make a single, personal print copy from a Web page, but not a digital copy (download). Some digital downloading is prevented by the software, but not always. TEACH says that ISPs should install "measures that reasonably prevent: (aa) retention …[and] (bb) unauthorized further dissemination." The institution is not required to guarantee that it cannot be "cracked." There is still no legislation outlining fair use of digital materials except for educational use.

How It Impacts You

What does this mean for your in-plant? The fair use guidelines are just that, guidelines. They are aids for the interpretation of the statute. There is nothing in the guidelines, no matter which ones you read, to prevent your including a passage from a novel, a film clip, or a photo from an art exhibit for use in your online review or for educational purposes. These uses fall under "criticism, comment, news reporting, scholarship…"

Quantitative guidelines are popular and well-used because many people lack the experience needed for good judgment. None of these guidelines has the force of law, but they can help us to decide whether our uses of materials found on the Internet are likely to be defensible as fair.

Fair use is often possible as a defense for educational use. The statute is purposefully vague; its flexibility is valuable. The DMCA did not alter the fair use statute. Fair use will be lost if we stop applying its principles to defend our educational uses.

Because the in-plant bears the responsibility for what it prints, it must take a stand in spite of the risk of being unpopular with a client, and use caution and common sense in making these important fair use determinations on behalf of our customers.

Additional Information

Agreement on Guidelines:

http://www.copyright.gov/circs/circ21.pdf

CONFU and guidelines:

http://www.utsystem.edu/ogc/intellectualproperty/confu2.htm

DMCA:

http://www.copyright.gov/title17/92appv.html

Term Extension Act:

http://www.copyright.gov/title17/92chap3.html#304

TEACH Act:

http://www.lib.ncsu.edu/scc/legislative/teachkit/teach.pdf