Library Issues
Editors: Ann P. Dougherty, Mountainside Publishing; Richard M. Dougherty, University of Michigan, Emeritus
Contributing Editors: Mignon Adams, University of the Sciences in Philadelphia; Steve Marquardt, South Dakota State University; William Miller, Florida Atlantic University; Maureen Pastine, Temple University
Vol. 22, No. 5 May 2002

The Clash with Copyright:
What Higher Education Stands to Lose

by Carrie Russell

Clearly, there are reasons for higher education to be concerned about copyright law and the negative impact it may have on research, scholarship and learning. Only now are we seeing real evidence of these impacts. Is higher education done for? Has the pay-per-use scenario we feared come to pass? Or are these overblown statements used to attract your attention? Answer: a little bit of both. A doomsday future is not, however, predetermined. There is still opportunity for change if we take responsibility, work collaboratively and take action.

Recent change in copyright law has been driven in large part by the emerging digital, networked environment. We all know the drill. The cost of creating digital works is low, the ability to make perfect copies is high, the capacity of the network to distribute copyrighted works to many people is now a reality. “Rip, mix, burn”1 With this technological transformation2 copyright holders have feared a loss of control over their copyrights, and perhaps rightly so. In response to these fears, Congress updated the law by providing greater control to copyright holders and higher penalties for infringement with the enactment of the Digital Millennium Copyright Act (DMCA) in 1998. Many have argued that Congress disturbed the copyright balance when it passed the DMCA, that it would have been more prudent to let the technological innovation develop for a time before legislating limits on it,3 and that new protection controls, whether mandated by Congress or not, would do little to prevent piracy.4 Nonetheless, Congress responded to the concerns of industry. Library and educational interests were largely ignored.

Copyright Protection and Management Systems

The most significant change in the law is the addition of Chapter 12 in the copyright law, called “Copyright Protection and Management Systems.” In particular, libraries and higher educational institutions have voiced concern over Section 1201 of this chapter. In this section, Congress added the “right to access” a digital work to the list of exclusive rights of copyright. This means copyright holders could prevent users from gaining access to a copyrighted work without prior permission if protected by a technological protection measure (like encryption or a password). Breaking a technological protection measure to access a work is a civil and criminal offense, punishable up to $500,000 and a 5-year prison sentence for a first offense; fines and sentences double for a second offense. In addition, manufacturing, offering to the public, or promoting technology designed to circumvent copyright is unlawful.

Section 1201(c) states that the defense of fair use to respond to a charge of infringement should not be affected by these new rules. Unfortunately, it is impossible to exercise fair use without first accessing the copyrighted work. You cannot use a circumvention tool to gain access, thus you cannot exercise a lawful right without first performing an illegal act. Additionally, if taken to court, you may not be defending an infringement suit, but rather a charge of circumvention, so the fair use defense may not even apply.

The Catch 22 of Fair Use. You may say that, “Okay, I’ll just get permission from the copyright holder, lawfully gain access to the work with a lawfully acquired password or other device, and perhaps pay the necessary fee to gain access to a digital work. Then I’ll be able to exercise fair use.” Here’s the rub. You will have no idea that you may want to exercise your fair use right because you cannot gain access to the work to make that determination. So you must get permission, probably pay a fee for access to a work that may not even be useful to you.

If works move progressively to a digital-only environment, fair use of an increasing number of digital works will no longer exist. If you must ask permission to make a fair use, by definition, you are not exercising fair use. (Fair use means you do not have to ask permission or pay a fee to use a copyrighted work).

It gets even better. Libraries are allowed a small and unusual exemption from liability. Libraries are allowed under provision 1201(d) to break a technological measure if they want to review a digital work before purchasing it for the library. But, how is this possible if you cannot get a lawful device to circumvent?

How these new rules will play out in the library and at colleges and universities is difficult to say.

Best case scenario: Libraries become the sole “safe haven” for fortuitous discovery if they have the buying power to purchase the digital works that faculty and students require. In this scenario, libraries license resources on behalf of their clientele (much as they do now) and lawfully remove the protection measure because they have paid the necessary license fee. License terms, however, must ensure that users of the copyrighted works can lawfully exercise fair use as understood in the copyright law. The problem here is that the library must take on fortuneteller like qualities so they can predict what resources users will need in advance.

Worse case scenario: Copyright holders market digital information directly to faculty and students who must pay “bit by bit” to use the digital resources in ways that were ordinarily “free” with print resources. If this occurs and libraries continue to purchase information resources for their institutions, libraries will have to develop new budget models for the pay-as-you-go world. It should be noted, however, that some economists and information policy specialists feel that the pay-per-use model will not be pursued because it is not as profitable for publishers and vendors. But, if copyright holders do choose this model, they will have technology to enforce payment terms.

Remeirdes, Sklyarov, Felton

In the last two years, copyright holders have used Section 1201 to take alleged offenders to court. In the Universal Studios v. Remeirdes, the U.S. District Court and then, the U.S. Court of Appeals ruled that fair use was not a defense for violation of 1201. In this case, a teenage with computer know-how, broke the protection measure of a lawfully acquired DVD, in order to play the DVD on a Linux operating system. The circumvention code was then posted on the web by the 2600 magazine. Other sites linked to the code.

Dmitry Sklyarov, a Russian programmer working for a software company successfully hacked through an Adobe ebook encryption tool, and then shared his discovery at a conference in the United States. He was promptly arrested, and later released, in part due to public outcry. The software company is now being sued.

The instance that most directly affects higher education involves Princeton Professor Ed Felton. Felton successfully reverse engineered the Secure Digital Music Initiative (SDMI), a watermarking protection measure developed to protect music CDs. Felton was ready to share his research findings at a computer science conference. The Recording Industry Association of America (RIAA) threatened to sue Felton, but later backed off.

These situations indicate the strong willingness that copyright holders will use to protect digital works. Even when these works are lawfully acquired, consumers can no longer fiddle with their own CD in order to play it on a different operating system, or perhaps on their computer at work, or in the CD player in the car. Computer scientists that “reverse engineer” computer systems as an essential element of their research find themselves threatened by copyright holders.

Recently, a new bill was introduced in Congress that would make 1201 even more powerful. The Consumer Broadband and Digital Television Promotion Act (S.2048) would require that consumer electronic companies and information technology industries build copyright protection devices into their devices. If this law is successful, not only will digital content be copyright protected, the machines that “run” or play back the content will only work in limited ways.

Database Protection Legislation

Members of Congress have introduced database protection legislation for the last several years. This legislation has stalled every time, but it remains an important issue for librarians and administrators to track. Database legislation (in its various forms) would provide additional copyright protection for database vendors.

As the law stands now, the original, creative aspects of the selection and arrangement of database entries are afforded copyright protection. Database vendors would like greater control in order to prevent the development of competing database products. They assert that databases will be copied by others who will then market their own versions. This seems like a reasonable concern, but state laws already apply to this situation. Library and education groups, along with some commercial parties, have argued that wholesale copying is wrong, but fear that with database legislation, vendors will be able to own facts and other public domain elements of the database. How can users effectively extract information from databases without violating the law?

Libraries and researchers should be very concerned about these efforts. If facts can be owned, users may have to pay for extraction of facts and scientists may have to re-do research in order to build on discoveries already made, but now owned by a vendor. Librarians who license databases from vendors will have fewer choices among competing products, because for example, one database vendor may own the majority of the bibliographic citations within a particular discipline. In other words, if you are buying a business database, you may have only one product to choose from.

Threats to the Public Domain

Database legislation is one threat to the public domain because it has the potential for vendors to own facts, discoveries, and ideas — all of which are in the public domain because they are not protected by copyright. Another threat is the repeated extension of the duration of copyright. The Sonny Bono Copyright Term Extension Act extended the term of copyright to life of the author plus 70 years, 95 years for corporate copyrights like Disney’s Mickey Mouse. Remember, the original term of copyright was 14 years with one opportunity to renew for an additional 14 years. It seems ridiculous to make a term of copyright this long, particularly when one thinks of a copyright term as an incentive to create. Certainly, a creator who is dead no longer has the incentive or the ability to create anymore.

The public domain is important to education because people build on public domain materials to create new works. Free access to facts, ideas and previously published works is essential for authors and creators because it is impossible to create something out of nothing. The existence of the public domain helps to maintain the “balance” in copyright that the founders of this country intended.

The Constitution says that the term of copyright should be limited, so works could pass into the public domain and so that the statutory monopoly that copyright affords to copyright holders could have a limited scope. As libraries build digital access to historical materials in their collections, librarians will repeatedly be prevented from expanding and enhancing access because of unreasonable copyright terms.

Simply put, there is no public policy justification for increasing the duration of copyright. Extending the duration of copyright only benefit the heirs of prolific creators and the industries that have collected or acquired a lot of copyright materials, like the motion picture and music industries.

OSP Liability

Another provision added to the copyright law by the DMCA is online service provider (OSP) liability. This provision says that OSPs (which include universities and colleges that offer Internet and e-mail services) cannot be held liable for third-party infringement. So, if a student uses the library computers to distribute unlawfully acquired materials on the Internet, the university cannot be sued because of it. Sounds like a good idea.

There are significant problems, however, with this provision. In order to assert this protection from liability, universities must do several things including establishing “take down” procedures. For example, if the recording industry contacts the university because a student is transferring music files, the university must remove the material immediately. NetPD, is one of the commercial services hired by publishing, recording and motion picture companies to track down offenses on the Internet and notify the copyright holder. So far, so good. But what if the material is being used for fair use purposes. Suppose a women’s studies professor posts images from Thelma and Louise to illustrate the objectification of women in popular culture. What about that professor’s right to assert fair use? Should the university take down materials that may not even be infringements of copyright? An additional concern is that the university could be held over a barrel. If they do not follow the directions of the copyright holder, the university could be sued. In these instances, the universities serve as copyright police, a role that libraries and institutions of higher education have always tried to avoid.

The Rise of Licensing

Probably the issue most familiar to libraries is the extent to which libraries negotiate licenses to subscribe to library electronic resources for their users. Libraries have already had to shift roles from “owners” of content to “renters” of digital materials. Information resource budgets have been modified to adjust to this environment, and library consortia, developed to gain “buying power” and better license terms from vendors, have been formed.

It is difficult to think of another business model that could be used to access digital materials other than licensing. However, with licensing comes an uneven playing field for negotiation of terms with vendors and publishers. Librarians must remain vigilant and build contract terms that do not circumvent information rights of users afforded under the copyright law. Frequently, better terms mean higher prices that libraries often cannot afford. The ability for libraries to share materials with other libraries through interlibrary loan has been very much affected by licensing. Librarians often find that they cannot keep what they paid for unless publishers allow them to archive digital materials.

There is also a growing trend for vendors, particularly software companies, to offer non-negotiated licenses directly to consumers. Consumers discover that they do not even own the software that they purchase, that the terms of the licenses can change at anytime, and that vendors have the right to remove the product from the buyer if they feel contract terms have been violated. In this environment, it seems more important than ever for libraries to educate users and to provide a rich information environment so students and faculty have access to library resources rather than resort to shopping on their own.

The Grim Picture

Clearly, library and higher education associations and their members need to be concerned about these recent copyright developments. The mission of our institutions–to teach, learn, conduct research, and make new discoveries–may be forever changed. But, the future is not a foregone conclusion. Napster caught the attention of the public and the media produced stories on copyright issues. Congress has become aware of consumer grievances with copy-protected CDs and digital music business models that the recording industry has offered via the Web. The Supreme Court has agreed to hear the Eldred v. Ashcroft case that contends that copyright term extension is unconstitutional.

A few members of Congress are considering new legislation that would dismantle Chapter 12, and limit the reach of technological protection devices.

Unfortunately, Congress has not yet focused on the concerns of colleges and universities. Perhaps this is because we have been unable to clearly articulate concerns in ways that are meaningful to Congress. Now is the time to be crystal clear. Balanced copyright law matters to our colleges and universities. Through awareness, meaningful dialogue with all campus stakeholders, as well as the development of our own copyright education and advocacy campaigns, higher education will be better prepared to communicate with Congress. Let’s make our position known. If we are not inspired to stand behind balanced copyright law, we have only ourselves to blame when higher education loses out. —Carrie Russell is the Copyright Specialist for the American Library Assn.Office for Information Technology Policy.


1Apple Computer commercial tagline.

2[Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001).

3Pamela Samuelson, “The Copyright Grab,” Wired 4.01 (January 1996); Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001). p.122-150; Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001) p.159-167, 174-179; David Bollier, Silent Theft: The Private Plunder of Our Common Wealth (New York: Routledge, 2002). p.124-129.

4See testimony of computer scientist Ed Flton at testimony.pdf




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last modified: May 2002


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