Copyright Law in Cyberspace NACUA Midyear Workshop February 28 - March 1, 1996 Georgia Harper Office of General Counsel University of Texas System

Overview

• University Liability for Copyright Infringement in Cyberspace

• Use of Others' Works: Fair Use

• Use of Others' Works: Developing a Long-Term Permissions Strategy

• Developing a Comprehensive Copyright Policy

University Liability for Copyright Infringement in Cyberspace

Widespread use of electronic means to disseminate information means that the possibility of infringement is increasing exponentially. As a result, University attorneys must provide more guidance to faculty, students and staff about Copyright Law.

Direct Infringement

When we are publishers ourselves:

• Playboy v. Frena
  
  
  • Display and distribution
    
    
• Sega Enterprises Ltd. v. Maphia and Frank Music v. CompuServe
  
  
  • Permitting unauthorized copies to be uploaded and downloaded
    
    
• Administrative use of the Web to distribute information
  
  
• Departmental, including academic, use of the Web to make information available to students, faculty and others
  
  
  • Syllabi
  • Course readings
  • Student works
  • Dissertations (where University acts as publisher)
  • Faculty-authored scholarly works (where University acts as publisher)
  • Distance learning
  • Multimedia courseware
  • Image collections
  • Course-related discussion groups

Contributory Infringement: Service Provider Liability

• Supplying the means to infringe
  
  
  • Sony
  • Religious Technology Center v. Netcom On-Line Communication Services, Inc., No. C95-20091 RMW
    
    
    • Right and ability to control conduct of subscribers
    • Direct financial benefit from infringing conduct
      
      
  • Employees or others placing infringing materials on bulletin boards and Web servers that System provides
    
    
• Participating in the infringement
  
  
  • Religious Technology Center v. Netcom On-Line Communication Services, Inc., No. C95-20091 RMW
    
    
    • With knowledge of the infringement, inducing, causing or materially contributing to such infringement
    • Possible fair use defense regarding what constitutes "knowledge" and the materiality or substantiality of participation
    • Netcom case reportedly has been settled, so these issues are not going to be elucidated further at this time.
      
      
  • Congressional action on next Copyright Reform Act could include negotiated agreement among stakeholders
    
    
    • University and library concerns are not aligned with commercial service providers: We have to participate in the discussion
      
      
• Broad service provider liability might chill protected expression

Policies to Address Complaints of Infringement

• Develop a policy
  
  
  • A mere unsupported allegation of infringement should not by itself warrant removal
    
    
    • First Amendment concerns for state institutions
      
      
  • We cannot, however, wait until liability is certain before acting
  • Where there is a reasonable claim of fair use, it may be impossible to "know" whether something is an infringement
    
    
• Widely distribute and elucidate the policy
  
  
• On the horizon:
  
  
  • Service provider participation in infringement may be deemed insubstantial (cross your fingers)
  • Global Information Infrastructure: National treatment principle (copyright)
  • Compare with how complaints from other jurisdictions are handled in other areas of law (community standards)
    
    
• For now: we must undertake a reasonable investigation in response to complaints

Using Others' Works: Fair Use

Copyright Law Basics

Section 107 of the Copyright Law describes four factors that must be taken into account in analyzing whether copying is fair use.

• Character of the use
  
  
• Nature of the material to be copied
  
  
• Amount and importance of the part copied
  
  
• Effect on market for permissions

Applying the Basics to Cyberspace

Mixed Signals: Everyone expected the White Paper to clearly state whether fair use would still apply in the electronic environment. The White Paper explicitly declined to address the issue while implying that fair use would not be of much importance in the electronic environment, yet nonetheless established the Conference on Fair Use to develop educational guidelines. The following examples further illustrate the ambiguous and confusing state of the law:

• CONFU: Negotiations are finished; scope of fair use is very narrow
  
  
  • Guidelines are complete for multimedia, use of images and distance education
  • Negotiations for electronic reserves failed to produce a consensus document; interlibrary loan group agreed to disagree
    
    
    • ALA supported the negotiation of modestly bilateral reserves guidelines but these never got support from some library groups and were protested by major publishing industry stakeholders
    • ALA ultimately decided that it would not support any guidelines
      
      
• Uneven application of the "market failure" theory of fair use:
  
  
  • Under this theory, as it becomes easier to ask and pay for permission, the scope of fair use should decrease. Ultimately, if it can be licensed, it should be licensed.
    
    
  • Texaco
    
    
    • Although this is a photocopy case, its reasoning strongly suggests that fair use will not be needed in the electronic environment because better access to works, even for a price, has reduced the need for fair use.
      
      
  • Michigan Document Services, Inc., (MDS)
    
    
    • This is also a photocopy case in which the court ultimately adopted a strongly economic analysis, but the history of this decision reflects the intense feelings on both sides of the fair use debate. This case was heard before a three-judge panel of the 6th Circuit, as is the normal procedure. That panel issued an opinion rejecting the "market failure" theory and finding that the commercial creation of coursepacks was fair. Its reasoning suggested that fair use should continue to have a broad scope and be generously applied in those areas of use specifically mentioned in the statute regardless of the market's ability to provide access for a price. On appeal to the entire 6th Circuit, the original opinion was withdrawn, the case was reheard en banc, and the subsequent decision affirmed the lower court finding of infringement. The discussion of the theory of fair use that underlies the first 6th Circuit opinion is important to a full understanding of this difficult issue.

      The "Constitutional" theory of fair use:

      • Fair use embodies First Amendment principles
      • A broad right for copyright owners to license educational uses would be applied to materials not protected by copyright
      • A broad right for copyright owners to license educational uses would make the right to make copies (Section 106) absolute
      • An absolute right for copyright owners to make copies would upset the balance that Copyright Law is supposed to achieve
        
        
        • Constitutional purpose
        • Public interest
        • A limited monopoly without one of its most important limits?
          
          
  • Campbell v. Acuff-Rose Music
    
    
    • This is a case about parody, a special kind of fair use. In its opinion, the Supreme Court twice made favorable references to educational and research uses. This is very little to go on, but may give some indication of the Court's attitude towards those uses.
      
      
• Fair use appears to play little or no role in negotiating access to electronic information.
  
  
• Economics of blanket licensing suggest that fair use will be marginalized as a "discount" off the industry permissions rate and that later rate increases will ultimately render the discount meaningless.

Applying Fair Use in the University Cyberspace Environment

Regardless of the confused state of the law, we still must apply it.

Comment, criticism, news reporting, parody

These uses are core fair uses and should be relatively unaffected. The imposition of an obligation to ask or pay for permission is inimical to the processes these uses facilitate.

In the digital library

General electronic access may eliminate the need for subclasses of institutional copying (coursepacks, reserves, etc.) and the debate over the scope of fair use in those subclasses.

• Coursepacks

  U.T. System Rules of Thumb

• Electronic reserves

  U.T. System Rules of Thumb

• Research copies

U.T. System Rules of Thumb

• Interlibrary loan and remote document delivery

What obligation might the University have to secure for students and other users of its electronic information the right to download and print out for personal use?

Multimedia works, telecourses and distance learning

U.T. System Rules of Thumb

Using Others' Works: Developing a Permissions Strategy

The outcome of the debate over whether "market failure" completely explains the existence of fair use will affect the way we acquire access and what rights we have to use materials once acquired. Ultimately, Universities will need to take a more active role in licensing and copyright management to have an effect on costs to acquire and use digital information.

Today

• Most libraries contain less than 10% electronic holdings
  
  
• Universities undertake considerable institutional photocopying

Five to ten years from now

• Many libraries will hold most of their high-demand works in electronic form
  
  
• University institutional photocopying will diminish
  
  
• Personal electronic duplication and transmission will increase

Institutional versus personal copying

Who is responsible for infringement? How is fair use taken into account?

• Students
  
  
• Faculty
  
  
• Staff

Transactional versus comprehensive licenses

As we move from institutional to personal copying, and to the extent there is some liability for infringement, who will keep track and remit?

• Transactional licenses
  
  
  • Only realistic in a centralized, institutional copying environment
  • Fair use is taken into consideration by exclusion of fair use copies from those subject to payments
  • Dispute over the scope of fair use persists (whether a copy was appropriately excluded)
  • Transaction costs may be passed on to consumers of copies
    
    
• Comprehensive licenses
  
  
  • More appropriate if most copying is decentralized and personal rather than institutional
  • Fair use is calculated as a discount off the "industry" fee
  • Rate increases may render discount meaningless
  • Comprehensive fee paid by institution may be passed on to consumers of copies

Compare:

• Acquiring sufficient electronic access directly (access licensing)
  
  
• Acquiring electronic access plus additional permission to use (permission fees)
  

Will it cost the same regardless of whether we acquire sufficient access for all our needs (institutional or personal) upfront or acquire a bare access and have to pay further for the right to use the works once we access them?

In either case, for most Universities and their students, faculty and staff, these costs represent additional payments. Where should this money come from?

Possible negotiations between ARL/AAU and CCC for a University blanket license

In order to be of long-term benefit, a blanket license may have to cover electronic rights and both institutional and personal copying.

Developing a Comprehensive Copyright Policy

Universities need to address the policy issues triggered by the electronic revolution.

Ownership Issues

Policies must clarify who owns what in the context of complex creations.

• Scholarly works implemented in software
  
  
• Multimedia courseware
  
  
• Telecourses and distance learning
  
  
• Joint and collaborative electronic works
  
  
• Works commissioned by the institution

University Role in Scholarly Electronic Communication

• Universities produce, distribute, maintain and consume scholarly works
  
  
• Costs to buy back the end product of University research have far outstripped libraries' financial resources
  
  
• Authors, libraries, scholarly presses and computer departments have begun to team up to find solutions
  
  
  • Online journals and monographs
  • Departmental preprint servers
    
    
• ARL/AAU Task Force suggests a more active University role in copyright management
  
  
  • The MIT "Shop Right"
  • The University of Wisconsin-Madison's Faculty Senate Resolutions on Faculty Concerns on Copyright
  • Author reservation of non-exclusive electronic distribution rights
    
    
    • Model copyright notice that permits nonprofit educational uses
      
      
  • National repositories for scientific research to provide not-for-profit electronic outlets
  • A distributed national science and technology library
    
    
• Scholarly communication may ultimately operate under a different copyright paradigm from the entertainment industry
  
  
  • Upfront public/private funding
  • Free distribution to entire university community
  • Value charged for could be in "point of view," organizing principles and ability to offer interaction with authors, among others

Use of Others' Works

Acquiring Sufficient Access to Others' Works

• Licensing broader rights upfront
  
  
• Long-term permission strategies for additional uses not covered by access licenses

Case Citations:

American Geophysical Union v. Texaco, Inc., 37 F.3d 881 (2nd Cir. 1994).
Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991).
Campbell v. Acuff-Rose Music, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994).
Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552 (M.D.Fla. 1993).
Religious Technology Center v. Netcom On-Line Communication Services, Inc., No. C95-20091 RMW (N.D.Cal 1995).
Princeton University Press v. Michigan Document Services, Inc., 1996 FED App. 0357P (6th Cir.)
Sega Enterprises Ltd v. Maphia, 857 F. Supp. 679 (N.D.Cal.1994).
Sony Corp. v. Universal City Studios, Inc, 464 U.S. 417 (1984).

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