Running head: COPYRIGHT IN DIGITAL ENVIRONMENTS

Topic A: Copyright and Fair Use in the Digital Environment of Libraries and Information Centers Martin Patrick Kent State University, SLIS LIS 60003

COPYRIGHT IN DIGITAL ENVIRONMENTS Abstract Copyright is built into the Constitution of the United States, designed to balance a benefit to authors, inventors, and society at large. The digital revolution has changed how content can be distributed, but the law in the United States has largely failed to keep up with technological changes. Publishers, authors, and vendors maintain control of the situation, leaving libraries with little recourse but to play along. While some legislation has remembered to include

protections for libraries, the traditional doctrines of fair use and first sale are underdefined in the new digital reality, and these gaps in legislation can rapidly undermine libraries and information centers. Libraries and information centers can lose almost all control over their collections, and are subject to the whims of license agreements rather than law. The way forward may be the license models offered by Creative Commons and initiatives like Open Access. Keywords: copyright law, fair use, open access, creative commons

COPYRIGHT IN DIGITAL ENVIRONMENTS Topic A: Copyright and Fair Use in the Digital Environment of Libraries and Information Centers In the United States, Congress was given the power to establish copyright law in Article 1, Section 8 of the Constitution in order to promote the progress of science and useful arts (Transcript of the Constitution, n.d.). Traditionally, educators and librarians have been able to rely on two facets of copyright law in the United States to make material available to their students and patrons: the first sale doctrine and the concept of fair use. With the advent of the

Internet, and the shift towards digital, rather than print, material, these traditional protections for libraries and others have come under attack as publishers and authors seek to increase their control over how their work can be used and to protect their revenue from these works. The current situation undermines the ability of libraries and information centers to support their patrons needs. First Sale and Fair Use: The Old Reality The so-called doctrine of first sale allows the entity that buys creative material to distribute that work to whomever the entity chooses by sale, lease, rental, or other transfer of ownership (First-sale doctrine, n.d.; von Hielmcrone, 2012). Thus, a library can legally lend out a physical book or a DVD that it purchases, but it cannot reproduce that work in order to increase the quantity available that it can lend. The concept of fair use, however, allows a library or other entity who has the right of distribution to make the material available in certain situations without first securing permission from the copyright holder, such as copies of articles for course reserves. There are four tests that measure fair usage, and they consider the purpose of the use, the nature of the work being used, the amount of the work that is being used, and the effect this usage will have on the market for the copyrighted work (Fair use, n.d.). Fair use

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requires that the defendant prove fair use in court, and in general, courts prefer reproduction that adds value, uses less rather than more, and does not substitute for someone actually purchasing the content for themselves (Pressman, 2008). The New Reality: Digital is not Print The advent of large quantities of material available in digital format outpaced the copyright laws, however, and it is unclear in the United States how fair use applies to digital content (Fineberg, 2009). Another issue with digital content is that digital content has not been held to be subject to the right of distribution. Digital content is considered to be communicated as a service, rather than distributed, negating the protections of first sale and fair use (Von Hielmcrone, 2012). A copyright holder can dictate the terms of first sale on a print book, and once sold, loses the right to dictate how that book is distributed. Electronic books, on the other hand, never exhaust the limitation of first sale. While libraries can provide access to electronic books and journals to their patrons, every instance of patron use is governed by a license agreement with the copyright holder or vendor. License agreements along with encryption software called Digital Rights Management (DRM) fill the void left by adequate law describing and limiting copyright holders rights over digital content. While fair use is nebulous in the realm of the digital, it has not necessarily been completely thrown out. The problem for libraries is that most digital content is protected by DRM, which is illegal to circumvent, according to the provisions of the Digital Millennium Copyright Act (DMCA). This puts libraries and researchers in a catch-22 situation because they may be able to defend their actions as fair use, but if they broke the DRM encryption to do so, that act would be illegal (Ferullo, 2004; McDermott, 2012). While license agreements may liberally allow libraries to communicate the content governed by the agreement, traditional

COPYRIGHT IN DIGITAL ENVIRONMENTS library uses of material, such as course reserves, may require breaking DRM in order to accomplish them, essentially rendering the fair use defense worthless (Fineberg, 2009).

Libraries do receive at least two possible protections in the Digital Millennium Copyright Act. The first is that a library may qualify as an online service provider if it fulfills the requirements to do so. If a library, or a university, achieves this status, the library cannot be sued over the actions of users on its network, in theory. The second provision in DMCA that helps protect libraries and information centers allows a library to create a digital copy of a work that is deteriorating, but that digital copy can then only be used on the librarys premises. There is currently no adequate definition as to what the librarys premises consist of in a virtual environment (Ferullo, 2004). The underlying issue is that a digital copy is not physically held, and current law makes a distinction between physical and digital content. Whenever a digital object is accessed, the accessing computer must make at least a temporary copy of that digital object in order for the user to interact with it (Wyatt & Schlosser, 2006). Combined with the absence of a distribution right, this puts the library or information center in a precarious position. The library must balance the copyright laws, the license agreements, and the interests and needs of its patrons. As laws and license agreements expand and become more complex, libraries must actively find ways to keep up with these changes, and need staff to effectively become experts in copyright law and all of the various vendor licenses under which they operate (McDermott, 2012). Licensing versus Owning As copyright law fails to adequately keep pace with our digital reality, licensing the use of content, rather than owning content, has become the norm for libraries and information centers (McDermott, 2012). Licenses essentially put the vendor in control of a librarys access policies,

COPYRIGHT IN DIGITAL ENVIRONMENTS and von Hielmcrome (2012) goes so far as to say that libraries are privatizing their collections, and that Acquisitions have been replaced by subscriptions. Collections are replaced with connections (p. 160). In this scenario, the library becomes nothing more than a medium through which the vendor collects payments and the patron collects digital material. Libraries verge on purposelessness because of this, and because the vendor of the digital content can control what content patrons can access. Von Hielmcrome (2012) calls this a direct challenge to the core activities of a library. Gone is the idea of collection development; libraries

can be limited to the packages that a vendor is willing to provide, which may include some of the titles the librarys patrons want but not all of them, and may include many titles the library must pay for but that go completely unused. Licenses also have to be renewed at set intervals, rather than a library replacing physical copies only as they wear out, which could be six months or six years. The supreme danger is that a vendor may go offline or out of business at any time, wiping out a portion of a librarys collection in a single day. Positives in the New Reality Recent laws and the licensing model for digital content do offer positives for libraries. It remains to be seen if losing control over collections and ceding library access policies to vendors is a worthy trade-off, however. The Digital Millennium Copyright Act, while restrictive, acknowledged that institutions providing internet access should not always be held responsible for the actions of users accessing the internet and infringing copyright using their services. The DMCA also allows for libraries to digitally preserve content they fear might be lost if action is not taken. Libraries do not have to expand their facilities cope with the increasing amount of content being created. The ability to store a wealth of information can be handled by the addition of a

COPYRIGHT IN DIGITAL ENVIRONMENTS server rack or two, rather than a library building or two, or it can be offloaded to the vendors own servers. Patrons can now access material at any time of the day, with no holidays or other restrictions on access. The ability to purchase packages put together by the vendor lessons the

amount of time spent on collection development. Books cant go missing, and patrons benefit by never having overdue fines since the return process is handled automatically. The Major Battleground: E-Reserves Perhaps the most contentious issue of late in the debate over fair use of digital content centers on a traditional service offered by academic libraries: course reserves. In May 2012, a major case involving Georgia State University and e-reserves was concluded, a suit brought by Cambridge University Press, Oxford University Press, and Sage Publications. Seventy-five instances in George States e-reserve usage of material were claimed as infringement by the plaintiffs, and the judge held that five of these uses actually were infringement. The judge ruled that fair use for e-reserves includes ensuring that only students enrolled in the course can access the material and that the material is inaccessible again once the course ends. The excerpts provided must legitimately be required for the course, their purpose must be accomplished with as little usage of the material as possible, and if the vendor sells excerpts, they must be purchased from the vendor (Schwartz, 2012). Conclusion: How Libraries are Undermined and the Way Forward Reliance on a vendor who can go out of business or whose database can go offline at any time is perhaps the worst-case scenario. Power can go down; an internet connection can be overloaded. The absence of proper regulation from Congress has opened the doors to publishers who take control of the situation and force libraries to play by their rules, which benefits the bottom line of publishers, but which fails to benefit the intent of the Constitution, which is that

COPYRIGHT IN DIGITAL ENVIRONMENTS creative and scientific work should ultimately benefit society (Pressman, 2008). Unfortunately, the ability of publishers to sue libraries over their use of copyrighted materials is potentially more damaging for library systems that are already cash-strapped and over-burdened keeping track of licensing and copyright protections. Libraries who subscribe or license content for their patrons are ceding control of their collection over to the vendor providing the content. Libraries can remain uninformed about the

removal or the updating of specific content in the vendors package, which can hinder the ability to provide proper reference service to patrons. It also leaves the library exposed to angry patrons who thought a particular title would be available, and who do not have time to listen to a nuanced rationalization of why the library no longer has control over its content. To keep libraries safe, some librarians request permission in every instance and some will only work with material in the public domain (Ferullo, 2004). There are other potential solutions for now, such as the Creative Commons licenses and Open Access initiatives. Creative Commons licenses allow copyright holders to retain protections against unauthorized duplication but to choose a level of liberalness in the distribution, or communication, of their work to benefit the public. Open Access, which allows a work to freely distributed, copied, and used for research or other legal uses while maintaining the right of the author to be credited with the work (Budapest open access initiative, FAQ, 2012), is another possibility. Currently there are over 8800 known open access journals (DOAJ, n.d.) and over 2200 open access repositories of scholarly materials (OpenDOAR, n.d.). Libraries can make this content available freely to their users as long as the author of the work is credited. Until Congress can pass copyright legislations that have caught up to the present reality, supporting Creative Commons and Open Access may be the best way forward for libraries, researchers, and indeed, America as a whole.

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References Budapest open access initiative, FAQ. (2012, September 14). Retrieved March 24, 2013, from http://legacy.earlham.edu/~peters/fos/boaifaq.htm#openaccess DOAJ: Directory of open access journals. (n.d.). Retrieved March 24, 2013, from http://www.doaj.org/ Fair use - Wikipedia, the free encyclopedia. (n.d.). Retrieved March 24, 2013, from http://en.wikipedia.org/wiki/Fair_use Ferullo, D. L. (2004). Major copyright issues in academic libraries: Legal implications of a digital environment. Journal of library administration, 40(1/2), 2340. Fineberg, T. (2009). Copyright and course management systems: Educational use of copyrighted materials in the United States and the United Kingdom. Libri: International journal of libraries & information services, 59(4), 238247. First-sale doctrine - Wikipedia, the free encyclopedia. (n.d.). Retrieved March 24, 2013, from http://en.wikipedia.org/wiki/First-sale_doctrine McDermott, A. J. (2012). Copyright: Regulation out of line with our reality? Information technology and libraries, 31(1), 720. OpenDOAR - home page - directory of open access repositories. (n.d.). Retrieved March 24, 2013, from http://opendoar.org/ Pressman, R. R. (2008). Fair use: Law, ethics, and librarians. Journal of library administration, 47(3/4), 89110. Schwartz, M. (2012, May 17). Georgia State copyright case: What you need to knowand what it means for e-reserves. Retrieved March 22, 2013, from

COPYRIGHT IN DIGITAL ENVIRONMENTS http://lj.libraryjournal.com/2012/05/copyright/georgia-state-copyright-case-what-youneed-to-know-and-what-it-means-for-e-reserves/ Transcript of the Constitution of the United States - Official Text. (n.d.). Retrieved March 24, 2013, from http://www.archives.gov/exhibits/charters/constitution_transcript.html Von Hielmcrone, H. (2012). The digital library and the law - legal issues regarding the acquistion, preservation and dissemination of digital content. Microform & digitization review, 41(3/4), 159170. Wyatt, N., & Schlosser, M. (2006). Fair use in the digital environment. Reference and user services quarterly, 46(1), 1117.

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