Library@RVCC: Copyright Policy

Copyright Policy

Approved by RVCC Board of Trustees, May 2000

[General Guidelines] [Fair Use] [Classroom Guidelines] [Appendix]

A primary mission of the RVCC community is the exchange and development of ideas and information. Colleges are the producers as well as users of such expression. The copyright law is intended to increase the free flow of ideas. Implementation of this law requires balancing the incentives given to authors to create works against free access of others to the ideas contained in those works.

Raritan Valley Community College recognizes and respects intellectual property rights. As part of our mission to maintain the highest standards for ethical conduct, we are committed to fulfilling our moral and ethical obligations with respect to our use of copyright-protected works. Article I of the U.S. Constitution authorizes Congress to pass legislation "to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." On the basis of the Constitution, Congress has enacted the Copyright Act found at Title 17 of the U.S. Code. It is the intent of the College that all members of the College community adhere to the provisions of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code.

As a matter both of moral integrity and of adherence to U.S. copyright law, Raritan Valley Community College sets forth these policies for all employees to demonstrate our respect for intellectual property and compliance with the law:

1. No employee of Raritan Valley Community College may reproduce any copyrighted work in print, video, or electronic form in violation of the law, and the easiest way to ensure no violation is by receiving express written permission of the copyright holder. Copyright laws in the U.S. protect Works even if they are not registered with the U.S Copyright Office and even if they do not carry the copyright symbol (©). Copyrighted works include, but are not limited to, printed articles from publications, TV and radio programs, videotapes, music performances, photographs, training materials, manuals, documentation, software programs, databases, and World Wide Web pages. In general, the laws that apply to printed materials are also applicable to visual and electronic media. Examples include diskettes, CD-ROMs, and World Wide Web pages.

2. Raritan Valley Community College will obtain license from the Copyright Clearance Center permitting it to make photocopies of portions of CCC’s 1.75 million registered published works. The list of CCC registered works, including trade, newspaper, and magazine titles, is available at www.copyright.com.

3. For all other copyrighted works, Raritan Valley Community College directs its employees to obtain permission from copyright holders directly, or their licensing representative, when the reproduction or duplication exceeds fair use.

4. Raritan Valley Community College designates the Dean of Instructional Technology as the copyright officer to administer the College’s copyright policy. Librarians in RVCC’s Evelyn S. Field Library can help determine whether a work is covered under the Doctrine of Fair Use and how to handle any special copyright issues. Questions concerning copyright procedures, including fair use, should be addressed to the Library Department Chair.

Frequently asked questions, relevant to particular types of media, are included to provide guidance in interpreting fair use. Additional print and electronic resources relating to the copyright law fair use and its interpretation are available in the Evelyn S. Field Library).

The above policy statements and the following guidelines constitute a handbook for RVCC community members who wish to reproduce, alter, or perform works protected by copyright, including printed materials, audio and video recordings, visual artworks, computer software, electronic information.

General Guidelines:

WHAT IS PROTECTED BY COPYRIGHT?

Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible, so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

1. literary works

2. musical works, including any accompanying words

3. dramatic works, including any accompanying music

4. pantomimes and choreographic works

5. pictorial, graphic, and sculptural works

6. motion pictures and other audiovisual works

7. sound recordings, and

8. architectural works

These categories should be viewed broadly, e.g., computer programs and most compilations are registrable as "literary works"; maps and architectural plans are registrable as "pictorial, graphic, and sculptural works.".

Publication is not essential for copyright protection, nor is the well-known “©". For works published on and after March 1, 1989, use of the copyright notice is optional. Section 106 of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code) gives the copyright owner the exclusive right to do and to authorize others to do the following:

1. To reproduce the copyrighted work in copies or phonorecords;

2. To prepare derivative works based upon the copyrighted work;

3. To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership or by rental, lease, or lending;

4. n the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and

5. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.

Ownership of a book, manuscript, painting, or any other copy does not give the possessor the copyright. The copyright owner retains these rights even when the work itself belongs to someone else. The rights, however, are subject to both "fair use" limitations, which apply to all media, and medium-specific limitations.

WHAT IS NOT PROTECTED BY COPYRIGHT?

Materials generally not eligible for statutory copyright protection include:

1.Works that have not been fixed in a tangible form of expression, e.g., improvisational speeches or performances that have not been written or recorded;

2.Titles, names, short phrases, slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering, or coloring, mere listings of ingredients or contents;

3.Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration;

4.Works consisting entirely of information that is common property and containing non-original authorship, e.g., standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources.

Some categories of publications are in the public domain, that is, their use is not protected by copyright law:

1.Works published more than 75 years ago

2.Works created by United States government employees in the course of their employment (most United States government documents)

Once a work has acquired public domain status, it is no longer eligible for copyright protection.

FAIR USE:

It is the policy of Raritan Valley Community College to adhere to the requirements of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code).

The doctrine of "fair use" of a copyrighted work, incorporated into the copyright statute as Section 107, addresses the needs of scholars, teachers, and researchers, and applies to all media. Fair use is an attempt to balance an author's copyright protection in creating intellectual works against the public interest in the dissemination of those works. To determine whether the use made of a work is fair use, the law defines four factors to consider:

1.The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit, educational purposes;

2.The nature of the copyrighted work;

3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4.The effect of the use upon the potential market for or value of the copyrighted work.

The four factors are explained below:

1. PURPOSE AND CHARACTER OF THE WORK:

If the purpose for copying does not fall into the categories of criticism, comment, news reporting, teaching, scholarship, or research, it is not a fair use. The fair use guidelines are not to be interpreted as any sort of not-for-profit or educational "carte blanche" for copying.

2. NATURE OF THE COPYRIGHTED WORK:

"Where the nature of the copyright work is more in the nature of a collection of facts than in the nature of a creative or imaginative work, alleged infringers have greater license to use portions of such work under the fair use doctrine than they would have if creative work were involved." (New York Times Co. v Roxbury Data Interface, Inc.) In other words, copying news magazine articles (factual) is more likely to be allowed under Fair Use than copying a short story (creative).

3. AMOUNT OF THE WORK USED:

The use of an entire work, in other words, wholesale copying, can NEVER be fair use, even in cases where the infringer had no intent to infringe. Copying a large portion of a work or the "essence" of a work is an infringement.

4. THE EFFECT OF USE ON THE POTENTIAL MARKET VALUE FOR OR VALUE OF THE WORK:

If copying or distributing the work does not reduce sales of the work, then the use may be considered fair. Of the four standards, this is arguable the most important test for fair use.

FAIR USE SUMMARY

Copying parts of or entire works for use in a classroom cannot be done simply because the purpose is educational. The Fair Use statute is used to determine the legality of copying when the instance of copying is not addressed in other Sections of the Copyright Act. In other words, first look to the Copyright Act and the accompanying guidelines for the permission to copy. If the copying is not specifically prohibited, it MAY be allowed under Fair Use. All four factors must be examined, weighed, and balanced.

Members of the College community who willfully disregard the doctrine of "fair use" do so at their own risk and assume all liability.

INFRINGEMENT:

There is both civil and criminal liability for infringement of the rights of a copyright owner. An infringer may be sued for either actual or statutory damages and, in addition, may be prosecuted for criminal violations. The copyright owner has the right to try to prove what his or her actual damages are and collect that amount or may elect to receive the damages authorized by statute ("statutory damages") in lieu of actual damages. The statutory amount currently is limited to $100,000 per work infringed in any case where the court finds that there was willful infringement. In either case, the copyright owner may, in the court's discretion, recover costs, which may include attorneys' fees. Any person found guilty under the criminal sections of the law may be imprisoned up to one year, fined up to $25,000, or both. These provisions of the law apply to all cases of infringement regardless of the media involved.

It is most important to understand that the court need not find a willful infringement (that the infringer intended to infringe) in order to award damages or find guilt. For example, copying software is an infringement and a crime even if the person copying it does not know that copying is a violation of the rights of others and against the law.

PRINTED MATERIALS:

The fair use doctrine, incorporated as Section 107 into the United States Copyright Law of 1976, as amended (Title 17, U.S. Code) permits under certain conditions the copying of copyrighted material. In an attempt to clarify interpretation of fair use, Congress endorsed the following guidelines, negotiated by the Association of American Publishers, Inc. and the Authors League of America which state the minimum standards of educational fair use for photocopying printed materials under Section 107 of the Copyright Act of 1976, Title 17, U.S. Code:

Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to books and periodicals

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223 [this section]. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill [this section]. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

Guidelines

I. Single Copying for Teachers:

A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

A. A chapter from a book;

B. An article from a periodical or newspaper;

C. A short story, short essay or short poem, whether or not from a collective work;

D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper;

II. Multiple Copies for Classroom Use:

Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:

A. The copying meets the tests of brevity and spontaneity as defined below; and,

B. Meets the cumulative effect test as defined below; and

C. Each copy includes a notice of copyright.

Definitions:

Brevity

(i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.

(ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. [Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]

(iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

(iv) "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph "ii" above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

Spontaneity

(i) The copying is at the instance and inspiration of the individual teacher, and

(ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect:

(i) The copying of the material is for only one course in the school in which the copies are made.

(ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.

(iii) There shall not be more than nine instances of such multiple copying for one course during one class term. [The limitations stated in ``ii'' and ``iii'' above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]

III. Prohibitions as to I and II Above

Notwithstanding any of the above, the following shall be prohibited:

(A) Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.

(B) There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.

(a) substitute for the purchase of books, publishers' reprints or periodicals;

(b) be directed by higher authority;

(D) No charge shall be made to the student beyond the actual cost of the photocopying.

Agreed March 19, 1976.

COPY CENTERS

The copyright law applies to all forms of photocopying, whether it is undertaken at a commercial copy center, at RVCC’s Copy Center, or at a self-serve photocopy machine. 27. Recent developments in copyright law provide the basis for potential legal claims against the College with respect to the reproduction of certain printed materials by the Copy Center, e.g., chapters, articles, and excerpts from books or journals, compiled into "packets" made available to students for purchase. The Kinko's case (Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 S.D.N.Y. 1991) casts into doubt whether such copying activities at university copy centers qualify under the fair use exception. Kinko's operates a chain of copy centers throughout the U.S., usually located near universities and colleges. Publishers complained that Kinko's prepared collections of excerpts from copyrighted books at the request of faculty at nearby campuses. Kinko's copied the excerpts, assembled them into "course packets," and sold them to students in the requesting faculty's class at a price that included a reasonable profit. Kinko's did not seek or obtain permission to copy any of the copyrighted material. Kinko's defended the practice as, among other things, a fair use. The court analyzed Kinko's copying under Section 107 and under the Guidelines and concluded that the use was not fair, enjoined Kinko's from continuing the practice, and ordered Kinko's to pay $510,000 in statutory damages and attorney's fees and costs. The parties settled the litigation without appeal; Kinko's ultimately paid the publishers $1,875,000.

Raritan Valley Community College policy permits copying for classroom use consistent with copyright law and the fair use Guidelines. Faculty and staff have the ultimate responsibility to adhere to the law and to produce written documentation of permission granted if copying exceeds fair use. If in doubt, request permission to copy from the copyright owner.

PERMISSIONS:

It is the policy of the Raritan Valley Community College to adhere to the requirements of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code), and to secure permission to copy copyrighted materials when such copying exceeds fair use.

A copyright notice is not required for copyright protection of works published on or after March 1, 1989. Most works (except those authored by the U.S. government) should be presumed to be copyright protected unless further information from the copyright holder or express notice reveals that the copyright holder intends the work to be in the public domain. With regard to works published prior to March 1, 1989, a copyright notice generally is required in order for them to be copyright protected.

When the photocopying of copyrighted material is not within the Guidelines, College faculty and staff members should request permission. Every article or chapter assembled into a "course packet," if derived from copyrighted material, requires permission, either from the copyright owner (usually the publisher) or payment of a fee through an authorized permissions agency such as the Copyright Clearance Center. Providing complete, accurate information to the copyright owner will facilitate the request. Each item in the packet also must include a notice of copyright, if present.

LIBRARY RESERVES

Photocopies placed on library reserve are intended to supplement other materials assigned for a course. Library reserves function as extensions to classroom readings, therefore the "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals” is relevant in the interpretation of fair use.

The Evelyn S. Field Library accepts single photocopies of copyright protected chapters and articles according to the standards of the Guidelines for photocopying, i.e., not more than one article or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during a term. The same item may not be placed on reserve by the same instructor for consecutive terms without written permission from the copyright owner.

In unusual circumstances, the length or difficulty of an assignment, the number of enrolled students, or the length of time allowed for completion of the assignment, may permit multiple copies of copyright protected material. The amount of material should be reasonable in relation to the total amount of material assigned for one term of a course, taking into account the nature of the course, its subject matter and level. The effect of photocopying the material should not be detrimental to the market for the work. In general, the library should own at least one copy of the work.

Course packets will be accepted for library reserve only with the indication of copyright clearance or royalty payment.

Photocopies are considered the property of the instructor placing them on reserve. Photocopies of copyright protected material must contain a notice of copyright as provided on the original work, if present. Library reserve photocopies must be marked with the warning: "NOTICE: This material may be protected by copyright law (Title 17, U.S. Code)".

Special reserve restrictions apply to audiovisual materials and to computer software. See sections on films and videocassettes, and computer software.

INTERLIBRARY LOAN PHOTOCOPIES:

Interlibrary loan is a cooperative resource sharing service between libraries. Section 108 (g)(2) of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code) addresses the rights of libraries to copy or distribute copyrighted material within interlibary loan arrangements.

In 1976, Congress appointed the Commission on New Technological Uses of Copyrighted Works (CONTU) to develop guidelines for interlibrary loan photocopying affected by Section 108. The CONTU guidelines restrict the aggregate quantity of photocopying the Evelyn S. Field Library Interlibrary Loan Department can request for the College community within a calendar year, so as not to substitute copying for the purchase of or a subscription to a work. Within each calendar year, the Interlibrary Loan Department can request up to five photocopied articles from the most recent five years of a periodical title the Library does not subscribe to. Photocopied articles from such periodical titles that have reached the maximum limit of five for the calendar year may be available, for a royalty fee, through the Library's affiliation with the Copyright Clearance Center or other copyright clearance document delivery resources.

USE OF COPYRIGHTED MEDIA MATERIALS:

To determine if you may use media materials such as video programs, audio tapes, photographs, computer files, and other items in whole or in part, you must make the following determinations:

Is the material copyrighted? Most materials that are available from commercial sources are protected by copyright. Even items that you can obtain freely, e.g., downloaded from the Internet are protected. Unless you can positively determine that the item is not copyrighted, assume that it is.

Is my intended use authorized? Copyright owners can and do sell or grant rights to use their materials in specific ways. For example, a video producer may sell the right for limited public performance to an educational video producer who in turn grants that right to purchasers of the video tape. You may be able to determine who owns the rights for your intended use and buy or obtain those rights from the owner. This can be a cumbersome, time-consuming, and expensive project.

Is my intended use covered by the fair use provisions of the copyright law? (See above section on Fair Use)

Examples of Use of Copyrighted Materials:

I want to play a videotape in class.

All of the videotapes purchased by the LRC and ITC include the right to view or project the program in class (but not to the public at large, and not in any case where an admission is charged.) Some of these tapes also include the right to deliver the program to students via closed circuit cable systems on the main campus. A few include the right to deliver the program to students via a public cable system.

Telecourse tapes have special provisions detailed in the telecourse license. The fact that the College may have purchased the tapes does not extend the rights beyond those specified in the license. Generally this means that telecourse tapes may only be viewed by students enrolled in the telecourse.

Videotapes rented or purchased from a retail video store usually do not include the right to use the tape in any way other than for personal viewing at home.

I want to play clips from several videotapes in a class. May I have the clips copied onto a single tape?

No. None of the college owned videotapes include the right to edit segments into a compilation.

May I make a “backup” copy of a videotape?

Usually not. Unlike computer software, video producers and distributors do not grant the right to make copies for this purpose. However many distributors do have replacement policies that involve little or no cost.

May I reproduce photographs and diagrams from a book for distribution to students in class?

Yes, if the material meets the tests of brevity, spontaneity and cumulative effect as outlined in the “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals”. (See above)

May I reproduce photographs and diagrams from a book in slide format for presentation to students in a class?

Yes. This falls within the guidelines for single copying for classroom use.

May I include part of popular song from a music CD on my website?

No. Purchase of a CD does not include the right to reproduce the music in any way. It is not likely that such a use could be covered by the fair use provision since even a small segment of a popular recording may contain a substantial part of the melody or lyrics and since the purpose is not to critique or use the music itself as the subject of instruction. Furthermore, since your website may be viewable by an unlimited number of web users, the commercial impact could be significant.

APPENDIX

History and Timeline

Copyright law as we know it began in England in 1710 when the British Parliament enacted the Statute of Anne. The Statute of Anne contained, for the first time in copyright law, legal protection for consumers of copyrighted works by curtailing the term of a copyright thus, preventing a monopoly on the part of the booksellers. It also created a "public domain" for literature by requiring the creation of a new work in order to obtain a copyright, by limiting the length of term of a copyright, and by limiting the rights granted to the copyright owner (print, publish, and sell) so that once purchased the copyright owner does not control the use of the work. The statute also provided for an author's copyright - although the benefit to authors was minimal because in order to be paid for a work an author had to assign the work to a bookseller or publisher.

Since the Statute Anne almost three hundred years ago, copyright law has been revised to broaden the scope of what is covered by a copyright, to change the term of a copyright, and to incorporate new technologies. At this writing, governments in the U.S. and Canada are considering copyright reform. At the same time, the World Intellectual Property Organization (WIPO) is addressing a number of proposals for changes to meet the global information infrastructure. In addition, the courts continue to address copyright; currently we are watching with interest the Michigan Document Services Fair Use Case.

1790: US Constitution:

Copyright law in the US is derived from English copyright law (Statute of Anne) and common law. The framers of the U.S. Constitution made copyright law purely federal: "The Congress shall have power . . . to promote the progress of science and useful arts . . . by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries." Congress subsequently enacted the Copyright Act of 1790 and major revisions to it in 1831, 1870, 1909, and 1976.

1841: Folsom v. Marsh:

This case is the source of the fair use doctrine in the United States. At issue was use of George Washington's private letters in the creation of a fictionalized biography of the President without the permission of the owner of the letters. The court found that there was not an infringement and in handing down the decision Justice Storey stated: "In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale or diminish the profits, or supersede the objects, of the original work."

1886: Berne Convention:

The goals of the Berne Convention provide the basis for mutual recognition of copyright between sovereign nations in foreign works and promote development of international norms with regard to copyright protection. The Convention was a diplomatic joinder of European nations seeking to establish a mutually satisfactory uniform copyright law to replace the need for separate registration in every country. It has been revised five times since 1886. Of particular note are the revisions in 1908 and 1928. In 1908, the Berlin Act set the duration of copyright at life of the author plus 50 years, expanded the scope of the act to include newer technologies, and prohibited formalities as a prerequisite of copyright protection. In 1928, the Rome Act first recognized the moral rights of authors and artists - giving them the right to object to modifications or to the destruction of a work in a way that might prejudice or decrease the artist's reputation. In 1988, the United States became a Berne signatory.

1909: Revision of the U.S. Copyright Act:

A major revision of the U.S. Copyright Act was completed in 1909. Key aspects of this revision are: a broadening of the scope of categories protected to include all works of authorship, and an extension of the number of years in a renewal term (14-28) for a total of 56 years of protection. With this legislation, the attention is focused away from regulating the marketplace to proprietary rights. In addressing new categories of materials available for copyright the Congress addressed the difficulty of balancing the public interest with proprietor's rights. The House report states:

"The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests." H.R. Rep. No. 2222 60th Cong., 2nd Sess.7 (1909).

1973: Williams and Wilkins Co. v. National Library of Medicine:

Williams and Wilkins, publishers of specialized medical journals, sued the National Library of Medicine (NLM) and the National Institute of Health (NIH) charging that the agencies had infringed copyrighted journals by making unauthorized photocopies of articles featured within those publications and distributing them to medical researchers. The court felt that medicine, and medical research would be harmed by finding an infringement, and since the Copyright Act was under revision by Congress, it was better to allow the status quo to continue in the interim.

1976: Revision of the U.S. Copyright Act:

The 1976 revision was undertaken for two primary reasons. First, technological developments and their impact on what might be copyrighted, how works might be copied, and what constituted an infringement needed to be addressed. Second, the revision was undertaken in anticipation of Berne Convention adherence by the U.S. It was felt that the statute needed to be amended to bring the United States into accord with international copyright law, practices, and policies. The 1976 Act preempted all previous copyright law in the United States. The Act covered the following areas: Scope and Subject Matter of Works Covered, Exclusive Rights, Copyright Term, Copyright Notice and Copyright Registration, Copyright Infringement, Fair Use and Defenses and Remedies to Infringement. With this revision, for the first time the fair use and first sale doctrines were codified, and copyright was extended to unpublished works. In addition a whole new section was added that dealt with libraries, Section 108, that allows library photocopying without permission for purposes of scholarship, preservation, and interlibrary loan.

In addition to Section 108, Section 107 is of great importance to the work of libraries since it contains an exception to the exclusive rights of owners to make and distribute copies of their works. It states that "for purposes such as criticism, comment, news, reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. To determine whether the use of a work is a fair use, the following four factors are to be considered: purpose and character of the use, nature of the copyrighted work, the amount and substantiality of the portion used in relation to the whole, and the effect of the use on the potential market.

1976: Classroom Guidelines:

In addition to the legislative reform private negotiations between owners and users of copyrighted materials resulted in guidelines for classroom and educational use, and reserve room use. These guidelines were not part of the statute but did get included in the legislative history.

1976: CONTU Process:

The National Commission on New Technological Uses of Copyrighted Works (CONTU) was appointed by Congress in 1976 to establish guidelines for the "minimum standards of educational fair use" under the 1976 Act. Guidelines were set for copying for interlibrary loan.

1983: Encyclopedia Britannica Educational Corp. v. Crooks:

The Board of Cooperative Educational Services, a consortium of public school districts, was sued by Encyclopedia Britannica (EB) for systematically taping educational programs that were broadcast on public television stations and making copies available to member schools. The court found that the actions of the school board would have a detrimental effect on the market of the commercially produced programs and that the use was not a fair use.

1986: Maxtone-Graham v. Burtchaell:

Burtchaell wrote a book that aimed to educate the public about abortions. He sought and was denied permission to excerpt from a book by Maxtone-Graham that contained interviews with women about their experiences with pregnancy and abortion. The court found in favor of the defendants in all four fair use factors.

1987: Salinger v. Random House:

A second circuit appeals court found that use (not copying but quoting or paraphrasing) of unpublished materials in an unauthorized biography of J.D. Salinger was not fair use.

1988: Berne Convention:

The United States became a Berne signatory and it was effective in Statutory law. The major changes for the U.S. copyright system as a result of Berne were: greater protection for proprietors, new copyright relations with 24 additional countries, and elimination of the requirement of a copyright notice on a copyrighted work.

1990: Circulation of Computer Software:

Congress amended the Copyright Act to prohibit commercial lending of computer software. The amendment noted that libraries could lend software provided "copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright." This amendment is a modification of the first sale doctrine.

1990: Immunity of State Governments:

Congress amended the Copyright Act to ensure that state universities would not be immune from being sued for monetary damages in federal court. State and private universities are now subject to the same copyright regulations, and may be sued for copyright infringement. (The eleventh amendment to the U.S. constitution precludes states from being sued in federal courts.)

1991: Basic Books, Inc. v. Kinko's Graphics Corp.:

A Federal District Court in New York ruled that Kinko's Graphic Corporation infringed copyrights, and did not exercise fair use, when it photocopied "course packs" that included book chapters, and then sold them to students for classwork. The court found that most of the fair use factors worked against Kinko's in this case, especially given Kinko's profit motive in making the copies. Additionally, the court found that the classroom guidelines did not apply to Kinko's. The court did not rule that course packs cannot constitute fair use in other circumstances.

1991: Feist Publications v. Rural Telephone Service Co., Inc.:

The Supreme Court found that the compilation of a telephone directory by Feist was not an infringement even though it was compiled from the information in the Rural Telephone Service White Pages. The information in the white pages was not copyrightable because it is public information.

1992-1995: Texaco Case:

American Geophysical Union v. Texaco results from a class action suit brought by six scientific publishers on behalf of other publishers registered with the Copyright Clearance Center. In July 1992, a U.S. District judge ruled in the seven-year old copyright case that a Texaco scientist violated the U.S. Copyright Law (Section 107) when he copied articles without providing the appropriate fee to the publishers. Texaco argued that the copying fell within fair use. The court ruled that the profit motive of the company was a relevant consideration in the analysis of the purpose of the use. They also found against Texaco in considering the amount of the work used focusing on the article as the "whole work" rather than the journal it came from. They also found that the market was affected because Texaco could have paid royalties through the CCC.

In 1994, the U.S. Court of Appeals for the Second Circuit upheld the lower court decision. In April 1995, Texaco petitioned the U.S. Supreme Court to review the case. On May 15, 1995, Texaco and a steering committee representing the publishers announced that they have agreed upon terms to settle the case.

The Association of Research Libraries and 14 other academic and library organizations joined together to submit amicus, or friend of the court, briefs in this case to elucidate and reaffirm the fair use rights that the Copyright law prescribes for scholars and researchers in the pursuit of research and education. ARL's interest in this case reflects the association's long-standing position as an advocate of the public interest in copyright, and in maintaining a balance between the rights of the copyright owner and the rights of the user.

Texaco, which conceded no wrongdoing in the proposed settlement, will pay a seven- figure settlement and retroactive licensing fee to the CCC. In addition, Texaco will enter into standard annual license agreements with the CCC during the next five years.

1992: Amendment to Sec. 304 of Title 17:

Amendment to Sec. 304 of Title 17 that made copyright renewal automatic, and, by that means alone, dramatically curtailed the entry into the public domain of

works protected by copyright before 1978.

1993: Playboy Enterprises Inc. v. Frena:

The courts held that the Playboy's distribution rights were infringed when one of their photographs was digitized and placed on an electronic commercial bulletin board system by one subscriber and downloaded by another subscriber.

1993: NII Initiative:

The Working Group on Intellectual Property Rights was established to explore the application and effectiveness of copyright law and the NII. The NII is described as "a seamless web of communications networks, computers, databases, and consumer electronics." (Information Infrastructure Task Force, National Telecommunications and Information Administration, National Information Infrastructure: Agenda for Action, 1993)

1994: Campbell v. Acuff-Rose Music, Inc.:

The Supreme Court ruled that a rap parody of Roy Orbison's song, "Pretty Woman," was a fair use. The court found that a commercial use could be a fair use especially when the markets for an original work and a transformative work may be different.

1994: Working Group's Green Paper:

The Working Group sponsored a series of activities to solicit input on copyright issues and the NII. These included public hearings and in June 1994, a draft NII report was circulated for comment and review (the Green Paper). Part of the review process included three hearings (held in Los Angeles, Chicago, and Washington, DC) hosted by the Working Group, where members of the stakeholder community presented statements of reaction to the Green Paper. ARL submitted a response to the Green Paper and was represented by a witness at all three hearings.

1994: CONFU:

In addition to making legislative recommendations in the White Paper, the Working Group sponsored a Conference on Fair Use (CONFU). Established in September 1994, CONFU is the venue for development of guidelines for Fair Use in the electronic environment. CONFU participants have been working toward development of guidelines for a number of areas including: interlibrary loan, electronic reserves, visual images, and distance education.

1995: Religious Technology Center v. Netcom:

A federal judge in California has ruled that Netcom may be held liable for copyright infringement because the company did not remove copyrighted materials posted by a subscriber. The judge's ruling included an important distinction: that Netcom may be liable for "contributory" copyright infringement, not direct or vicarious infringement.

1995: S. 989 and H.R. 483:

A Copyright Term Extension bill under consideration in Congress would add 20 years to the term of copyright protection for almost all published works, and at least 10 years to the term of protection for unpublished ones. A rationale for implementing this legislation is to bring U.S. law into line with the international community - especially other Berne signatories.

1995: Release of the White Paper:

The culmination of the NII Working Group's efforts was release of the White Paper, in September 1995. The White Paper contains recommendations to amend the Copyright Act of 1976 and presents a lengthy legal analysis of current copyright law. Late last year, the White Paper's legislative amendments and recommendations were introduced in Congress as the NII Copyright Protection Act of 1995 (S. 1284 and H.R. 2441).

1996: Princeton University v. Michigan Document Services, Inc.:

In February 1996, the Sixth Circuit Court of Appeals ruled that an off-campus, for-profit photocopy shop may, as a matter of fair use, make course packs that include substantial portions of copyright protected books and sell them to students. On April 9, 1996 the judges of the Sixth Circuit Court of Appeals voted to rehear this case en banc. The effect of that vote is to vacate the previous decision from the Sixth Circuit, leaving in force a previous injunction issued by the District Court. The case was reheard June 12, 1996.

In May 1996, an amicus brief was filed in the case on behalf of the educational community by the Attorney General of the State of Georgia, the National School Board Association, the Georgia and California School Boards Associations, and the American Association of School Administrators. ARL filed a letter with the U.S. Court of Appeals for the Sixth Circuit to express its strong support for the important basic principles expressed in the brief of these amici. The American Library Association joined ARL in filing this letter. The ARL-ALA letter calls on the court to take note of the broader issues raised in the case and the significant public interests affected. "If the public did not have the ability to exercise . . . fair use rights," the letter states, "education, scholarly research and the progress of science and the arts would be severely inhibited, and the usefulness - and inevitably the value - of the copyrighted works concerned would be substantially diminished."

1996: TRIPS Agreement:

TRIPS Agreement which forms part of the Final Act of the Uruguay Round of the General Agreement on Tariffs and Trade, which has the effect of restoring to copyright, as of January 1, 1996, works of foreign origin which are currently in the public domain in the United States.

1996: Database Protection Legislation:

On May 23, 1996 the Database Investment and Intellectual Property Antipiracy Act of 1996 (H.R. 3531) was introduced by Rep. Moorhead to amend Title 15 U.S.C. The bill seeks to "promote investment and prevent intellectual property piracy with respect to databases." This legislation is comparable to a European sponsored initiative to protect database producers from unauthorized extractions of more than an insubstantial part of database contents for 15 years. To some, this legislation appears to be an end run around the Supreme Court decision Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349 (1991). Like the NII legislation, careful review of this initiative will be necessary because of its potential negative repercussions for science and education.

The enactment of the Digital Millennium Copyright Act (DCMA) represents the most comprehensive reform to the U.S. copyright law since the 1976 revision. The DCMA attempts to update copyright law for the digital age in preparation for ratification of the World Intellectual Property Organization (WIPO) treaties.

The DMCA contains many new statutory elements, including the following:

A. New Rules Prohibit Circumvention of Technological Protection Measures (TPMs). The scheme has the three key elements:

(1) On a periodic basis, a regulatory process supervised by the Librarian of Congress will determine whether access to particular classes of works protected by anti-circumvention technology should nevertheless be allowed to facilitate fair use and other copyright law limitations.

(2) A prohibition on the manufacture, importation, sale or offering for sale of any technology, product, service device, component or part that (a) is primarily designed to circumvent technology of a copyright owner that limits access to a work, (b) has only limited commercially significant purpose other than to circumvent, or (c) is marketed for use in circumvention.

(3) Several specific statutory limitations were created to enable certain practices by those involved in libraries, law enforcement, reverse engineering and encryption research.

B. Copyright Management Information: The DMCA prohibits alteration of information imbedded in digital works by copyright owners. The information may include details as to ownership, authorship and licensing.

C. Online Service Provider Limitation on Liability: One of the most complex and important aspects of DMCA is the limitation for OSPs. The new rules grant OSPs that transmit and store, as well as provide tools (hyperlinks and software) to facilitate online access, an exclusion from monetary liability for copyright infringement, provided that their online system complies with OSP procedures, they have no actual knowledge of copyright infringements and they cooperate with processes to disable access and limit the harm to the copyright owner.

D. Distance Education: The Copyright Office is commissioned to study the issues associated with distance education utilizing digital networks and report back to Congress by April 28, 1999. Views of copyright owners, educators and libraries will be solicited on seven key topics.

E. Section 108 Update: The DMCA provides the most significant updating of library and archival preservation rules since procedures to cope with the photocopy machines were established in 1976. The changes permit preservation and storage in a digital format and describe a mechanism for handling preservation of works originating in outmoded formats.

A special note about Database Protection is appropriate. The title of the DMCA that would have created a new type of protection for databases was deleted from the final version of the bill. The controversial section was removed on condition that it would receive high legislative priority in 1999. A database bill based on the 1999 House-passed version has already been introduced in the 106th Congress.

The term extension act preserves copyright protection for all covered works for an additional twenty years. The libraries won a hard-fought, limited exception to use works in the last 20 years of protection. The proviso permits use for purposes of preservation, scholarship or research if the work is not subject to normal commercial exploitation or is not available at a reasonable price. Passage of copyright term extension, which was a popular bill, should have occurred several years ago; however, passage was held up by disputes involving music licensing in connection with religious broadcasts and public performances in restaurants and bars. In order to achieve final action on the extended term, the conflicting parties agreed to House-passed amendments.

Robert Egan
4/2000

(Adapted from: Brennan, Patricia. Timeline: A History of Copyright in the U.S. April 30. 1998. http://arl.cni.org/info/frn/copy/timeline.html (9 March 1999) and Lutzker, Arnold P. Primer on the Digital Millennium: What the Digital Millennium Copyright Act and the Copyright Term Extension Act Mean for the Library Community. March 8, 1999. http://www.arl.org/info/frn/copy/primer.html (9 March 1999)