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Library Acquisitions: Pracfice & Theory, Vol. 14, pp. 257-264, 1990 0364-6408/90 $3.00 t .OO Printed in the USA. All rights reserved. Copyright 0 1990 Pergamon Press plc ELECTRONIC RESOURCES AND COPYRIGHT CONSEQUENCES FOR LIBRARIES JOYCE L. OGBURN Pattee Library The Pennsylvania State University University Park, PA 16802 ISSUES: Abstract - The application of copyright law to electronic resources is receiving more attention as technologies grow in kind and complexity. The function of copy- right as a means of protection for software continues to be questioned, and efforts to resolve this issue are further confounded by the industry3 use of patents and license agreements. The rapid growth of electronic resources has precipitated re- visions in copyright law in the past decade. A new law has been proposed in 1989 which would further define the application of copyright to software. The current and proposed use of copyright law to protect electronic resources, and its effect on educational institutions and libraries, is discussed. Suggestions to meet the chal- lenge of acquiring electronic resources are offered. Why talk about copyright? Readers are familiar with the law and its application to librar- ies. Yet, discussions of copyright are increasing, particuIarly where it applies to electronic resources. Often the discussion revolves around the uneasy fit of current law to new technol- ogies. At issue: the nature of protection, the essence of what is to be protected, and the ra- tionale behind current laws. This complex topic deserves more extensive treatment than can be given here. However, this paper covers four important developments pertinent to the discussion, including: 1. 2. 3. 4. the report of the National Commission on New Technological Uses of Copyrighted Works; the Computer Software Copyright Act of 1980; the Office of Technology Assessment Report on Intellectual Property Rights in an Age of Electronics and Information; and a recent development, the Computer Software Rental Amendment Act of 1989. 257

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Library Acquisitions: Pracfice & Theory, Vol. 14, pp. 257-264, 1990 0364-6408/90 $3.00 t .OO Printed in the USA. All rights reserved. Copyright 0 1990 Pergamon Press plc

ELECTRONIC RESOURCES AND COPYRIGHT CONSEQUENCES FOR LIBRARIES

JOYCE L. OGBURN

Pattee Library

The Pennsylvania State University

University Park, PA 16802

ISSUES:

Abstract - The application of copyright law to electronic resources is receiving more attention as technologies grow in kind and complexity. The function of copy- right as a means of protection for software continues to be questioned, and efforts to resolve this issue are further confounded by the industry3 use of patents and license agreements. The rapid growth of electronic resources has precipitated re- visions in copyright law in the past decade. A new law has been proposed in 1989 which would further define the application of copyright to software. The current and proposed use of copyright law to protect electronic resources, and its effect on educational institutions and libraries, is discussed. Suggestions to meet the chal- lenge of acquiring electronic resources are offered.

Why talk about copyright? Readers are familiar with the law and its application to librar- ies. Yet, discussions of copyright are increasing, particuIarly where it applies to electronic resources. Often the discussion revolves around the uneasy fit of current law to new technol- ogies. At issue: the nature of protection, the essence of what is to be protected, and the ra- tionale behind current laws.

This complex topic deserves more extensive treatment than can be given here. However, this paper covers four important developments pertinent to the discussion, including:

1.

2. 3.

4.

the report of the National Commission on New Technological Uses of Copyrighted Works; the Computer Software Copyright Act of 1980; the Office of Technology Assessment Report on Intellectual Property Rights in an Age of Electronics and Information; and a recent development, the Computer Software Rental Amendment Act of 1989.

257

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258 J. L. OGBURN

This paper will discuss each development before it addresses how these impact libraries. But first, a review of some of the basics of copyright law and other legal means of protecting elec- tronic resources is in order.

INTENTION OF COPYRIGHT

Congress intended to promote the genera1 good and to encourage creativity by protecting the tangible expression of ideas, also known as intellectual property, through the enacting of the Copyright Act. Copyright grants the owners the right to determine the use of their work in regard to its reproduction, the production of derivative works, the distribution of copies to the public, and the public performance and display of the work [l]. Copyright’s major focus has been the protection of intellectual property through control of the terms of making cop- ies. Therefore, it indirectly uses a monetary incentive to promote intellectual creativity [2].

Copyright law addresses such issues as: What is copyrightable? Who owns the copyright? What are the exclusive rights of the owner? The major issues for libraries are fair use and the first sale doctrine. Fair use is defined as “reproduction for purposes such as criticism, com- ment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research . . . ” 133. Fair use also is determined by:

1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and sub-

stantiality 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 work [4].

Current copyright law does not prohibit the lending, resale, or donation of protected works, including library circulation, the acceptance of gifts, or any other form of transfer of owner- ship. Under the first sale doctrine, the owner of a copyrighted work may dispose of the item in any manner he or she chooses [S].

COPYRIGHT AND ELECTRONIC RESOURCES

Immediately after the last major revision of the Copyright Act in 1976, it became appar- ent that copyright law inadequately covered new technology, and Congress established the Na- tional Commission on New Technological Uses of Copyrighted Works, known as CONTU, to make recommendations about changing the current law. On the basis of CONTU’s recom- mendations, Congress amended section 117 of the Act with the Computer Software Copyright Act of 1980, which outlined specific applications of copyright law to software [6]. The Act treats software like a literary work, but has some special provisions concerning its use.

For example, the concept of fair use embraces making multiple copies of printed material for classroom use, but the concept has not been extended to software [7]. The law does pro- vide for copying an entire software package for archival purposes and as a necessary step in using the software [S]. Copyright law prohibits any other wholesale copying of software, which could lead to loss of revenue for the producer [9].

After the passing of the Computer Software Copyright Act, Congress commissioned its Of- fice of Technology Assessment (OTA) to study further “the impact of technological change on the legal system for the protection of intellectual property” [lo]. An additional aim was

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Electronic Resources and Copyright Issues 259

to “distinguish changes in degree from changes in kind” Ill]. OTA attempted to see the law as a “public policy tool” and as an influence on and “part of a larger social system” [ 12). From this perspective, the OTA report, delivered to Congress in 1976, identified many problem areas within the current system, including: (1) identifying infringement and enforcing rights; (2) pri- vate use; (3) functional works; (4) derivative works; (5) intangible works; (6) meeting educa- tional goals; (7) integrity; and (8) international coordination. The report noted the difficulty of resolving these problems, and recommended that major revisions not be undertaken at that time. Instead, it recommended that Congress “establish a means to collect and evaluate in- formation on how the system works” [13].

Congress is working on a new development in copyright law. Although the current law does not prohibit the lending of copyrighted material, there is a bill before the U.S. Senate which would prohibit the lending of software. Called the “Computer Software Rental Amendment Act of 1989” (S. 198 and its House counterpart, HR 4720), it would restrict the lending of soft- ware by educational institutions in the attempt to curtail illegal copying and to encourage sales. The bill has been modified to allow the systematic sharing of software through libraries; no other units of an educational institution could lend software without special permission of the copyright owner [14]. The provisions of the bili are retroactive and apply to all copyrighted software acquired before and after the passage of the bill. At this writing, the legislation is still pending.

OTHER MEANS OF PROTECTING SOFTWARE

In addition to copyright, software may be protected by patent, trademark, trade secret, and contract law fl5]. Patent is growing as a means of protecting what is called the “look and feel” of software. Just as copyright is used to protect the tangible expression of ideas, patent can be used to protect the process or means of expressing ideas. A copyright owner has protec- tion for 75 years or more, while the patent holder has protection for 17 years. in some cases, software producers protect their product with both copyright and patent law [16]. Patent law provides a more certain means of preventing competition from similar products; however, ob- taining a patent is more problematic than obtaining a copyright. Applying for a patent is very expensive and a patent search may prove inconclusive.

Instead of relying on copyright or pursuing patents, many producers of software have ex- tended control over software use through license agreements. The three major aspects of license agreements cover additional rights, additional restrictions, and warranty terms. Gen- erally, license agreements grant the licensee the right to use the software, but do not grant ownership. They function like contracts and outline the conditions under which the software may be used. Sometimes these agreements come in the form of shrink-wrap licenses which take effect when the package is opened. This form of license allows software to be distributed easily to the mass market 1171. In spite of, or because of, the widespread use and often restrictive language of license agreements, their validity as binding contracts has been questioned. There are doubts about their transferability from one state to another state whose laws may differ [ 181, as possible “unreasonable restraints on alienation” [ 191, and as a contract of adhesion, or in other words, take it or leave it, nonnegotiable terms [20]. As for warranty, license agree- ments often do not protect the user from faulty operation of the software, and after purchase (or license) the user may be unprotected if the software fails to perform as expected [21].

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260 J. L. OGBURN

ISSUES IN NEW TECHNOLOGY

Debate has recently intensified over the intentions of copyright law and its applicability t.o software. On the one hand is the issue of function, a means of manipulating information. On the other hand is the issue of information itself, the stock in trade of libraries. One is a prod- uct of technology, the other a product of intellect. Technology gives the idea form, provides access to information and knowledge. However, software is never that cut and dried. The pro- gram itself, like the printing press, is a product of the mind, but instead of being formed of

metal and wood, is expressed in symbols representing ideas. To paraphrase Marshall McLu- han, “the medium is the expression.”

The new information technologies challenge our concept of authorship and of ideas and in- formation as property [22]. We have to ask what information is and what kinds of informa- tion need protection (231. The law struggles to balance the costs of creation and the price of use [24]. It tries to address public interest versus private interest and the reiative merits of the ownership of ideas versus the dissemination of ideas. Further complicating these challenges are the competing issues of access and fair use, of the academic institution’s mission and role as a marketplace for software, and of the economics of higher education. Additional prob- lems are enforcing the laws, obtaining permission for use of copyrighted material, and pay- ing transaction costs [25].

Copyright law does not easily fit the new information technology. Several aspects of elec- tronic resources deserve consideration. First, in electronic form, information and ideas resem- ble images, which don’t vary as much as words or expressions of ideas. Second, the new technology is more difficult to use without making a copy of it. In order to use electronic in- formation, it must be “copied” into computer memory or onto a screen. Third, with electronic technology, ideas can be put to entirely new uses, and can be more easily stored, disseminated, and compiled for different purposes. Finally, electronic information can be taken apart and recombined to create new works or expressions of ideas [26].

Bibliographic databases are one example. Bibliographic references, per se, are not copyright- able, but compilations of references, such as bibliographic databases, are copyrightable. Often producers further protect their databases by contractual agreements [27]. Downloading from databases is prohibited by copyright unless there is a special agreement between the database owner and the user. This raises many questions regarding fair use. is research downloading fair use? How much of the database can be downloaded and not abuse fair use [28]? With databases on CD-ROM, one has both a database and the search software, which could be governed by different arrangements. One can also juke box CD-ROMs and load different packages of search software on one computer. If each database is governed by different agree- ments, how many signs must you post to prevent unauthorized use? These questions are not easily answered now and the access to and use of databases is expanding rapidly.

In a recent editorial, Harlan Cleveland says “Efforts to use concepts left over from a print- oriented civilization to prevent information leakage resemble the futile struggle of the boy with his finger in the dike” [29]. This is not an exaggeration. The rapid expansion of technology has outstripped the law’s capacity to control it. Litigation has failed to cut a path through the underbrush. Some of the legal means of protection for the creator present absurd difficulties for consumers of information. For example, software can be copyrighted and yet not display any notice of copyright [30]. Computer programs are very complicated, containing possibly ten to a thousand functions which could be patented. Source codes may be protected by trade secret [31]. As already stated, some publishers of software protect it both with copyright and with questionable licenses.

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Electronic Resources and Copyright Issues 261

Software functions and source codes are the very heart of our information communication structure, and control of basic functions by patents, some fear, could subvert the creation and dissemination of knowledge [32]. As complex as these issues seem now, consider that there is, as yet, no standardization among computer systems and software design.

CONSEQUENCES FOR LIBRARIES

There are some obvious consequences for libraries. It is becoming increasingly evident that electronic databases are essential to faculty research. Databases are produced by commercial and nonprofit institutions and by individu~s. Some databases are available through purchase, others through gift or lease. If the library is the center for information dissemination, some- one must decide on the “best” database to acquire, seek the source and cost of the database, and find facilities for providing access. Facilities may include hardware, search or database management software, printers, and resource personnel who can assist with problems or in- terpretation. As the databases age, someone also must decide when information is no longer useful and can be weeded from the collection.

While librarians are accustomed to interpreting copyright law as applied to printed matter, electronic resources are more problematic. It is easier to copy an entire database than a book, and it can be done in far less time. Librarians don’t have to mull over purchasing or lending a copyrighted book, but have to be wary that software obtained for patron use may be mis- used. Because of the way the computer industry and legislation treat software, libraries write new policies dealing solely with electronic media. Staff must be educated in the proper use and handling of software, signs must be posted, circulation policy statements rewritten and dis- tributed, and patrons must sign cards agreeing to uphold the law and library policies.

Librarians so easily talk about embracing the electronic age, but the complexities of that age must be clarified so that all libraries and all patrons can have fair access to essential elec- tronic material. Librarians need to think hard about all the resources libraries provide and where electronic resources fit into that context. Librarians should ask: Why is it different? Is it different? Do we need to invent a new kind of copyright or royalty system? Should we ad- vocate a change in the concept of ideas as property? Do libraries contribute to the view that electronic resources deserve different treatment when they charge for access to electronic in- formation, when users must sign cards confirming that they will abide by rules, regulations, and laws governing software, and through other practices?

As librarians wrestle with these issues, the impact on acquisitions departments may not be so obvious. Many acquisitions librarians already have seen software come in as gifts, on ap- proval plans, on standing orders, and with firm-ordered books. Some have arranged to pur- chase database tapes of statistical information, business data, and the like. Increasing numbers of acquisitions librarians are ordering CD-ROM material (and hardware) for their libraries. In many cases, the acquisitions department is entering into leasing or licensing arrangements instead of purchasing. If Congress passes an amendment to the Copyright Act which limits the lending of software in any way by educational institutions, then lending terms may have to be negotiated on each individual piece of copyrighted software. On the other hand, if only libraries, not computer centers, can lend software, then acquisitions may be ordering large amounts of software and reviewing an increasing number of agreements, each distinct from the next. Obtaining software becomes labor intensive, as someone on staff must review agree- ment terms, complete registration and warranty cards, follow up on warranties, revise ap- proval plans, memberships, and so on. A separate amendment has been introduced by Senator

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262 J. L. OGBURN

Orrin Hatch (R-Utah) which would exempt nonprofit educational institutions from the restric- tion against lending software [33].

RESPONSE TO THE CHALLENGE

Librarians as a group need to organize to meet these challenges. It is crucial to start examin- ing the cost/benefit relationship of leasing versus purchasing software, and the related issues of access and storage, and ownership and control. As libraries own less and enter into more leasing or licensing contracts for software, online services, and CD-ROM materials, they will control less, store less, and may face offering more limited access to their users. Libraries may find that their emphasis has switched from collection building to information access. There- fore, it is imperative to ask: What constitutes a “quality” electronic resource? What should libraries purchase and why? What is information and what is knowledge? Does it matter how it is packaged? Will changes in the law lead to higher costs for electronic resources? How do the laws apply to resource sharing? and, Will the laws affect the ability of libraries to fulfill their missions? These are some of the questions libraries need to address, given that they have a large stake in the basic dichotomy in the law: the balance between ideas as property and wealth and ideas as joint property freely available to all [34].

What can acquisitions librarians do? The author’s advice is to handle software as much like other material as possible. Don’t treat software differently unless it is unavoidable. Become familiar with the laws that govern software use and don’t be intimidated by them. Talk to soft- ware developers and distributors. Negotiate terms or discounts. Better yet, get a third party to handle your problems (a library vendor or the institution’s purchasing department). Pro- vide selection and verification tools. Develop or demand a clearinghouse of information about software which includes hardware requirements, copyright information, licensing terms, where to acquire it, and what documentation is required. Promote organizations which seek to strengthen relations between the software and computer industries and academia.

Probably the best advice is to plan for purchasing software. Decide who will negotiate and sign contracts and who will receive the material. Develop a policy, procedures, establish authority for handling electronic media, and educate the rest of your library about what ac- quisitions needs in order to procure electronic resources effectively. Seek advice from others in your institution who routinely purchase software and negotiate licenses. Remember that copyright developments and changes in laws governing electronic resources are not only rele- vant to public services librarians and administrators.

CONCLUSION

That the debate remains highly topical needs to be emphasized. As legal means of protecting electronic resources and as methods of access and use continue to evolve, libraries must con- tinue to advocate their role in the dissemination of this information. Weil and Polansky sum- marize the position of many librarians when they propose that the user not have to think about copyright, and that all information be equally and conveniently available. Somehow, they write, technology, the law, the courts, and lawyers must be able to obtain this result [35].

Consider another quote from Harlan Cleveland:

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Electronic Resources and Copyright Issues 263

How can “intellectual property” be “protected”? The question contains the seeds of its own confusion:

it’s the wrong verb about the wrong noun. [36]

Only a few facets of copyright developments have been discussed here. There will come a time when we have attained a better understanding of the place of new technology in partner- ship with traditional resources, a time when effective and appropriate laws foster and protect the rights of the creator and promote the sharing of ideas for the common good. Librarians must participate in bringing this time to pass.

NOTES

1. Mika, Joseph J. and Bruce A. Shuman. “Legal Issues Affecting Libraries and Librarians: Employment Laws,

Liability and Insurance, Contracts, and Problem Patrons. Lesson II: Liability Insurance, Malpractice, and Copy-

right,” American Libraries, February (1988), 1 Il. 2. Talab, Rosemary. Commonsense Copyright: A Guide fo the New Technologies, 4. Jefferson, NC: MacFarland,

1986.

3. Gassaway, Laura N. “Non-Print Works and Copyright in Special Libraries,” Special Libraries 74 (1983). 158. 4. Gassaway, “Non-Print Works,” 158.

5. Smith, Shirley C. Managing Academic Software: Leadership, Law and Logistics for Administrators, Faculty and Publishers, 6-7. McKinney, TX: Academic Computing Publications, 1988.

6. McKirdy, Pamela Reekes. “Copyright Issues for Microcomputer Collections.” In The Library Microcomputer Environment: Management Issues, 98. Phoenix: Oryx Press, 1988. Demas, Samuel. “Microcomputer Software

Collections,” Special Libraries, Winter (1985), 20. National Commission on New Technological Uses of

Copyrighted Works. Final Report of the National Commission on New Technological Uses of Copyrighted Works, July 31, 1978. Washington, DC: Library of Congress, 1979.

7. Gassaway, “Non-Print Works,” 163.

8. Smith, Managing Academic Software, 6. 9. Lytle, Susan S. and Hal W. Hall. “Software, Libraries and the Copyright Law,” Library Journal, July (1985). 35.

10. Office of Technology Assessment. Intellectual Property Rights in an Age of Electronics and Information, 1. Wash-

ington, DC: U.S. Government Printing Office, 1986.

11. Office of Technology Assessment, Intellectual Property Rights, 2. 12. Garcia, D. Linda. “The OTA Report on Intellectual Property Rights.” In Intellectual Property Rights in an Elec-

tronic Age, 12. Washington, DC: Library of Congress, 1987.

13. Office of Technology Assessment, Intellectual Property Rights, 8-9. 14. Deloughry, Thomas J. “Copyright Amendment Could Restrict Borrowing of Software, Colleges Fear,” The

Chronicle of Higher Education, May 17, 1989, A13, 17. 15. McKirdy, “Copyright Issues for Microcomputer Collections,” 96.

16. Fisher, Francis Dummer. “The Electronic Lumberyard and Builder’s Rights: Technology, Copyrights, Patents, and Academe,” Change: The Magazine of Higher Learning 21 (1989), 16.

17. Smith, “Managing Academic Software,” 9.

18. Lytle and Hall, “Software, Libraries and the Copyright Law,” 36.

19. Brooks, Daniel T. “Copyright and the Educational Uses of Software,” EDUCOM Bullefin 20 (1985). 8-9. 20. Smith, “Managing Academic Software,” 10-l 1, 15-16. Kahin, Brian. “Property and Propriety in the Digital En-

vironment: Towards an Examination Copy License,” EDUCOM Bulletin 23 (1988), 17. 21. Lytle and Hall, “Software, Libraries and the Copyright Law,” 36. Pallatto, John. “Software and the Law,” PC

Week, October 7, 1986, 79-82, 84.

22. Gilbert, Steven W. and Peter Lyman. “Intellectual Property in the Information Age: Issues Beyond the Copy-

right Law,” Change: The Magazine of Higher Learning 21 (1989), 24-27. 23. Kahin, “Property and Propriety,” 15-16.

24. Fisher, “Technology, Copyrights and Academe,” 14. 25. Kost, Robert J. “The End of Copyright.” In Intellectual Property Rights in an Electronic Age, 25. Washington,

DC: Library of Congress, 1987.

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264 J. L.. GGBLJRN

26. Fisher, “Technology, Copyrights and Academe,” 16-18.

27. Weil, Ben H. and Barbara E Polansky. “Copyright, Serials, and the Impact of Technology,” Serials Review 12

(19&j), 30.

28. Mika, “Legal Issues Affecting Libraries,” 112.

29. Clevetand, Harlan. “How Can ‘Intellectual Property’ Be ‘Protected,“’ Chartge: TPle Magffzine o_f Higher Learning 21 (1989), 10.

30. Gassaway, “Non-Print Works,” 163.

31. Lytle and Hall, “Software, Libraries and the Copyright Law,” 33-34.

32. Kahin, “Property and Propriety,” 24-25.

33. DeLoughry, Thomas J. “Campuses Reassured on Software Lending,” The Chronicle of Higher Education, Novem-

ber 29, 1989, A24.

34. Gilbert and Lyman, “Inteliectual Property in the Information Age,” 24.

35. Weif and Polansky, “Copyright, Serials, and the Impact of Technology,” 31.

36. Cleveland, “How Can Intellectual ‘Property’ Be ‘Protected,“’ 11.