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Behavioral & Social SciencesLibrarianPublication details, including instructions forauthors and subscription information:http://www.tandfonline.com/loi/wbss20

Fair Use, Copyright Law andDigitized WorksByron Anderson aa Northern Illinois University , DeKalb, IL, USAPublished online: 11 Oct 2008.

To cite this article: Byron Anderson (2001) Fair Use, Copyright Law and DigitizedWorks, Behavioral & Social Sciences Librarian, 20:1, 111-114, DOI: 10.1300/J103v20n01_07

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ELECTRONIC ROUNDUP

Fair Use, Copyright Law

and Digitized Works

Byron Anderson

ABSTRACT. Many changes are taking place in the copyright law ofdigital media. Librarians are encouraged to review their current librarypolicies, procedures and practices to determine if they are in compliancewith or in violation of these recent changes. [Article copies available for a

fee from The Haworth Document Delivery Service: 1-800-342-9678. E-mail ad-

dress: <getinfo@haworthpressinc.com> Website: <http://www.HaworthPress.com>

© 2001 by The Haworth Press, Inc. All rights reserved.]

KEYWORDS. Copyright, digital media

Does a work–literary, musical, dramatic, artistic, or other–in the public do-main on the Internet have copyright protection? Yes, chances are that it hascopyright protection. This may come as a surprise. Digital forms of informa-tion are changing copyright practices, especially fair use. Even the issues dis-cussed here are evolving quickly and subject to change. Everyone with interestin this, and this should include all librarians, is encouraged to stay current ofdevelopments.

Copyright is a form of protection provided by the laws of the United States(title 17, U.S. Code) to the authors of “original works of authorship,” includ-

Byron Anderson is Head of Reference, University Librarian, Northern Illinois Uni-versity, DeKalb, IL (E-mail: banderson@niu.edu).

Behavioral & Social Sciences Librarian, Vol. 20(1) 2001� 2001 by The Haworth Press, Inc. All rights reserved. 111

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ing literary, dramatic, musical, artistic, and certain other intellectual works.This protection is available to both published and unpublished works. Section106 of the 1976 Copyright Act generally gives the owner of copyright the ex-clusive right to do and to authorize others to do the following: to reproduce thework, to prepare derivative works, to distribute copies, to perform the workpublicly, and to display the copyrighted work publicly. The rights and privi-leges provided in the Copyright Act are intended to operate as a part of a sys-tem of checks and balances. While the statute is generally effective, digitalformats have complicated the balance that copyright law tries to achieve be-tween the rights of owners and the privileges of users. As a guideline, Internetusers should assume that a work is protected until they learn otherwise fromthe author or publisher.

Copyright protection of works that are universally accessible on the Webseems to go against the notion of “public domain.” The ambiguity is caused bythe difference in meaning between “public domain” in print and on the Web.In print, when copyright protection expires, it goes into the public domain andis no longer protected by law. After this time the work can be fully duplicatedor extensively quoted without copyright violation (for more detail see: “Whenworks pass into the public domain” at www.unc.edu/~unclng/public-d.htm).On the Internet, universally accessible information is said to be in the “publicdomain,” and as such the information is often treated as being free of legal re-strictions.

How well do current copyright laws apply to digital forms? Opinion runsfrom “not well” to “meets most needs.” One thing is clear: significant changewill impact copyright law. There is a trend toward the displacement of a uni-form Copyright Act. This should be of great concern, especially to librarians.Fair use, enacted into statute in 1976, may be eliminated in part or whole. Fairuse, which is not an infringement of copyright, is the reproduction of a work“for purposes such as criticism, comment, news reporting, teaching (includingmultiple copies for classroom use), scholarship, or research” (Section 107,U.S. Code, Limitations and Exclusive Rights: Fair Use).

Changes to copyright law proceed slowly through a meticulous process inthe courts. Many argue that the legal system cannot keep up with the rapidpace of technological change. However, copyright law is too important to rushjudgement, especially since user rights are being diminished. Time will workin favor of sifting through complicated issues and allow for diverse input fromboth owners and users. A slower process weighs in favor of deriving the bestlaw for the good of the public. Public good is a process advanced by policiesand laws that provide appropriate incentive to authors and creators while at thesame time ensuring appropriate access to the information.

Copyright law is enacted by Congress and takes into consideration the out-come of numerous court rulings. Recent revisions occurred in 1978 and then

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again in 1998 with the Digital Millennium Copyright Act (DMCA). TheDMCA established that works on the Internet are copyright protected; how-ever, Congress also recognized that the DMCA might impact fair use becausethe DMCA makes it illegal to circumvent technological barriers that controlaccess. These prohibitions may also restrict legitimate uses of the works, andthe copyright balance between owners and users would be threatened. In rec-ognizing this, Congress asked the Librarian of Congress, in consultation withthe Register of Copyright, to recommend particular classes of works to exemptfrom the prohibition on circumvention. In a very narrow interpretation of thelaw, only two classes of works were identified: compilations of Web sitesblocked by filtering software applications, and literary works, including com-puter programs and databases, that are protected by malfunctioning, damaged,or obsolete access control mechanisms. All other classes of works are pro-tected from unauthorized access, and infringement could lead to civil action.Because the impact on research is uncertain, the matter will be reexamined inthree years. The eventual outcome, based on a worst case scenario, is that formost uses of works in digital form, there will be a copyright fee, even forbrowsing.

Then there is the Uniform Computer Information Transaction Act, orUCITA, a very complicated act aimed at individual states. The proposedUCITA act is 196 pages long and is written as an amendment to Article 2 of theUniform Commercial Code. More information on UCITA, including updates,can be found at <www.ucitaonline.com>. States that adopt UCITA as law willenforce “mass market” licenses, including shrink-wrap versions. A typical li-cense agreement will limit if not eliminate copyright provisions, such as fairuse, by characterizing the information transaction as a “license” rather than a“sale.” Why would a state adopt UCITA? For one reason, the act can create anenvironment more favorable to commerce, especially software businesses.

Libraries are once again on the defensive, this time fighting for retention offair use, including software backup copies and archival copies. Because fairuse law was never intended to give specific answers to specific problems, digi-tal forms are forcing various issues surrounding fair use to be tested exten-sively in the courts. As is, copyright law is meant to be a flexible doctrineapplicable to unforeseen needs and applications. Ideally, current copyrightlaw should carry over to revised versions that incorporate digital forms. In re-viewing copyright basics, that is, whether the use made of a work in a particu-lar case is fair use or not, the courts apply four factors to evaluate and balancefair use cases:

• The purpose and character of the use, whether such use is of a commer-cial nature or is for nonprofit educational purposes; e.g., courts generallyweigh in favor of nonprofit educational purposes;

Electronic Roundup 113

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• The nature of the copyrighted work; e.g., use of nonfiction is generallyweighed more favorably than works of fiction;

• The amount and substantiality of the portion used in relation to the copy-righted work as a whole; and

• The effect of the use upon the potential market for or value of the copy-righted work.

Librarians are encouraged to review their current library policies, proce-dures and practices to determine if they are in compliance with or in violationof the recent changes in copyright law. Fair use is worth fighting for, and thefirst step in this effort is to be informed. The American Library Association isamong the leaders challenging those measures that restrict fair use, and manystate library associations are among those challenging the adoption of UCITA.Additional information can be gathered from these three Web sites:

• The United States Copyright Office/The Library of Congress<lcWeb.loc.gov/copyright>. Particularly useful in maintaining currentawareness is the “Current Developments” link.

• ALA’s Copyright Education Program <copyright.ala.org>.• ACRL’s Copyright Protection, Intellectual Property and Fair Use

<www.ala.org/acrl/legalis.html#copyrite>.

Received: 12/14/00Accepted: 12/15/00

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