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Workshop on Electronic Text
Session VI.

Copyright Issues


Marybeth PETERS, policy planning adviser to the Register of Copyrights, Library of Congress, made several general comments and then opened the floor to discussion of subjects of interest to the audience.

Having attended several sessions in an effort to gain a sense of what people did and where copyright would affect their lives, PETERS expressed the following cautions:

PETERS reviewed copyright law in the United States. The U.S. Constitution effectively states that Congress has the power to enact copyright laws for two purposes: 1) to encourage the creation and dissemination of intellectual works for the good of society as a whole; and, significantly, 2) to give creators and those who package and disseminate materials the economic rewards that are due them.

Congress strives to strike a balance, which at times can become an emotional issue. The United States has never accepted the notion of the natural right of an author so much as it has accepted the notion of the public good and the desirability of incentives to promote it. This state of affairs, however, has created strains on the international level and is the reason for several of the differences in the laws that we have. Today the United States protects almost every kind of work that can be called an expression of an author. The standard for gaining copyright protection is simply originality. This is a low standard and means that a work is not copied from something else, as well as shows a certain minimal amount of authorship. One can also acquire copyright protection for making a new version of preexisting material, provided it manifests some spark of creativity.

However, copyright does not protect ideas, methods, systems--only the way that one expresses those things. Nor does copyright protect anything that is mechanical, anything that does not involve choice, or criteria concerning whether or not one should do a thing. For example, the results of a process called declicking, in which one mechanically removes impure sounds from old recordings, are not copyrightable. On the other hand, the choice to record a song digitally and to increase the sound of violins or to bring up the tympani constitutes the results of conversion that are copyrightable. Moreover, if a work is protected by copyright in the United States, one generally needs the permission of the copyright owner to convert it. Normally, who will own the new--that is, converted- -material is a matter of contract. In the absence of a contract, the person who creates the new material is the author and owner. But people do not generally think about the copyright implications until after the fact. PETERS stressed the need when dealing with copyrighted works to think about copyright in advance. One's bargaining power is much greater up front than it is down the road.

PETERS next discussed works not protected by copyright, for example, any work done by a federal employee as part of his or her official duties is in the public domain in the United States. The issue is not wholly free of doubt concerning whether or not the work is in the public domain outside the United States. Other materials in the public domain include: any works published more than seventy-five years ago, and any work published in the United States more than twenty-eight years ago, whose copyright was not renewed. In talking about the new technology and putting material in a digital form to send all over the world, PETERS cautioned, one must keep in mind that while the rights may not be an issue in the United States, they may be in different parts of the world, where most countries previously employed a copyright term of the life of the author plus fifty years.

PETERS next reviewed the economics of copyright holding. Simply, economic rights are the rights to control the reproduction of a work in any form. They belong to the author, or in the case of a work made for hire, the employer. The second right, which is critical to conversion, is the right to change a work. The right to make new versions is perhaps one of the most significant rights of authors, particularly in an electronic world. The third right is the right to publish the work and the right to disseminate it, something that everyone who deals in an electronic medium needs to know. The basic rule is if a copy is sold, all rights of distribution are extinguished with the sale of that copy. The key is that it must be sold. A number of companies overcome this obstacle by leasing or renting their product. These companies argue that if the material is rented or leased and not sold, they control the uses of a work. The fourth right, and one very important in a digital world, is a right of public performance, which means the right to show the work sequentially. For example, copyright owners control the showing of a CD-ROM product in a public place such as a public library. The reverse side of public performance is something called the right of public display. Moral rights also exist, which at the federal level apply only to very limited visual works of art, but in theory may apply under contract and other principles. Moral rights may include the right of an author to have his or her name on a work, the right of attribution, and the right to object to distortion or mutilation--the right of integrity.

The way copyright law is worded gives much latitude to activities such as preservation; to use of material for scholarly and research purposes when the user does not make multiple copies; and to the generation of facsimile copies of unpublished works by libraries for themselves and other libraries. But the law does not allow anyone to become the distributor of the product for the entire world. In today's electronic environment, publishers are extremely concerned that the entire world is networked and can obtain the information desired from a single copy in a single library. Hence, if there is to be only one sale, which publishers may choose to live with, they will obtain their money in other ways, for example, from access and use. Hence, the development of site licenses and other kinds of agreements to cover what publishers believe they should be compensated for. Any solution that the United States takes today has to consider the international arena.

Noting that the United States is a member of the Berne Convention and subscribes to its provisions, PETERS described the permissions process. She also defined compulsory licenses. A compulsory license, of which the United States has had a few, builds into the law the right to use a work subject to certain terms and conditions. In the international arena, however, the ability to use compulsory licenses is extremely limited. Thus, clearinghouses and other collectives comprise one option that has succeeded in providing for use of a work. Often overlooked when one begins to use copyrighted material and put products together is how expensive the permissions process and managing it is. According to PETERS, the price of copyright in a digital medium, whatever solution is worked out, will include managing and assembling the database. She strongly recommended that publishers and librarians or people with various backgrounds cooperate to work out administratively feasible systems, in order to produce better results.

In the lengthy question-and-answer period that followed PETERS's presentation, the following points emerged:

PETERS added that often in copyright matters, rough justice is the outcome, for example, in collective licensing, ASCAP (i.e., American Society of Composers, Authors, and Publishers), and BMI (i.e., Broadcast Music, Inc.), where it may seem that the big guys receive more than their due. Of course, people ought not to copy a creative product without paying for it; there should be some compensation. But the truth of the world, and it is not a great truth, is that the big guy gets played on the radio more frequently than the little guy, who has to do much more until he becomes a big guy. That is true of every author, every composer, everyone, and, unfortunately, is part of life.

Copyright always originates with the author, except in cases of works made for hire. (Most software falls into this category.) When an author sends his article to a journal, he has not relinquished copyright, though he retains the right to relinquish it. The author receives absolutely everything. The less prominent the author, the more leverage the publisher will have in contract negotiations. In order to transfer the rights, the author must sign an agreement giving them away.

In an electronic society, it is important to be able to license a writer and work out deals. With regard to use of a work, it usually is much easier when a publisher holds the rights. In an electronic era, a real problem arises when one is digitizing and making information available. PETERS referred again to electronic licensing clearinghouses. Copyright ought to remain with the author, but as one moves forward globally in the electronic arena, a middleman who can handle the various rights becomes increasingly necessary.

The notion of copyright law is that it resides with the individual, but in an on-line environment, where a work can be adapted and tinkered with by many individuals, there is concern. If changes are authorized and there is no agreement to the contrary, the person who changes a work owns the changes. To put it another way, the person who acquires permission to change a work technically will become the author and the owner, unless some agreement to the contrary has been made. It is typical for the original publisher to try to control all of the versions and all of the uses. Copyright law always only sets up the boundaries. Anything can be changed by contract.

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