Besser--UCSB 10/12/0110/29/00, 1 Copyright and Fair Use UCSB, 10/12/01 Howard Besser Associate Professor UCLA School of Education & Information howard

Besser--UCSB 10/12/01 10/29/00, 1

Copyright and Fair Use UCSB, 10/12/01

Howard BesserAssociate Professor

UCLA School of Education & Information

http://www.gseis.ucla.edu/~howard/

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Copyright Dangers and the Importance of Fair Use-

u History of Copyrightu Erosion of Public Domainu The Digital Dilemmau Content Industry Agendau What does this mean to you?

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Constitution, Article 1, Section 8

u The Congress shall have power ...to provide for the ... general welfare of the United States 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;

Underlining added

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Copyright Background/Origins

u Copyright is a delicate balance btwn users and creators, but is supposed to be clearly oriented towards the public good-

u Copyright is NOT an unlimited Economic Rightu Copyright is really a temporary monopoly right

granted to creators in order to fulfill the societal need to increase creativity

u The Copyright monopoly is temporary, then works become freely available for all purposes

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Delicate balance

u Fair Use is a powerful tool for both education and social commentary

u First Sale is important for social aims

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What has copyright become (1/2)

u Who actually holds Copyright?u Licensing is replacing copyright in the

digital age

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What has copyright become (2/2)

u The larger trend -- moving long-standing common-law or constitutional rights into the arena of person-to-person business transactions, where these rights no longer apply

u licensing eliminating fair use– privacy– international arena– increasing time before work enters public domain

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Disturbing Legislation

u Duration Lengtheningu Fair Use Disappearing

u but first we need to understand the public domain

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The erosion of the public domain-

u What is it?u What threatens it?u Why should we care?

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What’s part of Public Domain?

Still isu Airu Sunlightu Numbersu Godu Ideas & Facts**

Wasu Wateru Land

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Lawyers defining the Public Domainu "things in the public domain can be appropriated by anyone without liability

for infringement" (Black's, 1996) u “the law’s primary safeguard of the raw material that makes authorship

possible” (Litman, 1989)u “a commons that includes those aspects of copyrighted works which

copyright does not protect"” (Litman, 1990)u the converse of property rights in information where the government prohibits

certain uses or communications of information to all people but the owner; the public domain “is the range of uses privileged to all” (Benkler, 1999)

u “the ultimate source of all new works (because nothing is ever wholly new in and of itself)” (Karjala, 1998)

u “copyright’s raison d’etre is to benefit the public by encouraging the production and dissemination of new copyrighted works” (Kreiss, 1995)

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A simpler description

u resources freely available for all members of society to do whatever they want with them

u no permissions or fees requiredu no tracking of what you read or use

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Importance of Public Domain

u Common Heritage (philosophical)u New Knowledge incorporates Old

(progress)u Derivative Works rely upon pre-existing

Works (creativity)u Social Commentary (free speech)

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What threatens it?-

u Term extensionu Returning out-of-copyright works back to

copyrightu Mickey Mouseu Licensingu Other forms of Contract Laws

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Time before works enter public domain

Law Duration1709 British 14 years

1790 US 14+14 years renewal

1909 US 28+28 yearsrenewal

1976 US 75 years (corporate)life+50 years (individual)

1998 US 95 years (corporate)life+70 years (individual)

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Lengthier Copyright Means

Date Term

Published 1923-63 67 years if renewed

Published 1964-77 28+67 years

Created before 1/1/78 Life+70 years or-12/31/02 if not published

-12/31/47 if published before end of 2002

whichever is greaterCreated after 1/1/78 Life+70 years (95/120

years corporate)

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Works that should have already entered the Public Domain (but didn't)

u Virginia Woolf: Jacob's Roomu Film -- Sherlock Jr.u F. Scott Fitzgerald: Hot and Cold Blood and Invasion of the

Sanctuary u Zane Grey: Code of the West, Steelhead, Tappan's Burro,The

Vanishing American, and Down into the Desert u Ben Hecht: Fingers at the Window u Rudyard Kipling: Independence and London Stoneu P.G. Wodehouse: Jeeves, First Aid for Dora Heart of a Goof, Leave It

to Psmith, Magic Plus Fours, No Wedding Bells for Him,The Return Of Battling Billson, Rollo Podmarsh Comes To, Ukridge Rounds A Nasty Corner, and Chester Forgets Himself

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Works that should have entered the Public Domain in the next few years

(but won't)

u Irving Berlin: Blue Skies (2002)u Harry Woods: When the Red, Red Robin Comes

Bob, Bob Bobbin' Along (2002)u Oscar Hammerstein II and Jerome Kern: Ol' Man

River and Showboat (2003)u Mickey Mouse (2004)

Besser--UCSB 10/12/01 10/29/00, 19Computer Science and Telecommunications Board

The Digital Dilemma: Intellectual Property in the Information Age

u The National Research Council & CSTBu Nature of a Study

– common ground btwn stakeholders, not necessarily what is best for NAS or research

u Origins of This Study– unbundling of previously-grouped packages (publishers/distributors,

works as units, …)– changing interpretations of concepts such as first sale and fair use

u Scope of This Studyu Study focused on US


A Long Standing Balance: Copyright Law

“We must remember that the purpose of copyright law is to create the most efficient and productive balance between protection (incentive) and dissemination of information, to promote learning, culture and development” (Whelan v. Jaslow, U.S. Court of Appeals for the Third Circuit, 1986).


The Digital Dilemma: The Balance Upset

Information in digital form Networks World Wide Web Consequences of these technological

developments; natural barriers erode Unbundling-

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Previous bundling becomes unraveled

u works are no longer discrete packages (embodied objects)

u works become multiple entitiesu roles of author, typist, editor, typesetter,

publisher, distributor, user becoming blurredu rights like fair use, first sale and personal use

take on different meaningsu access control takes on new meaning


Implications: Control and Access

For authors and publishers For individuals For societal institutions (e.g., libraries, archives) For public policy

Key traditional tool for controlling content is the law. However, there are alternatives in the digital age...


Digital IP Issues are Complicated

u Not solely legalu Not solely technical u Social, economic & public policy aspectsu If you think there are simple answers, you

haven’t been listening

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Selected Highlights from the Studyu Go slow on Legislationu Provision needs to be made for traditional entities to preserve works

in digital formu Legislation criminalizing circumvention of protection mechanisms is

far to broad and harshu Not all classes of works need the same treatmentu Technological protection methods may prove useful but have their

limits-u New Business Models show great promise for solving the problems-u We need reliable research on the economic impact of copying-

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Content Industry trying to control all Downstream Use

users will no longer “buy” content; they’ll “license” it

u Pushing new legislationu Lawsuitsu Copy protectionu Contract Lawu New business models

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Publisher Plans

u [advocating legislation that] “guarantees publishers’ control of not only the integrity of an original work, but of the extent and duration of users’ access to that work, the availability of data about the work and restrictions on forwardihng the work to others” -- Peter Chernin, News Corp President (owner of Harper-Collins) quoted in Publishers Weekly, May 2001

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Pat Schroeder's New Chapter: The Former Congresswoman Is Battling For America's

Publishers --Washington Post, 2/7/01

u ...Schroeder is president of the Washington- and New York-based Association of American Publishers, sponsor of the event. Like a nurturing shepherd, she moves gently among her flock. But when she talks about threats to the group, she stiffens her back.

u And who, you might be wondering, is giving Schroeder and her publishers such a fright?u Librarians, of course.u No joke. Of all the dangerous and dot-complex problems that American publishers face in

the near future -- economic downturns, competition for leisure time, piracy -- perhaps the most explosive one could be libraries. Publishers and librarians are squaring off for a battle royal over the way electronic books and journals are lent out from libraries and over what constitutes fair use of written material.

u Grossly oversimplified: Publishers want to charge people to read material; librarians want to give it away.

u "We," says Schroeder, "have a very serious issue with librarians."

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Publishers Accuse Librarians

u "They've got their radical factions (librarians), like the Ruby Ridge or Waco types," who want to share all content for free, said Judith Platt, a spokeswoman for the Association of American Publishers.

u -ZDNet News, July 12, 2001

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Content Industry Attacking all Peer-to-Peer

u "Napster is about song files, most of which are pirated… On the Gnutella network, you have so many other cool things. The other day I found the complete work of Shakespeare and a classic vampire movie, Nosferatu, which is in the public domain." -- Stephen Cho quoted in Jefferson Graham, "Next Napsters Wait in the Wings; As music-swap site goes legit, users threaten to quit," USA Today, Feburary 8, 2001, page 3D.

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Peer-to-Peer Example:Docster for ILL

u The Napster model says that individuals have a right to keep and share material that distributors (like libraries) can’t

u Libraries can’t keep scanned ILL articles; they must re-scan every time one is requested

u Docster advocates that libraries act like Napster and keep indicies of users who themselves keep scanned articles to share for ILL

u Everyone wins: we eliminate repeated re-scanning, and rightsholders get paid through CCC

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Use of IP Laws to inhibit free speech and stifle creativity

u The Wind Done Goneu E-Toyu Leonardo Finance vs

Leonardo Artsu Jeff Koons caseu Barbieu Scientology vs.

Netcom

u Fans sites (Star Trek, Harry Potter)

u 2 Live Crewu Negativland and U2u Contract with Americau Snow White & AIDSu Disney and Dan O’Neilu The Rio player

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Strong Content Control Threatens Creativity

imagine:u Having no public domain to draw uponu Having to negotiate rights for every clip,

every drawing, every still image, every sound sample

u Having to renegotiate all these rights every time you redistribute it in a different form or in a different media

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An Information Commons of Content is critical for society

u Creators draw on it for new worksu Scholars use it for new discoveriesu Teachers teach with it, young people learn

from itu A key part of public discourse

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But our Information Commons is rapidly eroding

u Fair use and first sale severely limitedu Perpetual © and elimination of public

domainu Licensingu Tracking use

– To freely use it, people need to know they’re not being tracked

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Other serious erosions

u UCITAu Database Treatyu Anti-Circumvention

– Felten & SDMI challenge– Sklyarov-

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Criminalizing © violationsDmitri Sklyarov jailed

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Pseudo-public spaces

Economics and Contract Laws preempting long-standing rights

Moving long-standing common-law or constitutional rights into the arena of person-to-person business transactions, where these rights no longer apply– extending reach beyond “first sale” to control Use

– shrink-wraps eliminating any negotiating power (UCITA)– shrink-wraps and technological protection don’t allow for fair use

exemptions

– licensing curtailing fair use

– Privacy invasions to prove licensing compliance

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Dangersu Eliminating a public domain of informationu Controlling social/political commentary, satire,

creation of new derivative works/recombinant worksu Criminalizing acts that might possibly impede digital

commerceu Making sure that the Internet is used only for info

consumption, not productionu Controlling access to older info (controlling history)

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Pragmatic Considerations:

Acquiring Digital Materials (1/2)

u Try to own, not license (maybe impossible)u Worry about content completeness/integrity

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Acquiring Digital Materials (2/2)

u With licenses, try to get rights to:– Make preservation/back-up copies– Transfer to different formats/media– Perpetual access– Cap on annual license fee raises– Set your own standards for “authorized” university

community (walk-in use, etc.)– Do your own user authentication (privacy)– Use the work in course readers– ILL

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Creating Digital Materials (1/2)

u No assurances + laws rapidly changingu Providing web access may constitute

“publishing”u Clearing rights can be a nightmareu Worry about underlying rightsu Deep linkingu Masters/Derivativesu Standards/Best Practices

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Creating Digital Materials (2/2)

u Fair Use Considerations– Purpose & character of use– Nature of copyrighted work– Amount and substantiality used– Market effect

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Copyright and Fair Useu http://www.gseis.ucla.edu/~howard/Copyright/u http://www.gseis.ucla.edu/~howard/Copyright/commons.htmlu http://books.nap.edu/html/digital_dilemma/u http://www.dfc.orgu http://www.pdos.lcs.mit.edu/~cananian/UCITA/u http://www.cdlib.org/about/publications/u http://www.cdlib.org/about/publisher_info_pub/CDLModelLicense1-12-00.rtfu http://www.cdlib.org/about/planning/licensgu.pdf (1999)u http://www.libraryjournal.com/docster.aspu Lee Felsenstein, 'The Commons of Information,' Dr. Dobb's Journal, May 1993

Besser--UCSB 10/12/0110/29/00, 1 Copyright and Fair Use UCSB, 10/12/01 Howard Besser Associate Professor UCLA School of Education & Information howard

Documents

u licensing

creativity u

public domain u

u water u land slide

public good u copyright

public domain u things

social commentary u

public domain slide