ISSUE RESOURCES

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COPYRIGHT, FAIR USE & LICENSING IN A DIGITAL WORLD

• INTERNATIONAL DEVELOPMENTS
  
  
• DOMESTIC LEGISLATION (Updated 11/1/98)
  • Highlights
  • NINCH Member Organization Statements on 1997-98 Proposed Copyright Legislation
  • Resources

   

• FAIR USE EDUCATION--including CONFU and Fair Use Town Meetings

  
  

• NHA PRINCIPLES: "BASIC PRINCIPLES FOR MANAGING INTELLECTUAL PROPERTY IN THE DIGITAL ENVIRONMENT"
  • See the Society of American Archivists' "An Archival Perspective on the NHA Principles (10/6/97)
    
    
• LICENSING

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INTERNATIONAL DEVELOPMENTS

WORLD INTELLECTUAL PROPERTY ORGANIZATION

• Website of the World Intellectual Property Organization
  
  
• THE COPYRIGHT TREATY, 1996

  Although the NII Copyright Protection Act did not pass in 1996, much of its language was then included by the U.S. in a proposal to the World Intellectual Property organization for a new international copyright treaty that would take account of the issues raised by the digital world (see NINCH Newsletter, August 23, 1996). The proposal was controversial but the result, especially in its wide recognition of exemptions and limitations to copyright owners transmission rights, pleased many (see NINCH Newsletter, January 3, 1997).

  • THE COPYRIGHT TREATY, ("Treaty on Certain Questions Concerning the Protection of Literary and Artistic Works" ) December 20, 1996
  • Agreed Statements Concerning the WIPO Copyright Treaty December 23, 1996
    
    
• THE PHONOGRAM TREATY, 1996
  
  • Treaty for the Protection of the Rights of Performers and Producers of Phonograms, December 20, 1996
    
  • Agreed Statements Concerning the WIPO Performance and Phonograms Treaty, December 23, 1996

    
    

• WIPO Press Release No. 106 , December 20, 1996

DOMESTIC LEGISLATION

HIGHLIGHTS

• 1976
  COPYRIGHT ACT of 1976 The first major revision of copyright law since 1909, principally undertaken to address the impact of the new technologies of photocopying and video recording as well as to bring U.S. law into accord with international law. This revision also codified for the first time the fair use and first sale doctrines, and added Section 108 that allows library photocopying without permission for purposes of scholarship, preservation, and interlibrary loan.
  
  
• 1995
  NII COPYRIGHT PROTECTION ACT OF 1995 (H.R. 2441 and S. 1284). In 1993 the Working Group on Intellectual Property Rights was established as part of the Information Infrastructure Task Force to explore the implications of a National Information Infrastructure on existing copyright law. The Working Group published a Green Paper in 1994 and a White Paper in September 1995. The White Paper's proposed legislative amendments and recommendations were then introduced as the NII Copyright Protection Act. For a NINCH perspective on this legislation, see NINCH Newsletter No. 1 (June 25, 1996). This legislation failed to pass but was expected to be re-introduced some time in 1997, in conjunction with implementing legislation for the WIPO Copyright Treaty
  
  
• 1997/98
  WIPO Treaties Implementation Act (H.R. 2281 and S. 1121) was introduced in July 1997. It was criticized by the Digital Future Coalition and members of the cultural community as being overly protective of online material while failing to mention any of the concerns of the library, educational and cultural community.
  
  Digital Copyright Clarification and Technology Act of 1997. On September 3, 1997, Senator John Ashcroft (R-Missouri) introduced S. 1146, as a response to the WIPO Treaties Implementation Act.
  
  The Digital Era Copyright Enhancement Act (H.R. 3048). Introduced November 13, 1997, by House members Dick Boucher (D-VA) and Tom Campbell (R-CA), this comprehensive House Bill would suitably update the Copyright Act for the digital age. It includes language to implement the WIPO Copyright Treaty but, unlike H.R. 2281/S. 1121, it also includes sections recognizing the importance of Fair Use, First Sale and Distance Learning. It authorizes educators to use electronic networks for distance learning in the same way they now use broadcast and closed-circuit television. Importantly, the bill addresses the issue of contracts now being discussed in the reformation of the Universal Commercial Code by which "shrink-wrap" or "click-through" licenses and contracts could abrogate or pre-empt rights and provisions guaranteed by federal law.
  
  • NINCH Announcement
  • Digital Future Coalition's section-by-section analysis of the Bill
  • H. R. 3048 v. H. R. 2281: Side-by-Side comparison of this bill with the Administration's "WIPO Treaties Implementation Act."
    
• 1997/98 (7/30/98)
  Digital Millennium Copyright Act of 1998 (H.R. 2281. S. 2037) Introduced by Senator Hatch as an alternative to Sen. Ashcroft's, S. 1146 and to S. 1121. It passed the Senate on Thursday, May 14, 1998 (99-0). Two versions of the bill were passed in the House by the Judiciary Committee and the Commerce Committee (July 17,1998). The version passed by the Commerce Committee was more responsive to educational and library needs than any legislation to date. Quoting the Digital Future Coalition: "H.R.2281, as passed by the House Commerce Committee, will maintain the owner/user balance and will protect the rights of consumers, students, educators, and scholars to make use of digital works and multi-media for school reports, research, teaching, and a host of other currently permissible activities. The competing bill will impose a "pay-per-use" model of information commerce in the network environment."

  In announcing the fair use amendment to the Commerce Bill, Chairman Bliley (R-VA) stated, " The agreement we have today gives consumers a reliable and regular process that ensures they will have 'fair use' access to information and copyrighted works -- without stifling growth of electronic commerce. Digital technology has the potential -- and let me emphasize the word 'potential' -- to lock up information and works that are otherwise widely available to consumers today. The fact that this is only 'speculative' or 'hypothetical' does not convince me that we should do nothing. Quite the opposite, it raises the possibility that it will inhibit growth in electronic commerce."

  As Prue Adler reports for the Association of Research Libraries : "Since the House Committee on the Judiciary and the Committee on Commerce bills differ, there will need to be consultation between the Committees to resolve the differences prior to the bill reaching the House floor. In addition, there will need to be a similar conference to sort through the differences between the House and Senate W.I.P.O. legislation. The House bill could reach the floor prior to the Congressional recess in early August. Given the highly charged political atmosphere surrounding this legislation, it will be important to retain a legislative package which is balanced. " (7/21/98)

• 1998 (11/1/98)

  Digital Millennium Copyright Act of 1998 (H.R. 2281. S. 2037) was passed by both houses of Congress on October 12, 1998 and presented to the President on October 20. See the President's October 28 Statement on signing the bill, in which President Clinton raises constitutional issues relating to certain provisions that require additional duties and activities on the part of the Register of Copyrights. The signing of H.R.2281 was widely anticipated based on the President's Statement issued October 12. The bill is also available in PDF format.

  This law:

  1. implements the terms of the WIPO Copyright Treaties (Title I);
  2. prohibits circumvention of technological measures that control access to copyrighted works (e.g., copy protection schemes) (also Title I);
  3. provides limitations for liability to online service providers (Title II);
  4. provides exemptions for use of diagnostic computer programs (overturning the result of, but unfortunately not the rationale behind, MAI v. Peak, 991 F.2d 511 (9th Cir. 1993)) (Title III);
  5. provides two years of protection for certain designs for useful articles (Title V); and
  6. makes other miscellaneous changes (Title IV).

  [Thanks to Terry Carroll's Copyright Resources Page]

  For more a more detailed summary of Titles I and II, please see the Summary of the bill prepared by congressional staff.

• 1998 (11/1/98)

  Sonny Bono Copyright Term Extension Act (S. 505; see PDF format). Passed by both houses of Congress on October 15, 1998, this new law extends the term of most copyrights by 20 years, and provides a music licensing exemption for food service and drinking establishments. See the Summary of the bill prepared by congressional staff (note that the Summary reflects the bill as introduced in March 1997, and does not include the musical licensing exemption, which was added by amendment in January 1998).

Related Issues

DATABASE PROTECTION
Read about the Collections of Information Antipiracy Act (H.R. 2652), introduced by Rep. Coble

• UCC (2b)
  Read about the ongoing process to revise the Uniform Commercial Code and especially concern with Article 2B:
  • Talk delivered by Prof. Robert Oakley for the Annual Meeting of the Association of Research Libraries, October 16, 1997, "UCC Article 2B: Some Preliminary Comments on a New Issue for the Library Community."
  • Consumer Project on Technology's Protest Page on Uniform Commercial Code Article 2B
  • See information provided about (and for) the conference: INTELLECTUAL PROPERTY AND CONTRACT LAW IN THE INFORMATION AGE: The Impact of Article 2B of the Uniform Commercial Code on the Future of Transactions in Information and Electronic Commerce. April 23-25, University of California, Berkeley.

  
  

  RESOURCES

• COPYRIGHT AND FAIR USE: Stanford University's authoritative site for copyright and fair use legislative resources.
  
  
• TIMELINE: A HISTORY OF COPYRIGHT IN THE U.S. Copyright milestones, assembled by Patricia Brennan at the Association of Research Libraries
  
  
• COPYRIGHT CRASH COURSE. Very approachable and well organized explication of copyright law by Georgia Harper, General Counsel, University of Texas.
  
  
• U.S. COPYRIGHT OFFICE of the Library of Congress
  
  
• U.S. PATENT & TRADEMARK OFFICE of the Commerce Department
  
  
• DIGITAL FUTURE COALITION: news and resources from a coalition of organizations "committed to international copyright law and policy that rewards and promotes creativity".

   

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