Pit Schultz on Sun, 18 Jan 1998 09:25:35 +0100 (MET)

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<nettime> Maryly Snow: Licence to Kill? Copyright Ownership and Fair Use



   -=License to Kill? Copyright Ownership and Fair Use in an Age of
              A Report on the Symposium, by Maryly Snow=-

With a robust and provocative title, *License to Kill? Copyright
Ownership and Fair Use in an Age of Licensing*, the one-day conference
at UC Berkeley sponsored by UC Berkeley's Librarians Association,
Townsend Center for the Humanities, School of Information and
Management Systems, and Boalt School of Law, UC Extension, and San
Jose State University's School of Library and Information Science,
appeared alluring, full of promise, and tailor-made for all manner of
copyright wonks and ardent fair users. With a byline that read, "...in
this changing information universe, publishers are using licensing
agreements as a means to regulate access and use of their materials.
This raises problems for institutions mandated with preserving and
making information available for the public good." The bulleted topics
to be discussed were:
+ The public interest and reasonable access to information in a
  licensing environment 
+ Online access to scholarly material 
+ Electronic rights management technology and its implications 
+ The balance between fair use and contractual limits on electronic
  use within licensing agreements 
+ Copyright protection and use of licensing arrangements by artists
  and museums who make their works and collections available in digital
+ The transformation of art and scholarship in the digital age and the
  effects of this change on copyright law 
+ Challenges facing universities dealing with copyright ownership and
  patents as faculty produce multimedia products that have commercial

Several factors about the program impressed me right away. This
ambitious program would take a broad approach, rather than one limited
by subject or format. I knew that I might be the only visual resources
(vr) or picture librarian present, a role that might require me to
step forward as an advocate for fair use in under developed library
markets, or as a representative of vr information managers. I also
registered knowing that I would be wearing two different hats: 1) as a
visual artist, I am a content-creator and copyright owner, and 2) as
an image librarian I am a content-user and fair use advocate who
relies substantially on fair use in supporting the educational needs
of the faculty and students I serve in the slide library. This wearing
of two hats mirrors the position in which most institutions of higher
learning find themselves: they are dependent upon to information and
the shared intellectual commons at reasonable cost; upon the concept,
statutory presence, and application of fair use. Yet they are also
creators of knowledge, from faculty publications in the social
sciences and humanities, to scientific research and creation of
patents. Perhaps the university, precisely because it does wear two
hats, is more appropriately positioned to discuss these issues than
the inherently biased copyright-owning entertainment industries such
as Fox, Time-Warner, Disney, and Microsoft. More so than
copyright-managing interests such as the Association of American
Museums, all of which dominated the recent CONFU digital images
debate. (Which brings to mind a troubling question: why has the
discussion about revising the copyright law been placed in the hands
of the Patents and Trademarks Office, whose interests clearly lie in
copyright ownership, rather than the Library of Congress Copyright
Office, or in the judiciary or legislature?)
Now that some time has passed since the symposium, I am left with two
conclusions. One is that the debate on intellectual property in the
electronic environment will continue for some time, and that within
that discussion the fair use and licensing of pictorial images for
education will barely warrant a footnote in the changing world of
academic information. Nonetheless, vr managers can learn from and
contribute to the continuing debate. The other is that the persistent
perception in some people's minds that slide libraries are pilfering
intellectual property by engaging in copy photography will probably
not be easily eradicated, despite educational efforts by VRA and
ARLIS, and possibly NINCH, to clarify standards of appropriate usage.
The day was structured into three panels. Panel 1 was licensing from
both librarian and publisher perspectives. Panel 2 tempered licensing
with a look at fair use. Panel 3 focused on the national discussion of
CONFU and WIPO and other information policy issues. The introduction
by Michael Levy, a law librarian at Boalt and organizer of the
symposium, set the tone for the day by reminding us of the complex
dichotomies before us: the balance of reasonable access to and
burdensome costs of materials; the importance of first sale, public
domain, library copying, and fair use exemptions to balance exclusive
rights; private rights versus public goods (proprietary rights versus
public access); publishers versus librarians or publishers and
librarians. The day concluded with a short but provocative question
and answer period.
Panel 1 began with Ann Okerson, Associate University Librarian, Yale
University, and a familiar voice in library licensing. Okerson's view
is that institutions and libraries can work successfully in a
licensing environment, and that licensing can extend rights beyond
what is currently permitted under copyright and fair use, especially
in photocopying and electronic reserves. She notes that 7% of library
acquisition budgets are now being spent on electronic resources, not
including online catalogs.
Publishers are flexible and willing to negotiate; one on one
negotiation is necessary but demanding; restrictive language of
license agreements can disappear from contracts with retro-negotiating
(I do not have more information on retro-negotiating, but assume that
this implies some value to annual or short-term license agreements,
which can be renegotiated next time around). Difficult issues remain,
including interlibrary loan and inter-institutional sharing of
information; complicated pricing models are based on the number of
computers or student enrollment, whereas print publications have been
priced by the expense of creation sand publication, not the extent of
usage; liability and trust; and archiving of data. Mary Levering,
Office of Copyright, in the first of her two presentations, spoke on
terms and conditions in licensing agreements. A few notes to remember:
users treat materials the same, so uniformity of agreements is
important; terms and conditions can be used to aggressively inform,
but not police, your user community; terms and conditions address uses
and users, often excluding alumni and campus visitors, and
non-academic uses such as fund raising. Levering mentioned three
initiatives to watch. The first is LC's National Digital Library
program, a follow-on to its American Memory program, using lessons of
MESL to license non-public domain materials. The prologue to her
mention of the second and third initiatives was that the prior
collaborative environment of academia was becoming the environment of
business models, and in this context she mentioned both AMICO
(Association of American Museum Directors, or AAMD's licensing
project) and MLC, Museum Licensing Collective, a collective licensing
project of the Association of American Museums. Levering did not
mention Academic Press' Image Directory. Nor did the next speaker, Ken
Metzner, Director Electronic Publishing, Academic Press who discussed
APPEAL (Academic Press Print and Electronic Access License), a
three-year licensing agreement with institutions to access Academic
Presses journals via the World Wide Web. Bob Berring, professor of law
and head of Boalt Law Library, a lover of books as physical objects,
was fairly electrifying. Berring, a strong advocate for libraries and
librarians, sees a dismal future for both. Libraries, competing with
authors, booksellers, and bookstores, represent market failures. Today
publishers can distribute directly to individuals, bypassing
libraries. In an end-user environment, publishers charge what the
market will bear, and the library becomes the interloper. If
librarians and information managers don't transform their self-images
to become more political, we may face a world where content is
infotainment. To avoid that bleak future, Berring outlined two
appropriate roles: librarians and information managers must step
forward as content evaluators, dropping our long-cherished neutrality;
and become ardent advocates for fair use as a public good. No one else
is pushing fair use as a public good and social policy.
Panel 2 began with Heather Meeker of Wilson Sonsini Goodrich &Rosati,
an i.p. law firm in Silicon Valley. Meeker's area of expertise is in
licensing technology with software and content companies. Meeker's
topic, the view of fair use from Silicon Valley, was surprisingly
non-proprietary. Because hardware and software designers continuously
build upon the work of others, fair use is a critical factor in the
continuing economic success of the computer industry. Meeker described
the dilemma of the "Phillips Curve" where bright line rules fail the
ethical mandate of fair use, and fair use fails the prescriptive
mandate of law; that ex ante, or before-hand, judgments cannot be made
with fair use ("Fair use does not assist parties, or industries, in
making ex ante determination whether or not to copy, and if so, how
much." Jane Ginsberg, "Creation and Commercial Value", 90 Colum, L.
Rev. 1865 (1990)); that lawyers never say fair use, which has a
chilling effect; that fair use, a "highly fact-specific defense
usually deemed inappropriate for resolution at the summary judgment
stage" (Ginsburg, ibid) won't tell you if you're right until you get
to the summary judgment stage, which is fairly well advanced and
expensive. If, as Meeker says, Silicon Valley is litigation shy, that
puts higher education in the downright phobic category.
Howard Besser, School of Information and Management Systems, UC
Berkeley, has long lectured on imaging technology, from cryptolopes to
encryption. But today he returned to first principles, putting
cryptolopes and watermarking into social and public policy
perspective. Besser began reminding us of the Constitutional basis of
fair use, noting that copyright is a balance of rights; isn't a
guarantee of an income stream; wasn't created for unlimited economic
gain; and whose goal is knowledge and access to knowledge; that it is
publishers and not creators who hold copyright to protect the
publishers' monopoly. Besser repeated the catch phrase, "Licensing
trumps (beats) fair use". Another threat to fair use is in
technological developments. Digital labels can be more or less
obtrusive. Watermarks can be more or less visible, can be
inappropriately applied. Long considered panaceas to i.p. theft,
Besser described the formidable problems with locks, such as
encryption, envelopes, digital bottles, cyptolopes, and keys in
preventing browsing, fair use, first sale, privacy of use, archiving,
longevity and preservation of knowledge, collection-building,
information interchange, and accessibility.
Panel 3 began with Mary Levering's second presentation, a summary of
the history of American copyright law from 1976 to the present.
Although I was surprised that her summary did not explicitly reach
back further than 1976, she did acknowledge that the four factors in
fair use evolved over two hundred years of common law debate. One
theme of her history seemed to be the need for fair use guidelines.
She stated that both publishers and librarians had been asking for
guidelines for some time, resulting in the set of four fair use
guidelines (not factors) that were drawn up in support of the 1976
Copyright Act: Classroom (or photocopying), Music, Library Copying for
Interlibrary Loan (CONTU, for Commission on New Technological Uses),
and Off-air videotaping. This led directly into CONFU, a subject, in
my mind, ripe for analysis and critique, an opportunity clearly
side-stepped by Levering. Perhaps sensing that the upcoming CONFU vote
would not go toward endorsement, Levering acknowledged that both
"digital and distance learning [guidelines] probably need some more
work." Nevertheless, Levering urged everyone "to try out the CONFU
guidelines for a couple of years, and provide feedback to your
professional associations for rethinking or revising." More on this
Pamela Samuelson spoke next (approximately a month before receiving
one of the coveted and esteemed MacArthur grants for her work in
intellectual property in cyberspace) about the "creeping
propertization of information." Samuelson's starting point was the
inevitability of the commodification of information, asking to what
extent it should be commodified, and how to carry forward the values
of the Enlightenment, promotion of learning and access to knowledge.
Samuelson stated that intellectual property (copyright, patents,
trademarks) is being used as the building material of policy
development, rather than as one component of what should be a broader
information policy ("intellectual property run amuck", "intellectual
property-centric view of the universe"). She then went on to comment
on the then four dangerous examples of copyright legislation. One:
legislation criminalizing circumvention of technology restrictions
assumes that public domain and fair use would not continue, and
existing law cannot cover circumvention measures. Copyright law should
not be treated as a general misappropriation law. Two: Communications
Decency Act, which at that time had not yet been struck down as
unconstitutional by the Supreme Court. Three: privacy issues are in a
pitched battle with property rights in information about (living)
people. Four: proposed intellectual property control of databases,
dropped from the proposed WIPO treaty, represented a
"market-destructive appropriation of information". Samuelson argued
that intellectual property should not be the only tool in the
information policy arsenal, pointing to both the First and Fourteenth
Amendments (free speech and privacy) and unfair competition laws.
Citing the need to avoid "i.p. imperialism", "to redraw i.p. to create
a society in which we actually want to live", Samuelson mentioned the
work of Greg Alexander, (Commodity and Propriety, University of
Chicago Press, forthcoming 1997), Julie Cohen ("A Right to Read
Anonymously: A Closer Look at Copyright Management in Cyberspace",
Connecticut Law Review, vol. 28, 1996), Jessica Litman ("Reforming
Information Law in Copyright's Image", University of Dayton Law
Review, forthcoming 1997, or www/msen.com/~litman/dayton.htm), and
Neil Netanel ("Copyright and a Democratic Civil Society", Yale Law
Journal, vol. 106, 1996), all thinkers looking at information policy
through mechanisms other than intellectual property.
[[see also "The Copyright Grap" 
http://www.hotwired.com/wired/4.01/features/white.paper.html ]]
Martha Winnacker, Academic Information Technology Initiatives, Office
of the President, University of California, concluded the
presentations not so much by explicating the proposed _10 Basic
Principles for Managing Intellectual Property in the Digital Environment_
] _as summarizing in a calm fashion the dire straits in which
scholarly communication finds itself today; library budgets for
periodical subscriptions drastically shrinking, at the same time that
universities find themselves paying for articles by their own faculty;
the confusion over ownership of multimedia modules developed by
faculty to teach their own courses; and early discussion in academia
about reviewing the role of faculty publications in referred
periodicals in the tenure review process in this environment.
Confounded by Mary Levering's call to try out the digital images
guidelines and report back to professional societies, I asked during
the final q &a how she could expect tryouts of guidelines that had
been rejected as unworkable by seven out of nine professional library
and related organizations, mentioning the significant non-endorsement
votes of American Library Association, Association of Research
Libraries, Society of American Archivists, Art Libraries Society of
North American, Visual Resources Association, the rumored
non-endorsement positions of College Art Association and Museum
Computer Network, as well as dissatisfaction by a growing segment of
the AAM membership. I was stunned by her answer. Referring to that
ever present thorn, copy photography (which I had not mentioned),
Levering stated that the "slide library community has been operating
below the radar screen for too long...engaging in shady practices"!
Wisely, I think, but uncharacteristically, I chose not to challenge
Levering's view, to not use the remaining two minutes of the day to
rebut, to not defend copy photography and visual resources practices
of the past hundred or fifty years, depending on when one starts
counting the years of copy photography in teaching the arts. I felt
that to do so in such a limited amount of time in a forum addressing
wider information practices would only make me, and by extension, vr
practices, appear defensive and uncertain. Wondering whether I should
tuck my head and exit as fast as possible, I found myself at the end
of the day surrounded by new faces representing museums, archives,
libraries, attorneys, and professors equally uncomfortable with the
CONFU guidelines. Copy photography is still the primary issue that
clouds questions of the legality and legitimacy of visual resources
practices in higher education. What, if anything, should we do about
Maryly Snow, Librarian
 Architecture Slide Library
 University of California, Berkeley
 July 1997


related links:
digital future coalition  : http://www.dfc.org
fair use information      : http://fairuse.stanford.edu/
the internet content industry : http://www.netcontent.org/
a free content coalition    : http://www.fcc.org

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