Copyright and Electronic Journals

Deborah Grimes
December 3, 1993
296A: Multimedia and Networks
Howard Besser

NOTICE

Contents

I. Introduction
II. Copyright Law
III. Copyright Issues Presented by New Technologies
IV. Journals and Electronic Publishing
V. Conclusions
Bibliography

I. Introduction

Electronic publication of journals and the republication of journal articles in full-text electronic databases have upset the traditional relationship between authors, publishers, and libraries.

In the past, authors sold the copyrights of their articles to publishers, publishers printed the articles in journals and sold the journals to libraries, and libraries lent the journals to readers. The relationship was simple because what was sold was simple: one [hard] copy of a journal. Copyright law established what the library could do with the copy it was sold.[1]

With electronic publication, there is no hard copy. What is being sold? The right to let one or more patrons read the journal electronically? The right to make one or more hard copies of the journal? The right to make one or more electronic copies of the journal? How does copyright law apply when the library has not been sold a "copy"? Should the transaction be subject to copyright law at all? How do the rights of the library differ from the rights of a library that has bought a hard copy?

A review of the copyright law is necessary before these questions can be addressed.

II. Copyright Law

The Congress shall have Power...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;

The Constitution of the United States, Article I, Section 8, Clause 8

Copyright began in England and originally protected publishers. The market for early printed books was very small: perhaps 200 copies of a book might be printed. If two or more publishers put out editions of the same book, it was likely that they all would lose money. Publishers in England were given monopolies to protect their investments. These monopolies evolved into English copyright law, which eventually, with the Statute of Anne in 1709, gave copyrights to authors, not publishers. English statutory and common law were followed in the American colonies (and still retain authority as precedents).

Authors rarely publish their own works. Instead they sell their copyright to publishers, in exchange for royalties or a fee or merely for the chance to be published. In theory, authors will benefit if publishers aggressively exploit the copyright. In reality, only authors who make a good bargain will benefit. Nevertheless, copyright does make it more likely works will be published because it lessens the financial risk of publishers by eliminating competition in copyrighted works.

Under the power granted to it by the Constitution, Congress first passed a copyright law in 1790, covering maps, charts, and books. Periodic revisions have been made in the copyright law to cover other media and deal with new technology. The latest general revision was made in 1976. Like all previous revisions, it has attempted to fulfill the constitutional mission to promote science and the arts by allowing authors a temporary monopoly to profit by their creations.

The Copyright Act of 1976

The Copyright Act of 1976 (the "Act") does not specifically address electronic publication. Electronic publication falls under the same rules as print publication. A summary of these rules follows.

The Act gives the initial ownership of copyright to the author or authors, except for a work made for hire[2], in which case the employer is considered to be the author.[3] Works of the United States government cannot be copyrighted.[4] In works created after the Act took effect (January 1, 1978), copyright subsists from the creation of the work and lasts for the life of the author plus 50 years[5] (the term required in the Berne Convention) or, in the case of works made for hire or anonymous or pseudonymous works, for 75 years from publication or 100 years from creation, whichever expires first.[6] The term of existing copyrights was increased from 56 years to 75 years[7].

Grants of copyright can be terminated by the author or the author's heirs after 35 years.[8] (There is no provision to terminate copyright grants in works made for hire.) The right to do this cannot be waived. The purpose of this provision is to protect authors against unremunerative transfers which may result from their unequal bargaining position. (It must be pointed out that few 35-year-old copyrights are worth much. However, for those that are, at least the author or the author's family gets a second crack at profiting from them.)

Subject to certain limitations[9], copyright owners have the exclusive rights to reproduce their work "in copies[10] or phonorecords"; prepare derivative[11] works based upon their work; distribute[12] copies of their work to the public by sale, rental, lease, or lending; perform[13] their work publically; and display[14] their work publically.[15]

Fair use

Three of the Act's limitations on copyright owners' exclusive rights are very relevant to electronic publication. The first is a statutory expression of the judicial doctrine of fair use. It allows "the fair use of a copyrighted work, including such use by reproduction in copies...,for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research..."[16]

There is no cut-and-dried definition of "fair use." Speaking very generally, a fair use must not be a substitute for purchase. The Register of Copyrights defined it broadly as meaning "that a reasonable portion of a copyrighted work may be reproduced without permission when necessary for a legitimate purpose which is not competitive with the copyright owner's market for his work."[17]

The courts have developed criteria for judging whether a particular use is a fair use. The Act restates the judicial doctrine of fair use, saying

the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use...[18]

Reproduction by libraries

The Act goes beyond the doctrine of fair use in allowing libraries or archives, under specified conditions, to reproduce and distribute one copy or phonorecord[19] of a work if

(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage; (2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and (3) the reproduction or distribution of the work includes a notice of copyright.[20]

The conditions under which a copy can be made include:

Instances of copying must be isolated and unrelated. Systematic copying is forbidden. Interlibrary copying is allowed as long as copying is not done "in such aggregate quantities as to substitute" for purchase or subscription.[23] The House and Senate Conference Report on the Act stated that the guidelines suggested by the National Commission on New Technological Uses of Copyrighted Works "are a reasonable interpretation" of this provision.[24] The guidelines allow libraries to obtain from other libraries in a single year, five copies of articles published during the previous five years in any given publication.

The Act also says that nothing in the provision for library reproduction "in any way affects the right of fair use...or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections."[25]

"Right of First Sale"

The Act states that the owner of a lawful copy can "sell or otherwise dispose of" the copy; and can "display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located."[26]

The House report[27] says that this provision

"takes account of the potentialities of the new communications media, notably television, cable and optical transmission devices, and information storage and retrieval devices, for replacing printed copies with visual images. First of all, the public display of an image of a copyrighted work would not be exempted from copyright control if the copy from which the image was derived were outside the presence of the viewers. In other words, the display of a visual image of a copyrighted work would be an infringement if the image were transmitted by any method (by closed or open circuit television, for example, or by a computer system) from one place to members of the public located elsewhere.

"Moreover, the exemption would extend only to public displays that are made 'either directly or by the projection of no more than one image at a time.' Thus, even where the copy and the viewers are located at the same place, the simultaneous projection of multiple images of the work would not be exempted...

"The committee's intention is to preserve the traditional privilege of the owner of a copy to display it directly, but to place reasonable restrictions on the ability to display it indirectly in such a way that the copyright owner's market for reproduction and distribution of copies would be affected. Unless it constitutes a fair use under section 107, or unless one of the special provisions of section 110 or 111 is applicable, projection of more than one image at a time, or transmission of an image to the public over television or other communication channels, would be an infringement for the same reasons that reproduction in copies would be."

Where does this leave us? Under copyright law, libraries have just as much right to copy or display electronic journals as they do print journals. The right is considerable in the case of journals the libraries own. Any patron can make a copy of any journal article for purposes of scholarship or research.

III. Copyright Issues Presented by New Technologies

In 1986, the Office of Technology Assessment prepared a report for the U.S. Congress, Intellectual Property Rights in an Age of Electronics and Information. It examines

the impact of recent and anticipated advances in communication and information technologies on the intellectual property system. It focuses primarily on the Federal copyright system, and on the continuing effectiveness of copyright law as a policy tool in the light of technologies such as audio- and videorecorders, computer programs, electronic databases, and telecommunications networks...

OTA found that technological developments are affecting all aspects of the intellectual property system. Moreover, because we are only beginning to move into the era of electronic information, the full impact of new technologies will not become fully apparent for some time.[28]

The report goes on to say that fundamental changes in information technologies will antiquate many existing policy mechanisms, and that Congress should be prepared to act within the next decade (which is here now) to respond to new intellectual property problems. Two related trends identified by the OTA are even more apparent today than when the report was written.

  1. Copying is easier. It is far cheaper to copy information, especially as the costs of information systems decrease and the capacity of storage devices increases. Enormous amounts of information can be stored on disks. Furthermore, information can be copied almost instantly off computers.
  2. Access to copyrighted works is being restricted. The OTA report suggests that ease of copying, which makes control over public distribution of a work less effective, might make

    investors reluctant to fund the creation of intellectual works. More likely, proprietors of intellectual property will be more hesitant to distribute their works in forms over which they have little physical control.

    The technology itself is providing proprietors with ways to more tightly control the distribution of their works. Private, computerized, electronic systems can provide them with the means to enforce control by limiting and monitoring access. Policymakers may have to weigh the benefits of such control against the potential social costs of restricting public access and monitoring private citizens' information use.[29]

The OTA foresaw that public access to information would decrease as electronic publication is substituted for printing. With print publication, copyright holders did not control the market for their works. After the first sale of a copy, the new owner of the work controlled it, and could lend it, rent it, or resell it. The copyright holder's monopoly was limited because the work had to be sold in hard copies which became the personal property of the purchaser. With electronic publication, the copyright holder's monopoly is much stronger:

Because their works need not be sold in hard copies, and because it is questionable whether individuals can legally copy them, they do not have to compete with resellers, wholesalers, or others who might drive down the price of their products. As the only source of distribution, people must come to the copyright holder on his own terms. Now controlling access to their works, copyright holders can restrict it in order to enhance their profits. If they were to do this, copyright law would no longer perform the function it was designed for under the Constitution. Moreover, once copyright serves to limit access, it raises issues for communications policy as well as for copyright.[30]

Is copyright law able to deal with new technologies?

Some of the OTA's assumptions can be questioned. Will changes in information technologies really "antiquate" many existing policy mechanisms? (I assume by existing policy mechanisms, the OTA means the copyright law.) Will Congress have to respond to "new" intellectual property problems (or merely the same old problems in new clothes)? Is there, in fact, a "problem" with existing copyright law at all?

The argument that there is a problem is based on the ease of copying electronic works. But what difference does it make, really, that an electronic journal can be copied in seconds while a print journal takes several minutes to copy? Isn't the real issue whether putting information in electronic form results in more copyright violations? No one has made the case that it has. (Yet this unproven claim is used to justify proposals for increased rights for copyright holders.) And even if there were an increase in copyright violations, that's not an argument for changing the copyright law.

Between the fair use doctrine, the right of first sale, and the reproduction rights of libraries, a lot of copying is legal under the law. The law does not give the public fewer rights to copy electronic works than print works. In one of the major cases on copying, Sony v. Universal City Studios (the Sony Betamax case), the Supreme Court held that private, noncommercial home recording of programs broadcast on the public airwaves, for purposes of later viewing, is legitimate fair use.

A major reason people buy VTRs is to copy programs and view them later. Undoubtedly, millions of programs are copied every day. But it's not a problem, unless you are the copyright owner trying to wring every last dollar out of the public by making your monopoly absolute.

Copying electronic journals

It is not difficult to copy a print journal. New frontiers of copyright infringement are not opening up because journals can now be published electronically. People who were going to make illegal copies before will make them now.

Copyright holders may argue that it's easier for copyright infringers to steal an electronic journal, duplicate it, and sell it themselves. But how are they going to market it? If they put it on a network or in a database, they will make detection virtually certain.

Commercial exploitation of electronic journals is very difficult unless you are the copyright owner. And I would guess that the black market for, say, stolen electronic journals is minute compared to the black market for stolen tape decks. Nor do tape decks lose their value overnight. How much of a market for used journals is there in second-hand book stores? Unless non-current articles are put into a commercial database (where they can be detected), they aren't much use to anyone. Would you buy an out-of-date, boot-leg electronic journal?

It's possible that Jill may subscribe to the electronic journal and lend her copy to Jack. But Jill could legally lend her copy of a print journal to Jack. Why should she have fewer rights with an electronic journal? This applies even more to the rights of libraries to lend material. The kind of package information comes in should not determine what use we can make of it.

The principles of copyright law treat different types of material similarly. (Congress has made special provisions for compulsory licensing of works in certain cases, which I will discuss below.) Perhaps that is why copyright owners of works using new technologies are turning toward contract law and licensing to avoid having the principles of fair use, first sale, and library reproduction rights applied to their works.

Protecting public access

The OTA was absolutely right in its prediction that the copyright proprietors would find new ways to limit access to their works. This, of course, is directly contrary to the purpose of copyright law, which is to promote the progress of science and useful arts.

This trend toward limiting public access comes at a time when the term of copyright protection has been considerably extended--extended perhaps beyond what the framers of the Constitution contemplated when they granted authors and inventors exclusive rights for "limited times." Life plus fifty years could amount to 130 years or so of copyright protection depending on how old the author is when the work is created and how long the author lives thereafter. And 75 years for works for hire doesn't benefit authors at all--employers rake in all the profits.[31]

Given a relatively short term of copyright--say 14 years, the orginal term under the Statute of Anne--restricting public access to copyrighted works doesn't do that much damage. But lock a work up for 130 years, or six generations, and damage is done. The damage is compounded when copyright owners dispose of works solely under contract law via licensing and thereby prevent the public from making fair use of them.

Congress has shown it understands that works should be accessible to the public. The 1976 Copyright Law codifies existing precedents and, in fact, will eventually bring a new group of works into the public domain by substituting a statutory term for the perpetual term of copyright enjoyed by unpublished works under the common law.

Congress may have to intervene to prevent copyright holders from using contract law to deny the public the rights of access it is entitled to under copyright law.

IV.Journals and Electronic Publishing

Journals can be roughly divided into scholarly journals, with articles contributed by scholars and researchers, and other journals (which, for convenience, I will call public journals), with articles contributed by employees of the publication and freelancers. There is, of course, some overlap, but in general the division holds.

In looking at electronic publishing, scholarly journals and public journals must be considered separately, because the interests of the creators of the works are not identical.

Scholarly journals

Scholarly journals are written, and primarily read, by scholars and researchers. Writers are paid little or nothing for their work and usually sign over all rights to the publisher. For example, a publication agreement used by the University of Chicago Press has the writer sign away all rights, but allows the writer to reprint the article in any book of which the writer is author or editor.

It is understood that you will receive no monetary compensation from the University for the assignment of copyright and publication of the Contribution in the Journal. However, fees received from licenses to reprint the Contribution in readers, anthologies, and/or textbooks will be divided equally between you and the Press. You will receive no monetary compensation for other licenses which may be granted for the use of your Contribution, nor will you receive any share of fees amounting to less than $20.00.[32]

Writers may be given offprints of their work.

Copyright is not an incentive for scholarly writers to create. For all intents and purposes, they aren't paid for their work. They create because their employers expect them to create. If professors don't publish, they don't get tenure.

The result is that publishers of scholarly journals, for all practical purposes, don't have to pay for their material. Not only do they not have to pay for it, they also have the exclusive right to exploit it. Scholarly publishers do not claim this right is worth much. Sanford Thatcher, the director of the Pennsylvania State University Press, states that scholarly print journals are barely breaking even with the rising costs of publishing.[33] Nor does he think print journals will survive the competition of electronic journals, which are faster, cheaper, and searchable. (It's not clear if he means cheaper to produce, cheaper to buy, or cheaper both ways.)

Thatcher suggests that journal publishing will devolve back upon professional associations, which will handle peer review and distribute articles to their members over electronic networks.[34] He thinks some large university presses, such as Chicago and Cambridge, can market electronic journals themselves, but not smaller presses.[35]

This is a benign vision. The alternative vision is that copyrights of scholarly articles will fall into the hands of commercial publishers who will then exploit these copyrights through electronic databases with expensive license fees. If no print journals are available, the right of the public to borrow and copy the articles under copyright law will effectively be destroyed.

Many people have suggested that universities take control of the copyrights in work produced by their employees. (The presumption is that universities will disseminate the information as widely as possible at the smallest cost to the users--if not out of love of knowledge, then because the high cost of serials is killing the library budgets of all universities.)

The mechanism for doing this is to invoke the provision of the copyright law that works made for hire belong to the employer. There is a solid argument that faculty members write scholarly articles within the scope of their employment, and this makes the articles works made for hire. Faculty members certainly have nothing to lose by letting the university rather than a publisher have the copyright.

One side effect of publishing inexpensive electronic journals might be that scholars could afford more subscriptions, less fair use (or unfair use) copying would be done, and journals would make more money. As Thatcher points out, the incentive to copy is greater as the cost of the journal increases.

Public journals

The case of public journals is very different from that of scholarly journals. Employees of the journals cannot benefit from copyright because their articles are works made for hire. But freelancers are in it for the money. Margaret Bald, a freelance writer, says

The current customs and practices of scholarly journal publishing, in which the editorial content of journals is provided by authors gratis or for a low fee and copyright is often ceded by the author to the publishers, are antithetical to the standards that govern the working lives of freelance writers.[36]

Bald identifies a trend among publishers to buy all rights, or offer writers only work for hire contracts, so that the copyright can be exploited in new media for the benefit of the publisher rather than the writer. The opportunities are plentiful. She quotes Richard Snyder, the chairman of Simon & Schuster:

We're not just a publisher anymore, but a creator and exploiter of copyrights...We're utilizing our copyrights in the various media that other people are creating...We can take any piece of information...and sell it in print, on line, on CD-ROM, on film and on interactive laser discs.[37]

There is so little expectation among commercial online database vendors that writers (rather than publishers) own the electronic rights to their work, that vendors pay royalties to a publisher in lump sums related to the publications put out by that publisher, not related to specific articles in those publications. This method makes it impossible to tell whose articles earned the royalties. Yet the fact that the article is on an electronic database would make it easy to connect royalties with specific articles--if the publisher needed this information to abide by publishing contracts with writers.

It should be pointed out that, under the copyright law, publishers can't make freelancers accept a work made for hire contract. Freelancers are not employees, so their work is not automatically a work made for hire. Unless a freelancer's work is "specially ordered or commissioned" as a contribution to another work, and the freelancer and publisher agree in a written instrument that the work is a work made for hire, it is not one. It is, in fact, logically impossible for a freelancer to submit a work on spec and get a work made for hire contract because, under the copyright law, the creator owns the copyright from the time of creation. If the creator owns it, the publisher must buy it.

With public journals, neither the publisher nor the freelance writers who create content are interested in inexpensive electronic distribution of their works. They are battling over who gets to exploit the copyrights. Since copyright is supposed to reward creators, justice is on the side of the writers. But the publishers have the superior bargaining position. In this situation, Congress should step in and require publishers to pay royalties or fees for all subsidiary rights. Congress has demonstrated some (small) concern for authors' weak bargaining position by returning their copyrights to them after 35 years.

Effects on libraries

The libraries are not only a major market for publishers, they are the major public source of free information on all subjects. Publishers would be only too happy to get a cut every time an item is lent out. Even authors have looked longingly at the possibility of getting a lending royalty from a "public lending right" such as that enjoyed by authors in ten European countries. (A public lending right is, of course, completely at odds with the long established right of first sale.)

It is unlikely that publishers and authors will be able to carve out exceptions to the doctrines of fair use, first sale, and the right of library reproduction with regard to works in print. The rights of copyright holders and copy owners are too well established and understood.

But electronic publication is a different matter: it is new and people are confused about how copyrights apply to it. By leasing electronic publications instead of selling them, publishers have avoided the need to comply with copyright law. Libraries have access to material but can't own it: if they don't keep paying for it, they will lose access.

Contracts that place unreasonable restraints on trade are illegal under antitrust laws. The definition of an act in restraint of trade is one which

hinders and prevents the selling and exchanging of personal property, or an article or commodity of trade that is in everyday use, and in this way a necessary and indispensable article of commerce.[38]

Is the practice of refusing to sell electronic information, thus forcing users to be perpetual renters, a restraint of trade? Libraries should examine this possibility.

Another important licensing issue is the current fashion for supporting some kind of compulsory licensing scheme for electronic information. The library literature is filled with licensing schemes, some more benign than others. The schemes appear to assume that libraries will only be renters, not owners, of electronic information--a not unreasonable assumption given the current state of affairs.

The overall effect of these proposals is that libraries would end up paying a compulsory licensing fee for copying information they are now entitled to have free under the copyright law. The justification advanced for these schemes is that copyright law isn't working with electronic media.[39] Proponents cite existing compulsory and voluntary licensing schemes as evidence that compulsory licensing of electronic information is a good idea.

Compulsory licensing

In the 1976 Copyright Act, Congress established several compulsory licenses. These permit, under specified circumstances, copyrighted material to be used without the permission of the copyright owner if a payment set by the Copyright Royalty Tribunal is paid. Congress established compulsory licenses for music in jukeboxes and phonorecords; for retransmissions by cable systems of distant television and radio broadcast signals; and for the use of non-dramatic musical works, and pictorial, graphic, and sculptural works, by public broadcasting agencies.

What these compulsory licenses have in common is that that they apply to uses of copyrighted material that are violations of copyright law under the copyright act.

Non-compulsory licensing

This is also the case with the two most prominent non-compulsory licensing schemes, for the non-dramatic performing rights in copyrighted music under licenses granted by ASCAP, BMI, or SESAC; and for making copies otherwise prohibited by the copyright law under licenses granted by the Copyright Clearance Center.

ASCAP, BMI, and SESAC license the public performance of nondramatic musical works on behalf of the copyright owners. SESAC represents a small, specialized group of works; ASCAP and BMI represent almost all popular music. These agencies license the places where people perform music. The cost of the license depends on the size of the establishment, what it spends on entertainment, and so on. The licensee pays an annual fee and in return can have performances of all musical works represented by the licensing agency without having to keep track of which are actually performed. Establishments that aren't licensed are monitored for infringements of the copyrights.

The Copyright Clearance Center was set up to license businesses to photocopy copyrighted works. Publishers register their technical and business journals with the Copyright Clearance Center (the Center hopes to sign up all publishers eventually) and set rates for copying their material. Users can pay per copy or pay a blanket rate.

The justification for clearinghouses is that, without them, it is extremely difficult and time consuming to track down copyright owners and get their permission to perform or copy works. Of course, this justification depends upon there being no right to perform or copy in the first place.

The clearinghouses are cited favorably by those who want licensing for electronic publications. However, I could not find any discussion of how to separate fair use from infringing use in electronic licensing scheme. For example, in the scheme suggested by Edwin Brownrigg and Clifford Lynch,

Authors and publishers could submit their copyrighted material to the catalog of a clearing agency, which would collect royalties on their behalf according to the following scheme. First, the clearing agency would collect an assessed fee from database servers, libraries, and other agencies in the document delivery business. This fee would be based reasonably on some statistic, such as a small percent of gross receipts in the case of the database server, or ARL statistics in the case of the library. Next, the clearing agency would statistically monitor the electronic delivery of particular copyrighted material from individual businesses and institutions involved in document delivery. Certainly, with all transactions being carried out via computer, an abundance of statistical information on which to base payments should be available, although providing sufficient auditability to satisfy all interested parties is an extremely difficult problem.[40]

Licensing schemes of this kind seem to be replacements for the copyright law, not enforcements of it. As such, they can only reduce the amount of legal copying.

V. Conclusions

I have read no convincing arguments that the copyright law is incapable of adequately coping with new technologies. Attacks on the law really seem aimed at increasing the monopolies of copyright owners.

The biggest problem with copyright and electronic journals is that publishers are monopolizing copyrighted material to benefit themselves, without regard for the rights and interests of creators or the public. In no way does the publisher monopoly advance any constitutional goal--in fact, it is harmful to both creators and intellectual progress, because it ties up material for many, many decades.

By proposing new arrangements for scholarly publishing that ensure the free flow of information, libraries can begin to escape from their status as perpetual renters of electronic information. But I believe it will be necessary for Congress or the courts to act to prevent publishers from refusing to sell electronic information outright. Without legal intervention, the copyright law can't continue to fulfill its constitutional purpose of promoting art and science.

Bibliography

Books

Miller, Jerome K. U.S. Copyright Documents: An Annotated Collection for Use by Educators and Librarians. Littleton, Colorado: Libraries Unlimited, 1981.

U.S. Congress, Office of Technology Assessment. Intellectual Property Rights in an Age of Electronics and Information. OTA-CIT-302. Washington, D.C.: U.S. Government Printing Office, 1986.

United States Code, Title 17.

University of Chicago Press. The Chicago Manual of Style. 13th ed., revised and expanded. Chicago: University of Chicago Press, 1982.

Weil, Ben H., and Barbara Friedman Polansky, eds. Modern Copyright Fundamentals: Key Writings on Technological and Other Issues. New York: Van Nostrand Reinhold, 1985.

Journal Articles

Bald, Margaret. "The Case of the Disappearing Author." Serials Review 19, no.3 (1993): 7-14.

Bennett, Scott. "Copyright and Innovation in Electronic Publishing: A Commentary." The Journal of Academic Librarianship 19, no.2 (1993): 87-91.

Brownrigg, Edwin B., and Clifford A. Lynch. "Electrons, Electronic Publishing, and Electronic Display." Information Technology and Libraries 4, no.3 (1985): 201-207.

Duggan, Mary Kay. "Copyright of Electronic Information: Issues and Questions." Online 15, no.3 (1991): 20-26.

"Electronic Libraries: The Pros and Cons of Multimedia Access Copyright Issues." Information Technology and Libraries 11, no.1 (1992): 59-61.

Garrett, John R. "Text to Screen Revisited: Copyright in the Electronic Age." Online 15, no.2 (1991): 22-24.

Jensen, Mary Brandt. "Making Copyright Work in Electronic Publishing Models." Serials Review 18, nos.1-2 (1992): 62-65.

Kost, Robert. "Technology Giveth..." Serials Review 18, nos. 1-2 (1992): 67-70.

Lowry, Anita. "Landlords and Tenants: Who Owns Information, Who Pays for It, and How?" The Serials Librarian 23, nos. 3-4 (1993): 61-71.

Peters, Paul Evan. "Making the Market for Networked Information: An Introduction to a Proposed Program for Licensing Electronic Uses." Serials Review 18, nos.1-2 (1992): 19-24.

Proceedings of the North American Serials Interest Group, Inc. 7th Annual Conference, June 18-21, 1992. "Copyright and Licensing in the Electronic Environment." The Serials Librarian 23, nos. 3-4 (1993): 143-147.

Thatcher, Sanford G. "Towards the Year 2001." Scholarly Publishing 24, no.1 (1992): 25-37.

Williamson, Robin. "The Knowledge Warehouse." Journal of Information Science: Principles & Practice 13, no.4 (1987): 253-257.


[1] The rights of public libraries and archives are greater than those of libraries and archives in commercial enterprises. See the discussion under copyright law on reproduction in libraries. This paper is concerned with the rights of public libraries.

[2] "A 'work made for hire' is-- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a 'supplementary work' is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an 'instructional text' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities." (United States Code, Title 17, Section 101)

[3] United States Code, Title 17, Section 201.

[4] United States Code, Title 17, Section 105.

[5] The Act (United States Code, Title 17, Section 303) also applies this term to works created before this date but which have neither been in the public domain nor copyrighted (essentially, unpublished works). Under the common law, these works, whose authors may have been dead for more than 50 years, would have perpetual copyright protection (until publication, when the statutory term would apply). By substituting a statutory term for the common law protection, the Act ensures that they will enter the public domain before too long. The Act provides that copyright in these works shall not expire before December 31, 2002; to encourage publication, it also provides that if a work is published before that date, its copyright shall not expire before December 31, 2027.

[6]United States Code, Title 17, Section 302.

[7] United States Code, Title 17, Section 304.

[8] United States Code, Title 17, Section 203. For existing copyrights, grants can be terminated when the 19 years by which the copyright is extended begins (Section 304).

[9] Enumerated in United States Code, Title 17, Sections 107-120.

[10] "'Copies' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." (United States Code, Title 17, Section 101)

[11] "A 'derivative work' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'." (United States Code, Title 17, Section 101)

[12] "'Publication' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending." (United States Code, Title 17, Section 101)

[13] "To 'perform' a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible." (United States Code, Title 17, Section 101)

[14] "To 'display' a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially." United States Code, Title 17, Section 101)

[15] United States Code, Title 17, Section 106.

[16] United States Code, Title 17, Section 107.

[17] Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law (1961) in U.S. Copyright Documents.

[18] United States Code, Title 17, Section 107.

[19] Not including musical, pictorial, graphic, sculptural, or audiovisual work (other than news reports), except for purposes of preservation or replacing copies that can't be obtained at a fair price.

[20] United States Code, Title 17, Section 108.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] U.S. House of Representatives. Report No. 94-1733: Copyright Law Revision in U.S. Copyright Documents.

[25] United States Code, Title 17, Section 108.

[26] United States Code, Title 17, Section 109. Sections 110 and 111 exempt certain kinds of displays, including displays "in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom."

[27] U.S. House of Representatives. Report No. 94-1476: Copyright Law Revision in U.S. Copyright Documents.

[28] OTA report, foreword.

[29] OTA report, p.97.

[30] OTA report, p.8.

[31] Even this isn't long enough for some copyright holders who own copyrights of enduring value (such as those for motion pictures): They want Congress to grant them longer terms.

[32] Chicago Manual of Style, p.118.

[33] Thatcher, p.31.

[34] Thatcher, p.34.

[35] Thatcher, p.33.

[36] Bald, p.8.

[37] Bald, p.9.

[38] United States Code, Title 15 , Section 1; quoted in Lewson, Nancy B. "The Videocassette Rental Controversy: The Future State of the Law." (Weil, p.358.)

[39] A related scheme is a proposal for adding a royalty fee to every blank videotape that is sold, with fees to be distributed by some method to owners of copyrighted works. Of course, this means that fair use copying (for example, copying to view at a later time) would be effectively abolished.

[40] Brownrigg, p.206.


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