Annual Meeting Coverage

Report from Technical Session

The Clash of Stakeholders on the Information Superhighway: Will Public Interest and Fair Use Survive?

Reported by Steve Hardin

Technical Session sponsored by Special Interest Groups/Information Generation and Publishing (PUB), History and Foundations of Information Science (HFIS) and Information Policy (IFP)

Speakers:

Allan A. Adler

Association of American Publishers

Adam M. Eisgrau

American Library Association

Jeff Rosedale

Columbia University Libraries

Moderator: Pascal V. Calarco, Yale University

Attorneys representing library and publisher interests teamed up with a librarian to present a lively discussion on copyright and fair use at the ASIS Annual Meeting in Washington. Leading off the discussion was Adam Eisgrau, legislative counsel for the American Library Association's Washington Office. He reminded the audience that the U.S. Constitution states the goal of copyright is "to promote the progress of science and useful arts." He said the current translation of that 18th-century language is the "promotion of the flow of information in a democracy." How do we now go about implementing the constitutional vision of copyright structure in the face of changing technology?

In September of 1995, the Working Group on Intellectual Property of the Clinton Administrationís Information Infrastructure Task Force released its White Paper, the premise of which is that we need to protect content on the information superhighway. The next month, in direct response to the White Paper, various interested parties formed the Digital Future Coalition, whose members were concerned with what was missing from the White Paper. Eisgrau said they were seeking a copyright law update for a digital environment which balances the strong protection of intellectual property with access.

At the World Intellectual Property Organization (WIPO) discussions in Geneva, treaties incorporating some White Paper ideas were considered. But we wound up with much more generalized, more balanced, treaties, he said. Now the treaties must be implemented. We have the opportunity to implement both the letter and the spirit of the treaties and determine what we need and want the law to be in the digital environment. The implementing legislation has been introduced in Congress, along with an alternative measure, the Ashcroft Bill, S.1146.

Eisgrau said the idea behind S.1146 is not to burden schools and other organizations with the legal liability that prevents them from being on-ramps to the information superhighway. We need to find access provisions to expand capabilities for educators and libraries. We also need to provide protection for those whom we want to protect.

Attorney Allan Adler, of the Association of American Publishers, spoke next. He pointed out that works are not originally created by corporations; they are created by individuals. So despite the attractive notion that copyright battles pit users against multinational monsters, itís not so. There are individuals on both sides. The Constitution doesnít define fair use. Those who want to use it want fair use to be a categorical right. But it is not, Adler said; it is a situational, case-by-case doctrine. When Congress codified fair use in the Copyright Act of 1976, it set forth specific criteria for the definition. The act states very specific limitations on the use of copyrighted material by libraries and educators. It maintains a balance. The debate is different now, Adler said, only because many of the parties in the dispute are being more difficult because they are unsure what the future holds for them.

It is not surprising, Adler said, that the user communities Ė including librarians and educators Ė want to have incredible abilities to reproduce and distribute information. The problem is those are precisely the business of publishers. Adler said he was happy Eisgrau said that the WIPO treaties were balanced. The problem with the Ashcroft Bill, S.1146, is that, in his opinion, it is not. It provides far too much protection to fair use. Adler said the United States has the highest standards in the world to protect the rights of creators of intellectual property. WIPO brings the standards of other nations up to the standards of the U.S. What is included in WIPO is neither radical nor new.

Legislation under consideration in Congress would prohibit trafficking in devices to circumvent technological measures to protect the rights of a copyright holder. It would not prohibit the act of circumvention in such cases, thereby not imposing liability on the user who circumvents the anti-copying measure to engage in fair use copying. This legislation, Adler says, represents a significant compromise by the copyright community because it also means the legislation would not impose liability for circumventing anti-copying technology even when the copying would not constitute fair use. The compromise, however, does not apply to the legislationís provisions dealing with technological measures intended to control access to a copyrighted work because fair use does not give anyone a right of access to a work. Adler concluded by telling his audience members that when they become the publishers of the future, they will think about copyright differently, especially when they donít have the legal department of the corporation to protect their rights as publishers.

Next, the audience heard from Jeff Rosedale, the acting director of access services for Columbia University Libraries. He began by discussing commonalities; after all, some of the debate about fair use goes beyond self-interest. The partiesí interests are not identical, but we share certain core values on learning and understanding. All of us can think of intellectual property in more than dollars and cents. He said he prefers the term "shareholders" to "stakeholders."

Thanks to collaboration between partners, shareholders are learning together about each other and the conditions that new technologies are creating. For example, IBM has teamed up with Marist College and others to create electronic reserves systems. Many library system vendors are integrating an awareness of electronic reserves into their products, too. Bookstores have helped out in the permissions process at some sites. University presses have indicated a willingness to acknowledge fair use in the electronic reserves context. Rosedale noted that libraries want reasonable use of copyrighted material, not unlimited use as Adler had suggested. Even with all of the electronic reserves systems that incorporate some notion of fair use, most full-text resources in the digital library will still be provided through agreements with publishers.

Designers, he said, should plan for some restrictions of access to electronic reserves services that invoke fair use. Funders should consider establishing permissions budgets if they plan to establish electronic reserves systems that include commercial publications. In the electronic world, fair use may turn out to be more restrictive because of the ease of copying and distribution. There may be problems with economics if permissions fee structures become unwieldy, and faculty may not understand restrictions on their use of materials.

Rosedale views the Copyright Clearance Centerís electronic reserves permissions service as a good foundation upon which to build when permissions are required. It is not perfect, but it represents an acknowledgment on the part of the rightsholders that some such mechanism is needed. In conclusion, Rosedale said it is his belief that if we use intellectual property to support the constitutional value of progress in science and the useful arts, all the shareholders will get valuable returns on their collective investments.

During the question period, one audience member said she was more concerned about the database bill, which, she said, seems to be the biggest threat. Eisgrau responded that the question is who can access information at various times and circumstances. Low-work database providers are seeking protection from people who will just copy large portions of their databases. Legislation has been introduced which may allow perpetual protection of databases. Adler said the legislation probably will not be passed in the 105th Congress. He added that unless people who make the investments (time, money, angst) are compensated, the user community will be deprived of the information anyway because it will not be created.

After the question period, each speaker gave a summation of his thoughts. Rosedale referred to the Conference on Fair Use (CONFU) and its failure thus far to develop a set of fair use guidelines for electronic reserves systems. He said he is pleased that the impasse has not created the paralysis he feared it would. He called on audience members to educate themselves and not leave their users in the lurch in this time of change and opportunity.

Adler acknowledged that none of these issues is easy. All the positions have well-armed constituencies ready to do battle. The WIPO legislation is not a reason to rewrite copyright law for the digital age, he said. If we do not implement the WIPO treaties, we will have no more protection around the world than we do today. Letís implement WIPO treaties, he said, and maybe weíll have some common ground from which to work.

Eisgrau concluded by saying that there is a danger that fair use is not adequately protected by the implementation legislation for the WIPO treaties. Opponents of a broader interpretation of fair use are calling some of the provisions of the Ashcroft Bill "extraneous issues" that should not be included in the legislation. That notion should be put to rest, he said. He called on everyone to urge the U.S. government to implement what happened at WIPO. If we are to have balance, we should have complete balance.

Steve Hardin is associate librarian, Cunningham Memorial Library, Indiana State University. Before launching his career in librarianship, Steve was a broadcast journalist. He is currently serving a term as ASIS director-at-large.