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PETERS * Several cautions concerning copyright in an electronic
environment * Review of copyright law in the United States * The notion
of the public good and the desirability of incentives to promote it *
What copyright protects * Works not protected by copyright * The rights
of copyright holders * Publishers' concerns in today's electronic
environment * Compulsory licenses * The price of copyright in a digital
medium and the need for cooperation * Additional clarifications * Rough
justice oftentimes the outcome in numerous copyright matters * Copyright
in an electronic society * Copyright law always only sets up the
boundaries; anything can be changed by contract *
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Marybeth PETERS, policy planning adviser to the Register of Copyrights,
Library of Congress, made several general comments and then opened the
floor to discussion of subjects of interest to the audience.
Having attended several sessions in an effort to gain a sense of what
people did and where copyright would affect their lives, PETERS expressed
the following cautions:
* If one takes and converts materials and puts them in new forms,
then, from a copyright point of view, one is creating something and
will receive some rights.
* However, if what one is converting already exists, a question
immediately arises about the status of the materials in question.
* Putting something in the public domain in the United States offers
some freedom from anxiety, but distributing it throughout the world
on a network is another matter, even if one has put it in the public
domain in the United States. Re foreign laws, very frequently a
work can be in the public domain in the United States but protected
in other countries. Thus, one must consider all of the places a
work may reach, lest one unwittingly become liable to being faced
with a suit for copyright infringement, or at least a letter
demanding discussion of what one is doing.
PETERS reviewed copyright law in the United States. The U.S.
Constitution effectively states that Congress has the power to enact
copyright laws for two purposes: 1) to encourage the creation and
dissemination of intellectual works for the good of society as a whole;
and, significantly, 2) to give creators and those who package and
disseminate materials the economic rewards that are due them.
Congress strives to strike a balance, which at times can become an
emotional issue. The United States has never accepted the notion of the
natural right of an author so much as it has accepted the notion of the
public good and the desirability of incentives to promote it. This state
of affairs, however, has created strains on the international level and
is the reason for several of the differences in the laws that we have.
Today the United States protects almost every kind of work that can be
called an expression of an author. The standard for gaining copyright
protection is simply originality. This is a low standard and means that
a work is not copied from something else, as well as shows a certain
minimal amount of authorship. One can also acquire copyright protection
for making a new version of preexisting material, provided it manifests
some spark of creativity.
However, copyright does not protect ideas, methods, systems--only the way
that one expresses those things. Nor does copyright protect anything
that is mechanical, anything that does not involve choice, or criteria
concerning whether or not one should do a thing. For example, the
results of a process called declicking, in which one mechanically removes
impure sounds from old recordings, are not copyrightable. On the other
hand, the choice to record a song digitally and to increase the sound of
violins or to bring up the tympani constitutes the results of conversion
that are copyrightable. Moreover, if a work is protected by copyright in
the United States, one generally needs the permission of the copyright
owner to convert it. Normally, who will own the new--that is, converted-
-material is a matter of contract. In the absence of a contract, the
person who creates the new material is the author and owner. But people
do not generally think about the copyright implications until after the
fact. PETERS stressed the need when dealing with copyrighted works to
think about copyright in advance. One's bargaining power is much greater
up front than it is down the road.
PETERS next discussed works not protected by copyright, for example, any
work done by a federal employee as part of his or her official duties is
in the public domain in the United States. The issue is not wholly free
of doubt concerning whether or not the work is in the public domain
outside the United States. Other materials in the public domain include:
any works published more than seventy-five years ago, and any work
published in the United States more than twenty-eight years ago, whose
copyright was not renewed. In talking about the new technology and
putting material in a digital form to send all over the world, PETERS
cautioned, one must keep in mind that while the rights may not be an
issue in the United States, they may be in different parts of the world,
where most countries previously employed a copyright term of the life of
the author plus fifty years.
PETERS next reviewed the economics of copyright holding. Simply,
economic rights are the rights to control the reproduction of a work in
any form. They belong to the author, or in the case of a work made for
hire, the employer. The second right, which is critical to conversion,
is the right to change a work. The right to make new versions is perhaps
one of the most significant rights of authors, particularly in an
electronic world. The third right is the right to publish the work and
the right to disseminate it, something that everyone who deals in an
electronic medium needs to know. The basic rule is if a copy is sold,
all rights of distribution are extinguished with the sale of that copy.
The key is that it must be sold. A number of companies overcome this
obstacle by leasing or renting their product. These companies argue that
if the material is rented or leased and not sold, they control the uses
of a work. The fourth right, and one very important in a digital world,
is a right of public performance, which means the right to show the work
sequentially. For example, copyright owners control the showing of a
CD-ROM product in a public place such as a public library. The reverse
side of public performance is something called the right of public
display. Moral rights also exist, which at the federal level apply only
to very limited visual works of art, but in theory may apply under
contract and other principles. Moral rights may include the right of an
author to have his or her name on a work, the right of attribution, and
the right to object to distortion or mutilation--the right of integrity.
The way copyright law is worded gives much latitude to activities such as
preservation; to use of material for scholarly and research purposes when
the user does not make multiple copies; and to the generation of
facsimile copies of unpublished works by libraries for themselves and
other libraries. But the law does not allow anyone to become the
distributor of the product for the entire world. In today's electronic
environment, publishers are extremely concerned that the entire world is
networked and can obtain the information desired from a single copy in a
single library. Hence, if there is to be only one sale, which publishers
may choose to live with, they will obtain their money in other ways, for
example, from access and use. Hence, the development of site licenses
and other kinds of agreements to cover what publishers believe they
should be compensated for. Any solution that the United States takes
today has to consider the international arena.
Noting that the United States is a member of the Berne Convention and
subscribes to its provisions, PETERS described the permissions process.
She also defined compulsory licenses. A compulsory license, of which the
United States has had a few, builds into the law the right to use a work
subject to certain terms and conditions. In the international arena,
however, the ability to use compulsory licenses is extremely limited.
Thus, clearinghouses and other collectives comprise one option that has
succeeded in providing for use of a work. Often overlooked when one
begins to use copyrighted material and put products together is how
expensive the permissions process and managing it is. According to
PETERS, the price of copyright in a digital medium, whatever solution is
worked out, will include managing and assembling the database. She
strongly recommended that publishers and librarians or people with
various backgrounds cooperate to work out administratively feasible
systems, in order to produce better results.
In the lengthy question-and-answer period that followed PETERS's
presentation, the following points emerged:
* The Copyright Office maintains that anything mechanical and
totally exhaustive probably is not protected. In the event that
what an individual did in developing potentially copyrightable
material is not understood, the Copyright Office will ask about the
creative choices the applicant chose to make or not to make. As a
practical matter, if one believes she or he has made enough of those
choices, that person has a right to assert a copyright and someone
else must assert that the work is not copyrightable. The more
mechanical, the more automatic, a thing is, the less likely it is to
be copyrightable.
* Nearly all photographs are deemed to be copyrightable, but no one
worries about them much, because everyone is free to take the same
image. Thus, a photographic copyright represents what is called a
"thin" copyright. The photograph itself must be duplicated, in
order for copyright to be violated.
* The Copyright Office takes the position that X-rays are not
copyrightable because they are mechanical. It can be argued
whether or not image enhancement in scanning can be protected. One
must exercise care with material created with public funds and
generally in the public domain. An article written by a federal
employee, if written as part of official duties, is not
copyrightable. However, control over a scientific article written
by a National Institutes of Health grantee (i.e., someone who
receives money from the U.S. government), depends on NIH policy. If
the government agency has no policy (and that policy can be
contained in its regulations, the contract, or the grant), the
author retains copyright. If a provision of the contract, grant, or
regulation states that there will be no copyright, then it does not
exist. When a work is created, copyright automatically comes into
existence unless something exists that says it does not.
* An enhanced electronic copy of a print copy of an older reference
work in the public domain that does not contain copyrightable new
material is a purely mechanical rendition of the original work, and
is not copyrightable.
* Usually, when a work enters the public domain, nothing can remove
it. For example, Congress recently passed into law the concept of
automatic renewal, which means that copyright on any work published
between l964 and l978 does not have to be renewed in order to
receive a seventy-five-year term. But any work not renewed before
1964 is in the public domain.
* Concerning whether or not the United States keeps track of when
authors die, nothing was ever done, nor is anything being done at
the moment by the Copyright Office.
* Software that drives a mechanical process is itself copyrightable.
If one changes platforms, the software itself has a copyright. The
World Intellectual Property Organization will hold a symposium 28
March through 2 April l993, at Harvard University, on digital
technology, and will study this entire issue. If one purchases a
computer software package, such as MacPaint, and creates something
new, one receives protection only for that which has been added.
PETERS added that often in copyright matters, rough justice is the
outcome, for example, in collective licensing, ASCAP (i.e., American
Society of Composers, Authors, and Publishers), and BMI (i.e., Broadcast
Music, Inc.), where it may seem that the big guys receive more than their
due. Of course, people ought not to copy a creative product without
paying for it; there should be some compensation. But the truth of the
world, and it is not a great truth, is that the big guy gets played on
the radio more frequently than the little guy, who has to do much more
until he becomes a big guy. That is true of every author, every
composer, everyone, and, unfortunately, is part of life.
Copyright always originates with the author, except in cases of works
made for hire. (Most software falls into this category.) When an author
sends his article to a journal, he has not relinquished copyright, though
he retains the right to relinquish it. The author receives absolutely
everything. The less prominent the author, the more leverage the
publisher will have in contract negotiations. In order to transfer the
rights, the author must sign an agreement giving them away.
In an electronic society, it is important to be able to license a writer
and work out deals. With regard to use of a work, it usually is much
easier when a publisher holds the rights. In an electronic era, a real
problem arises when one is digitizing and making information available.
PETERS referred again to electronic licensing clearinghouses. Copyright
ought to remain with the author, but as one moves forward globally in the
electronic arena, a middleman who can handle the various rights becomes
increasingly necessary.
The notion of copyright law is that it resides with the individual, but
in an on-line environment, where a work can be adapted and tinkered with
by many individuals, there is concern. If changes are authorized and
there is no agreement to the contrary, the person who changes a work owns
the changes. To put it another way, the person who acquires permission
to change a work technically will become the author and the owner, unless
some agreement to the contrary has been made. It is typical for the
original publisher to try to control all of the versions and all of the
uses. Copyright law always only sets up the boundaries. Anything can be
changed by contract.
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