Confused by Copyright? Blame Industry.

Titles referred to in this post

• Jessica Litman (2006), Digital copyright,chps. 1-6
• Carrie Russel (2004), Complete copyright: An everyday guide for librarians, chpt. 2
• Mary Rasenberger & Chris Weston, (2005). Overview of the libraries and archives exception in the copyright act: Background, history, and meaning [Section 108]

Working at a small liberal arts library, questions of copyright and fair use come constantly into play, especially concerning electronic reserves and inter library loan. While I have worked at this college for over a year, I never felt that I knew the why or how of copyright and fair use; I simply picked things up from overhearing them. I did not even know if the things I followed, such as any more than 10 % of text being used for teaching was a violation of fair use, were even true. Only after reading the selections I have listed above do I now feel like I even begin to understand the why of copyright and where libraries rights actually fit. In this post, I want explore why I believe, based on what I learned from the above readings, my knowledge, and indeed the knowledge of my fellow librarians, is so spotty concerning this issue. The answer? The law was not written for us.

Both Litman and Rasenberger & Weston provide insight into why copyright and fair use confuses so many of us (including me!). Litman, not hiding her distaste for current copyright directions and industry, explores in detail how copyright law in the 20th century has become a process of industry pandering, with congress pushing copyright decisions onto current industry stakeholders, thereby avoiding political heat. It also resulted in a law that is full of detailed, narrow exceptions based on complex compromises with little thought for the future. While her clear bias this does make me wonder what the other side of the issue might have to say about this, after reading Russle and Rasenberger & Weston, I am inclined to agree with her assessment of both the state and cause of the law. Now, I admit that I also tend towards anti-corporate leanings, which means that I am naturally inclined to agree with Litman. However, her claims are backed up by Rasenberger and Weston in their analysis of section 108 of the current copyright law which governs library photocopying rights. In their article, they discuss how book publishers being concerned over losing any profit due to copying held up any type of law from being created on this matter until 1976, over 15 years since a law about this issue was first proposed. In the end, the law, in total around 3 pages, due to the nature of exceptions based on publishers insistence, takes Rasenberger and Weston over nine pages to explain

So, corporations are in control of our copyright, causing it to be narrow and confusing and not built for the public to understand. Because of this, copyright and fair use continues to confuse librarians and continuing to leave copyright in the hands of industry will, I believe, not change this situation. Why? In my biased, liberal view (which seems to have been borne out in the squabbles that caused copyright to remain unchanged from 1909 to 1976!), corporations have one goal in mind: survival through competition crushing. This goal seems to backed up not only by the simple fact that industry kept copyright at a standstill from 1909 to 1976 due to inter party squabbles, something just amazing to me, but in specific, more recent actions as well. One situation that stands out in my mind is when Litman discusses how cable companies negotiated with congress to make the new satellite companies pay more to broadcast copyrighted programs compared to themselves.

This control by corporations seems to have led directly to some of the current issues we now face in the so called "digital" age. One only has to look at some of the current video game companies and their use of DRM (Digital Rights Management), which forces a person to be online and monitored every time they play in order to prevent the legal purchaser from installing the game on numerous computers to see where corporations concerned about profit making decisions about law has led. And due to this, librarians live in fear of making the corporations angry, breaking one of the many laws that fill the books, not even able to understand sections 107 and 108 of the 1976 copyright law, the ones that apply to them most directly. As Rasenberger and Weston's quoting of the laws show, they are filled with warnings against any crossing the line, and filled with words like "fair" as in "the library must first consult the copyright owner and trade sources to determine that an used or unused copy cannot be purchased at a fair price" (section 108e in H.R. REP. No. 94-1476, at 75-6). What is a fair price? Given this ambiguity in language and the frequent mention of the severe penalties of breaking the law, as well as in recent years, the increase in lawsuits over digital piracy, is it any surprise that libraries are not only confused but afraid of what the corporations might do if they even try to exercise their law given rights?

Three Possible Solutions

So what can be done? While rewriting copyright law as three pages of prose that some one in grade school could understand, as Litman suggests, would be ideal, it is probably not the reality. One thing that can be done is to write to one's congressperson and let them know that copyright is something that should be maintained with the public consumer in mind, without who the copyright interest holders would not exist. Push for transparency in copyright discussions, and push for them to get involved and not just pawn it off on people with vested interests in making money from publishing and production. Congress might not listen, but it is a goal for which to shoot

Another thing is to be educated. A great place to start is Russel's book. Use it to educate yourself and staff at wherever you work. Through this book, for example, I found out that what my College is currently considering law is in fact only from a guideline called the Classroom Copying Guidelines . It is not binding and was meant as a guideline for minimum use, not maximum. That 10% of a book rule? Not true at all. If one can make a case more of the work is essential for teaching or general education and that it will not be in such great use that it will hurt the companies profit, one can use more! Many libraries believe that these guidelines are indeed the word and letter of the law, but this comes from lack of education and study. The truth is fair use is far more wiggly than that, and it requires judgement calls that are more complex than a simple checklist. Because of this, education is essential, and Russell's book is an excellent place to start.

Finally, an strong copyright policy and especially fair use policy is essential for a library to have in place. While this is never specifically mentioned, and I am in no way a policy expert, I think such a guideline would be essential to maintain consistent use so that patrons do not get confused over different people giving them different privileges. It should be based on the guidelines, but should allow for broader interpretation. I admit, I am not sure how such a policy could be made to be consistent but still flexible enough to handle the amount of factors that go into determining if something is correct under fair use and copyright, though. What do you, my possible readers, think?