The Chronicle of Higher Education
Date: September 20, 1996
Section: Information Technology
By Goldie Blumenstyk
Arlington, Va. -- Professors who want to transmit copyrighted music or photographs in their televised classes may soon have a new source of advice on what they can freely use. But librarians hoping for comparable guidance on "fair use" of such materials could be out of luck for now.
A group representing 100 publishing, library, and academic organizations has worked for two years to produce guidelines for educators and scholars who want to comply with copyright law in their use of digital documents and images. Now winding down its work, the group reports agreement in some areas and an agreement to disagree in others.
The parties have tried to develop guidelines for such practices as distance learning and interlibrary loans as a way of avoiding costly legal fights that pit publishers and other copyright owners against educators and their institutions.
Under the "fair use" provision in copyright law, people or institutions engaged in scholarly and educational pursuits need not obtain permission for certain uses of copyrighted material. But the law is open to interpretation on what such uses could be.
Similar guidelines produced in the late 1970s on the use of photocopied materials in classrooms and on the sharing of journals by libraries have been use by courts and others to help define when an activity is a fair use.
The emergence of new technologies, however, has raised new kinds of questions, such as how much of a television show or musical excerpt a professor can use in creating a multimedia product for classroom use without infringing on the rights of the copyright owner.
The Clinton Administration had little to say about fair use in the legislation it sent to Congress a year ago seeking changes in copyright law for the digital age. Instead, it has relied on the Conference on Fair Use, which it had convened in September 1994, to hash out these issues.
In some areas, such as distance learning and the creation of multimedia products, committees of the conference have reached agreement on when educators and students may use copyrighted material without obtaining permission or paying a fee.
But the parties have failed to agree on fair-use guidelines for the sharing of digital material among libraries. They also could not agree on policies for "reserve" readings that libraries can make available in digital formats, allowing students to gain access to them over computer networks.
At a meeting here this month, participants said it was unlikely that the parties working on these topics would be able to find enough common ground to produce guidelines by November, when the conference is to hold its last meeting. Its final report is expected in early December.
The library issues were particularly difficult, the participants said, because publishers are making their own plans for selling electronic versions of books and journals. Eventually they expect to deliver full or partial versions of books and journals to customers through the Internet or other on-line services. They question the need for interlibrary loans if they can provide the electronic materials conveniently and affordably.
Librarians have maintained that existing interlibrary-loan guidelines -- written with printed materials in mind -- can still be applied in the digital environment, because so little is known about how publishers would price and sell their digital products.
As a result, the publishers and librarians in the negotiating group decided that they could not define fair-use guidelines for such material until they had a clearer picture of how the electronic-publishing business would operate.
Although many publishers have been slow to embrace the new technologies, the Association of American Publishers last week announced that it had hired a team to develop a system for giving digital documents a unique identifier, much like the International Standard Book Number for print publications. Developing this identifier, which the association likened to an "electronic license plate," is widely regarded as essential groundwork for creating an on-line market.
New technology making it easier and cheaper to scan printed books and journals into computers and then electronically reproduce and deliver copies of them has raised the publishers' interest in devising guidelines for digital copying of printed originals. But they and the librarians reached an impasse.
Publishers want stricter rules, arguing that a fair-use exemption would further encourage the libraries to rely on digital copies and cut back on paper subscriptions. Librarians, who want looser rules, said it wasn't technology but such factors as their budgets and their own priorities for collecting that determine their subscription policies.
Participants in the conference here said they were sorry that the groups could not agree on the library issues, but a few also noted that guidelines would be valuable only if both sides were comfortable with them.
"It would have been nice to have documents of understanding," said Mary E. Jackson, a representative of the Association of Research Libraries. But without agreement, she said, "there's no guarantee that a publisher will not sue" someone who followed guidelines.
She and other participants also recognized that guidelines offer no ironclad protection for users of copyrighted material. But the more a particular guideline is endorsed and becmes generally accepted, the more likely it is that courts would take it into account in ruling on a copyright-infringement case, she said.
Even limited agreement in some areas is better than none at all, Bruce A. Lehman, an Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, told the participants in the meeting. Without this kind of guidance, he said, a court case "would almost be like Russian roulette, and some people would end up with a bullet hole in the head."
Mr. Lehman and other conference participants said they also hoped to have Congress include the group's guidelines in the report that accompanies the next major piece of copyright legislation.
The guidelines that the group has succeeded in developing cover distance learning, software uses in libraries, the use of digital images, and the use of copyrighted material in multimedia works created by educators.
Even those successes, however, have their limits. The distance-learning guideline, for example, does not apply to courses taught over computer networks and received by various students at different times. Participants said fair use should apply to such instruction, but because the courses are still relatively experimental -- and publishers and software developers are still weighing how they might sell such educational material themselves -- the parties said it would be wise to wait three to five years before trying to devise applicable guidelines.
Until the guidelines appear in their final form, it is uncertain how many of the parties represented at the conference -- or other business and academic groups -- will endorse and follow them.