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Outlined here are copyright milestones, especially those of interest in particular to libraries and information service providers. Summaries are included for major court cases and revisions to the U.S. Copyright Act. Included also are recent activities undertaken by the U.S. Commerce Department in its efforts to develop the National Information Infrastructure. This timeline is considered a work in progress and suggestions for additions are welcome. Send comments to Patricia Brennan (patricia@arl.org).
Copyright law as we know it began in England in 1710 when the British Parliament enacted the Statute of Anne. The Statute of Anne contained, for the first time in copyright law, legal protection for consumers of copyrighted works by curtailing the term of a copyright thus, preventing a monopoly on the part of the booksellers. It also created a "public domain" for literature by requiring the creation of a new work in order to obtain a copyright, by limiting the length of term of a copyright, and by limiting the rights granted to the copyright owner (print, publish, and sell) so that once purchased the copyright owner does not control the use of the work. The statute also provided for an author's copyright - although the benefit to authors was minimal because in order to be paid for a work an author had to assign the work to a bookseller or publisher.
Since the Statute Anne almost three hundred years ago, copyright law has been revised to broaden the scope of what is covered by a copyright, to change the term of a copyright, and to incorporate new technologies. At this writing, governments in the U.S. and Canada are considering copyright reform. At the same time, the World Intellectual Property Organization (WIPO) is addressing a number of proposals for changes to meet the global information infrastructure. In addition, the courts continue to address copyright; currently we are watching with interest the Michigan Document Services Fair Use Case.
Copyright law in the US is derived from English copyright law (Statute of Anne) and common law. The framers of the U.S. Constitution made copyright law purely federal: "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 rights to their respective writings and discoveries." Congress subsequently enacted the Copyright Act of 1790 and major revisions to it in 1831, 1870, 1909, and 1976.
This case is the source of the fair use doctrine in the United States. At issue was use of George Washington's private letters in the creation of a fictionalized biography of the President without the permission of the owner of the letters. The court found that there was not an infringement and in handing down the decision Justice Storey stated: "In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale or diminish the profits, or supersede the objects, of the original work."
The goals of the Berne Convention provide the basis for mutual recognition of copyright between sovereign nations in foreign works and promote development of international norms with regard to copyright protection. The Convention was a diplomatic joinder of European nations seeking to establish a mutually satisfactory uniform copyright law to replace the need for separate registration in every country. It has been revised five times since 1886. Of particular note are the revisions in 1908 and 1928. In 1908, the Berlin Act set the duration of copyright at life of the author plus 50 years, expanded the scope of the act to include newer technologies, and prohibited formalities as a prerequisite of copyright protection. In 1928, the Rome Act first recognized the moral rights of authors and artists - giving them the right to object to modifications or to the destruction of a work in a way that might prejudice or decrease the artist's reputation. In 1988, the United States became a Berne signatory.
A major revision of the U.S. Copyright Act was completed in 1909. Key aspects of this revision are: a broadening of the scope of categories protected to include all works of authorship, and an extension of the number of years in a renewal term (14-28) for a total of 56 years of protection. With this legislation, the attention is focused away from regulating the marketplace to proprietary rights. In addressing new categories of materials available for copyright the Congress addressed the difficulty of balancing the public interest with proprietor's rights. The House report states:
"The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests." H.R. Rep. No. 2222 60th Cong., 2nd Sess.7 (1909).
Williams and Wilkins, publishers of specialized medical journals, sued the National Library of Medicine (NLM) and the National Institute of Health (NIH) charging that the agencies had infringed copyrighted journals by making unauthorized photocopies of articles featured within those publications and distributing them to medical researchers. The court felt that medicine, and medical research would be harmed by finding an infringement, and since the Copyright Act was under revision by Congress, it was better to allow the status quo to continue in the interim.
The 1976 revision was undertaken for two primary reasons. First, technological developments and their impact on what might be copyrighted, how works might be copied, and what constituted an infringement needed to be addressed. Second, the revision was undertaken in anticipation of Berne Convention adherence by the U.S. It was felt that the statute needed to be amended to bring the United States into accord with international copyright law, practices, and policies. The 1976 Act preempted all previous copyright law in the United States. The Act covered the following areas: Scope and Subject Matter of Works Covered, Exclusive Rights, Copyright Term, Copyright Notice and Copyright Registration, Copyright Infringement, Fair Use and Defenses and Remedies to Infringement. With this revision, for the first time the fair use and first sale doctrines were codified, and copyright was extended to unpublished works. In addition a whole new section was added that dealt with libraries, Section 108, that allows library photocopying without permission for purposes of scholarship, preservation, and interlibrary loan.
In addition to Section 108, Section 107 is of great importance to the work of libraries since it contains an exception to the exclusive rights of owners to make and distribute copies of their works. It states that "for purposes such as criticism, comment, news, reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. To determine whether the use of a work is a fair use, the following four factors are to be considered: purpose and character of the use, nature of the copyrighted work, the amount and substantiality of the portion used in relation to the whole, and the effect of the use on the potential market.
In addition to the legislative reform private negotiations between owners and users of copyrighted materials resulted in guidelines for classroom and educational use, and reserve room use. These guidelines were not part of the statute but did get included in the legislative history.
The National Commission on New Technological Uses of Copyrighted Works (CONTU) was appointed by Congress in 1976 to establish guidelines for the "minimum standards of educational fair use" under the 1976 Act. Guidelines were set for copying for interlibrary loan.
The Board of Cooperative Educational Services, a consortium of public school districts, was sued by Encyclopedia Britannica (EB) for systematically taping educational programs that were broadcast on public television stations and making copies available to member schools. The court found that the actions of the school board would have a detrimental effect on the market of the commercially produced programs and that the use was not a fair use.
Burtchaell wrote a book that aimed to educate the public about abortions. He sought and was denied permission to excerpt from a book by Maxtone-Graham that contained interviews with women about their experiences with pregnancy and abortion. The court found in favor of the defendants in all four fair use factors.
A second circuit appeals court found that use (not copying but quoting or paraphrasing) of unpublished materials in an unauthorized biography of J.D. Salinger was not fair use.
The United States became a Berne signatory and it was effective in Statutory law. The major changes for the U.S. copyright system as a result of Berne were: greater protection for proprietors, new copyright relations with 24 additional countries, and elimination of the requirement of a copyright notice on a copyrighted work.
Congress amended the Copyright Act to prohibit commercial lending of computer software. The amendment noted that libraries could lend software provided "copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright." This amendment is a modification of the first sale doctrine.
Congress amended the Copyright Act to ensure that state universities would not be immune from being sued for monetary damages in federal court. State and private universities are now subject to the same copyright regulations, and may be sued for copyright infringement. (The eleventh amendment to the U.S. constitution precludes states from being sued in federal courts.)
[As this goes to press, the Supreme Court is looking at another case that raises questions about the constitutionality of this amendment.]
A Federal District Court in New York ruled that Kinko's Graphic Corporation infringed copyrights, and did not exercise fair use, when it photocopied "coursepacks" that included book chapters, and then sold them to students for classwork. The court found that most of the fair use factors worked against Kinko's in this case, especially given Kinko's profit motive in making the copies. Additionally, the court found that the classroom guidelines did not apply to Kinko's. The court did not rule that coursepacks cannot constitute fair use in other circumstances.
The Supreme Court found that the compilation of a telephone directoryby Feist was not an infringement even though it was compiled from theinformation in the Rural Telephone Service White Pages. The information in the white pages was not copyrightable because it is public information.
American Geophysical Union v. Texaco results from a class action suit brought by six scientific publishers on behalf of other publishers registered with the Copyright Clearance Center. In July 1992, a U.S. District judge ruled in the seven-year old copyright case that a Texaco scientist violated the U.S. Copyright Law (Section 107) when he copied articles without providing the appropriate fee to the publishers. Texaco argued that the copying fell within fair use. The court ruled that the profit motive of the company was a relevant consideration in the analysis of the purpose of the use. They also found against Texaco in considering the amount of the work used focusing on the article as the "whole work" rather than the journal it came from. They also found that the market was affected because Texaco could have paid royalties through the CCC.
In 1994, the U.S. Court of Appeals for the Second Circuit upheld the lower court decision. In April 1995, Texaco petitioned the U.S. Supreme Court to review the case. On May 15, 1995, Texaco and a steering committee representing the publishers announced that they have agreed upon terms to settle the case.
The Association of Research Libraries and 14 other academic and library organizations joined together to submit amicus, or friend of the court, briefs in this case to elucidate and reaffirm the fair use rights that the Copyright law prescribes for scholars and researchers in the pursuit of research and education. ARL's interest in this case reflects the association's long-standing position as an advocate of the public interest in copyright, and in maintaining a balance between the rights of the copyright owner and the rights of the user.
Texaco, which conceded no wrongdoing in the proposed settlement, will pay a seven figure settlement and retroactive licensing fee to the CCC. In addition, Texaco will enter into standard annual license agreements with the CCC during the next five years.
Amendment to Sec. 304 of Title 17 that made copyright renewal automatic, and, by that means alone, dramatically curtailed the entry into the public domain of works protected by copyright before 1978.
The courts held that the Playboy's distribution rights were infringed when one of their photographs was digitized and placed on an electronic commercial bulletin board system by one subscriber and downloaded by another subscriber.
The Working Group on Intellectual Property Rights was established to explore the application and effectiveness of copyright law and the NII. The NII is described as "a seamless web of communications networks, computers, databases, and consumer electronics." (Information Infrastructure Task Force, National Telecommunications and Information Administration, National Information Infrastructure: Agenda for Action, 1993)
The Supreme Court ruled that a rap parody of Roy Orbison's song, "Pretty Woman," was a fair use. The court found that a commercial use could be a fair use especially when the markets for an original work and a transformative work may be different.
The Working Group sponsored a series of activities to solicit input on copyright issues and the NII. These included public hearings and in June 1994, a draft NII report was circulated for comment and review (the Green Paper). Part of the review process included three hearings (held in Los Angeles, Chicago, and Washington, DC) hosted by the Working Group, where members of the stakeholder community presented statements of reaction to the Green Paper. ARL submitted a response to the Green Paper and was represented by a witness at all three hearings.
In addition to making legislative recommendations in the White Paper, the Working Group sponsored a Conference on Fair Use (CONFU). Established in September 1994, CONFU is the venue for development of guidelines for Fair Use in the electronic environment. CONFU participants have been working toward development of guidelines for a number of areas including: interlibrary loan, electronic reserves, visual images, and distance education.
A federal judge in California has ruled that Netcom may be held liable for copyright infringement because the company did not remove copyrighted materials posted by a subscriber. The judge's ruling included an important distinction: that Netcom may be liable for "contributory" copyright infringement, not direct or vicarious infringement.
A Copyright Term Extension bill under consideration in Congress would add 20 years to the term of copyright protection for almost all published works, and at least 10 years to the term of protection for unpublished ones. A rationale for implementing this legislation is to bring U.S. law into line with the international community - especially other Berne signatories.
The culmination of the NII Working Group's efforts was release of the White Paper, in September 1995. The White Paper contains recommendations to amend the Copyright Act of 1976 and presents a lengthy legal analysis of current copyright law. Late last year, the White Paper's legis-lative amendments and recommendations were introduced in Congress as the NII Copyright Protection Act of 1995 (S. 1284 and H.R. 2441).
In February 1996, the Sixth Circuit Court of Appeals ruled that an off-campus, for-profit photocopy shop may, as a matter of fair use, make coursepacks that include substantial portions of copyright protected books and sell them to students. On April 9, 1996 the judges of the Sixth Circuit Court of Appeals voted to rehear this case en banc. The effect of that vote is to vacate the previous decision from the Sixth Circuit, leaving in force a previous injunction issued by the District Court. The case was reheard June 12, 1996.
In May 1996, an amicus brief was filed in the case on behalf of the educational community by the Attorney General of the State of Georgia, the National School Board Association, the Georgia and California School Boards Associations, and the American Association of School Administrators. ARL filed a letter with the U.S. Court of Appeals for the Sixth Circuit to express its strong support for the important basic principles expressed in the brief of these amici. The American Library Association joined ARL in filing this letter. The ARL-ALA letter calls on the court to take note of the broader issues raised in the case and the significant public interests affected. "If the public did not have the ability to exercise . . . fair use rights," the letter states, "education, scholarly research and the progress of science and the arts would be severely inhibited, and the usefulness - and inevitably the value - of the copyrighted works concerned would be substantially diminished."
TRIPS Agreement which forms part of the Final Act of the Uruguay Round of the General Agreement on Tariffs and Trade, which has the effect of restoring to copyright, as of January 1, 1996, works of foreign origin which are currently in the public domain in the United States.
On May 23, 1996 the Database Investment and Intellectual Property Antipiracy Act of 1996 (H.R. 3531) was introduced by Rep. Moorhead to amend Title 15 U.S.C. The bill seeks to "promote investment and prevent intellectual property piracy with respect to databases." This legislation is comparable to a European sponsored initiative to protect database producers from unauthorized extractions of more than an insubstantial part of database contents for 15 years. To some, this legislation appears to be an end run around the Supreme Court decision Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349 (1991). Like the NII legislation, careful review of this initiative will be necessary because of its potential negative repercussions for science and education.
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