COPYRIGHT.

DAVIDSON, MARY WALLACE

Most music librarians have a working knowledge of the United States Copyright Law with respect to situations that arise in the library, especially with respect to the use of musical works captured on paper, recordings, and film. Few at the moment, however, have had to tangle with legal issues of licensing electronic reference sources, storing and streaming digitally formatted sound to computer workstations, or providing library materials legally for distance-learning classes. Fewer still know whether they are Online Service Providers (OSPs), as defined by the Digital Millennium Copyright Act of 1998 (DMCA), [1] and if they are, what rights and responsibilities that definition imposes. As we cope with this, and the many other public laws now so rapidly being sponsored and passed by members of Congress, we risk losing sight of some significant historical threads to guide us into the future.

The United States Constitution provides that "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 Right to their respective Writings and Discoveries." [2] The framers fortunately understood two conditions necessary for fostering the natural growth of artistic and scientific culture: (1) creative individuals must have some economic incentive to pursue their craft, and (2) their successors must be able to use the results as seeds for new growth while those seeds are still alive.

The first federal copyright law passed by Congress in 1790 protected only published books, maps, and charts for fourteen years, with option for the same period of renewal. Published music was not protected until the first general revision of this law in 1831 (when the first term was extended to twenty-eight years), and dramatic works not until 1856. The second general revision, in 1870, added published works of art and the rights of authors to create certain derivative works. It also centralized deposit and registration in the Library of Congress (rather than with the states). The Copyright Law first protected music in public performances in 1897 and certain kinds of unpublished works in the third major revision of 1909. Motion pictures (previously registered as photographs) joined protected formats in 1912. Limited federal copyright protection was finally granted to sound recordings (fixed and first published on or after 1972) in the most recent thorough revision of the law in 1976, [3] which also provided for all unpublished works. Computer programs first entered the law at the end of 1980, [4] followed by the Semiconductor Chip Protection Act of 1984 [5] and the Computer Software Rental Amendments Act of 1990. [6] The Audio Home Recording Act of 1992 [7] clarified the legality of home taping for private use while imposing royalties on the sale of digital audio recording devices.

The law did not concern itself with "moral rights" until 1992, [8] although these often take precedence over copyrights in other countries. Various international agreements have extended protection to works published outside the United States, beginning with the Universal Copyright Convention in 1952. The United States' adoption of the earlier Berne Convention in 1989 had a greater effect, particularly as a result of the World Intellectual Property Organization Copyright Treaty in 1996, to which the United States is also a signatory. The Uruguay Round Agreements Act of 1994 [9] restored copyright protection in the United States to certain foreign works that had been protected in the source country (e.g., the former Soviet Union) but not here.

The DMCA and the Sonny Bono Copyright Term Extension Act of 1998 (known as the "Sonny Bono Law") [10] change the law in matters of potentially great significance to libraries. [11] Among other provisions, the DMCA revises section 108 to allow what has been the practice for many years (three preservation copies rather than one), and also specifies that preservation copies may be digital if they remain within the library. Works published before 1923 were unaffected by the Sonny Bono Law, and remain in public domain. The effect of term-extension provisions on works published from 1923 to date is complex, but for works published after 1 March 1989, the act extends protection to 70 years after the death of the author, or if a work of corporate authorship, the shorter of 95 years from the date of publication or 120 years from the date of creation. Some would say these term limits are a far cry from our Constitution's original intent.

Under the current law, "copyright" means just what it says: the creator enjoys the exclusive right to make copies (a term later broadened to include displays, performances, and recordings) of identifiable, reproducible ("fixed") manifestations of creative works that are the intellectual property of their creators for certain limited time periods. The property must be of substantive creative merit to warrant such protection--that is, not just an idea or a title. There are currently exemptions to ("Limitations on") these exclusive rights, even during the period of protection, that make creative works available to teachers, scholars, and critics under the four conditions known as fair use or "fair dealing" in other English-speaking countries (sec. 107). Other exemptions apply to libraries (sec. 108), owners of exemplars (sec. 109), performers (sec. 110), broadcasters (sec. 111), and transmitters of ephemeral recordings (sec. 112). The text for the Fair Use exemption (sec. 107, as amended in 1990 and 1992) is th e most succinct and oft quoted:

(ss.) 107. LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [12]

The beauty of this section is its very vagueness and lack of specificity. There simply are no answers to fit every case. Rather, the wording suggests only "safe harbors." Interpretation of this section is only possible within a context where both owners and users of intellectual property understand how interdependent they are on each other for the continued health of our culture.

This symbiotic relationship has become quite fragile in the age of digital publication and distribution. If nothing else, the recent Conference on Fair Use (CONFU) confirmed this statement repeatedly throughout the series of meetings beginning in September 1994 and concluding in May 1997. [13] Delegates of some forty (later ninety) organizations--representing authors, publishers, educators, and libraries--were invited to discuss fair-use issues, and "if appropriate and feasible," to develop voluntary guidelines for the fair use of digital works and online services. Hearing little progress, or mention of music, representatives of nineteen music organizations met in April 1996, but the discussion proved equally cautious: "The general consensus was that no change was needed at that time, but that music publishers, music educators, and music librarians would need to be aware of the guidelines being developed by CONFU, which might include uses of music in digital form." [14] In fact, although the CONFU Report doe s contain proposed guidelines for digital images, distance learning, and educational multimedia, none received enough endorsement to be considered consensus, and each was actively opposed by one or more representative groups.

Nevertheless, CONFU had an impact on participants and their organizations, not the least of which was education about the issues involved. Participants were also exposed to concurrent political processes on many levels: local (CONFU as it related to the agenda of the U.S. Patent & Trademark Office), national (Congress), and international (the World Intellectual Property Organization [WIPO]). These venues all had complex "back door" relationships to each other, and still do. CONFU did make a conscious attempt to seek consensus among educators, librarians, and commercial interests. Whereas the educators and librarians clung to the notion that the principles of fair use should remain the same in the digital environment, the commercial interests focused on the fact that digital is different. In a library or a bookshop, one may read a page or two of a book or look at a table of contents or index to see if that book is going to have the information one wants before either putting it back, proceeding to acquire it, or making a lawful copy of some portion of it. When that same reader retrieves and displays a digital source for the same purpose, she or he has the capability of transmitting that page--or the entire source--to an infinite number of potential readers, instantly. The commercial representatives at CONFU had not yet calculated how much that difference (and/or convenience) is worth in the marketplace, or how best to ensure a reasonable profit over large costs (nor have they still). So they, too, wanted no change in the Copyright Law at that time. Instead they turned their attention to the international arena.

In spite of its title, the World Intellectual Property Organization concerns itself with international trade (not education or libraries) and is bent on "harmonizing" international laws with respect to the commerce of intellectual property. There were in fact two agreements reached in December 1996: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Both, as they say in their preambles, desire to "develop and maintain the protection of the rights [of authors of literary and artistic works, performers, and producers of phonograms] to develop and maintain the protection of [their] rights in a manner as effective and uniform as possible." Both similarly recognize "the need to maintain a balance between the rights [of these authors, performers, and producers] and the larger public interest, particularly education, research and access to information." That said, neither treaty posits any limitations to the protected rights in the public interest, except to say that the signatory countries may want to legislate such provisions--but only if these provisions "do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the [authors, performers, or producers]." [15]

Not surprisingly, there are subtle shifts in the definitions constructed for these treaties, particularly the Performances and Phonograms Treaty, starting with an expanded concept of "phonogram" to include any fixed sound, not just those incorporated in films or audiovisual works. "Fixation" now means "the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device." [16] "Communication to the public," as distinct from publication or broadcasting, means "the transmission to the public by any medium ... of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram, [and] making [them] audible to the public." [17] The language is awkward because it needs to account for present and future technologies (wire, wireless, and so on).

The effect of these international agreements is rapidly becoming pervasive in the European Union and the United States. In the U.S., the DMCA is also known as the WIPO Trade Agreement Implementation Act, in reference to the WIPO Copyright Treaty of 1996, which it seeks to implement. No doubt other legislation will be introduced in future Congresses, and it behooves us all to pay attention. The strength of the commercial interests will unquestionably continue and wax more enthusiastic and powerful as more and more of our culture and its sources of information are digitally packaged and licensed rather than sold. In general, commercial publishers take a dim view of the fair-use argument, seeing it as a dodge from fair reimbursement. Some colleges and universities have been active in exerting their fair-use rights--by establishing written policies, retaining counsel, and so forth--but most of their concerns have been limited to coursepacks and retaining rights of works created by faculty and staff as employees. The educational music community tends either to ignore the fundamental changes in the entertainment industry or to want "a piece of the action." In that case, it wants to be paid for the products it creates, too--if not for profit at least to recoup the heavy start-up costs. These activities will raise thorny legal questions for university counsels.

Licensing is a familiar concept and practice within the music community, as it concerns chiefly performance rights, or rights to use "the work" (or a version of it) as distinguished from a particular manifestation or copy. The concept is now spreading to the digital environment, where publishers want to protect screen displays of electronic resources in educational institutions with the same limitations as "performances or displays" under section 110. From ASCAP, BMI, and SESAC, electronic publishers have also learned the efficacy of a site license. From a creator's or producer's view, it allows centralized and efficient control of contracts and money. Strangely enough, as educational institutions have increasingly adopted business ethics and practices, some administrators have also expressed this same preference for centralization, uniformity, and efficiency on the part of the user as well. The wording of contracts for these licenses is ever hopeful that libraries have the technology to count (report, limit , constrict, etc.) and usually contain such language. Neither the licenses nor the available technology, however, distinguishes the characteristics of a given use of a particular source--that is, whether that use meets the "four factor" test of section 107. In fact, publishers are still experimenting and have no rational basis upon which to charge. Music librarians need to watch carefully not only the quality of what they choose to license, but the language of what they choose to sign. Most publishers willingly agree to reasonable changes in contracts, and librarians should not inadvertently put their institutions at legal risk. [18] Nor should they inadvertently put their clients at cultural risk by failing to exercise the rights of fair use and preservation, protected by the Copyright Law of the United States.

Our task for the future is to keep informed about current legislation and to lend our voices to concerted action as appropriate. The Digital Future Coalition (DFC), comprised eventually of some forty-two financially contributing members (including the Music Library Association), was founded in 1995. Because it was "a unique collaboration of many of the nation's leading non-profit educational, scholarly, library and consumer groups, together with major commercial trade associations representing leaders in the consumer electronics, telecommunications, computer and network access industries," it was committed to a balanced approach to legislation, at least through the 105th Congress. [19] The successful passage of the DMCA in fact reflected the credibility of positions taken by the DFC.

Such coalitions may be too good to be true, or at least too expensive to persist, but they are the only possible way to ensure the long-term preservation of our musical culture. Obviously the creators, producers, users, and preservers of music, in all its manifestations, rely on each other's health. Rather than taking myopic positions, it behooves us to talk, understand, educate, and negotiate with one another for the common good. Above all, we must guard against "nickel and diming" the Copyright Law for one special interest after another (including international "harmonization") but not fail to recognize the need for a thorough revision when the time is ripe.

Mary Wallace Davidson is head of the William and Gayle Cook Music Library at Indiana University. She has been a member of the Music Library Association's Legislation Committee since 1990, and from 1995 to 1997 represented MLA at the Conference on Fair Use, sponsored by the U.S. Patent and Trademark Office.

(1.) U.S. Statutes at Large 112 (1998): 2859-918.

(2.) U.S. Constitution, art. 1, sec. 8.

(3.) "Title 17, USC, Copyrights." US. Statutes at Large 90 (1976): 2641-602.

(4.) "Patent and Trademark Laws, Amendment." US. Statutes at Large 94 (1980): 3028.

(5.) U.S. Statutes at Large 98 (1984): 1727-28.

(6.) Ibid., 104 (1990): 5134-37.

(7.) Ibid., 106 (1992): 4237-48.

(8.) Section 106A, "Rights of Certain Authors to Attribution and Integrity," Visual Artists Rights Act of 1990, U.S. Statutes at Large 104 (1990): 5128-30.

(9.) U.S. Statutes at Large 108 (1994): 4973-81.

(10.) Ibid., 112 (1998): 2827-34.

(11.) For a clear discussion of the impact of these two laws on libraries, see Arnold P. Lutzker, "Primer on the Digital Millennium: What the Digital Millennium Copyright Act and the Copyright Term Extension Act Mean for the Library Community," at the Web site of the Association of Research Libraries, http://www.arl.org/info/frn/copy/primer.html (last modified 8 March 1999). The effect of the DMCA on section 108 of the Copyright Law regarding library preservation is posted in both "redlined" and "clean" versions of the section at the University of Texas, Office of General Counsel, "Crash Course in Copyright," http://www.utsystem.edu/ogc/intellectualproperty/108.htm, created by Georgia Harper (updated 24 June 1999). A good chart that captures all effects of the Sony Bono Law on term extension was published by Peter B. Hirtle on the last page of a four-page insert, "Recent Changes to the Copyright Law: Copyright Term Extension," Archival Outlook, January/February 1999, between pages 22 and 23.

(12.) U.S. code, Title 17, section 107 (1994, 8:912-13). Justice Sandra Day O'Connor, delivering the opinion of the Supreme Court in Harper & Roe v. Nation Enterprises, 471 U.S. 539 (1985), noted that the fourth factor "is undoubtedly the single most important element of fair use." From the same opinion, it is also clear that all four factors must he considered. The final sentence, extending the exemption to unpublished works, was added to section 107 in 1992 (U.S. Statutes at Large 106 [1992]: 3145).

(13.) U.S. Department of Commerce Patent and Trademark Office, The Conference on Fair Use: Report to the Commissioner on the Conclusion of the First Phase of the Conference on Fair Use, September 1997 (hereafter, CONFU Report). Single copies are available free of charge either from the office, do Richard Maulsby, Director, Washington, DC 20231, or via the office's Web site at http://www.uspto.gov.

(14.) CONFU Report, 8.

(15.) "WIPO Copyright Treaty," article 10, "Limitations and Exceptions" and the "WIPO Performances and Phonograms Treaty," article 16, "Limitations and Exceptions." Summaries and full texts of both treaties are available through links at http://ecommerce.wipo.int/activities.

(16.) "WIPO Performances and Phonograms Treaty," article 2.

(17.) Ibid.

(18.) The Yale University Library maintains a useful site that includes sample license agreements: "LIBLICENSE: Licensing Digital Information, a Resource for Librarians," http://www.library.yale.edu/[tilde]llicense, updated frequently. Yale also hosts a strong statement created by the International Coalition of Library Consortia on "Current Perspective and Preferred Practices on the Selection and Purchase of Electronic Information," http://www.library.yale.edu/consortia/statement.html. A group of six large library associations has mounted "Principles for Licensing Electronic Resources" (final draft, July 1997), http://www.arl.org/scomm/licensing/principles.html.

(19.) From the DFC's Web site (http://www.dfc.org), last updated in late May 1999. The DFC has apparently ceased to exist since then because of a lack of funding