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Electronic Copyright
Ann Okerson talks about what libraries and educators can and can't do with copyrighted works. By Melissa Burgos Brown SCR*TEC I don't think there's a great deal of awareness on the part of students or faculty of what the copyright law says. It is the role of librarians to educate and inform users about copyright as and when we have that opportunity. --Ann Shumelda Okerson |
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Shumelda Okerson is the Associate University Librarian for Collections
Development and Management at Yale University. The Yale University Library
System is said to be the eighth largest in the world. She is also the
listowner and moderator of NewJour, a Web-based journal
and newsletter announcement list for new electronic publications. The
list archive contains over 6,000 postings and is published electronically
at http://govt.ucsd.edu/newjour. Her involvement in Web publishing began during her position as a Senior Program Officer in Washington, D.C. for the Association of Research Libraries. In that role, her job was to look at emerging technologies and determine how they would change academic information publication and distribution. She has written various articles and edited books addressing the economic, social, and intellectual issues raised in building library resources to support academic research and teaching in a digital age. |
 Ann Shumelda Okerson of Yale University. |
In addition to NewJour,
you've published a World Wide Web licensing site. Can you talk a little
bit about that? It's a Web site about licensing electronic resources for libraries. The site was developed with grants from the Council on Library and Information Resources in Washington, DC. I developed it with an attorney and a Web designer. The site is an online primer about licensing electronic content. It contains definitions, discussion, and sample licenses. Our team is working on a licensing software that we will make available before school begins in the fall. |
| You've written about Web
copyright law, how did you get interested in this topic? I was not interested specifically in Web copyright law, and I'm not particularly interested in it now, but what I am very much interested in is what libraries and educators can and cannot do with copyrighted works. Early in the 90s, a library association asked me to come and speak to them about what copyright is and how it works for libraries. That was just before there was quite so much interest in copyright law as there is now. That assignment led me to read the Copyright Act and to develop an understanding of the relationship between copyright and libraries. Of course, about that time (pre-Web, '91), Internet technology started developing. And the question for educators, for librarians, for Congress, and for the nation, very quickly became, "Is the way that we have written the copyright law, applicable to information distributed through the new technologies or do we need some new, different rules, because the 1976 Act is not adequate." I began my understanding of copyright by understanding how it works for traditional media. Anybody who's interested in copyright issues must understand the basic law, why it was written, [and] how it applies to traditional materials. One is then in a better position to try to understand how copyright law impacts electronic media. There are two different philosophies. One is that, the principles embodied in the copyright law are adequate and they will see us through any media or technology. The other view is, the rules we've had just don't work anymore. |
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"so the question for educators, for librarians, for Congress, and for
the nation, very quickly became, 'Is the way that we have written the
law, applicable to information distributed through the new technologies
or do we need something new, something different, because the 1976 Act
is not adequate.'" |
Well let's talk about fair
use which, in part, states that you can use copyrighted work for nonprofit
or educational purposes within reason. Fair use isn't very clear. The
Internet gives people access to so many more resources, do you think
fair use policy should be made more rigid to accommodate that ease of
access to information? Well I don't think fair use is unclear and I don't think the best characterization of it is that for educational and nonprofit purposes, one can make copies within reason. That's not quite what the law says. The law says that for a whole range of societal benefits, such as education, criticism, study, creation of new works and news reporting, copies of parts of works can be made without the rightsholder's specific permission. Section 107 of the Copyright Act identifies four factors that help the user understand whether a specific act of copying may be done. The factors include (1) nature of the use, (2) type of work being copied, (3) proportion of the work being copied, and (4) economic impact on the copyright holder. In short, fair use analysis relies upon Section 107. |
| I agree fair use is interpretive.
It's subject to interpretation and judgement, but the law gives us a
lot of guidance in that. Do I think the principals in the Copyright
Law can apply in an electronic or Web environment? Yes! The difficulty
with fair use is that, there are no percentages, it's not specific,
it is always a matter of judgement. It is not comfortable for a lot
of people, and copyright owners worry that users will be overgenerous
in interpreting what they can copy. What about the effect on libraries, if copyright laws become more rigid, how do you think this will affect libraries? Section 108 in the Copyright Act, which applies specifically to libraries, identifies the circumstances under which libraries can make copies and backup copies and things like that. That's not the biggest focus of the revisions although there is some impact. Libraries themselves, don't conduct their business for the most part under fair use, Section 107. We conduct it under 108. It's our readers who are using Section 107. Libraries as such, are helping users exercise their fair use. So that's how libraries get implicated in fair use and teaching copyright. In fact, the job of libraries is to help their readers use their fair use rights under copyright. Libraries are drawn into this and become advocates for their users, not for themselves. I think that's an important distinction. Libraries fill a supporting advocacy role, a role that defines what a librarian is. |
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"I certainly don't think children need to be tied up in knots with all
of these technicalities, but that their teachers need to understand
what copyright means. Teachers have to know what they think about this.
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From your experience, what
is the general attitude of students with regards to using information
from the Web, are they generally very conscious of copyright laws or
are they laid back because there is so much information that's so easily
accessible? It's probably the latter. I don't think there's a great deal of awareness on the part of students or faculty of what the copyright law says. It is the role of the librarians to educate and inform users about copyright as and when we have that opportunity. When librarians wish to offer electronic resources for their patrons, the publisher is likely to ask them to sign a contract. That's what the LIBLICENSE site is about. Libraries have entered into a series of agreements with many different publishers and producers. Money changes hands. We agree to use the resources in a certain way. The licenses libraries negotiate with publishers are pretty broad based. They actually give students and faculty a lot of leeway and a lot of copying rights. Most of Yale's licenses let our students copy, print, and download. The barrier happens at the point of large-scale redistribution or commercial use, but we do try to write contract language for each of these resources that gives our users latitude to do whatever they need to do in the course of their educational research and scholarly work. |
| Copyright is the law of the
nation, so even as I'm negotiating a contract I'm mindful of copyright.
But I'm more interested in writing language that facilitates readers
being able to do what they need to do. We don't want somebody going
to, say, the online Encyclopedia Britannica, to have to start thinking,
"Well, what's fair use and what can I do here?" I want them to say "Here's
an article I need for my class, so I'm going to download it and print
it and read it." I don't want them to become criminals through the very
act of doing something that's very natural for them to do. So, Yale's
information licenses look rather different from fair use and I think,
in many cases, permit more than fair use does. However, the provisions
of our contracts are limited to our students, faculty, and staff. What
we negotiate, we negotiate for our campus. What about K-12 teachers? How early do you think that students need to learn about copyright in the classroom? How big of a problem do you think it is now? In general, copyright stands for a value, the value of respecting people's property. I myself never really learned about copyright until I went to work in Washington, DC. Then I needed to learn about it very quickly. Until then, I hadn't been very aware of it in any educational setting. It wasn't a big deal. But partly it wasn't, because in earlier years it was much more difficult to copy and distribute information. I went to college before photocopiers were really cheap so I took many of my notes by hand. Things were different. Today, a school teacher should instill into students the notion of property which does not pertain only to tangible things, for example, don't steal someone's notebook, but also to these less tangible things, such as intellectual property. So I think that at the K-12 level, that's what's needed. I certainly don't think children need to be tied up in knots with all of these technicalities of copyright law, but I think that the teachers do need to understand what copyright means. Teachers have to know what they think about this. |
| You've heard the notion, "Information wants to be free,
the Internet will mark the end of copyright as we know it," do you think
that's true? The meaning is not clear to me because, on the one hand, it's very easy to encrypt, information. Copyright owners, corporations, and publishers are finding ways to staunch what they think of as they copyright information "hemorrhage" or to keep the hemorrhage minimal. Most of us won't be able to unencrypt an encrypted file if the publisher sends it to us that way. If a file comes to us so that it can only be read once and not printed, we won't circumvent that. In one way, technology is liberating information, but in another, it is building tools to restrict it and I'm not sure how that will play out. |
| Finally, do you think that
regulating the acceptable use policies of the Internet is a realistic
goal? I think we must keep adjusting law and practice to whatever extent we need to. The Copyright Act must reflect this day and age. I don't think copyright is going to go away. The notion that people own their creative output is very strong. There are a lot of us who would give away our creative output. I often write or present information so that it receives the widest distribution because my income comes from my employer. It doesn't come from the things I write. It doesn't come from the Web sites I create. Those are all paid for in another way. They're funded by a grant, they're funded by the employees who pay my salary. Also, the U.S. has a strong notion of public domain. Government works, created on government time, belong to the public who is paying for them through taxes. At the same time, there's a large sector of the economy that earns its entire living selling the fruits of its intellectual labor through books, magazine articles, textbooks, paintings, sculptures, or CD-roms. The copyright act recognizes the importance of that sector. We have to find ways to foster it or we will lose a lot of creativity in this society that we can't afford to lose. So, some of us need to be paid directly for our creative works and others don't. The copyright law makes it possible to accommodate a whole range of needs. You see, some information wants to be free and other information doesn't want to be very free. |
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