![[drawing of digital carrot]](carrot.gif)
Thomas Deardorff, Access Services
Professor Brown put his research results and related information on a university Web site. His federally funded research project, the Digital Carrot, involved three-dimensional computer images of each cell of a carrot. An artist, Mr. Kandinsky, was hired to draw the carrot cells and put them into a database. A computer program developed by a colleague, Professor Smith, was used to create three- dimensional pictures from the images in the database. Professor Brown also put images and texts from other works, and the software to view the images, on the Digital Carrot Web Site. Within two months, Professor Brown had received complaints from Professor Smith, Mr. Kandinsky, and the publisher of an article posted on the Web site claiming copyright infringement. Professor Brown claims that he either owns the material or has a fair use right to put the material on his Web site.
Issues of ownership and copyright have become complex. The networked digital environment provides vast new capabilities for individuals to use copyrighted works. Most academics have access to tools that can digitize texts, images and sounds. Once material is in the digital format it can be easily modified and transmitted. Add a networked computer and access to the Internet, and you have the ability to publish material worldwide. These expanded capabilities have motivated publishers to reexamine the copyright law, and put forth various proposals to control copyrighted materials.
Up until the last few years, issues of copyright in the classroom and library were fairly clear. The use of intellectual property was controlled by guidelines for educational use that were mandated as a part of the revised 1976 copyright law. These guidelines, rooted in the history of copyright law, sought a balance between the rights of creators and needs of users. Since 1976, the rapid growth of computing power and communications networks have changed the relationship of users to copyrighted works. New guidelines for the use of digital works are being developed by owner and user groups as part of the process of revising the law. However, it has been difficult for the various parties to agree.
In the absence of guidelines, it is helpful to have some understanding of copyright basics and fair use.
Copyright law is the law of authorship. The mandate for copyright is in Article 1, Section 7 of the U.S. Constitution, which states that "Congress shall have the power to promote the progress of the science and useful arts, by securing to authors, for limited times, the exclusive right to their respective writings and discoveries." The law governs the making of copies, derivative works, and the distribution, performance and display of copyrighted materials. The law protects original works in a fixed, tangible medium of expression. Nonoriginal works such as the phone book cannot be copyrighted because neither the information nor the arrangement is original. Works are copyrighted at the moment of creation to ensure legal protection should the work be registered.
The fair use of copyrighted materials is one of the more complex concepts in American law-it seeks to balance the rights of copyright owners with the need for the public to be informed and educated. The idea is firmly based in the constitutional mandate to promote the progress of the science and arts. To analyze the fair use of a copyrighted work, four factors have to be considered:
All of the factors are evaluated to determine if a use is fair. Spontaneous educational use of a small amount of material for a short period of time from a factual work not currently available for sale would probably be considered a fair use. Systematic commercial use of a large amount of a work of fiction over a long period of time from a work currently available for sale would probably not be a fair use. Most situations are not as clear cut, and the courts have interpreted similar cases in different ways.
In late 1995, the Commerce Department's Working Group on Intellectual Property developed a white paper proposing modifications to the copyright law. These changes could have a significant impact on education. The white paper recommends that a transmission right be added to the exclusive rights of copyright owners. This change could pose problems for the development of electronic reserves and distance learning if it is interpreted to mean that there is no fair use of electronically distributed material.
The white paper also fixes legal responsibility for copyright infringement on Internet service providers. The University could be held liable for material posted on campus Web servers. Many groups in the academic community have argued that the white paper overemphasizes the economic aspects of copyright and does not fully consider the public policy aspects. Action on the changes was delayed in Congress last year, but may be reintroduced in 1997.
But what about Professor Brown? He risks being held liable for copyright infringement for posting material clearly not his own on his Web site. The material that he developed with others is also problematic if ownership of the material was not made clear at the point of development. The Digital Carrot Web Site has been taken down until the ownership issues are resolved.