COPYCENSE

INTRODUCTION

This is the first piece in a new CopyCense series called CommuniK™. CommuniK.™ will present articles, essays, editorials written by K. Matthew Dames and featured guest writers that deal with the intersection of law, business, and technology. The CommuniK.™ series also will be used to present multimedia work, including streaming broadcasts and podcasts.

In order to take advantage of the unique medium that is the World Wide Web, writings published under the CommuniK.™ label will exclude citations, but will include relevant hyperlinks, graphics, and formatting. Print versions of CommuniK.™ writings will be made available in Adobe Acrobat format some time after the original posting appears, and the print versions will include scholarly citations.

This first installment CommuniK.™ series originally was published in the January/February 2005 edition of Online magazine. It has been updated substantially.

Do you have any copy rights left?

That’s a reasonable question for information professionals to ask, since the legislative, business, and political environments of the last decade have been so severely pro-copyright. Beginning in the 1990s, the scope of copyright has expanded with the growth of digital technologies. Copyright’s expansion has been particularly acute since 1998, when President Clinton signed into law the Digital Millennium Copyright Act (DMCA).

In the current environment, it is easy for information professionals to think that any use of copyrighted works is illegal unless it is explicitly sanctioned by a license, release, or other written agreement. Fortunately, current copyright law says otherwise.

LEGAL, UNLICENSED USE OF COPYRIGHTED MATERIAL

This article is the first in a series that reviews several ways information professionals can use protected works freely without getting written permission from the copyright owner, signing a license, or working with a third-party publisher representative such as the Copyright Clearance Center. The goal of the series is to arm information professionals with the tools to help them analyze and properly use what federal law describes as “limitations” on the exclusive rights that copyright owners receive.

In addition to explaining the laws and how they work, this series introduces a theory of Copyright Risk Analysis—factors that information professionals must consider when deciding whether, when, and how to use the limitations.

Despite the repeated attempts of the copyright owners to expand their rights in ways that eliminate virtually all forms of fair use or free use, copyright law still retains some flexibility and fairness. This flexibility and fairness provides enough room for most information professionals to get done what they need to get done. In the alarmist rhetoric that pervades much of the public discourse about copyright, this fact often gets lost.

Before I begin, a short note about language is warranted. Information professionals use the term “fair use” rather liberally, but this is unfortunate because fair use has a specific legal meaning. Therefore, when I use “fair use” throughout this series, it will refer to Section 107 of the copyright law (17 U.S.C. § 107). On the other hand, I will use terms like “limitations” or “copyright limitations” to describe the set of statutes that limit copyright and allow information professionals to use works without prior permission.

THE LIMITATIONS PYRAMID AND RISK ANALYSIS

A copyright owner’s exclusive rights are outlined in a single statute of the copyright law, but there are 16 statutes that limit those exclusive rights. Four of the 16 limitations statutes limitations apply specifically to information professionals:

• The limitation that allows certain public performances and displays within the educational environment (including the TEACH Act): 17 U.S.C. § 110(1), (2);
• The limitation that allows the owner of certain legally purchased, copyrighted items to transfer those items freely (otherwise known as the “first sale” doctrine): 17 U.S.C. § 109(a);
• The limitation that allows libraries and archives to make copies under certain specified conditions: 17 U.S.C. § 108; and
• The fair use statute: 17 U.S.C. § 107.

When I teach these limitations to graduate information science students, I urge them to analyze the most narrow limitations first, proceeding to the broader limitations if they reasonably determine that the more narrow limitations do not apply to their specific situation. This system of analysis can best be illustrated by what I call The Limitations Pyramid.

The Limitations Pyramid illustrates a simple, but important theory: when a limitation applies narrowly to a small group, using that limitation carries with it a lower risk of copyright infringement. Conversely, where a limitation applies broadly, that limitation carries with it a comparatively higher risk of copyright infringement. This inverse relationship between infringement risk and limitation breadth exists because the narrower limitations (such as the limitation in Section 110) have been drafted for the benefit of specific parties who engage in specific conduct under specific circumstances. Therefore, while it is difficult to qualify to use the Section 110 exemption, those who do qualify enjoy the comfort of legal certainty.

In comparison, the fair use requirements in Section 107 apply to a much broader category of eligible participants (in this case, everyone). But fair use’s broader eligibility, along with its broad, four-factor test, bring with it a higher level of legal uncertainty, and therefore an increased risk of infringement. Fair use is quite dependent upon factual circumstances that are virtually impossible to duplicate; many of the fact patterns are hard for even seasoned lawyers to compare. Therefore, it is difficult for an information professional to get a clear read on how a court will apply the Section 107 fair use analysis. Consequently, information professionals are left with a statutory fair use defense that they may hesitate to use, fearing that uncertain legal precedent may lead them to make decisions with which a judge disagrees.

AMBIGUITY LEADS TO FRUSTRATION

And herein lies the paradox of fair use in the digital age. Theoretically, information professionals have four ways to limit copyright; in practice, though, options may be fewer because the broadest option—Section 107—is ambiguous and uncertain enough that many do not want to risk using it. As Fred von Lohmann of the Electronic Frontier Foundation observed in his article Fair Use and Digital Rights Management

Many [information professionals] express frustration with the imprecision surrounding fair use. Often they exclaim, with some exasperation, “Define fair use for me, and we’ll express it in the business rules.” Unfortunately, fair use cannot be defined with precision. The statutory four factor test, for example, includes concepts that are not easily expressed in precise “business rules.”

Fair use is as murky as obscenity: judges may know it when they see it, but that doesn’t necessarily help you avoid the courtroom in the first place.

THE IMPORTANCE OF SECTION 107

Does this mean that a broad limitation like Section 107 is useless? Absolutely not. Fair use, in particular, remains as viable as ever. Information professionals should seek to use the fair use doctrine whenever they use copyrighted material without first seeking permission from the copyright owner. If, however, you become a little squeamish at the imprecise nature of fair use, it may be better to try to fit into one of the narrower limitations at top of the pyramid.

Before leaving this topic, let’s examine some common notions about risk analysis.

First, lower risk does not mean no risk. Just because you are eligible to use a narrow limitation like Section 110, you still will have to apply the limitation correctly. If you make an error, you or your institution still can be sued or held liable for copyright infringement.

Second, lower risk may not keep you from being sued. Particularly in today’s environment, aggressive copyright owners abound and they may threaten an infringement lawsuit regardless of whether any limitations reasonably apply to your situation. While Federal law does punish parties for filing frivolous lawsuits, that law is of little comfort when you are being served with papers, or have to find money in an already tight budget to defend the allegations.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC. CopyCense™ and CommuniK.™ are trademarks of Seso Digital LLC.