Patent
Recently the U.S. Patent and Trademark Office granted two multimedia
patents so broad in scope that the awardees blatantly announced all
other vendors owed them royalties on all past, present, and future
products. This created an industry-wide protest so severe that one of
the vendors withdrew its claim, while the patent office overturned the
other. In both cases there was so much prior art that for people in the
industry, these claims were likened to trying to "patent sunlight."
The Optical Data Patent
The first case involved a patent awarded to Optical Data Corporation for
the instructional methodology used in its Windows on Science program.
Its syllabus-based curriculum outlining method is so basic to the
teaching process that practically all other products already used it.
Videodiscovery filed a lawsuit seeking a declaratory judgment to find
the patent invalid because of prior art and the obviousness of the
claims. The Interactive Multimedia Association (IMA) supported the
Videodiscovery complaint; as IMA President Philip Dodds politely stated,
"Patents such as these, which require nearly every company involved in
interactive multimedia and education to license an idea and application
that have a long history and are widely known, are not in the best
interest of the industry or educators."
To stop the flow of negative publicity stemming from the patent, Optical
Data Corporation dedicated the patent permanently to the public.
According to Optical Data Chairman William Clark, "It was never our
intent to use this patent to inhibit the development of multimedia-based
interactive teaching methods. A tremendous amount of concern--including
a lawsuit by one of our competitors--arose from this patent award. We
hope that by voluntarily dedicating this patent to the public, we will
end any unfounded fears that Optical Data, or any other company, might
try to limit the diversity of interactive, multimedia programs available
to educators."
The Compton's Patent
But in fact, there was another company attempting just that. Compton's
New Media caused an uproar by claiming at Fall Comdex 1993 that it had
been awarded a patent that would require all multimedia developers to
pay it royalties. As Compton's CEO Stanley Frank said, "We helped kick-
start this industry. We now ask to be compensated for our investments.
We will do whatever it takes to defend our patent."
The Compton's patent is very broad. It covers any type of computer-
controlled database system allowing a user to search for mixed media
that includes text with graphics, sound, or animation. Compton's did not
limit its claims to CD-ROM products; it also claimed the rights to any
type of database involving interactive TV or the information
superhighway.
Compton's presented all multimedia developers with four patent royalty
payment options, including entering into a joint venture with Compton's,
distributing products through the company's Affiliated Label Program,
licensing Compton's SmarTrieve technology, or paying royalties.
Compton's even had the audacity to require back royalties of 1 percent
of net receipts from sales before June 30, 1994, and 3 percent
thereafter.
To say the least, developers reacted negatively to Compton's demands.
Some suggested that users should burn all Compton's CD-ROMs and refuse
to purchase future titles from any company that would try to force such
a Machiavellian proviso on the multimedia industry. As a result of
public hearings held by the patent office to review its handling of
software patents, the Compton's patent was rescinded.
Meanwhile, the patent office has pledged to rework the software patent
system. Reforms include publicizing patent applications, hiring seven
software specialists as examiners, revamping the examiner bonus program
so it does not encourage superficial review, and requiring more
information about patent applications before decisions get made.
Copyright
All of the audiovisual elements used in a multimedia application--
including illustrations, text, movies, video clips, documentaries,
music, and software--are protected by copyright. Whenever a multimedia
work is published, whether on a CD-ROM, a diskette, or the information
superhighway, the developer must obtain the right to use every object in
it.
The National Music Publishers Association is suing CompuServe for
allegedly distributing the song "Unchained Melody" without permission.
The association claims the ballad has been infringed at least 690 times
by subscribers who download the song onto their multimedia PCs. The
Software Publishers Association took action in 1993 against 577
organizations for pirating commercial software, resulting in $3.6
million in fines.
Even if the material will not be published, but only presented,
permission to use each part is still required. For example, a University
of South Carolina student preparing for a juried media festival called
MediaFest included a song by The Doors without obtaining copyright
permission to use it. South Carolina's attorneys ruled that the
university's agreements with ASCAP, BMI, and SESAC do not cover either
dramatic uses of musical works or synchronization rights; moreover, they
ruled that the MediaFest, which is open to the public, probably violated
fair use. So the student sought permission. After a copyright search led
the student to the copyright holder, it turned out to be a company that
would not allow use of the song without a significant fee. It apparently
made no difference that the request came from a student.
Fair Use
Fair Use is a section of the U.S. Copyright Law that allows the use of
copyrighted works in reporting news, conducting research, and teaching.
The law states:
Notwithstanding the provisions of section 106, 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;
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
Interpreting Fair Use for Teachers
To summarize the fair use law for teachers, one may reduce its first
paragraph as follows: ". . . the fair use of a copyrighted work for . .
. teaching (including multiple copies for classroom use) . . . is not an
infringement of copyright." The difficulty arises from interpretation of
the four tests, which are intentionally left vague, for the law goes on
to state, "Although the courts have considered and ruled upon the fair
use doctrine over and over again, no real definition of the concept has
ever emerged. Indeed, since the doctrine is an equitable rule of reason,
no generally applicable definition is possible, and each case raising
the question must be decided on its own facts."
The vagueness of the law and the fear of lawsuits have led school
administrators to publish guidelines that are much more restrictive than
the spirit of the law intends. Some of those guidelines are especially
detrimental to the classroom use of multimedia, and it is important for
lawmakers to provide leadership in changing them. For example, consider
the following provisos in the Howard Community College Faculty Copyright
Manual.
"New-Medium Proviso: An educator may not convert one media format into
another (e.g., film to video, filmstrip to slide, etc.) without
permission."
Using multimedia computers to present slides, pictures, videos, texts,
and audio recordings requires that the latter media be digitized, which
changes the medium of a work. Declaring that it is not a fair use for
teachers to change the medium of a work prevents teachers from using
multimedia computers to create classroom presentations and networked
cooperative learning projects.
"Frequency-of-Use Proviso: Recorded commercial television programs may
be retained for 45 calendar days from date of recording. After 45 days
they must be erased or permission must be obtained for continued
retention and use. Programs may be shown to a class once, and repeated
once for reinforcement, during the first ten 'teaching days' following a
broadcast."
It takes a lot of time and effort to digitize a video clip. If its
repeated showing in a class does not deprive the commercial television
station of profit, which it rarely would, why require teachers to pursue
the difficult permissions process or to erase their digital video clips
after 45 days? Moreover, the limit of repeating the clip only once
negates one of the most important educational principles of hypermedia,
which permits access to a clip as often as needed to accomplish the
instructional goal. Less able students may need to view it more than
twice.
"Electronic-Editing Proviso: Programs need not be used in their entirety
but may not be edited or electronically altered or combined."
One of the most effective multimedia techniques is to cut, copy, and
paste video clips, rearranging the material to juxtapose video sequences
for teaching purposes. For example, consider the use of the Memorex
commercial in the videodisc "The Puzzle of the Tacoma Narrows Bridge
Collapse." To help students understand the sympathetic vibration caused
by the wind striking the bridge, a video clip of Ella Fitzgerald's
breaking a champagne glass by singing has been cut into the clip of the
bridge collapse. Surely the fair use law never meant to prevent teachers
from creating effective teaching materials such as this.
"Transmission-of-Audiovisual-Works Proviso: Cable 'transmission' of
copyrighted works is limited to non-dramatic literary works. Because
audiovisual works are excluded from the definition of literary works,
audiovisual works may not be transmitted without a license."
One of the most effective uses of multimedia technology is to provide
students access to the material via networks that permit review and
study from computer labs, dorm rooms, and homes. Is it the intent of
fair use to prevent students from reviewing the material presented in
class? And what about classes conducted solely over networks? Are they
thereby denied fair use? Because networks can deny access to users who
are not registered for a course, should not networked students have the
same fair use as classroom students?
Fair Use for Multimedia
By including references to photocopiers and phonograph records in the
fair use law, authors clearly intended to permit the fair use of
technology. Because the law has not been revised since 1976, it omits
the personal computer revolution that has occurred since then.
Multimedia computers clearly require a fresh interpretation of fair use.
It must be fair for teachers to change the medium of a work,
electronically combine that work with other works for didactic purposes,
use the work as frequently as needed for students to master the learning
objective, and, for students registered in the class, provide access
from students' computer labs, dorm rooms, and homes over the information
superhighway. The author believes that all of the aforementioned uses
are within the spirit of the law and the four tests of infringement.
Campus copyright officials need to take the lead by revising their
faculty copyright guidelines so as to permit these fair uses of
multimedia.
In the words of American Library Association council member Nancy H.
Marshall, "The fair use doctrine does have applicability to the products
of the new technologies, no matter whether groups, individuals, or
copyright proprietors attempt to mislead by the publication of official-
sounding documents to the contrary" (from "Copyright and the Scholarly
Community: The Library's Responsibility to Guarantee Users' Rights," in
Japan U.S. Collaboration in Enhancing International Access to Scholarly
Communication: Looking toward the 21st Century, Tokyo University Academy
Press, 1992).
The Constitution of the United States (Article I, Section 8) empowers
the Congress "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 . . ." As this discussion
has indicated, lawmakers need to be open to the possibility that the
ways they should "promote the Progress of Science and useful Arts" in
cyberspace will differ from the ways they have been promoting them in
the physical media of books, records, and tapes. As John Perry Barlow
argues, the fact that our notions of intellectual property are keyed to
"fixed expressions of ideas" means that they do not apply to networked
environments, in which ideas flow from one mind to another without being
"fixed" in any conventional sense of the word.
This article is adapted from a keynote address given at the Educational
Fair Access and the New Media National Conference, held June 1994, at
The American University in Washington, D.C. Another version will appear
in the author's forthcoming book Multimedia Literacy (McGraw-Hill).