Coping with Copyright and Beyond: New Challenges as the Library Goes Digital

Copyright 1995 Karen Hersey. This article appeared
in _CAUSE/EFFECT_  Volume 18, Number 4, Winter 
1995, pp. 4-6. Permission to copy or disseminate 
all or part of this material is granted provided 
that the copies are not made or distributed for 
commercial advantage and that this block of 
information appears as part of the article. To 
disseminate otherwise, or to republish, requires 
written permission from the author. For further 
information, contact Karen Hersey. E-mail:
hersey@MIT.edu. This article is reprinted with 
permission from _Copyright, Public Policy, and the 
Scholarly Community_, edited by Michael Matthews 
and Patricia Brennan, published earlier this year 
by the Association of Research Libraries. For 
information about obtaining a copy of the book, 
send e-mail to arlhq@cni.org or call 202-296-2296.


       COPING WITH COPYRIGHT AND BEYOND: 
               NEW CHALLENGES AS 
            THE LIBRARY GOES DIGITAL
                by Karen Hersey


ABSTRACT: While speed, convenience, and sheer 
volume of information made accessible by digital 
technology and delivery is a boon, market factors 
and the business enterprise are bringing digital 
information to libraries at a substantial cost, not 
just in dollars. This article examines the tension 
that results as these forces meet head-on, and 
identifies some issues for campus libraries to be 
aware of in the networked information world.



Today, with the explosion of electronic based 
delivery system technology, except for books and 
journals purchased in printed, hard copy form, 
virtually all knowledge and information our 
educational institutions and libraries wish to 
acquire for student and faculty research use, or 
that our libraries wish to add to their physical 
collections, comes neatly tied up in a legal 
document. Universities at present simply cannot 
acquire electronically delivered knowledge without 
first agreeing to legal terms and conditions that 
are structured by the seller of knowledge for one 
purpose, and one purpose only: to get the greatest 
possible financial return, from the greatest number 
of information consumers, without risk of losing 
control over the revenue-producing asset. It may be 
crass, but the packaging and delivery of 
information is big business today-a growth industry 
that moves far beyond traditional publishing.

Consequently, as the library, a public service 
provider, embraces new technologies to remain a 
relevant resource for Americans who seek to acquire 
and expand their intellectual capacities, it 
collides head-on with American entrepreneurialism 
in search of profit margin. Corporate America (and 
corporate Europe, for that matter) is focused on 
maximizing profits and maintaining a competitive 
edge for its knowledge-based products.

No one condemns the commercial knowledge provider 
for doing what comes naturally in this country-
seeking to build a successful business and doing it 
better, quicker, and smarter-because the public 
generally benefits from this kind of activity. In 
reaching for the brass ring, however, an existing 
balance of interests between the providers of 
knowledge and the users of knowledge is being 
tipped, by using legal agreements, in favor of the 
providers.

To get a clearer sense of what is really happening 
out there, we might look at how three information-
related innovations are changing the way the 
library has to do business and in doing so is 
tipping those scales away from the careful balance 
that the 1976 Copyright Act achieves:
  * Electronic delivery systems (including 
    journals, multimedia works, books, computer 
    programs);
  * Database collections (including maps, images, 
    raw data, genetic materials, anything under the 
    sun, coming to you via a friendly CD-ROM or by 
    online access);
  * Real-time, online access services (including 
    dynamic information products such as daily news 
    feeds and daily stock-market statistics, static 
    collections of information such as 
    encyclopedias residing on a server, controlled  
    not by the library but actually at the vendor's  
    site.

Before the digital revolution, libraries acquired 
journals, books, collections, daily newspapers, 
trade press, etc. in print/paper format or on film, 
and knew fairly well where they stood with respect 
to permitted uses of these materials-squarely in 
the Copyright Comfort Zone. There were, of course, 
occasional disagreements between copyright holders 
and libraries associated with fair use and 
interlibrary loan, but for the most part libraries 
were confident about how to conduct their business.

When we ask what's different in the world of 
digitized information, the answer is, in a word, 
everything. Publishers and copyright holders who, 
like the libraries, were comfortable in a world of 
print, now find themselves in a world of instant 
mass dissemination. Information is now capable of 
flowing through electronic and fiber-optic networks 
for simultaneous delivery to millions of sites, via 
systems that allow the information to be copied 
into print or electronic format with the stroke of 
a key. Information work products can be added to or 
diminished on a computer screen, stored for later 
retrieval in files that can be rearranged or 
otherwise manipulated, all without the touch of a 
human hand.

So, both providers and users of information must 
cope in a world where they are no longer sure of 
the rules, and since the providers of information 
are first and foremost businesses, their reaction 
has been to cover any potential lapses in the old 
legal framework of copyright law by the next best 
thing-a strong dose of contract law.


Electronic Delivery Systems

In this new environment the publisher is now unsure 
as to whether the basic elements of copyright law 
will adequately protect the material that is 
delivered to the library electronically. The 
publisher should perhaps not be too harshly judged 
when reaching the conclusion that because the 
method of delivering the material has changed and 
is now computer-based, a new form of agreement-one 
that not only establishes fees, but also is useful 
in adding new rules to the game-is needed.

For instance, the publisher is not sure that an 
electronic copy sent from one library to another 
under the interlibrary loan guidelines or the 
copyright statute will be protected from all sorts 
of scurrilous misdeeds by libraries. Therefore, the 
subscription agreement may include a restriction on 
making copies and may prohibit electronic copying. 
As a result, despite the possibilities ushered in 
by the new electronic technology, interlibrary loan 
may continue only via paper and perhaps via the fax 
machine, if anything.

Some publishers are already making changes in the 
publisher/user relationship through the contract; 
fair use, always a burr under the saddle, has 
become another target. Some publishers are seeking 
to get rid of it, through a subscription agreement 
wherein the library agrees to make only such use of 
the journal as specifically permitted in the 
contract and will make no other uses. It's no 
longer a matter of copyright law, but of having a 
contract between consenting, if not equal, parties. 
And the law is thoroughly supportive of contract 
terms!

In the following table we see how the delivery and 
use of materials can begin to change based on the 
medium. Whereas in the print medium access and use 
and distribution and duplication are governed by 
the Copyright Act, in the electronic medium these 
issues are dependent upon the technology available 
to the library and upon the terms of a legal 
agreement.


Database Collections

Database collections present a very interesting 
turn of events for the digital library that wants 
to provide anthologies or collections of 
information previously available in print, but now 
residing on a CD-ROM or by online access. In fact, 
because collections are residing on a CD-ROM, we 
have access to more information than ever before, 
so of course we want to be able to use this new 
wondrous technology. We are all comfortable with 
the copyright rules governing permitted and 
prohibited uses of collected information, but, 
unfortunately, before we can get our new database 
to install in the reference room, we are asked to 
sign a license agreement that permits the database 
provider to place even greater restrictions and 
conditions on use of the product.

For example, we are seeing, more often than not, 
the database provider seizing the opportunity to 
place trade-secret protection on the data contained 
in the database. The fact that the data often is 
public domain information or not actually owned by 
the database publisher seems to be irrelevant, as 
non-disclosure requirements are placed in the 
license agreement.

Adding trade-secret protection is generally not the 
end of the database owner's conditions with which 
users will be expected to comply. We also see 
requirements to submit for review research papers 
using any data or to provide papers for unlimited 
use by the database publisher. Even worse, we see 
total prohibitions against publishing or making a 
commercial use of the collected database 
information. Publication restrictions can go so far 
as to prohibit publishing research findings that 
use the collected data, and may prohibit publishing 
or disclosing the data itself, even though that 
data may be in the public domain. In the case of 
one database owned and controlled by a 
pharmaceutical company, a right was added to the 
agreement allowing the company to acquire licenses 
to inventions made during research projects that 
utilized the database.

By allowing these kinds of requirements to be 
included in licenses, we are straying far from the 
concept of copyright, which, remember, historically 
protects the copyright holder from unauthorized 
uses related to expression and nothing else.

In addition to all of the license restrictions 
typically used for electronic delivery systems, 
additional restrictions for database collections 
raise a series of new issues. The following 
questions should be asked before signing a license:
  * What are the non-disclosure obligations for   
    data, and can the library enforce them?
  * What are the use restrictions-academic v. 
    commercial--and can these be policed?
  * Must copies of research papers be sent to the 
    publisher?
  * Do users have to seek permission for 
    publication of papers?
  * Does the license control rights to, and/or 
    ownership of, inventions made using the data?

Online Access Systems

To introduce issues associated with online access 
systems, we begin with a quote from the _Britannica 
Online_ Agreement: 

All usage of _Britannica Online_ is governed by the 
terms of the _Encyclopaedia Britannica_'s [_EB_] 
Software Licensing Contract, to be signed in 
advance of access, which sets forth the terms, 
conditions, and limitations of use. 

That message from _EB_ sends a very strong signal 
that we can expect to have more to deal with than 
just matters of copyright law!

Perhaps a quick run-through of MIT's difficulties 
with the _Encyclopaedia Britannica_ license, as it 
was first structured, will provide an idea of what 
educational and research institutions are up 
against and why it took a team of lawyers, 
librarians, and computer systems people at MIT to 
reach a mutually acceptable arrangement with _EB_.
  * The definition of "authorized users" was too 
    limited to serve the MIT community. It took 
    many discussions just to arrive at an 
    acceptable definition of "part-time students."
  * Copying was restricted except as permitted 
    under "applicable law"--perhaps a benign 
    admission that U.S. copyright law (including 
    fair use) applied, but initially was not at all   
    clear.
  * MIT had to agree that it would not provide 
    access to third parties; meanwhile the database 
    itself sits on an _EB_ server, not an MIT 
    server; that meant MIT did not control access,   
    _EB_ did.
  * In addition, we were prohibited from allowing 
    access by unauthorized users, but it was not   
    within MIT's control to keep them out because   
    of our layered and hopefully seamless computing 
    environment. Without the aid of our computer 
    systems people, MIT would not have been able to 
    structure an agreement with _EB_ that would  
    have worked. Certainly, _EB_ was in no position 
    to know whether the terms of its license would  
    be consistent with the parameters of MIT's  
    computing environment.
  * There was an automatic termination of the 
    license if MIT breached the terms of the 
    license. _EB_ would turn off MIT's access-an  
    interesting concept for a library. We went  
    through extensive negotiations to prevent a  
    campuswide turn-off for a single breaching 
    event by a wayward student.
  * In addition, there were all of the other 
    indemnity obligations, disclaimers of   
    liability, etc. on the part of EB-all of those   
    things that strike terror in the hearts of   
    lawyers at educational institutions.

When contemplating procuring online access systems, 
you will be faced with the same restrictions that 
apply to electronic delivery systems and database 
collections and perhaps even more. The issues to be 
aware of are:
  * Fee structures may be based on the size of the 
    community served, rather than on actual usage 
    of the system.
  * Student access may or may not be permitted. 
    Consider the case of the New York Stock  
    Exchange online access agreement, which  
    initially did not allow student access.
  * Some providers impose prohibitions against 
    copying for any purpose, regardless of fair   
    use.
  * Frequently there is a clause restricting 
    disclosure of data despite the fact it's   
    publicly available.

I hope these examples bring home the push-pull of 
the digital revolution for the library. On the one 
hand, the speed, convenience, and sheer volume of 
information made accessible by digital technology 
and delivery is a boon. On the other hand, market 
factors and the business enterprise are bringing 
digital information to the libraries at a 
substantial cost, not just in dollars. We are 
routinely accepting many more limitations on our 
use of information than we did in the era of print.

One final thought to ponder: How does the academic 
community, most particularly the libraries, regain 
and maintain the balance of interests between the 
providers of knowledge and the users of knowledge? 
More accurately, are we really talking about 
regaining an old balance, or should we be 
considering a new one that will work for both the 
knowledge provider and the knowledge user of the 
future?

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Karen Hersey is the Intellectual Property Counsel 
for the Massachusetts Institute of Technology.
(hersey@mit.edu)


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