Rights, Copyrights and Licenses:  How They Work and

What They Mean in a Global Age

 

World Library Summit

Singapore, 24 – 26 April 2002

PowerPoint Presentation Linked Here

 

Ann Okerson

Ann.Okerson@yale.edu

http://www.library.yale.edu/~okerson/alo.html

 

 

Introduction

 

The hopeful, buoyant days of totally free Internet information seem to many have faded into the past.  While there are scientists and other scholarly activists who dream of free information for all, through worthwhile initiatives such as the international Public Library of Science,[1] the reality is that a great deal of the high-quality electronic information library users wish to access carries a cost.  Even if one day we aspire that, though the cheap distribution mechanism that electronic networks provide, we will reduce the costs of scholarly and educational information by a great deal, those happy days have not yet arrived.  And, for-pay electronic information can, will, and must be governed somehow by the rules of economics -- and thus lends itself to analysis in terms of "rights."  For it seems that all we hear of these days are the "rights" of all parties to arrangements to supply and maintain electronic scientific and scholarly information.

 

Of course, rights may involve people or property:  for information, whether in the analog or in the Internet world, we speak about "intellectual property rights."  These rights would not exist if it were not for the eighteenth century invention of the concept of copyright, the idea that turned words and artistic creations into marketable property.  Copyright was an extraordinary invention, one that has driven centuries of dynamic intellectual and cultural activity and has become part of our most basic unspoken assumptions about how we live and move and have our being within an advanced social organism.

 

Copyright and Licensing and Their Interdependence

 

One of our purposes today is to introduce some of today's fundamental IP issues and reflect upon their importance and their future resolution, as they relate to library information resources.

 

The long-established regimes and practices that libraries and publishers have developed for the print environment answer such fundamental questions as who may have access to information sources; how and where and when; how we provide for sharing information content with others by lending it for a time; and who may reproduce information for the benefit of others, especially through photocopying for local use or for "document delivery" via interlibrary loan.  These practices are largely governed by national copyright laws in their traditional forms.  The last real technological challenge before the onslaught of digital information in the 1990s was the arrival in the 1960s of photocopying.  In various nations, a series of legal adjustments and court cases about photocopying now exist, and they reflect the modifications of practice that became required when, for the first time in history, ordinary readers had the cheap and easy use of a tool for rapid and inexpensive multiplication of copies of a printed document. 

 

In principle, electronic information rules might seem to be the same as for paper information, but it seems that they are evolving somewhat differently.  Rather than using the broad umbrella of copyright, most electronic information providers choose the more intimate arena of licenses.  This is because various characteristics of the electronic environment generate great uncertainties for many publishers.  And, when it comes to using electronic information, publishers' licenses may attempt sharply to restrict who may access particular information, how many people may access it, and from what location they may do so.  Licenses may similarly restrict how information can be passed around (downloading, forwarding, sharing passwords) or duplicated (copying, printing, etc.).  That is not to say that licenses always restrict, or that they should or must restrict access – and, in fact, publishers' licenses to libraries are now much more realistic and accommodating than they were in earlier years – but that there has been sufficient evidence of restrictive licensing practices over the last decade, as educational institutions have negotiated licenses with information providers.

 

How does it happen that licenses for electronic books, journals, and databases can exercise more restrictions upon use than copyright law might?  (Or conversely, how does it happen that sometimes licenses can be more permissive than copyright?)  By legal definition, copyright begins its life as a right exclusive of the creator of a given work.  The author's set of rights may, by law, be transferred in whole or in part – and often the first transfer occurs when author signs article or book rights over to publisher.  Copyright transfers are by definition exclusive:  only those named in a contract acquire such rights until either those rights are, once again, transferred to a new owner, or some final time when the copyright protection period has ended and the work passes into the public domain.  Copyright is by definition limited in duration (though some governments now pass extensions periodically and cause us to worry that some works may now never go out of copyright, if the practice continues indefinitely).  An author or creator's assignments of rights may be made for the whole of copyright's life or for any lesser period.  Once copyright is transferred, the intellectual property itself has changed hands.  Owning copyright is very different from owning a physical object that contains or represents a copyrighted work.  That is, the buyer of a book buys only that particular object and the limited legal rights inherent in owning that particular copy; he or she does not buy the copyright.

 

When license arrangements are struck, the original ownership right in the information also does not change hands.  The user of the information, or the licensee, has a right to use the information on specific terms, but ownership remains with the copyright owner.  Licenses can be exclusive (very often this is true when a rights owner licenses someone to publish his work), but they can also be non-exclusive (when a rights owner allows different licensees the same access to the work).  A license time period must always be established, but we should bear in mind that if the object of the license is subject to copyright, then the expiration of copyright could affect the ability to extend a license.

 

Copyrights and Licenses:  Differences

 

Both copyrights and licenses assume that the concept of intellectual "property" exists and is the appropriate vehicle for commerce in words and images.  But copyright depends on a statutory enactment; it is the law of the nation.  Copyright law prescribes general concepts and values at a high conceptual level and is typically – sometimes infuriatingly – low in specifics.  Some of the most contentious aspects of the 1976 U.S. Copyright Act (still in effect although with many amendments) for example, arise from the Section 107 "fair use" provisions, which remain for many maddeningly (or advantageously) vague.  Copyright has the virtue of solidity and the defect of relative immutability, because national laws can be changed only slowly and contentiously, by appropriate legislative authority.

 

As noted above, licenses do not transfer copyright.  Granting a license means granting rights of use to intellectual property one does not own.  A license is, first and foremost, the embodiment of a business deal.  It defines every aspect of a business arrangement between library and publisher, such as what users may do with the information, where, when, for what price, with what undertakings.  Licenses are quite specific, generally tailored for each customer and resource.  In theory, in a license every clause is negotiable, and if no agreement is reached, no license happens.  But once agreement is reached and signatures affixed, the agreement is legally binding.

 

Librarians and universities, which often feel at a disadvantage when faced with the lawyers and financial resources of big publishers, are inclined to think that the idea of "license" is not as good a construct as "copyright".  But when our institutions successfully negotiate flexible and responsive licenses, such licenses can and do help us to manage our business in specific ways.  Licenses can restrict or clarify rights granted by copyright; they can also incorporate specific copyright definitions and principles (such as the right to interlibrary loan or fair use), making such useful provisions even more specific and less ambiguous.  Licenses can even extend rights granted by copyright beyond what would be the case under the law alone.  Copyright is always lives in the background:  if the license does not address an issue, copyright is presumed to be the governing and overarching regime.

 

Why License?

 

Why is licensing increasingly prevalent in the sale and use of digital information?  Here are several reasons:

 

● Many authors and publishers (i.e., rights owners) feel that copyright does not adequately address a high-tech world of rapid copying and distribution.  Copyright laws have not, for the most part, been supplemented by reasonable (nationally mandated) electronic fair use guidelines.  To illustrate this point:  In the U.S., a three-year-long process with many interested players from the publishing, author, academic, and society communities, known as the Conference on Fair Use (CONFU) was not successful in reaching consensus among the participants on a large number of fair use related issues.  So it is that all sides continue to feel uncertain about where they stand under copyright law and may seek the protection of more explicit local agreements.

 

● Copyright, moreover, does not address all the questions and details concerning complicated and alarmingly expensive "deals" for electronic resources.  A license can provide reassuring specificity.  It will answer such important questions as:

 

Exactly who are the parties involved?

What rights do the parties have?

Under what terms and conditions?

 

And if we know the answers to those questions, we can achieve success in what these days often become big, complicated business deals involving a single library or regional and even national consortia of libraries and users.  It seems clear that licensing can be very efficient and cost-effective.

 

● There is another crucial reason for the rise of licensing arrangements.  Copyright does not give any ownership rights in public domain materials, but there are many digital projects that involve repackaging and re-presenting such information.  These projects can include not only out-of-copyright material from long ago, but also current information contained in factual databases not eligible for copyright, yet of high value to the producer for the arrangement and implementation in a particular technological form.  In such cases, only licensing can protect the rights and investment of the creator and publisher.

 

● Copyright law is currently in a state of flux, and at such times, licenses can be substantial protection in a volatile legal environment.

 

And we can expect that copyright will remain in flux for some time to come, as we learn to understand the impact of the rapid information distribution technologies on society.  A quick outline merely of the U.S. experience gives a sense of this volatility.  First, early under the Clinton administration (in 1994 and 1995), a government-written copyright "white paper" set off a firestorm of debate regarding commercial use versus fair use.  That initiative led to further discourse, such as the long-lasting CONFU, a series of meetings between numerous information stakeholders representing both public and private interests.  The 1996 European database legislation has also had considerable and profound impact in the U.S.  Even though that legislation had no national legal standing, the need of American firms to operate in a global environment means that legislative actions taken elsewhere often have a great deal of influence.

 

Also in the 1990s (and on), members of the World Intellectual Property Organization (WIPO)[2] were working to harmonize protection of intellectual property and to advance global commerce in electronic forms.  In October of 1998, the Digital Millennium Copyright Act (DMCA)[3] the high quality electronic information that library users need to access carries a cost served as WIPO's implementation in the United States.  The passage of the DMCA brought with it numerous changes, many arguably not for the better.  Following on the heels of the U.S.'s copyright extension (to 70 years plus life of the author), the DMCA enacted numerous controversial provisions – of particular note and concern these days is its outlawing of all circumvention of technological protection measures, a concept now being tested in the courts).  We will return to these global matters towards the end of our discussion here.

 

Related Copyright Concerns

 

In a copyright world as volatile as ours, well-negotiated and fair licenses between consenting organizations can seem to be a safe harbor.  Nonetheless, not all licenses are fair or negotiable, and these need to be undertaken with caution and concern.  It is worth spending a short time on some related issues.

 

● First, "click" or "shrinkwrap" licenses, the kind that are bundled with an electronic resource (say a software or CD that is purchased) offer the purchaser no negotiation space at all.  The inability to negotiate is a serious disadvantage:  provisions may be included that are difficult or impossible or undesirable for an institution's users.  Sometimes the agreement is one that is presented in fine print on the web and the reader is asked to click agreement in order to proceed.  These arrangements are of questionable legal authority, but it is generally believed that they may be legally binding, at least in the U.S.  Such shrinkwrap or click licenses tend negatively to afflict individual users even more than libraries or universities.  End-users are not in much of a bargaining position with any publisher, let alone giants such as Microsoft.  To take another example from the U.S.:  such non-negotiable licenses may, in effect, be declared legal as our 50 state legislative bodies are lobbied to pass a harmonizing convention called the Uniform Computer Information Transactions Act (UCITA).[4]

 

● Authors' rights loom as another issue of great importance.  Two categories of authors feel very differently about rights:  (1) authors who earn a living through creation (journalists for example), need to be paid for their work; and (2) scholarly authors who are paid for their research (scientists for example) tend to want to have their work widely and freely distributed.  The former group is more likely to be active in ways that will affect the information purchaser.  National copyright laws, spokesmen for which appear to be the entertainment industries rather than scholarly publishing, tend to be far more relevant to the needs of infotainment than of scholarship.

 

On June 25, 2001, in a landmark legal case known as Tasini v. The New York Times,[5], the U.S. Supreme Court found that the New York Times, Lexis-Nexis, and other publishers infringed authors' copyrights in those situations where the companies had reproduced works on CD-ROMs and commercial databases without specific permissions.  The Supreme Court reaffirmed an earlier Second Circuit court ruling, which said:  “It is undisputed that the electronic databases are [not] the original collective work . . . Moreover, Nexis does almost nothing to preserve the copyrightable aspects of the publishers’ collective works as distinguished from the preexisting material employed in the work . . . ."  This Supreme Court ruling was a nightmare for online aggregators, which have since been removing tens of thousands of articles out of their databases, -- and in turn a horror for users of these online collections.  For the librarian's purpose it led to the pointed question:  Do our database licensors have the rights to license the content to us?  If the partner in the contract does not have those rights, then the license will be null and void to that extent."

 

● An important aspect of authors' rights is the language in most copyright legislation that speaks of "moral rights," i.e., of the creator.  Such rights have long been a fact in European law, but now in the United States this concept also has teeth.  In theory, if a creator, even one who has transferred his or her copyright to a publisher or producer, objects to the way in which this copyright is being used, he or she may object and may launch legal action to assert such moral rights.  In effect, this means that no copyright transfer or license agreement is ever 100% certain.

 

● Peer-to-peer information transmission.  Little needs to be said to this informed audience, save that the development of software that enable users to share information directly and bypass any middle-folk (technologies provided by sites such as Napster, Gnutella, Morpheus, Kazaa, and whatever the latest fad may be) leads rights owners to be concerned that all information will become free and that the incentives for them to remain in business will be altogether gone.  Those who support the unfettered use of such technologies, on the other hand, say that the ability to control information is now over; no rules will govern the networked environment at all – if they do, those rules will be broken and will seem foolish.

 

● As indicated above, non-commercial authors such as scientists have their own concerns.  There is a growing authors' backlash against the high prices charged by certain for-profit and not-for-profit scientific, technical, and medical publishers.  This backlash has expressed itself on a small scale for years in movements in particular disciplines to make information freely available.  In recent years, particularly since encouraged by the former head of the National Institutes of Health, Nobel Prize-winner Harold Varmus, this movement has gained visibility, now leading to agitation for scientists to refuse to supply their articles and services to journals that will not agree to make the resulting articles freely available on the Internet within six months of original publication.  Along with this, scientists are creating preprint sites and new journals in which authors do not transfer copyrights to publishers (instead issuing their own license to the publisher).  These are complicated issues involving a very large (multi-multi-billion-dollar) business and it is too early yet to predict where this revolt will go.

 

Global Dimensions

 

As indicated above, the revolution in information technology has two parallel and contradictory effects on the management of intellectual property.

 

* On the one hand, new information technologies sharply reduce the controls that producers of commercial intellectual property are able to exercise over the distribution and use of the things they produce.  This possibility exhilarates users who believe that more creative and productive use of information will be possible than ever before; and in many cases it will be possible to circumvent controls set by producers who insist on payment as a condition of use

 

* On the other, the possibility that information can be distributed without the permission of rights owners or payment to them leads them to advocate legislation that many readers and librarians find to be excessive and unfortunate.

 

All parties to these dramas – the "information wants to be free" camp; the information industry and publisher communities (seeking and often obtaining new legal protections); and international organizations such as WIPO, dedicated to protecting "the works of the human spirit worldwide" and seeking harmonization among the national laws – all these agree that the stage is now global and that there is no going back from the dramatic enlargement of the scale that we have seen.

 

In turn, the potential to distribute many forms of intellectual property through the Internet both animates and exemplifies the globalization of the commercial intellectual property industries.

 

1.         Local production is usually associated with local control of information.  If information comes from far away as easily as it comes from someplace near at hand, then a new competitive dynamic is created, one that can threaten local political or economic interests.  This effect has been more strongly felt in the area of traditional media, where older newspapers, radio, and television outlets are regularly seeing the invasion of sources of information from well beyond traditional geographical ken.

 

2.         In economic terms, the forces that govern the production and distribution of intellectual property vary sharply from place to place.  Copyright legislation differs from country to country, but the recent successes of the Copyright Extension Act[6] and the DMCA in the United States make it clear that IP laws of different exercise a mutual influence over one another and have been for many years moving towards convergence.

 

3.         The counterforce of globalization means that the rules and forces that affect local production may be undermined by competition from parts of the world where the laws are different, where government subsidies are differently applied (e.g., to the creation and propagation of scientific and technical information), and where different economic conditions create more and less favorable circumstances for the cost-effective production of information products.

 

The Real Battle:  What is to be Globalized and Harmonized?

 

As noted above, many globalization-related questions abound; for example, is globalization a "good" or "bad" thing.  I regard these as mostly the wrong questions.  It seems inevitable that we are part of a global economy and that information knows no borders.  Thus we have to learn to live together in such an economy.  This we have to do.

 

That is not to say that there are no important issues related to globalization of intellectual property and the laws that concern it.  On the contrary, a handful of issues loom very large and matter to the survival of our education and library and creative sectors.  That is, what matters most is not whether we globalize, for globalize we shall – but, rather, how and where the IP convergence takes us in one crucially important area, that of fair use.

 

In the regime of print publication, we have gradually achieved over time, by trial and error and continual tweaking of legal prescriptions and the modes of enforcement, an equilibrium of rights and power between multiple parties, those who wish access to information and those who wish to control the terms of its dissemination.  Publishers have found ways to make money and to thrive, for the benefit of all, while users have had the latitude of what has been codified, many national laws, as "fair use."  Fair use is what gives information consumers the right to employ protected material in ways that support further creativity, as well as the tasks of everyday life.  Unfortunately, the last few years have shown an accelerating tendency, particularly in the electronic arena, towards the definitive disruption of that equilibrium.  Again, I offer American examples.  In 1998, as earlier indicated, a dramatic revision of the U.S. Copyright Act was made via the DMCA.  Currently under active consideration on the floors of Congress is the so-called Hollings Bill, which would forbid the sale or distribution of any technological tools (such as computers, MP3 players, and other devices) that do not embed federally mandated copyright-protection standards.[7]  Both of these revisions, one enacted and one on a fast track to be enacted, enhance dramatically the power and control of copyright holders over the material they own.

 

If this direction, driven from the United States by the powerful and wealthy media conglomerates, largely from film, music and other consumer-aimed industries, prevails not only in the United States but also globally, then the equilibrium of the regime of print will have been significantly transformed in favor of the producers of information.  It is difficult to see a serious or beneficial social purpose in such an ultra-protectionist trend, other than the assurance of revenue streams to producers.  Many serious observers agree in seeing in this revolution a fundamental retreat from the original and historically developed balancing purpose and effect of copyright enactment.

 

Countermovement is possible.  The United States Supreme Court has recently agreed to hear a challenge to the Sonny Bono Copyright Extension that would, if approved, roll back a significant piece of the legislative revolution.  This case has been taken to the court by a team led by Stanford University law professor Lawrence Lessig, whose recent book The Future of Ideas[8] is a manifesto for the movement among legal scholars, librarians, and other interested parties to declare and establish a place for the continued public interest in the management of copyright protection.  Organizations such as the American Library Association, the ARL, and allied associations, continue vigilantly to monitor proposed legislation and to engage us in the issues, so that together we can make a difference.  We need to work together to influence our national and global laws.

 

But, most of all, the circumstances I have outlined make abundantly clear that the key short-term activities we must undertake are those that communicate clearly and broadly what progress has been made and can be made by the intelligent cooperation of stakeholders in the intellectual property marketplace.  Choosing an example from the scholarly arena:  I believe that too few people genuinely understand the marketplace that has emerged in the last five years between providers of expensive STM information and the users who purchase access to that information.  While there is evidence that suspicion and caution are justified, perhaps there is room to think of relationships between educational institutions, libraries, and publishers ad partnerships, partnerships that might be able to deliver information at an affordable price, while allaying anxieties on all sides.  My purpose in this paper has been to outline some of that history of anxiety, but mainly to explain the underlying principles in a way that can help us all make more and better history in the future.

 

It is no secret that our present, as well as our future, are and will be potentially confusing and risky.  The astute consumer of information will be one who is well-informed, up-to-date, and active in defense of what is important.  It is important to be appropriately optimistic.  We in libraries, archives, universities, and museums, i.e., the information services arena, can provide our users what they need to study, do research, teach, and publish.  By working with the providers and users, we are becoming well-informed about their needs, and we are learning to be better negotiators.

 

Short List of Useful Readings:

 

● The Digital Dilemma; intellectual property in the information age.  Washington, DC, National Academy Press, 2000.  Also available for free:  < http://books.nap.edu/catalog/9601.html>

 

● The LIBLICENSE web site (all you ever wanted to know about licensing), at: <http://www.library.yale.edu/~llicense/index.shtml>  See particularly the new DLF Model License at:  <http://www.library.yale.edu/~llicense/modlic.shtml>

 

● IFLA Licensing Principles, at:  <http://www.ifla.org/V/ebpb/copy.htm>

 

 


[1] From the web site:  "The Public Library of Science is a non-profit organization of scientists committed to making the world's scientific and medical literature freely accessible to scientists and to the public around the world, for the benefit of scientific progress, education and the public good."  For detailed information, see the URL at:  <http://www.publiclibraryofscience.org/>.

[2] The WIPO web site, at <http://www.wipo.org/> is a particularly rich source of information, in five languages, about not only the current aims and strategies of the World Intellectual Property Organization, but also of the history of harmonization of intellectual property over the last century and a half.

[3] For one source of a copy of the DMCA legislation, see <http://www.eff.org/ip/DMCA/hr2281_dmca_law_19981020_pl105-304.html>.  For extensive analysis about its provisions and concerns about those provisions, see the Association Research Libraries' Federal Relations Program's Copyright and Intellectual Property site, at:  <http://www.arl.org/info/frn/copy/dmca.html>.

[4] For documentation regarding UCITA, see the extensive information provided by the ARL at <http://www.arl.org/info/frn/copy/ucitapg.html>.

[5] The "Findlaw" web site is a particularly good source for decisions such as Tasini. See <http://www.findlaw.com/casecode/index.html>.

[6] The complete legislation that extended the U.S. copyright protection to 70 years plus life of the author, otherwise known as the "Sony Bono Extension Act," can be found at the Library of Congress's Thomas site:  <http://thomas.loc.gov/cgi-bin/query/z?c105:S.505.ENR:>

[7] According to wired.com, Senator Fritz Hollings's bill S.2048 "…called the Consumer Broadband and Digital Television Promotion Act (CBDTPA), prohibits the sale or distribution of nearly any kind of electronic device -- unless that device includes copy-protection standards to be set by the federal government.  A search via the Internet engine Google <www.google.com> calls up many sites that analyze this pending legislation and its pros, as well as numerous downsides.

[8] This book has been widely cited and favorably or at least admiringly reviewed.  Lawrence Lessig, The future of ideas : the fate of the commons in a connected world.  New York, Random House, 2001.