Jacqueline Barlow GLIS 601

For Valerie Nesset December 18, 2006

COPYRIGHT IN THE INFORMATION

PROFESSIONS:
SOME ISSUES, AND SOME SOLUTIONS
By Jacqueline Barlow
I. Introduction.

The issue of copyright is often a critical one in the information sciences. It may

be said that the information sciences concern themselves generally with the organization,

categorization and dissemination of information. Copyright law is directly applicable to

this dissemination. Broadly speaking, the purpose of copyright law is to protect the

economic and moral rights of the creator of a work, and to prevent the unauthorized

copying, alteration, or other dissemination of works that are under copyright. This

clearly is something that the information professional needs to consider; one could say

that a basic knowledge of copyright law is the responsibility of every information

professional.

The rapid advance of Internet technologies in recent history has presented

interesting challenges for interpreters of copyright law, which was a complex and

labyrinthine subject even in the print-only past. But copyright laws have never been

perfect and their interpreters possibly even less so; while technological advances have

made necessary new interpretations of copyright law and changes to the existing laws,

they have also, for many observers, highlighted the limitations inherent in copyright law

itself.

Therefore this paper will discuss two issues. The first issue is the confusion

generated by copyright laws in general, and in particular as these apply to new

technologies. Topics discussed here include the controversy over the Google Book

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Search project, the idea of “copyleft,” and the issue of open access in the world of

academic journals.

The second issue arises from the first, and it has to do with the origin of this

confusion. Some authors contend that all the fuss over copyright as it applies to new

technologies is merely a new expression of an old problem – a tension inherent in the

idea of copyright itself and present more or less since its inception. There are others who

claim that recent copyright legislation (in the United States, primarily) in response to new

technology goes against what might be termed the “spirit” of copyright; the implication

here is that the copyright of, say, a hundred years ago or so was better, purer somehow,

and that copyright is being abused by certain parties in their own interests.

Both of these issues will be discussed in terms of the information professions and

society in general.

II. Copyright confusion.

i. Information.

As stated in the introduction, information professionals have a responsibility to

understand copyright law as it applies to their profession. Toward the end of keeping

these professionals informed, a number of articles have been published in a strictly

informative vein to clarify definitions and issues. One of these is “Electronic information

management and intellectual property rights” by Graham P. Cornish, a recognized expert

on copyright. In this article Cornish provides a useful primer for topics such as owners’

and authors’ rights, copyright, rights in an electronic world, databases, moral and

economic rights, users’ needs and privileges, and a number of other aspects of intellectual

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property rights, which are bound up with the idea of copyright. He outlines the basic

concepts involved, briefly discusses some of the issues, such as the problem of

developing effective Electronic Rights Management Systems (ERMS) and the struggle of

many databases to find a Trusted Third Party or TTP to help handle the licensing and

financial aspects of providing copyrighted information online. He goes on to mention

some attempted solutions, such as the CITED initiative, the COPICAT and COPYRIGHT

programs, and IMPRIMATUR, all of which have met with varying degrees of success

and some of which are still ongoing.

In another work, “Copyright and Open Access – contradictory or

complementary?” Cornish attempts to find some common ground between copyright and

open access, which he characterizes as an attempt to “[minimize] the barriers to the free

use of material created primarily for the benefit of society in general, and the scientific

community in particular.” (187) And in the journal Public Libraries, Carrie Russell

tackled the issue of “The Copyright Implications of Blogs,” concluding that blogs are,

indeed, copyright protected, though the owner of copyright for a whole blog, which may

contain data from many different contributors, can be difficult to determine. She thinks

that blogs contain many examples of the “fair use” concept. She also discusses the issues

of citing blogs that contain other copyrighted works, citing other works within blogs, and

who owns the copyright on a comment to a blog post (the commentator does, p. 215).

And in “Copyright Clearance Center: Providing Compliance Solutions for

Content Users,” Tracey Armstrong outlines how Copyright Clearance Center can help us

obtain permission to use copyrighted works, both in their physical location and online.

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All of these articles are useful as far as they go, and indeed may be valuable

resources for information professionals. However, none of them take an evaluative

stance or offer opinions. Their purpose is to explain copyright law as it applies to certain

current issues, and in this it may be said that they are effective. There are, however, still

major ongoing conflicts in this area.

ii. Confusion leads to controversy.

The three controversies that are highlighted here are: Google Book Search’s

library project and the reaction of some publishers; the questions raised by the practice of

some academics and academic journals of posting early versions of scholarly articles for

free online; and the limitations of “copyleft,” a concept that was formulated as an

alternative to copyright and an instrument to foster “free culture” – but which may have

outlived its usefulness.

In all three cases the root of the conflict is confusion over the correct application

of copyright law and may be seen as the struggle between, on one side, a perceived

freedom (e.g. freedom of expression or freedom of access), and one the other side, the

extent to which this freedom is restricted by copyright law. Often the facet of copyright

law that is at issue is the notion of “fair use,” which outlines the terms under which a

copyrighted work may be used by someone who is not the copyright holder.

In her article, “Fair Use or Exploitation? The Google Book Search Controversy,”

Corinna Baksik explains: “Fair use is determined by considering four factors: the purpose

and character of the use, the nature of the work, the amount used in relation to the whole,

and the effect upon the potential market value of the copyrighted work.” (402) These

criteria are obviously open to much interpretation, and therein, it seems, lies the problem.

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The Google Book Search project originally consisted of Google, in consultation

with publishers, acquiring permission from these publishers to scan certain books for

which the publishers were the copyright holders, and making the text of these books

searchable online. This part of the project met with little controversy. However, soon

afterwards Google announced that it would begin scanning library books and making

their text searchable online. Baksik clarifies that this is not tantamount to making the

books searchable for free – the only books that can be “browsed in their entirety,” (401)

in the United States, are books published before 1922, which are public domain under US

copyright law. In all other cases all that will be displayed of a book is a “snippet,” which

consists of one page in the book containing the user’s search terms, and a few pages

preceding and following that page. Google will also, in the case of library books, show

where the book can be found, and in the case of other books, show where the book can be

purchased. Even given these restrictions, a number of publishing groups have claimed

that what Google is doing constitutes copyright infringement, and they have launched

legal action.

Google, naturally, is of the opinion that their project falls within the boundaries of

fair use. The lawsuits in this case have not yet been resolved.

While Baksik has criticisms for both sides, accusing both publishers and Google

of “Discrepancy, Hypocrisy and Hyperbole” (407), she clearly comes down on the side of

Google. In her conclusion, she states, “In its ‘marvelous, if imperfect’ way, Google has

used the legal system in such a clever manner that no one is really getting hurt, and

everyone is better off.” (411) Baksik’s article does not show a bias, however. The claims

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of both parties are examined in detail and the reader is left with the feeling of being well-

informed on the topic.

In “A Proposal for an Open Content Licence for Research Paper (Pr)ePrints,”

Roger Clarke discusses the issue of scholars wishing to provide copies of scholarly

articles for free online. This is an offshoot of the Open Access movement, which

recommends, among other things: “that authors electronically publish (or ‘archive’)

preprints of their papers,” and “that journal publishers sanction author self-archiving.”

Clarke coins the term ‘(Pr)ePrint’ to describe these electronically-published papers, to

reflect their electronic nature as well as the fact that they are meant to be earlier, rougher

versions of works that will, at some point, become more polished.

According to Clarke, “It is likely that each person who accesses a (Pr)ePrint with

the express or implied consent of the copyright-owner is granted a license by the

copyright owner. At the very least, the copyright owner is consenting to such copying as

is necessary to enable the content to be displayed.” However, he notes, “the terms of

implied licenses are not clear.” The interest of both parties – the authors and the

publishers – in this issue seems to be working out the practicalities of posting these

papers online, not stopping them from being posted at all. It is a decision over whether

the publishing of (Pr)ePrints should be restricted and, if so, to what extent.

Finally, in “The Fog of Copyleft,” Aaron Krowne and Raymond Puzio

discuss the notion of copyleft in its relation to the idea of “free culture.” As they describe

it, copyleft was an attempt to reduce the confusion that is caused by the application of

copyright laws, which were developed in a print world, to digital media – “the fog of

copyright” (emphasis mine). It was also an attempt to create “a milieux [sic] of works

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which are free to circulate and build openly” – the definition of free culture. But copyleft

is built on top of copyright law, and “any folk impression that copyleft is somehow

diametrically opposed to or outside of copyright law is incorrect.”

At the heart of copyleft is the desire to have “free culture” while retaining the

rights of the author or creator. After all, Krowne and Puzio note, not to retain these rights

would deter people from entering into a copyleft license. But copyleft is not perfect, the

authors contend, and has outlived its usefulness. Among their criticisms:

• That the terms of a copyleft license renew each time a work is altered.
This results in copyleft licenses that last for far longer than any copyright
was ever intended to – a situation that the authors term “copyleft is
forever.”
• The creators of copyleft knew about “free culture” but did not foresee the
creation of “free meta-culture” – the rules of free culture. Ironically, the
licenses of copyleft, which are examples of free meta-culture, are not free
culture themselves – they may not be altered.

Thus copyleft can be seen as more constricting than copyright ever was. The dichotomy

here is between freedom of expression and its restriction by law. This can be seen as

parallel to the conflict between freedom of access and financial concerns.

The balance of, on the one side, freedom of expression and freedom of access,

and on the other, copyright restrictions and publishers’ financial concerns, is a crucial one

for libraries, whose main function is to provide their patrons with books, movies, journals

and other information packages free of charge (or, in some cases, for a nominal fee). If

access to information is restricted, libraries’ ability to fulfill their mandates will be

restricted.

III. Origins.

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In the three cases mentioned above, we see the repetition of the same type of

conflict – between freedom of expression or freedom of access, and their restriction by

legal or financial demands. The question bears asking, how did this conflict come to be

such a common problem? In this section I will examine three articles – one, a historical

account of the roots of Anglo-American copyright law which seems to say that this

tension has been present in copyright almost from the beginning; another, which says

today’s copyright battles are largely the product of the demands of big business; and a

third, which criticizes this big-business account.

In “Technology and Copyright in 1735: The Engraver’s Act,” Mark Rose gives

some historical background. When copyright was first established in England in 1710, he

says, its purpose was “to preserve order in the book trade and to protect booksellers’

investments.” (63) It had nothing to do with “the abstract notion of literary property.”

(63) The function of copyright was to prevent the sale or distribution of copied works,

and to ensure that authors and publishers would receive rightful compensation.

Rose’s contention is that this all changed in 1735 with the Engraver’s Act. This

act was meant to extend the same protection to engravers that authors received with the

Statute of Anne in 1710. The Engraver’s Act initially protected only engravers who

produced original designs, and not those who copied the work of other, and it is with this

act, he claims, that copyright first comes to be seen as “an instrument to foster and protect

creativity and imagination.” (64) His claim is that there is a natural tension between this

and the economic side of copyright, and the tension persists to this day.

Rose notes that “[t]he institution of copyright is the child of technology.” (63)

There would have been no need for copyright without the invention of the printing press

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and its capacity for multiple identical copies. The increasing speed with which

information can be copied and distributed today means that copyright is as topical now as

it was in 1735. Rose’s suggestion is that the development of copyright in London in the

18th century may “be taken as a paradigm for the many subsequent extensions of

copyright to cover such new technologies as movies, sound recordings, and computer

programs.” (65)

Rose does not offer any recipe for change; he merely offers what he takes to be a

useful paradigm for our present-day copyright woes. In some ways Charles W. Bailey,

author of “Strong Net Copyright + DRM + Weak Net Neutrality = Digital Dystopia?”

agrees with him. Bailey reminds us that “The thing about the future is that it is rooted in

the past. Culture, even digital culture, builds on what has gone before.” (116) Past works

should be accessible by the public, Bailey says, or culture will suffer. He points out that

it is one of the purposes of U.S. Copyright Law “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.” Therefore, in the United States at any rate,

copyright was not originally at odds with the development of culture.

However, Bailey identifies a “trend” at play. He identifies this trend as “the view

that intellectual works are property” (116, his emphasis) and should be defended as such;

further, this trend dictates that “contracts, rather than copyright law, should govern the

use of intellectual works.” (116) According to Bailey, this limits our ability to “access

our past.”

“The internet was designed to be content-, application-, and hardware-neutral.”

(116) Bailey contends that this neutrality is under attack. Special-interest groups (mostly

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big media companies, in Bailey’s characterization) have successfully lobbied the U.S.

Congress to extend the terms of copyright from their original maximum of twenty-eight

years to their current length of the life of the author plus seventy years (117), and to make

the penalties for copyright infringement much harsher (118); in the same way, Bailey

claims, forces are at work to minimize the neutrality of the internet and to skew it in

favour of private interests. The feared outcome here is that the information superhighway

becomes an “information toll road;” (126) and that American culture will change from a

permissive culture to a permission one. (119)

Bailey is an avowed proponent of the work of Lawrence Lessig (117), author of

the book Free Culture. Lessig’s work is criticized by Stuart Weinstein and Charles Wild

in their article “Lawrence Lessig’s ‘Bleak House.’” Weinstein and Wild do not deny the

existence of be problems described by Lessig (and Bailey – by the characterization of

both bailey and Weinstein and Wild, Lessig and Bailey agree on the nature of threats

facing access to information). However, they feel that Lessig perhaps overestimates the

power of the big media companies. They posit that recent attempts by big corporations to

extend copyright have nothing to do with the Internet – “rather, it probably has more to

do with the fact that some of the most valuable copyrighted material in history… is fast

coming into the public domain.” (366) They also note that the U.S. Congress has in the

past, of its own volition, extended copyright law without any pressure from big media

companies. Weinstein and Wild also disagree with Lessig in his claim that “creative

property” should be distinct from simple property, and argue that the two are more alike

than Lessig will admit (367-8).

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Lessig accuses big media companies of using their money and their influential

status to win exceptions to copyright law. However, Weinstein and Wild note, “When

weighing a copyright infringement case a court cannot legitimately distinguish between

good and bad copyright infringement claimants on the basis of their wealth, size, or

power in society.” (368) By saying this, they imply that in court cases where big media

companies have won, this may have been because they simply had the better case.

The authors also warn that more artistic protection, which Lessig calls for, may in

fact lead to less technological innovation (371) – here we can see the echoes of the

tension described by Rose. They compare Lessig to Dickens’s The Ghost of Christmas

Yet to Come (366); they seem to think he (along with Bailey) is being slightly

melodramatic in his approach to this topic. Weinstein and Wild favour a more moderate

approach.

IV. Conclusion.

Nearly every author cited in this paper mentions the complexity of copyright law

as a major hindrance on the road to a proper understanding of it. It is probably due to this

complexity that the issues surrounding copyright are so varied. However, all of them

may be seen to have an effect on the information profession and society as a whole. The

outcome of the Google Book Search case, for instance, could have a dramatic effect on

legislation concerning the creation of digital archiving of print works and the legal use of

these digital copies. It seems likely that the tension between artistic freedom or freedom

of expression on one hand and its restriction by law on the other will continue, in some

capacity, as long as copyright law persists; however, concepts such as copyleft and open

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access aim to drastically alter our perception of copyright, fair use, and the idea of

intellectual property. How these ideas develop, and how they are received by the

community of users, will be something that information professionals should watch.

Since it is the role of information professionals to serve a community of users, it

seems that the outcome of these conflicts, insofar as they affect the information

profession, will affect their user community as well; and insofar as they affect the user

community, the information profession will also be affected. It is difficult to imagine any

facet of our society that is not included in these categories.

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BIBLIOGRAPHY

Armstrong, Tracey. “Copyright Clearance Center: Providing Compliance Solutions for

Content Users.” Journal of Library Administration 42.3/4 (2005): 55-64.

Bailey, Charles W., Jr. “Strong Copyright + DRM + Weak Net Neutrality = Digital
Dystopia?” Information Technology and Libraries 25.3 (2006), 116-27, 139.

Baksik, Corinna. “Fair Use or Exploitation? the Google Book Search Controversy.”
Portal: Libraries and the Academy, 6.4 (2006): 399-415.

Clarke, Roger. “A Proposal for an Open Content Licence for Research Paper
(Pr)ePrints.” First Monday (Online) 10.8 (2005): no pagination.
http://www.firstmonday.org accessed December 14, 2006.

Cornish, Graham P. “Electronic Information Management and Intellectual Property

Rights.” Information Services & Use 25.1 (2005): 59-68.

Cornish, Graham P. “Copyright and Open Access – contradictory or complementary?”

Logos 16.4 (2005): 187-92.

Krowne, Aaron and Raymond Puzio. “The Fog of Copyleft.” First Monday (Online)
11.7 (July 2006): no pagination. http://www.firstmonday.org accessed December
17, 2006.

Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock
Down Culture and Control Creativity. New York: Penguin, 2004.

Rose, Mark. “Technology and Copyright in 1735: The Engraver’s Act.” Information
Society 21.1 (2005): 63-6.

Russell, Carrie. “Copyright Concerns: The Copyright Implications of Blogs.” Public

Libraries 44.4 (2005): 215-16.

Weinstein, Stuart and Charles Wild. “Lawrence Lessig’s ‘Bleak House’: A Critique of
‘Free Culture: How Big Media Uses Technology and the Law to Lock Down
Culture and Control Creativity’ or “How I Learned to Stop Worrying and Love
Internet Law”.” International Review of Law, Computers and Technology 19.3
(2005): 363-75.

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