Part 14

* Putting something in the public domain in the United States offers some freedom from anxiety, but distributing it throughout the world on a network is another matter, even if one has put it in the public domain in the United States. Re foreign laws, very frequently a work can be in the public domain in the United States but protected in other countries. Thus, one must consider all of the places a work may reach, lest one unwittingly become liable to being faced with a suit for copyright infringement, or at least a letter demanding discussion of what one is doing.

PETERS reviewed copyright law in the United States. The U.S. Constitution effectively states that Congress has the power to enact copyright laws for two purposes: 1) to encourage the creation and dissemination of intellectual works for the good of society as a whole; and, significantly, 2) to give creators and those who package and disseminate materials the economic rewards that are due them.

Congress strives to strike a balance, which at times can become an emotional issue. The United States has never accepted the notion of the natural right of an author so much as it has accepted the notion of the public good and the desirability of incentives to promote it. This state of affairs, however, has created strains on the international level and is the reason for several of the differences in the laws that we have. Today the United States protects almost every kind of work that can be called an expression of an author. The standard for gaining copyright protection is simply originality. This is a low standard and means that a work is not copied from something else, as well as shows a certain minimal amount of authorship. One can also acquire copyright protection for making a new version of preexisting material, provided it manifests some spark of creativity.

However, copyright does not protect ideas, methods, systems--only the way that one expresses those things. Nor does copyright protect anything that is mechanical, anything that does not involve choice, or criteria concerning whether or not one should do a thing. For example, the results of a process called declicking, in which one mechanically removes impure sounds from old recordings, are not copyrightable. On the other hand, the choice to record a song digitally and to increase the sound of violins or to bring up the tympani constitutes the results of conversion that are copyrightable. Moreover, if a work is protected by copyright in the United States, one generally needs the permission of the copyright owner to convert it. Normally, who will own the new--that is, converted- -material is a matter of contract. In the absence of a contract, the person who creates the new material is the author and owner. But people do not generally think about the copyright implications until after the fact. PETERS stressed the need when dealing with copyrighted works to think about copyright in advance. One's bargaining power is much greater up front than it is down the road.

PETERS next discussed works not protected by copyright, for example, any work done by a federal employee as part of his or her official duties is in the public domain in the United States. The issue is not wholly free of doubt concerning whether or not the work is in the public domain outside the United States. Other materials in the public domain include: any works published more than seventy-five years ago, and any work published in the United States more than twenty-eight years ago, whose copyright was not renewed. In talking about the new technology and putting material in a digital form to send all over the world, PETERS cautioned, one must keep in mind that while the rights may not be an issue in the United States, they may be in different parts of the world, where most countries previously employed a copyright term of the life of the author plus fifty years.

PETERS next reviewed the economics of copyright holding. Simply, economic rights are the rights to control the reproduction of a work in any form. They belong to the author, or in the case of a work made for hire, the employer. The second right, which is critical to conversion, is the right to change a work. The right to make new versions is perhaps one of the most significant rights of authors, particularly in an electronic world. The third right is the right to publish the work and the right to disseminate it, something that everyone who deals in an electronic medium needs to know. The basic rule is if a copy is sold, all rights of distribution are extinguished with the sale of that copy. The key is that it must be sold. A number of companies overcome this obstacle by leasing or renting their product. These companies argue that if the material is rented or leased and not sold, they control the uses of a work. The fourth right, and one very important in a digital world, is a right of public performance, which means the right to show the work sequentially. For example, copyright owners control the showing of a CD-ROM product in a public place such as a public library. The reverse side of public performance is something called the right of public display. Moral rights also exist, which at the federal level apply only to very limited visual works of art, but in theory may apply under contract and other principles. Moral rights may include the right of an author to have his or her name on a work, the right of attribution, and the right to object to distortion or mutilation--the right of integrity.

The way copyright law is worded gives much latitude to activities such as preservation; to use of material for scholarly and research purposes when the user does not make multiple copies; and to the generation of facsimile copies of unpublished works by libraries for themselves and other libraries. But the law does not allow anyone to become the distributor of the product for the entire world. In today's electronic environment, publishers are extremely concerned that the entire world is networked and can obtain the information desired from a single copy in a single library. Hence, if there is to be only one sale, which publishers may choose to live with, they will obtain their money in other ways, for example, from access and use. Hence, the development of site licenses and other kinds of agreements to cover what publishers believe they should be compensated for. Any solution that the United States takes today has to consider the international arena.

Noting that the United States is a member of the Berne Convention and subscribes to its provisions, PETERS described the permissions process. She also defined compulsory licenses. A compulsory license, of which the United States has had a few, builds into the law the right to use a work subject to certain terms and conditions. In the international arena, however, the ability to use compulsory licenses is extremely limited. Thus, clearinghouses and other collectives comprise one option that has succeeded in providing for use of a work. Often overlooked when one begins to use copyrighted material and put products together is how expensive the permissions process and managing it is. According to PETERS, the price of copyright in a digital medium, whatever solution is worked out, will include managing and assembling the database. She strongly recommended that publishers and librarians or people with various backgrounds cooperate to work out administratively feasible systems, in order to produce better results.

In the lengthy question-and-answer period that followed PETERS's presentation, the following points emerged:

* The Copyright Office maintains that anything mechanical and totally exhaustive probably is not protected. In the event that what an individual did in developing potentially copyrightable material is not understood, the Copyright Office will ask about the creative choices the applicant chose to make or not to make. As a practical matter, if one believes she or he has made enough of those choices, that person has a right to assert a copyright and someone else must assert that the work is not copyrightable. The more mechanical, the more automatic, a thing is, the less likely it is to be copyrightable.

* Nearly all photographs are deemed to be copyrightable, but no one worries about them much, because everyone is free to take the same image. Thus, a photographic copyright represents what is called a "thin" copyright. The photograph itself must be duplicated, in order for copyright to be violated.

* The Copyright Office takes the position that X-rays are not copyrightable because they are mechanical. It can be argued whether or not image enhancement in scanning can be protected. One must exercise care with material created with public funds and generally in the public domain. An article written by a federal employee, if written as part of official duties, is not copyrightable. However, control over a scientific article written by a National Institutes of Health grantee (i.e., someone who receives money from the U.S. government), depends on NIH policy. If the government agency has no policy (and that policy can be contained in its regulations, the contract, or the grant), the author retains copyright. If a provision of the contract, grant, or regulation states that there will be no copyright, then it does not exist. When a work is created, copyright automatically comes into existence unless something exists that says it does not.

* An enhanced electronic copy of a print copy of an older reference work in the public domain that does not contain copyrightable new material is a purely mechanical rendition of the original work, and is not copyrightable.

* Usually, when a work enters the public domain, nothing can remove it. For example, Congress recently passed into law the concept of automatic renewal, which means that copyright on any work published between l964 and l978 does not have to be renewed in order to receive a seventy-five-year term. But any work not renewed before 1964 is in the public domain.

* Concerning whether or not the United States keeps track of when authors die, nothing was ever done, nor is anything being done at the moment by the Copyright Office.

* Software that drives a mechanical process is itself copyrightable. If one changes platforms, the software itself has a copyright. The World Intellectual Property Organization will hold a symposium 28 March through 2 April l993, at Harvard University, on digital technology, and will study this entire issue. If one purchases a computer software package, such as MacPaint, and creates something new, one receives protection only for that which has been added.

PETERS added that often in copyright matters, rough justice is the outcome, for example, in collective licensing, ASCAP (i.e., American Society of Composers, Authors, and Publishers), and BMI (i.e., Broadcast Music, Inc.), where it may seem that the big guys receive more than their due. Of course, people ought not to copy a creative product without paying for it; there should be some compensation. But the truth of the world, and it is not a great truth, is that the big guy gets played on the radio more frequently than the little guy, who has to do much more until he becomes a big guy. That is true of every author, every composer, everyone, and, unfortunately, is part of life.

Copyright always originates with the author, except in cases of works made for hire. (Most software falls into this category.) When an author sends his article to a journal, he has not relinquished copyright, though he retains the right to relinquish it. The author receives absolutely everything. The less prominent the author, the more leverage the publisher will have in contract negotiations. In order to transfer the rights, the author must sign an agreement giving them away.

In an electronic society, it is important to be able to license a writer and work out deals. With regard to use of a work, it usually is much easier when a publisher holds the rights. In an electronic era, a real problem arises when one is digitizing and making information available. PETERS referred again to electronic licensing clearinghouses. Copyright ought to remain with the author, but as one moves forward globally in the electronic arena, a middleman who can handle the various rights becomes increasingly necessary.

The notion of copyright law is that it resides with the individual, but in an on-line environment, where a work can be adapted and tinkered with by many individuals, there is concern. If changes are authorized and there is no agreement to the contrary, the person who changes a work owns the changes. To put it another way, the person who acquires permission to change a work technically will become the author and the owner, unless some agreement to the contrary has been made. It is typical for the original publisher to try to control all of the versions and all of the uses. Copyright law always only sets up the boundaries. Anything can be changed by contract.

******

SESSION VII. CONCLUSION

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ GENERAL DISCUSSION * Two questions for discussion * Different emphases in the Workshop * Bringing the text and image partisans together * Desiderata in planning the long-term development of something * Questions surrounding the issue of electronic deposit * Discussion of electronic deposit as an allusion to the issue of standards * Need for a directory of preservation projects in digital form and for access to their digitized files * CETH's catalogue of machine-readable texts in the humanities * What constitutes a publication in the electronic world? * Need for LC to deal with the concept of on-line publishing * LC's Network Development Office exploring the limits of MARC as a standard in terms of handling electronic information * Magnitude of the problem and the need for distributed responsibility in order to maintain and store electronic information * Workshop participants to be viewed as a starting point * Development of a network version of AM urged * A step toward AM's construction of some sort of apparatus for network access * A delicate and agonizing policy question for LC * Re the issue of electronic deposit, LC urged to initiate a catalytic process in terms of distributed responsibility * Suggestions for cooperative ventures * Commercial publishers' fears * Strategic questions for getting the image and text people to think through long-term cooperation * Clarification of the driving force behind both the Perseus and the Cornell Xerox projects * +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

In his role as moderator of the concluding session, GIFFORD raised two questions he believed would benefit from discussion: 1) Are there enough commonalities among those of us that have been here for two days so that we can see courses of action that should be taken in the future? And, if so, what are they and who might take them? 2) Partly derivative from that, but obviously very dangerous to LC as host, do you see a role for the Library of Congress in all this? Of course, the Library of Congress holds a rather special status in a number of these matters, because it is not perceived as a player with an economic stake in them, but are there roles that LC can play that can help advance us toward where we are heading?

Describing himself as an uninformed observer of the technicalities of the last two days, GIFFORD detected three different emphases in the Workshop: 1) people who are very deeply committed to text; 2) people who are almost passionate about images; and 3) a few people who are very committed to what happens to the networks. In other words, the new networking dimension, the accessibility of the processability, the portability of all this across the networks. How do we pull those three together?

Adding a question that reflected HOCKEY's comment that this was the fourth workshop she had attended in the previous thirty days, FLEISCHHAUER wondered to what extent this meeting had reinvented the wheel, or if it had contributed anything in the way of bringing together a different group of people from those who normally appear on the workshop circuit.

HOCKEY confessed to being struck at this meeting and the one the Electronic Pierce Consortium organized the previous week that this was a coming together of people working on texts and not images. Attempting to bring the two together is something we ought to be thinking about for the future: How one can think about working with image material to begin with, but structuring it and digitizing it in such a way that at a later stage it can be interpreted into text, and find a common way of building text and images together so that they can be used jointly in the future, with the network support to begin there because that is how people will want to access it.

In planning the long-term development of something, which is what is being done in electronic text, HOCKEY stressed the importance not only of discussing the technical aspects of how one does it but particularly of thinking about what the people who use the stuff will want to do. But conversely, there are numerous things that people start to do with electronic text or material that nobody ever thought of in the beginning.

LESK, in response to the question concerning the role of the Library of Congress, remarked the often suggested desideratum of having electronic deposit: Since everything is now computer-typeset, an entire decade of material that was machine-readable exists, but the publishers frequently did not save it; has LC taken any action to have its copyright deposit operation start collecting these machine-readable versions? In the absence of PETERS, GIFFORD replied that the question was being actively considered but that that was only one dimension of the problem. Another dimension is the whole question of the integrity of the original electronic document. It becomes highly important in science to prove authorship. How will that be done?

ERWAY explained that, under the old policy, to make a claim for a copyright for works that were published in electronic form, including software, one had to submit a paper copy of the first and last twenty pages of code--something that represented the work but did not include the entire work itself and had little value to anyone. As a temporary measure, LC has claimed the right to demand electronic versions of electronic publications. This measure entails a proactive role for the Library to say that it wants a particular electronic version. Publishers then have perhaps a year to submit it. But the real problem for LC is what to do with all this material in all these different formats. Will the Library mount it? How will it give people access to it? How does LC keep track of the appropriate computers, software, and media? The situation is so hard to control, ERWAY said, that it makes sense for each publishing house to maintain its own archive. But LC cannot enforce that either.

GIFFORD acknowledged LESK's suggestion that establishing a priority offered the solution, albeit a fairly complicated one. But who maintains that register?, he asked. GRABER noted that LC does attempt to collect a Macintosh version and the IBM-compatible version of software. It does not collect other versions. But while true for software, BYRUM observed, this reply does not speak to materials, that is, all the materials that were published that were on somebody's microcomputer or driver tapes at a publishing office across the country. LC does well to acquire specific machine-readable products selectively that were intended to be machine-readable. Materials that were in machine-readable form at one time, BYRUM said, would be beyond LC's capability at the moment, insofar as attempting to acquire, organize, and preserve them are concerned--and preservation would be the most important consideration. In this connection, GIFFORD reiterated the need to work out some sense of distributive responsibility for a number of these issues, which inevitably will require significant cooperation and discussion. Nobody can do it all.

LESK suggested that some publishers may look with favor on LC beginning to serve as a depository of tapes in an electronic manuscript standard. Publishers may view this as a service that they did not have to perform and they might send in tapes. However, SPERBERG-McQUEEN countered, although publishers have had equivalent services available to them for a long time, the electronic text archive has never turned away or been flooded with tapes and is forever sending feedback to the depositor. Some publishers do send in tapes.

ANDRE viewed this discussion as an allusion to the issue of standards. She recommended that the AAP standard and the TEI, which has already been somewhat harmonized internationally and which also shares several compatibilities with the AAP, be harmonized to ensure sufficient compatibility in the software. She drew the line at saying LC ought to be the locus or forum for such harmonization.

Taking the group in a slightly different direction, but one where at least in the near term LC might play a helpful role, LYNCH remarked the plans of a number of projects to carry out preservation by creating digital images that will end up in on-line or near-line storage at some institution. Presumably, LC will link this material somehow to its on-line catalog in most cases. Thus, it is in a digital form. LYNCH had the impression that many of these institutions would be willing to make those files accessible to other people outside the institution, provided that there is no copyright problem. This desideratum will require propagating the knowledge that those digitized files exist, so that they can end up in other on-line catalogs. Although uncertain about the mechanism for achieving this result, LYNCH said that it warranted scrutiny because it seemed to be connected to some of the basic issues of cataloging and distribution of records. It would be foolish, given the amount of work that all of us have to do and our meager resources, to discover multiple institutions digitizing the same work. Re microforms, LYNCH said, we are in pretty good shape.

BATTIN called this a big problem and noted that the Cornell people (who had already departed) were working on it. At issue from the beginning was to learn how to catalog that information into RLIN and then into OCLC, so that it would be accessible. That issue remains to be resolved. LYNCH rejoined that putting it into OCLC or RLIN was helpful insofar as somebody who is thinking of performing preservation activity on that work could learn about it. It is not necessarily helpful for institutions to make that available. BATTIN opined that the idea was that it not only be for preservation purposes but for the convenience of people looking for this material. She endorsed LYNCH's dictum that duplication of this effort was to be avoided by every means.

HOCKEY informed the Workshop about one major current activity of CETH, namely a catalogue of machine-readable texts in the humanities. Held on RLIN at present, the catalogue has been concentrated on ASCII as opposed to digitized images of text. She is exploring ways to improve the catalogue and make it more widely available, and welcomed suggestions about these concerns. CETH owns the records, which are not just restricted to RLIN, and can distribute them however it wishes.