In October 1998, Congress passed a law, the Digital Millennium Copyright Act (DMCA), which updated the existing statute for the digital environment, and harmonized U.S. law with the new World Intellectual Property Organization (WIPO) treaties negotiated in December 1996 in Geneva. At the same time, it passed the Sonny Bono Copyright Term Extension Act (CTEA). Both have effects on libraries and researchers.
The Library currently adheres to the provisions of the 1976 Copyright Act and follows its standards of educational fair use established in Section 107. The Library also follows guidelines from Congress regarding copying for educational purposes. "Under the guidelines for literary works, a teacher is allowed to make a single copy of a chapter from a book, of an article from a periodical or a newspaper, of a short story, essay or short poem, or of a chart, graph, diagram, cartoon or picture from a book or periodical for use in teaching or in preparation to teach." For multiple copies, stricter guidelines are in effect that may require contacting the copyright owner.
Under the 1976 Act, for works published before 1978, with a copyright notice, the maximum duration of protection was 75 years. Works published before 1978 without a copyright notice were assumed to be in the public domain. For works created since 1978, copyright lasted for the life of the author plus 50 years. The CTEA extends the term to the life of the individual author plus 70 years and from 75 to 95 years for corporate authors. This extension applies to future works, as well as works still under copyright on the bill's effective date. There is an exemption: "For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a non-profit educational institution that functions as such, may reproduce, distribute, display or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship or research," if the work is not subject to normal commercial exploitation; the copy or phonorecord of the work cannot be obtained at a reasonable price; or the copyright owner does not provide notice to the contrary.
The DMCA adds several new sections to the old Act. Title I covers Circumvention of Copyright Protection Systems. The section on Violations of Technological Measures (e.g., passwords or forms of encryption used by copyright holders to restrict access to material) prohibits persons from circumventing a technological measure that effectively controls access to a work. The prohibition does not take effect until the end of a two year period beginning on the date of the enactment. During this time period and every three years afterward, the Act requests that the Librarian of Congress and the Register of Copyrights study the matter to see how it negatively impacts people's ability to make uses, without infringement, of special classes of copyrighted works. Based on this study, certain classes of works will be designated as exempt from the restriction. Further, the DMCA prohibits "the manufacture or offering of any service, primarily designed to defeat an effective 'technological protection measure'." This prohibition goes into effect 18 months later.
The section on Circumvention makes no changes to the fair use policies of the 1976 Act, but it is not clear whether fair use can apply to works under technological protection. This section also "exempts nonprofit libraries, archives and educational institutions from criminal penalties and allows for nullification of any civil fine when such an institution can demonstrate that it had no reason to be aware that its actions violated the new law." An exemption to the rule allows non-profit libraries, archives or educational institutions to circumvent the protection systems for the purpose of determining whether or not to purchase such works.
Title II of the DMCA also exempts On-line Service Providers (OSP), e.g., computer centers and libraries, from monetary liability based exclusively on the content of a transmission made by a party using the provider's or carrier's system. It establishes a provision for avoiding copyright infringement penalties if the OSP designates an agent and provides the name to the Copyright Office, which Brown's General Counsel's Office (GCO) is looking into doing. This agent would receive notifications of copyright infringement and would be obliged to take down the copyrighted works in question. If rules are not observed, even non-profit institutions can be held liable for claims. Counter notifications are allowed when the OSP believes that it can legitimately use the work which was "infringed."
Title IV of the DMCA also updates the current preservation provisions of the Act (Sec. 108) "to expressly permit authorized institutions to make up to three, digital preservation copies of an eligible copyrighted work; electronically loan those copies to other qualifying institutions; permit preservation, including by digital means, when the existing format in which the work has been stored becomes obsolete." The DMCA also recommends that the Register send any relevant proposals to Congress in statutory form. The Register of Copyrights is also asked to report within six months on the use of digital technologies for distance learning.
As one can see, this legislation is very complex. For those interested in more detail, the source for much of the information in this article, ALA Washington News, November, 1998 is available in the Rockefeller Library. It is also possible to go to the Library of Congress site and also to background and a legislative analysis from the Association of Research Libraries site.
The Library has also established the new position of Director, Scholarly Communication and Library Research. The incumbent, Frederick C. Lynden, will be assisting faculty in interpreting the new copyright policies affecting the Library and its users.
Frederick C. Lynden