ONLINE FAIR USE OF COPYRIGHTED MATERIAL: ISSUES AND CONCERNS

Artículos Técnicos de Video, Film y Televisión

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Esta página se ve mejor con frames cárgalos si no los tiene

by Gérard Martin,
University of Southwestern Louisiana

ARTICLE ABSTRACT:

• As more and more resources find their way onto networks that are connected to the greater web of resources and services, concern is directed to the question of convenient public access and the fair use of material from all media of expression.

• Amidst a need for redefinition of excerpt in hypermedia use, it is perhaps time to review again the question of fair use in academic and non-academic circles. Against the backdrop of the ubiquitous issue of a usage fare, it may be time to address the issue of author recognition - if not monetarily then somehow referentially perhaps via the magic of a hyperlink as pointer to the very author-sponsors of otherwise lifted material?

• A foundation has been well established. In text-based format, there are well over five hundred universally recognized public-domain books. They are all resident to the World Wide Web (WWW or W3) served by Internet - an electronic network of networks connecting (at last count) over 32 million users and 1.2 million computers. Such numbers - which grow daily - offer promise of a wealth of contribution from the increasingly disproportionate upsurge of commercial web use. However, where it was once understood that diffusion to the Net was paramount to public bequest, we now know that this may no longer be the case. How many - beyond Michael Hart's carefully researched and carefully released Project Gutenberg books - are going to be available on the World Wide Web in one year's time?

ARTICLE FULL TEXT:

• The Legal Information Institute at Cornell Law School offers the following synopsis of the copyright laws in the United States. The hypertext version of this summary is online via hypertext transmission protocol and contains hyperlinks to pertinent references:

  The U.S. Copyright Act is Federal legislation enacted by Congress under its Constitutional grant of authority to protect the writings of authors. Changing technology has led to an ever expanding understanding of the word "writings". Given the scope of the Federal legislation and its provision precluding inconsistent state law, the field is almost exclusively a Federal one.

  A copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work. The owner also receives the exclusive right to produce or license the production of derivatives of his work. Limited exceptions to this exclusivity exist for types of "fair use", such as book reviews. To be copyrightable a work must be original and in a concrete "medium of expression."

  The federal agency charged with administering the act is the Copyright Office of the Library of Congress. Its regulations are found in Parts 201 - 204 of title 37 of the Code of Federal Regulations.

  In 1989 the U.S. joined the Berne Convention for the Protection of Literary and Artistic Works. (The Legal Information Institute, Cornell Law School WWW-Server

• An avid interest in copyright and authorship began years ago when I began to take stock of my good fortune while working in the capacity of a high school yearbook photographer. In assuming that role, I was given free use of equipment, free film, and free entrance into ball games - with access down to the playing fields - with nothing more than a casual wave of the professional looking camera. Was there ever a point where this was too good to be true? For the most part, all parties remained satisfied through all of my years of academic service. I was often photo-credited for my work and, more often than not, retained possession of my negatives. Only later did this abstract interest in copyright and authorship take a turn for the worse - when I discovered that these two words, copyright and authorship, are not exactly one and the same. Seemingly small ambiguities such as the latter have a tendency to escalate into major affairs. Later, as electronic publishing entered the public lexicon as the newfangled label for a new mode of production, I was to discover that all writers and photographers - even freelance independents - following assignments for newspapers are deemed "work-for-hire" contractees; all copyrights generally forfeited to the press-edition under these widely accepted and tolerated conditions. Indeed, a writer-photographer can own the negatives on which images are exposed, the various papers on which the words and imagery are rendered - even the entire mode of production - and lose the all important legal capacity to re-present, re-distribute and - at the extreme limits - even claim authorship of the works themselves ... by any means electronic or otherwise. If there is mystery in that phenomenon, there should be no mystery when The Educom Review's president and editor, Robert C Heterick, Jr. echoes the concern of almost all participants in a global electronic community when he writes:

• Without some better understanding and resolution of intellectual property issues there won't be much scholarly information on the information superhighway. (July 1 1994 v 29 n 4 p 68)

• Suggesting that this statement may be premature, Dr. Sylvia Charp, Editor-in-Chief of T.H.E. Journal (Technological Horizons in Education) writes about the Internet on which reside the multimedia homepage documents that comprise the hypermedia World Wide Web.

Interest in the Internet is growing at a rapid pace. Once predominately used by the research community, increasing numbers of universities and school systems are now on the Internet to access often previously unavailable information. Educators believe use of the Internet provides students with educational advantages well worth the costs involved, which are in many cases minor. Further, many states are developing plans to give access to all students. (Aug 1994 p 6)

• Despite this display of enthusiasm, Dr. Charp tempers her words with a statement that calls into question her previous remarks:

  However, concern still exists on whether participation will be open and general or restricted to a small number of users. (ibid.)

• Off the 'net, one can easily note where The Software Toolworks Illustrated Encyclopedia, trademarked and copyrighted by Grolier Electronic Publishing, Inc., heralds a new age of convenient information access with the following statement:

  The trend of library policy is clearly toward the ideal of making all information available without delay to all people. (1990, 1991 Grolier Electronic Publishing, Inc.)

• Yet, unless your institution has paid to become an authorized site or, alternatively, you maintain a personal account with a commercial information provider like CARL, GEnie or America Online, access to Grolier's Encyclopedia rests a privileged resource. Grolier's does not currently maintain a World Wide Web site and its nearest competitor, The Encyclopedia Britannica, is not yet the public Internet resource The New York Times purported earlier this year. The late Robert A. Heinlein's words continue to resound with the frequent reminder that "there ain't no such thing as a free lunch".

• On the other hand, it is true that nearly gone are the days when 32-volume encyclopedia salespeople offered their payment installment plans - not when CD-ROM multimedia versions of their products have broken the one hundred dollar price barrier. True, not everyone has the compatible technology; nor the connectivity to truly port the online hypermedia experience via a standard dial-in modem connection ... but the situation is changing quickly!

• Some suggest that certain key parameters of the above current reality are not changing rapidly enough. It has been discovered that measures designed to assure the creation and proliferation of the softer works of the mind and spirit come unstuck

• when communication of the same can be so direct ... in a neural network of near spontaneous mixed media information transfer and exchange. All previous constraints inherent in production-for-transport were allied with property law thus effectively regulating the distribution of this more static and measurable media. Some kind of usage cost for the distribution of the corresponding objects of intellectual and creative value could always be negotiated in the law-abiding free market system - except where there lies the possible irony that reveals itself in the elevated ideal of making all information available without delay to "all people."

• So do we really want to make information free? Can we ... or, should we? Sure, in this, we might easily recognize the aims and ideals of Benjamin Franklin, father of the public library. He wasn't whistling Dixie ... or was he? Who would reasonably suggest simply giving away hard-earned knowledge ... for free? We know now that somehow a delicate but viable balance was struck between the commercial providers of knowledge in printed form and the book lending community. We also know that some of the arrangements have served equally well the public loan of alternative media - like audio books, videos and recordings. Was this not free enough for everyone?

• The arrangement was proceeding reasonably well until the full potential of digital media transmission became reminiscent of the Bible story where seven loaves of bread and some fish fed four thousand. Where were the fisherman merchants that day ... besides eating their fill of free food? Almost two thousand years later, HTTP World Wide Web serving has quietly become a "one for all, all for one" call to arms. In this basic axiom, there is greater wisdom than we know. Something more and something less than a revolution was what Alexandre Dumas had his Musketeers usurping when the state of affairs turned ugly.

• Clearly, by no means can this paper be comprehensive. Allow me to close with a story representative of the situation in which I currently view myself.

• This year, my eldest daughter began kindergarten. With greater formality than her last days of preschool daycare, her education promptly began with the basics of the three Rs of reading, writing, and 'rithmatic. At my first parent's meeting, her teacher emphasized the importance of critical thinking skills in the search for answers to problems. Her classroom exercise problem unfolded like this:

  A group of ten children were holding their books. Shortly, two more books are given to one child and three more to another. Now, how many books are in the whole group's possession?

• The answers to the above brain-teaser ranged from two books to ten; leaving my daughter and her little friends exasperated near the end of this puzzle. Imagine her surprise when her teacher revealed to the class the amazing truth that there is no possible answer to this question. The answer is that there is not enough information to correctly answer the question. The answer is that there is no answer.

• I offer you this brief anecdote in the purpose of conveying to you a growing sense of bewilderment at the complexity of the issues surrounding the state of electronic media as publication. The uncanny malleability of the electronic medium challenges the "set-in-stone" benchmark quality of traditional print-media communication.

• We can perhaps best take insight from the basic tenets of scientist-philosopher Thomas Kuhn's explanation and exploration of paradigm. His insights in the field of scientific research and development suggest to us that contemporary models of study can sharply conflict with seemingly contradictory findings that nonetheless advance us toward a new paradigm of truth and understanding. Shared paradigms do not, Thomas Kuhn reminds us, imply shared rules. This is the crux of an argument in support of new ways of seeing the embodiment of the old. By suggesting a need to consider print media publishing as `paradigm' one can also appreciate the misconception that a paradigm has anything to do with rules. In speaking particularly of scientific research and the search for rule and order, Kuhn states:

  Rules, I suggest, derive from paradigms, but paradigms can guide research even in the absence of rules. (The Structure of Scientific Revolutions 1970 p 42)

• Every medium has its own unique paradigm. In the past we have succeeded in isolating the general guidelines for each individual communication medium - radio, television, cinema, books, newsprint and journals. No doubt, we will continue to do likewise in the future.

  The practitioners of widely separated fields, say astronomy and taxonomic botany, are educated by exposure to quite different achievements described in very different books. And even men who, being in the same books and achievements, may acquire rather different paradigms in the course of professional specialization. (ibid. p 49)

• At this juncture, we are left only with the criteria for copyright infringement and permissible fair use as they apply to current models of dissemination and broadcast diffusion. Yet, contrast the public ideal that is the public library against the opposite end of the spectrum that is commercial media ... possibly both offering virtual access to all media via telephony or Internet ISDN connectivity. There are many fine arguments here suggesting new patterns of intellectual property consumption and appreciation.

• Now, if Plato was the proverbial Johnny Appleseed of ideas for having written them down and dispersed them, Socrates, his friend and mentor, is the midwife for having exercised their birth. A passion for the delivery of ideas was what both of these two ancients shared in common. Far from seeking to quell the transmission of ideas, laws of copy protection seek mostly to encourage their continued creation and expansion. That much seemed evident from the start. In this respect, Socrates and his art of the dialetic throw into relief the importance of a healthy and vibrant relationship between the creators/providers and the enlighted self-interested as benefactors and patrons.

• Gérard Martin, a political science graduate of McGill University is currently pursuing further study at the University of Southwestern Louisiana where he lives with his family.

• E-mail address: martin@ucs.usl.edu