Copyright and Preservation
F. The Rights of the Copyright Owner
When a work is protected by copyright, the statute grants the owner a series of exclusive rights–activities the owner may do or authorize to be done. Subject to some major limitations79, anything that impinges on those rights is potentially an infringement. The exclusive rights of the copyright owner include (1) the right to reproduce the work, (2) the right to prepare derivative works, (3) the right to distribute copies of the work by sale or transfer of ownership, or by rental, lease or lending, and (4) the right to perform or display the work publicly in the case of literary, musical, dramatic, choreographic, audiovisual or other similar works.80
1. The Making of Copies
The right to make copies for sale or distribution is at the heart of the Copyright Act. In the traditional paper-based environment, the right to authorize the making of copies for sale provides the basis from which authors ultimately derive compensation. This right has been in some tension in recent years because of the development of modern reproductive technology that permits relatively easy and inexpensive copying of complete works in single or multiple copies. The tension has been exacerbated by personal computer networks and compact disk technology, which not only increase the speed with which a work can be copied but also permit its almost instantaneous transmission from a single central datafile to a remote location.
Even though some sections of the Copyright Act support preservation within certain limits81, it is clear that much of what is planned is the making of copies of existing works. The initial film copy is clearly a copy, although probably not an infringing one. (See infra.) Subsequent copies of the master are also copies, but may be somewhat more troublesome, particularly if they are sold to libraries or individual readers. Loading the work into an online datafile is also probably copying, although until the work is distributed to a user, there may be no actual harm to the copyright owner. When the work is distributed electronically, in whole or in part, some of the copying that occurs may be problematic and some may not. One screen of data from a remote file need not be permanent, and in most cases would certainly be insubstantial. But, if an entire work were copied from a remote datafile into the memory of a personal computer, a copyright owner might have a greater claim. He or she would be still more concerned if the work were saved to disk for later use or were printed out on paper.
Some commentators have noted that compensation to an author based on the sale of copies may be outmoded because works need no longer be contained in physical objects called copies.82 Rather, they can be transmitted to a user in whole or in part electronically without a permanent copy ever having been made. Ultimately, it may be that a new means of compensating authors will have to be developed. Many computer services now compensate copyright owners based on use. Some increase the level of compensation if a permanent copy is made, but compensation based on use rather than copies seems to be the norm in the electronic environment. This development has prompted at least one commentator to posit the need for a “useright”83 to supplement existing copyright and to provide a new basis for compensation. The development of such a concept could be useful since it might permit the copying of the works, but necessitate compensation to the owner when the work was actually used by an individual. Use could be tracked by the computer storing the works with an accounting made on a periodic basis.
2. The Preparation of Derivative Works
The right to control the making of derivative works was originally designed to permit an author to take advantage of foreign translations of his or her written work. It has also been very useful for authors who prepare a stageplay or a movie from an earlier novel. In the computer context, new questions are being raised about derivative works since computers can be easily used to generate a new work from older data or information.84
The simple preservation of existing works is unlikely to create any issues of derivative works. If, however, libraries decide to provide “improvements”, they may run into the gray area caused by the use of new technology to enhance existing works. Colorized films are one example of a derivative work causing potential problems.85 If libraries were to use computer software to automatically generate summaries or indexes of works,86 or if they developed other ways to enhance the original–for example through the enhancement of photographic images– they should be aware of a potential problem area.
3. The Distribution of Copies by Sale, or Transfer of Ownership, or by Rental Lease or Lending
The right to control the distribution of copies is a corollary of the right to control reproduction since it has been from the distribution of copies that income to the owner has been derived. Similarly, those who established the Commission on Preservation and Access determined that the mere making of the preservation copy is insufficient; those copies need to be made available to libraries and scholars since there is no point in creating the copy if it can never be used.
An important limitation on the right to control the distribution of a work is provided in Section 109 of the statute. That section permits a lawful owner of a particular copy of a work to sell or otherwise dispose of a work or to display it publicly.87 In other words, when someone purchases a copy of a work, the original creator no longer has control over what happens to that copy. The creator retains rights in the intellectual component of the work, but not in the physical object.88 This policy, known as the first sale doctrine, is a fundamental principle in American copyright law, and provides the legal foundation for library lending. Absent this provision, libraries might well find themselves unable to lend a work without the permission of the author.89
One exception to the first sale doctrine was recently enacted prohibiting the rental, lease or lending of phonorecords for commercial gain without the permission of the copyright holder. This amendment to the law was enacted to stop the spread of record piracy shops which would rent or lend records in a way that permitted (and even encouraged) users to make recordings of the work. An exemption for libraries specifically permits them to continue their practices of lending such materials.90 In 1989 another exception to the first sale doctrine prohibiting the rental, lease or lending of software was introduced in the Senate.91 It is expected that if enacted, this new bill will also contain an exemption for non-profit libraries.
All of this suggests that the right to control the distribution of a work is an area of some ferment and that if copyright owners perceive that preservation activities and programs are interfering with that right, they might become concerned.
4. The Public Performance or Display of a Protected Work
Under Section 106, the copyright owner has the exclusive right to publicly perform or display certain works, including literary works. Proposals to make and distribute physical copies of a work do not implicate either of these rights, but making them available through an online database without the permission of the copyright holder might constitute an infringing public display. Under the statute
The…definition of “display” covers any showing of a “copy” of the work, “either directly or by means of a film, slide, television image, or any other device or process.” In addition to the direct showings of a copy of a work, “display” would include the projection of an image on a screen or other surface by any method, the transmission of an image by electronic or other means, and the showing of an image on a cathode ray tube or similar viewing apparatus connected with any sort of information storage and retrieval system.92
Thus, showing a work on a computer terminal would almost certainly constitute a display. However, a display infringes the rights of the owner only if it is public. Section 101 of the Act states that to perform or display a work publicly means–
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
Under these definitions, the transmission of a work for display in a library is likely to be considered a public display, even if it is only viewed by one person at a time. If the work is transmitted to an individual member of the faculty for use in his or her office, the situation is less clear, but assuming the datafile is available to anyone (i.e., the public), then again it is likely that an infringing display has been made.
To emphasize this probable outcome, the legislative history of this provision makes it clear that one of the most important reasons for giving copyright owners the right to control public displays was precisely to prevent the development of a large library database whereby a single copy of a work could be loaded into a datafile for subsequent distribution to libraries without appropriate compensation to the copyright owner. In a report prepared by the Register of Copyrights, the Copyright Office indicated particular concern over developing information technology:
The use of closed and open-circuit television for presenting images for graphic and textual material to large audiences…could, in the near future, have drastic effects upon copyright owners’ rights. Equally if not more significant for the future are the implications of information storage and retrieval devices; when linked together by communication satellites or other means, these could eventually provide libraries and individuals throughout the world with access to a single copy of a work by transmission of electronic images. It is not inconceivable that, in certain areas at least, “exhibition” may take over from “reproduction” of “copies” as the means of presenting authors’ works to the public, and we are now convinced that a basic right of public exhibition should be expressly recognized in the statute.93
Absent an amendment to the statute, because of this history caution is needed in this area. If protected works are to be distributed over an electronic network, permission should be secured from the affected copyright owners and reasonable royalties or use charges may be need to be negotiated.
Sections 110 and 111 of the Act do carve out some important exceptions to this right that might be helpful, although they are carefully circumscribed and therefore limited in application. Section 110 exempts performances or displays used in the course of face-to-face teaching activities, for certain other related instructional purposes, for use in worship services, and for transmission to the blind or physically handicapped who are unable to read or receive the material by ordinary means. By virtue of this last exception, under appropriate circumstances spelled out in Section 110 (8), materials loaded into an online datafile could be combined with artificial speech systems to enhance the availability of library materials to the visually handicapped. This could be a major new service to the handicapped but is, of course, a narrow exemption to the broader display policy. The exemption for instructional uses could also be helpful, but it, too, seems far too limited to be useful in the context of the broad range of materials in need of preservation.
Section 111 provides exemptions for secondary transmissions, i.e., the retransmission within a hotel or for instructional purposes or by cable systems subject to a compulsory licensing scheme. This section establishes limited exemptions for carriers who act passively to relay data created or originally transmitted by others. To come under the provisions of 111, the carrier must have: no direct or indirect control over the content or selection of the primary transmission or over the particular recipients of the secondary transmission,94 and its activities must:
consist solely of providing wires, cables, or other communications channels for the use of others….95
Since the brittle books program is focused on the preservation, conversion, and possible initial transmission of the information, this section is not likely to be relevant, although it might be relevant to a network that provided a delivery system on behalf of a cooperative library effort.