Resources > Intellectual Property Rights > Copyright

VRA Statement for Public Hearings

VRA Statement for Public Hearings
VRA Statement for Fair Use Conference
A Balancing Act: Copyright in the Electronic Age

VRA Statement for Public Hearings, Washington, D.C. 
as Presented by Sandra C.Walker, VRA President, 
September 22, 1994

Chairman Lehman, Members of the Working Group, Ladies and Gentlemen:

I am here today, as president of the Visual Resources Association, to comment on the Preliminary draft Document, "Intellectual Property and the National Information Infrastructure," prepared by the Working Group on Intellectual Property Rights. The Visual Resources Association is a group of over 700 professionals located in the United States and 20 foreign countries including slide and photograph curators, film and video librarians, media professionals, photo archivists, slide and microfilm producers, rights and reproduction officials, photographers, art historians, and others concerned with visual materials. As professionals associated, for the most part, with universities and museums which utilize visual resources in education, we are vitally concerned with the issues of copyright and fair use for teaching and scholarly research.

While I believe this document is an excellent summary of existing copyright law applicable in the United States, I think the Working Group has not fully considered the implications of networking as it relates to class use by non-profit educational institutions. I am also speaking in particular about distance learning applications as opposed to traditional face-to-face classroom situations. There is no exploration of how networked materials might be handled, in relation to fair use guidelines, and whether this type of use might even be considered to be fair use. Public performance, distribution, and the first sale doctrine are mentioned, but not in relation to applications by non-profit organizations in a networked environment. As an example of how materials might be used in a networked environment for distance learning, an art history professor physically located in a university might wish to provide images of art works and related text to students physically located at other sites. Will this use of the information infrastructure be construed as fair use or copyright infringement?

I feel that more attention needs to be devoted to implications of utilizing still and moving images as well as sound (described as phonorecords in the draft document) in so called multimedia. As noted in the draft document, the term "multimedia" has different meaning in copyright law than the term has for educators and consumers. Educators and consumers generally accept multimedia to designate digital (and/or analog) materials from a variety of sources that may include sound and still and motion images linked together via computer interfaces that allow the user to utilize the multimedia program in a sequential or non-sequential way. In some cases, it is technologically possible to download images and/or text from so-called multimedia productions and create new multimedia productions or derivative works. Does this type of use by non-profit educational institutions fall within fair use guidelines? How is its usage effected by public performance rights or first sale doctrine? How will usage and derivation be monitored and controlled to protect intellectual property rights?

Comparison of illustrations for scholarly research and teaching which are becoming available via the National Information Infrastructure needs to be considered. Present copyright law includes fair use guidelines which are too restrictive for study of art works because pictorial, graphic and sculptural works are excluded from CONTU guidelines and because classroom guidelines limit fair use of illustrations to one illustration from any one source. This concept is also too limiting in other areas of study and research as the limitation of illustrative material could limit a scientific comparison of charts and diagrams; comparison of cultural diversity topics; and illustrative materials which illuminate the study and research of historical topics. Comparative study and research fosters even-handed teaching rather than the promulgation of biased viewpoints.

As described in the preliminary draft document, electronic transmission via the National Information Infrastructure, or indeed the Global Information Infrastructure, constitutes a copy or reproduction of the work transmitted as the information resides digitally within the user's computer. How does this definition of transmission, and the subsequent copy, affect usage of materials in non-profit educational institutions for teaching and scholarly research? As a pertinent analogy, if teachers wish to utilize a videotape in their classroom, the institution should purchase a copy of the videotape. When the videotape has been shown enough times to degrade the image quality another copy must be purchased. When an institutional representative such as a librarian, recieves a computer transmission, and therefore a copy according to the draft document definition, of visual images and/or text, the digital quality of the image is retained and conceivably could be used indefinitely for teaching and scholarly research. How will this type of usage affect intellectual property rights and fair use guidelines?

Both Vice President Gore, in his speech in Buenos Aires in March, 1994, and Secretary of Commerce Brown, in his New York City speech in April, 1994, mentioned as one of the goals for the year 2,000 "to connect every classroom, library, hospital and clinic in the United States to the information highways; to connect every school and library in the world to the Internet, thus creating a Global Digital Library." (Federal Register) If the definition of digital transmission constituting a reproduction or copy is allowed to stand, then these libraries and schools run the risk of infringing copyright when patrons browse the information, whether text or visual, that is becoming available in the Global Digital Library. This definition will also inhibit scholarly research and discussion in classrooms rather than the technology bringing images and information to classrooms that were heretofore available only to students who travel to museums and other sites where the original art works are located.

As professionals associated for the most part with universities and museums, the Visual Resources Association is concerned with affordability of the information (whether textual or visual) which will become available on the National Information Infrastructure. We agree with the statement in the draft that "..some reasonable approach must be adopted to ensure that the economically disadvantaged in this country are not further disadvantaged or disenfranchised by the information revolution. Public libraries and schools, and the access to information that they provide, have been important safeguards against this nation becoming a nation of information `haves' and `have nots.' We must ensure that they continue to be able to to assume that role." (p.133) I would add that the members of our organization believe that compensation for intellectual property rights (i.e. royalty fees etc.) should not prohibit the use of visual or textual materials for teaching and scholarly research. Fair Use guidelines and/or statutory changes to copyright law must be enacted to encourage, rather than limit, the development of Online Public Access Catalogs and dissemination of information for scholarly research and teaching in nonprofit educational institutions. While most of our membership is located in institutional libraries or departments which specialize in images of art works, visual images are not limited to art classes, but may also be used in history classes, English literature classes, anthropology classes, classes exploring cultural diversity and others. We feel that information on the National Information Infrastructure, whether visual images or text, should be available to benefit the broadest spectrum rather than an elite group of users.

I appreciate the opportunity to comment on the draft document prepared by the Working Group on Intellectual Property Rights and look forward to more information from this group.

^ top of page

--------------------------------------------------------------------------------

VRA Statement for Fair Use Conference, Washington, D.C.
as Presented by Sandra C.Walker, VRA President

On Wednesday, September 21, I represented the Visual Resources Association at the Fair use Conference in Washington, D.C. sponsored by the U.S. Department of Commerce, Working Group on Intellectual Property Rights and the National Information Infrastructure, chaired by Bruce Lehman, U.S. Patent & Trademark Office. Fifty participants representing a variety of groups including library associations, elementary and secondary school associations and university consortiums were invited to this first in a series of meetings to develop guidelines for fair use in the constext of the National Information Infrastructure. Each invited participant was allowed 3 minutes to present his or her group's viewpoint regarding issues and principles important to fair use in this context.

Three subcommittees were formed from the invited participants. These subcommittees include a group of library groups, a group of elementary and secondary school representatives, and a group of university associations and consortiums. The Visual Resources Association is included in both the library subcommittee and the university subcommittee allowing us to participate in either or both of these subcommittees. Agendas and meeting summaries will be exchanged among all of the participants regarding work of the three subcommittees.

The VRA Executive Board is discussing our continued participation in the upcoming meetings of the Fair Use Conference's subcommittee meetings. It is expected that the subcommittees will meet at approximately one month intervals in Washington D.C. to try to reach a consensus on development of fair use guidelines. Macie Hall, Johns Hopkins University, will be representing our position at future meetings.

The VRA statement of issues and principles was complimented by a variety of attendees, including representaives from the Association of Research Libraries (ARL) and Ohio Link (a consortium of libraries throughout Ohio). Most of the participants in the Fair use Conference recomended that a scond CONTU be held to develop fair use guidelines. The first CONTU developed guidelines for Interlibrary Loan policies on photocopying. Some participants, inclusing the ACLS representative, suggested that no fair use guidelines be developed until we are made aware of the recommended statutory changes in copyright law in the final report from the Working Group on Intellectual Property Rights and the NII. Issues of special concern to most of the participants focused on the debate on transmission as reproduction or copying, on distance learning applications, and on multimedia issues. One glaring lack in the Working Group's draft report was the lack of discussion on possible fair use exemption or statutory changes which would make it possible for non-profit entities such as Recording for the Blind, to make use of newly developed technologies including screen character enhancement and synthesized speech for print disabled persons. This issue will likely be discussed in the subcommittee meetings on fair use guidelines and was noted by Chairman Bruce Lehman for further discussion prior to the publication of the Working Group's final report.

On Thursday, September 22, I presented a statement descrbing VRA concerns regarding the draft document at the Public Hearings held also in washington, D.C. This staement was previously publicized on the VRA Listserver and will be posted again to include additions that were added to the statement after that posting and will be submitted to the VRA Bulletin for publication.

Duting the Public hearings, the VRA statement was endorsed by ARLIS representative, Al Willis. Also, several other speakers including Bruce Kahin, representing the Interactive Multimedia Association (IMA), and David M. Ostfeld, representing the Institute of Electrical and Electronics Engineers (IEEE) also took issue with the draft document's interpretation of transmission as reproduction or copying.

The VRA Executive Board values input from our membership concerning these issues as we continue our participation in discussion at the national level. We will continue to update the membership with information and our activities

ISSUES WHICH I BELIEVE SHOULD BE ADDRESSED BY THE FAIR USE CONFERENCE

Digital transmission of information, both textual and visual in a networked environment; for either distance learning applications or classroom study and review, and the relationship of the Working Group's proposed definition of digital transmission as making a reproduction or copy. 
Digital browsing of Online Public Access Catalogs, including those which contain images in relation to the Working Group's proposed definition of digital transmission as making a reproduction or copy 
Comparison of illustrations for scholarly research or teaching. Present copyright law includes fair use guidelines which are too restrictive for study of art wroks because pictorial, graphic and sculptural works are excluded from CONTU guidelines and because classroom guidelines limit fair use of illustrations from any one source. This concept is also too limiting in other areas of study and research as the limitation of illustrative material could limit scientific comparison of charts and diagrams; comparison of cultural diversity topics; and illustrative materials which illuminate the study and research of historical topics. 

Use of "sequences"of materials for scholarly research and teaching which may now become available through digital transmission such as animation sequences and multimedia sequences which may include video and sound. 

Concept of de minimis as test of fair use. In the study of works of art, most museums and/or individuals who hold reproduction rights to art works want the work of art represented in its entirety and not in part. Also, the de minimis concept may be too retrictive for animation sequences and multimedia sequences where if only a part of these sequences is shown, the content that the author intended may be lost or changed in meaning.

PRINCIPLES THAT SHOULD APPLY TO EDUCATIONAL AND LIBRARY FAIR USE IN THE NII CONTEXT

Materials for which fees are charged should be at a reasonable cost which does not prohibit their use in a nonprofit educational setting 

Fair Use Guidelines should include the use of materials in a networked enviroment for distance learning applications and for study and review in a nonprofit educational setting. This is not to say that mechanisms should not be employed to prevent the wholesale downloading of materials 
The de minimis concept shuld be revised and the exclusion of pictorial, graphic or sculptural materials should be revised to allow more than one illustration for comparative study and review and to allow an even-handed approach to teaching, especially in the study of art works, historical concepts, and cultural diversity.

^ top of page

--------------------------------------------------------------------------------

A Balancing Act: Copyright in the Electronic Age
Carol C.Henderson
Executive Director, Washington Office
American Library Association

The legal framework for intellectual property is based on a provision in the U.S. Constitution that empowers Congress to grant limited rights to authors and creators in their intellectual works for the purpose of promoting science and the useful arts. The Copyright Act of 1976 was intended to be technologically neutral, and to strike the essential balance grounded in the Constitution between rewarding creators and promoting growth of new knowledge built upon the work of others. One of the roles of the federal government is to foster maximum creativity by maintaining this equilibrium.

The library community, which has long provided opportunities for the public to benefit from the lending and use of a wide variety of copyrighted and public domain materials, is especially concerned that this balance among legitimate interests be maintained in the digital environment as well as with respect to traditional formats.

To that end, representatives of several library associations drafted the following statement, "Fair Use in the Electronic Age: serving the Public Interest." The document is still a draft in progress, but the organizations listed at the end of the statement would welcome comments from participants in the intellectual property discussion of NTIA's virtual public conference.

Fair Use in the Electronic Age: Serving the Public Interest
The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work......This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.

--Justice Sandra Day O'Connor
Feist Publications, Inc. v. Rural Telephone Service Co. 499US340, 349 (1991)

The genius of United States copyright law is that, in conformance with its constitutional foundatation, it balances the intellectual property interests of authors, publishers and copyright owners with society's need for the free exchange of ideas. Taken together, fair use and other public rights to utilize copyrighted works, as confirmed in the Copyright Act of 1976, constitute indispensable legal doctrines for promoting the dissemination of knowledge, while ensuring authors, publishers and copyright owners appropriate protection of their creative works and economic investments.

The fair use provision of the Copyright Act allows reproduction and other uses of copyrighted works under certain conditions for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. Additional provisions of the law allow uses specifically permitted by Congress to further educational and library activities. The preservation and continuation of these balanced rights in an electronic environment as well as in traditional formats are essential to free flow of information and to the development of an information infrastructure that serves the public interest.

A long-standing principle is that copyright exists for the public good. The benefits of the new technologies should flow to the public as well as to copyright proprietors. As more information becomes available only in electronic formats, the public's legitimate right to use copyrighted material must be protected. In order for copyright to truly serve its purpose of "promoting progress," the public's right of fair use must continue in the electronic era, and these lawful uses of copyrighted works must be allowed without individual transaction fees.

Without infringing copyright, the public has the right to expect:

Without infringing copyright, nonprofit libraries and other Section 108 libraries, on behalf of their clientele should be able:

Users, libraries, and educational institutions have the a right to expect:

This statement was developed by representatives of the following associations:

American Association of Law Libraries 
American Library Association 
Association of Academic Health Sciences Library Directors 
Association of Research Libraries 
Medical Library Association 
Special Libraries Association
--------------------------------------------------------------------------------

posted to VRA-L by Paul M.Gherman, Directory of Libraries, Olin and Chalmers Library, Kenyon College. November 1994

^ top of page