Net’s Glitch: Copyright Law

Carroll Blue was all set to roar onto the information superhighway when she crashed into the tollbooth. Blue, an associate professor at San Diego State University, wanted to put together a CD-ROM about how women have been portrayed throughout film history, from the silent classic “Birth of a Nation” to the more recent cyber-thriller “The Net.”

Not too long ago, Blue might just have rented the videos, taped brief scenes, spliced them together with the rest of her multimedia presentation and passed the resulting educational tool around to her students in the school of communication. And no one would have thought of calling the copyright cops.

But the school’s instructional technology office informed Blue that she should write to the film companies for permission, who told her: no way. Of course, they said it like lawyers, with regret and references to contractual restrictions and corporate policy and a nice reminder that unauthorized use of their material would constitute copyright infringement.

“I can understand someone like Ted Turner buying up archives and wanting to make money,” Blue said. “But I don’t understand how you can’t even have educational access.”

President Clinton’s dream of a computer on every school desktop might come true, but that doesn’t mean that students will be able to see much on their screens--at least without coughing up a little cash, and maybe not even then. The Information Age, it turns out, is also the age of copyright cyber-sleuths. And content providers are also copyright holders determined to hold onto as much control as they can.

“We have grand dreams of using the Internet as a tool for education, but at every step you run into copyright issues that we haven’t really begun to deal with,” noted Martha Winnacker, the copyright point person in the office of the president at the University of California. “All these things that the Internet seems to offer require some resolution of the copyright quandary.”

More than 100 organizations of educators, librarians, record companies and publishers (which called itself the Conference on Fair Use, or Confu) tried to do just that at a meeting outside Washington earlier this month--with little success.

Traditionally, teachers have been able to use some copyrighted material in the classroom without having to pay for the privilege (or even ask permission) under what is known as the fair use doctrine. There has always been squabbling over what exactly constitutes fair use, but the issue has become supercharged with the dawn of the Digital Age.

Professors beam about the possibility of virtual classrooms that use the Internet to break geographic boundaries and interactive multimedia presentations that make learning fun for a generation of video-game addicts. At the same time, publishers are terrified that their livelihoods will be destroyed by the anarchic ethos of cyberspace, and have been fighting hard for more extensive copyright protection.

“There’s a lot of instructors, quite frankly, who have grown accustomed to a very broad interpretation of fair use that might not be possible in the digital environment,” said Peter Fowler, an attorney with the U.S. Patent and Trademark Office, who chaired the Confu talks. “Is that a restriction of fair use? The copyright owners might say no because it was never fair use in the first place.”

Implicit in the concept of fair use is the idea that educational copies would be just that: inferior reproductions of copyrighted work, a photocopy of a chapter instead of a finished book. But in the digital world, there is often no difference in quality between what the publisher would sell and a fair use version. And technology promises to make it possible to track the replication of information in a way that was impossible when teachers were largely on the honor system.

All of which is making some educators jittery. “The whole purpose of copyright law is to let society have access to information,” said Allison Bunting, a librarian at UCLA. “Now publishers are taking the opportunity to challenge the rights we have long fought for and taken for granted. If we move totally to a situation where you have to pay a fee for access, some will have access to information and some won’t.”

Publishers bristle at being portrayed as corporate leviathans determined to squash creativity in the arts and sciences in the pursuit of profit. “Nobody is trying to limit fair use,” said Carol Risher, vice president for copyright and new technology for the American Publishers Assn. “Libraries want to be able to do anything and I don’t think that’s acceptable.”

At the recent Confu confab, participants threw up their arms and, after more than two years of discussions, finally agreed to disagree.

“It proved impossible to come to a consensus,” said Adam Eisgrau, legislative counsel for the American Library Assn. “Technology is supposed to work for everybody, but if we don’t amend copyright law in the digital future, it’s virtually certain that American schoolchildren will suffer. If we don’t clarify and update it, proprietors will cross the bridge into the 21st century and the educators will be left in the 20th.”

Confu’s greatest accomplishment so far has been to circulate a proposed set of multimedia fair use guidelines. Those guidelines outraged many librarians who thought that the draft document was unduly restrictive and who fear that Congress might adopt similar standards during its expected attempt to update copyright law.

Educators are particularly incensed with suggested limits on fair use of motion picture clips, which allows three minutes or 10% (whichever is less) of free use. That is just what Blue was asking permission for (which technically she didn’t need to do) when she found herself rebuffed by the movie companies, which are backing the guidelines.

“We don’t want to dilute the title,” explained Margarita Medina, the Columbia Pictures administrator who turned down Blue’s request for “The Net.” “It’s a very popular film,” she said, adding that the studio gets hundreds of requests a week but doesn’t want its material overexposed.

In 1841, a Supreme Court ruling (Folsom vs. Marsh) created the basis of the fair use doctrine when the justices held that George Washington’s private letters could be used without permission.

In 1976, Congress revised the Copyright Act and spelled out the doctrines of fair use (including a four-part test that considers the nature of the work, the intended noncommercial use, the portion to be excerpted and its effect on the overall market) and first sale, which lets someone who buys a book lend it or give it away. (First sale is the basis for how libraries operate, but extending that principle to cyberspace scares the dickens out of publishers.)

The next 15 years were the glory days of fair use--until 1991 when a federal district court in New York ruled that Kinko’s Graphic Corp. infringed copyrights and violated fair use when it photocopied “course packs” that included book chapters and sold them to students for classwork. Since then, commercial copying companies have had to pay fees to reproduce some copyrighted work, driving up the cost of course packs and muddying the waters for professors trying to keep their classes fresh.

Many academics grumble that some publishers don’t even bother to respond to permission requests. (The University of California Press employs two people to do nothing but answer copyright queries.)

Consider what can happen to a conscientious scholar like Howard Besser, who teaches in the School of Information Management and Systems at UC Berkeley. Besser wrote an article for an academic journal several years ago. He wasn’t paid for the piece and didn’t expect any problems when he contacted the publisher for permission to reprint the article in a course reader.

The journal, which holds the copyright to the essay, wanted a $10 per student fee. Besser was shocked. “My students already paid for it by paying my salary,” he said. “I was outraged. I was furious. I had written the article.”

So he went back to his computer and found the penultimate draft he had written, which he printed up for the course reader.

“I see it getting worse,” he said. “Who has more money--higher education or the entertainment industry and copyright industry? It’s no contest.”

Other professors are also discovering that reaching the digital promised land means a walk through the thicket of copyright law.

Two years ago, Carla Mathison, a professor of education at San Diego State, started working on a Web page to highlight the contributions of gay men and lesbians to U.S. history and decided she needed to put up images of people such as singer k.d. lang and champion diver Greg Louganis. Mathison enlisted two grad students to help and together they wrote to 50 publishers for permission to use their pictures; two responded. One said no problem and the other referred them to the photographer, who didn’t respond. “We were stuck,” she said. “I wasn’t about to put things out there without permission.”

Rather than risk a copyright violation, Mathison decided it would be safer, if less efficient, to commission original drawings based on multiple sources. “It’s a real snag,” she said. “It really does change the things that you do.”

And no one expects the law to catch up to technology soon.

“We still don’t agree on what fair use in print is and we’ve been dealing with it for 200 years,” noted Georgia Harper, intellectual property counsel for the University of Texas. “So I don’t think we’ll be able to reach agreement on fair use in the digital area any time soon.”