McDonald1
Copyright and the Digital Age-Key Issues:
An Annotated Bibliography
Ginger McDonald
INFO 522: Information Access & Resources
August 22, 2010
Introduction and Scope
The following bibliography covers copyright, digital media and the influences they have had on one another. In attempting to cover the many issues raised by this subject articles that include law, the music and movie industries, and education have been included. However, some articles that cover the subject in a general way have been in included to help give an overall view of the problem. The articles were published from 1997 to 2009 with the vast majority of them having been published within the last five years. This was done to reflect the current status of the copyright law and the attending issues. Most articles cover copyright in the United States, but articles discussing the changes being made by other governments in relationship to their copyright laws and the new digital media have been included to help give the bibliography depth.
Description
Copyright law, in the United States, has its foundations in the U. S. Constitution which states “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Today the copyright statute is Title 17, Chapter 1, Section 102 including the Copyright Act of 1976 (McGrail, 2009, p.1). However, copyright law has failed to keep pace with the development of new technologies and is virtually silent on the new digital resources (Coyle, 2006, p. 326). This failure of the law to remain contemporary has led to difficulties and frustration for all parties involved in copyright. These parties include authors, information users, publishers, music and movie studios, educational institutions and libraries. To handle these problems many companies are using digital rights management tools to enforce and in some cases usurp the balance copyright law has always tried to maintain between the rights of the authors/creators and those of the users.
Summary of Findings
Because copyright law was written at a time when it was impossible to make an exact physical copy of something it can not help regulate materials that can now be reproduced in exact detail. It is also possible now to take these exact copies and disseminate them around the globe in mere seconds. These two factors make copyright more and more challenging as time passes. These two issues have led to the breach between copyright law and digital media. The issues have affected many sectors of current society.
The new digital media have created a lot of legal and logistical problems in relationship to copyright. As one example, the issue of intermediary copies has yet to be resolved. An intermediary copy is that “which is created as a byproduct of a given process or technology and which are collateral to incidental to the ultimate work or use” (Padgett, 2007, p.657). This may the be scanning of a document or the uploading of video content prior to the source being sued for some usage that could be deemed “fair.”
Libraries are facing new issues because of the new media and copyright, as they must now enforce the terms of usage of some material to remain within copyright themselves. Archiving and digital preservation are problematic because digital information is often dynamic and continually changing and as such it is hard to archive exact duplicates of information on an ongoing basis. In addition, because the libraries do now own the information but are most often licensing it they do not have the right to maintain perpetual copies. These institutions which are usually seem as the preserves of information are not able to preserve the information until it has passed in to public domain which in digital media is beyond the ability to preserve every modification and change.
Within the music and movie industries other problems have been created. Music is copyrightable in two formats, the written lyrics and sheet music as well as the public performance of the work. The music industry tried to take advantage of the changes to copyright law and began to “double dip” receiving royalties on both sides when a song is downloaded. The have also had to contend with the music sharing websites and the loss of royalties from them. The movie industry has faced some of the same issues as to loss of royalties and fees but has also faced other issues. For example one issue is that of devices or software that “sanitize” a movie making the content more palatable for some viewers. Do these technologies infringe upon copyright?
Education has also seen some changes. Because of the increasing demand for distance learning many colleges are adding online courses to their curriculum. However, the guidelines for fair use have not been adapted to these new educational mediums. So teaching in a distance education setting is not provided the same level of protection as those in a face-to-face classroom. Students in these classes are even more limited in their use of copyrighted materials than their professors are, making fair use for their education even more difficult. It may also be possible that schools, especially colleges, as well as libraries could be liable for the copyright infringements of people using their resources.
There have been many possible solutions given to deal with the variables, none of which completely resolve the dilemma and often create additional questions to be answered. Some have argued that licensing is the way to control copyright infringement. Others have posited changes to the present laws. One article makes the case for attribution being added to the “fair use” factors in determining the use of copyrighted materials.
Open copyright content is created and made freely available online with the permission of the copyright holders. Because of the ability by anyone to publish on the web the content of digital publishing is far out pacing the rate of traditional publishing. Although copyright applies to works published digitally often the creators of the content in many cases are looking for recognition of their work not monetary remuneration. To some of these authors the boost in their reputation is the desired result. As stated above one article discusses adding attribution of a work as one of the factors used to determine “fair use.” This would make it easy to use a work from a digital media fairly.
To make up for the lack of concrete laws Digital Rights Management (DRM) has become another way some have used to help ensure copyright is upheld. This management can take different forms some databases, and software use licenses. Movies can have digital watermarks inserted. DVDs, CDs and CD-Roms can have anti-copying devices integrated into them. These devices integrated into the DVD and CDs make it physically impossible to copy the works they contain. However, these devices also make it impossible to use the works they protect for any “fair use” needs. Laws have been enacted in the United States and abroad that make it an infringement of copyright to own, or manufacture a device that can override these protections. In effect the person is violating copyright law before they even copy the needed material even if the material is needed and its use would fall under the “fair use” exemptions.
Some of the articles also point out that when using information that has been licensed the terms of the license may be more restrictive than the terms of “fair use.” When the licenses are more restrictive the law favors the licensing law over copyright law. They suggest that it is the role of the librarians and colleges to help their patrons and students understand that even when material is being used fairly they may still be in breach of the licensing agreement.
The research on copyright so far has not led to any concrete and sustainable solutions to the problems. The court cases surrounding various disputes send conflicting messages and the same court may render one decision that seemingly negates a previous decision. There is no question that there is a need for an update of the copyright laws and those that have already been enacted have provided few solutions andcreated more complications. While there seems to be no tangible relief on the horizon the research indicates that changes need to be made and that these changes need to be made quickly.
Entry 1:
Armstrong, T. (2005) Copyright clearance center: Providing compliance solutions for center
users. Journal of Library Administration, (42)3, 55-64.
Abstract: The digital revolution has been a boon to those who seek convenient, expanded access to information. It has dramatically increased the opportunity to share ideas and discoveries and disseminate information to ever-broader audiences. At the same time, it has raised concerns on the part of those responsible for ensuring that access to content remains within the guidelines established by copyrightlaw. The challengeis to tap the unprecedented potential of digitaltechnology while respecting therights of those who create original works. Some of the most effective solutions capitalize on the very technology and attributes that gave rise to the digitalmarketplace. By automating the copyrightpermissions process, they seek to make copyrightcompliance as convenient as accessing information-and increasingly, they are succeeding. Current permissions services are available both at the point of content and as an integrated component of existing information management software. In many cases, they provide one-stop shopping for content and permissions, and a convenient way to comply with copyrightlaw.
Annotation: This article serves as a long winded advertisement for The Copyright Clearance Center and the services they provide. They are making it easier to gain permission to use copyrighted works when the usage falls outside “fair use,” especially for works available only in digital form. There is mention that the challenges to copyright that are being created by new technologies are inevitable and must take into consideration the balance of the rights of creators and users.
Search Strategy:Library and Information Science Abstracts is a
database that covers library issues copyright is a library related
issue. This was the first time searching this database so I used a
key word approach.
Database:Library and Information ScienceAbstracts
Method:Keyword searching
Search String:(copyright OR digital rights OR DRM) AND (issues OR
challenge)
Entry 2
Corral, M.D. (1997) Copyright in the digital environment. International Information and
Library Review, (29)2, 201-204.
Abstract: Contribution to anissue devoted to papers from INFOethics, the first International Congress on Ethical, Legal and Societal Aspects of DigitalInformation, held in Monte Carlo, Principality of Monaco from 10-12 Mar 1997. Introduces the concept of copyright in the digitalenvironment. Analyzes international agreements adopted under the World Intellectual Property Organization in Dec 1996 and describes UNESCO's doctrine on the subject.
Annotation: A good presentation of the basic principles and limits of copyright law. The balances to be maintained between the rights-holders and the public are clearly outlined. The technological advances and the challenges they have posed are presented. A concise and clear explanation of the need to ensure copyright is included. Also includes quick ready reference type outlines of proposed treaties.
Search Strategy:Library and Information Science Abstracts is a
database that covers library issues copyright is a library related
issue. This was the first time searching this database so I used a
key word approach.
Database:Library and Information Science Abstracts
Method of Searching:Keyword searching
Search String:Copyright AND Digital AND Issue
Entry 3
Coyle, K. (2006), The automation of rights. The Journal of Academic Librarianship, (32)7,
326-329.
Abstract: The writer provides an overview of digital rights. Digital rights can be used in the contexts of intellectual property law, of technological controls, and of licenses and contracts
Annotation: Covers the major issues around the subject of Digital Rights Management as well as the changes that are being proposed and made to British and American intellectual property laws. The difficulties of contracts and licenses for the use, distribution, and reproduction of digital material are highlighted. This article also gives a basic overview of how these issues affect archives and their preservation. A clear concise and thorough explanation of the issues surrounding copyright law and digital information
Search Strategy:I used found this article referenced in another consulted article that
does not fall within the scope of this bibliography but thought it
would be a good addition.
Database:N/A
Method of Searching:Footnote Chasing
Search String:Referenced inBohner, D. (2008). Digital rights description as
part of digital rights management: A challenge for libraries.
Library Hi Tech, 26(4), 598-605.
Entry 4
Cradduck, A. & Mccullaugh, A. (2005) Designing copyright TPM: A mutant digital copyright.
International Journal of Law & Information Technology, (13)2, 155-187.
Abstract: In recent times, copyright law globally has undergone radical changes to take account of the advancement of technology. This paper will argue that in Australia some of the legislative changes regarding technological protection measures (TPM) have a number of unintended consequences. It will argue that the legislators have over stepped the mark by creating a sui generis protection in favor of copyright owner, which can best be described as a mutant digital copyright.
Annotation: Discrepancies in amendments to Australian copyright laws are highlighted in relationship to Technological Protective Measures (TPM). The measure can be applied protect works that are not copyrightable and create a “mutant copyright.” These TPMs also make it very difficult to use copyrighted works even for “fair use” reasons. The DMCA and DAA (Digital Agenda Act-Australia) both make it illegal to manufacture or own an anti-circumnavigation device illegal making it impossible to use material for “fair use.” While the arguments are difficult to follow they are relatively well made.
Search Strategy:While doing a keyword search in LISTA I found a reference to a
two page article written in response to this article. This article
helped build the bibliography. I had to find the article by searching for the Journal Title in the Hagerty Library.
Database:Library, Information Science & Technology Abstracts and
International Journal of Law & Information Technology
Method:Title searching
Search String:To full text journal site then by year, 2005
Entry 5
Ganley, P. (2004) Digital copyright and the new creative dynamics. International Journal of
Law and Information Technology, (12)3, 282-332.
Abstract: The Internet has ruffled the feathers ofcopyright law. In response, policy makers and rightsholders have sought to expand the legislative boundaries of copyrightand embed technical and contractual constraints into works themselves. These measures - collectively termed DigitalRights Management - are not only viewed as necessary to stem the tide of 'piracy', but as desirable to achieve the efficient allocation of copyrightworks in the market place. Economic theory is used to support these advances as the natural progression for copyrightlaw in the 21st century. This essay takes issue with this economic rationale, and suggests that private market based mechanisms are likely to systematically exclude certain values that copyrightlaw has traditionally undertaken to protect. Furthermore, it is suggested that whilst rightholders are naturally wary of digitaltechnology, it provides precious opportunities for those at the ends of the copyrightchain: creators and users. Finally, the status ofcopyright exceptions under the European CopyrightDirective, in particular those which implicate informational, private, and transformative uses, are assessed in light of the earlier arguments
Annotation: Makes several good arguments against the use of DRM to ensure the proper use of copyrighted works, primarily based on the idea that the business model they are founded on are flawed in relationship to their position as information as possession. Impressively the article posits that the economics of those that are worried about the “threats” to copyright are in fact impinging on one of the main tenets of copyright which is to foster creativity and scholarship. Ganley puts forward that copyright in the digital age should mainly focus on the creators and the end user, and that the intermediates, (publishing houses, record companies, etc.) are dictating the changes to the copyright laws instead of the groups the original laws were set up to assist.
Search Strategy:Library and Information Science Abstracts is a
database that covers library issues copyright is a library related
issue. This was the first time searching this database so I used a