Today:
- Finish Sep 20's sniffer demo
- Copyright: the old and the new
- Garfinkle on corporatism and information ownership
Copyright 101
- History: See The ARL's version of copyright history.
- 1710: The Statute of Anne in Britain gave copyright protection
to publishers and (less directly) authors.
- 1790: The US Constitution specifically gives Congress the role
of protecting intellectual property for authors and inventors for "limited
times." At that time, copyright was 14 years.
- 1909: Congress extends copyright from 14 years (with one
extension possible) to 56 years. Specific language is added for music
and other non-print technologies.
- 1976: The Berne Convention treaty's copyright provisions are
implemented by Congress (treaty signed in 1988). This supersedes all
prior copyright laws. Doctrine of First Sale is codified (says that
people who purchase copyrighted works can make any non-infringing use,
and may resell the works). At this time, copyright no longer requires
action: the storage of a covered document in tangible form yields a
copyright.
Fair use is defined in Title 17 U.S.C. Section 107:
To determine whether the use of a work is a fair use, the following
four factors are to be considered: purpose and character of the use,
nature of the copyrighted work, the amount and substantiality of the
portion used in relation to the whole, and the effect of the use on
the potential market.
- 1991: Basic Books Inc. v. Kinko's Graphics Corp. Said that
coursepacks require payment of royalties (at least when there's
repeated use and a profit motive and the extracts are substantial).
Concepts & the DMCA
- Copyright v. Public Domain. Works in the Public Domain are
either put their by their authors, or go there by copyright expiry,
or are works by non-protected entities (the US Government).
- WIPO (World Intellectual Property
Organization) treaty (not yet ratified by US?) formed the basis
for some components of the DMCA.
- See the LOC's DMCA summary
- DMCA, 1998: Copyright length extended to author's death + 70
years for personally created (or joint) works. Work for hire
(including most commercial work) extended to 95 years. This meant
that materials that would go out of copyright in 1998 (materials from
1923) instead will stay copyrighted until 2018.
- DMCA: Special provisions that over-rule fair use provisions apply
when an access control device is used (e.g., encryption), see section
1201.
Criticism
- The DMCA was the result of very active lobbying by media
conglomerates (see The
Nation Mar 1997 for an out of date review of media
conglomeration). Disney alone is said to have spent $20million
lobbying for the DMCA.
- Fair use is removed for many digital materials with access
controls. Since access controls is vague, this will be interpreted to
mean things like password systems or simple scrambling formats (such
as PDF). What does this mean for educational use?
- Encryption research has a special place in the DMCA, but even
so is or can be stifled. According to Dr. David Touretsky, an
encryption researcher at CMU, the DMCA has had a stifling effect
on encryption research already. (See his gallery of non-DeCSS DeCSS.)
- Things that are vague:
- Whither fair use?
- Does the DMCA go against the Constitution? The Supreme Court
will probably get to decide within a year or two.
- What constitutes an access control?
- What will be the impact on libraries? Will they have to follow
different rules for different media or technologies?
- What is the role of reverse engineering? Is this still permitted,
or (as the DMCA has been interpreted) does the DMCA take precedence when
there are access controls?
- What is the role of software that might facilitate copyright
violation but does not actually violate copyright? DeCSS, Napster,
mp3.com and many other modern examples fall into this category.
- Reverse engineering is specifically allowed under the DMCA
and other laws. But access controls seem to take away the right
to reverse engineer.
- Things that are not vague:
- Copyright terms are extended, and are now largely automatic.
- A very large percentage of items under copyright are actually
no longer available, and there are no plans to make them available.
- A very large percentage of copyright holders are deceased,
hard to find (e.g., they were companies that got bought), or otherwise
essentially unavailable to grant copyright permission, in spite
of the Copyright Clearance Center.
- Fair use, and its interpretations for copy shops etc., is
well understood for print materials (books & journal articles).
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