Copyright and the Internet, Two Views

Books reviewed by: 
Barbara J. D'Angelo 
Sims Memorial Library 
Southeastern Louisiana University

Much debate has taken place over the application of current copyright law in the digital environment. Viewpoints range from those who believe that current law is adaptable to the new environment to the belief that copyright law should be completely overhauled if not eliminated. In Netlaw Lance Rose takes the former view, stating that current copyright law can be adapted and interpreted to fit the digital environment for the benefit of copyright owners and users alike. Ronald V. Bettig, on the other hand, explores the history of the use of copyright as an economic means of controlling wealth in his book Copyrighting Culture. Critical issues are at stake for the future of copyright in the digital environment: fair use, electronic publishing, first sale, use of technology in distance education, incidental copying, and preservation. In November 1997, the Digital Era Copyright Enhancement Act was introduced in the House of Representatives with the intention of making copyright law technology-neutral. This essay will examine each of these issues through an examination of the Rose and Bettig books as well as examine the implications of the Digital Era Copyright Enhancement Act for libraries and educational institutions.

What is copyright?

Copyright law evolved with the invention of print technology which allowed for mass production and dissemination of a work. Historically, copyright law has protected the economic rights of the copyright owner; that is, the right to profit from a work. Current United States' law is based on the Copyright Act of 1976 which guarantees an owner's right to copy, make modified versions, distribute, transmit, and perform his or her work(s). As of March 1989, the law was amended to comply with the Berne Convention, stating that a work is protected whether or not it is officially registered.

Publishing in a digital environment not only raises the question of copyright, but also the question of attribution and the definition of authorship. Authors may own the copyright over their work, or they may not. If copyright law does not protect the creator's right to claim ownership over her work, then what does? Nothing. As Mark A. Lemley states in his article in the Journal of Online Law, there are no laws which safeguard the right to attribution. Lemley makes a distinction between the economic venture of publishing in which an author writes to make a profit and the scholarly act of writing in which profit or economic gain is less important. Scholars write for other purposes: to gain peer recognition, to achiever tenure, to engage in scholarly discourse with colleagues, to report on research, and other reasons. Clearly the economic motives of publishers and the desire for sharing and recognition for scholars are equally sought in the digital environment.

And so, what of copyright and IP in the digital environment? As Lance Rose states in his book Netlaw Your Rights in the Online World, current law applies to the online world just as it does to the physical world. Indeed, copyright law states that a work is protected when it is "fixed in any tanglible medium of expression, now known or later developed." When litigation is brought before the courts, it is not thrown out on the grounds that the online/digital/electronic world is somehow different and exempt from the laws of the physical world. Rightly or wrongly, when deciding on the legality of an action in cyberspace, the courts turn to current law and case history. In this context, Rose provides a detailed and practical guide to the application and interpretation of the law online, whether it be contractual agreements, privacy, security, crime, pornography, or copyright. In the chapter devoted to copyright, Rose examines in detail how interpretations of current copyright law apply to online material. He goes on to examine each form of online "publishing" from posts in discussion groups, to e-mail, to file transfers, to the use of databases. Netlaw is an excellent guide to understanding how current law is being applied by the courts to the digital environment. However, the focus of the book is practical advice and guidance for system owners and users, not a challenge to current law.

Others disagree with Rose's view that current law is not in need of change. In his book Copyrighting Culture: The Political Economy of Intellectual Property, Ronald V. Bettig examines copyright law from the Marxian political-economic viewpoint, analyzing how the "capitalist class" has used copyright and IP laws to gain, maintain, and expand wealth. Although he focuses on the entertainment film industry, many of Bettig's observations and analyses can be applied to the print industry. Bettig traces the conception of copyright law as it emerged and evolved with the invention of the printing press, showing that copyright law has evolved as a means of protecting economic rights rather than the moral rights of the author. Bettig goes on further to expound on the use of copyright and IP by the "capitalist class" to maintain its control of production and dissemination, thereby increasing its power and wealth by controlling not only the medium, but also the content. Although Bettig does not discuss the Internet specifically, he frames his examination around changing technology, pointing out that critical moments occur when new technologies are introduced and struggles arise over who will benefit from their use.

An examination of the reports of the Working Group on Intellectual Property would seem to bear out Bettig's claims. The Working Group was formed in 1993 as part of the Information Infrastructure Task Force to analyze existing IP and copyright laws in the context of the newly formed National Information Infrastructure. The group released a preliminary report, the Green Paper, in 1994. The report was disseminated, discussed, revised, and re-released in final form, the White Paper. Heavy lobbying by the entertainment industry and publishers groups appear to have switched the focus of the Green Paper's emphasis on the public's right to access to works in the electronic envi ronment to the White Paper's greater emphasis on the economic concerns of copyright owners. It would appear that the IP/copyright concerns of the electronic publishing world followed a similar pattern to that illustrated by Bettig in the entertainment industry in which industry again and again used and adapted copyright and IP laws to protect their interests.

In response to the White Paper's recommendations, the Digital Future Coalition (DFC) was formed. The DFC is a collaboration of non-profit educational, scholarly, library, and consumer groups along with major commercial trade associations. The DFC has followed the debate over copyright and IP and proposed its own recommendations as a response to the White Paper. It came out in strong support of the Digital Era Copyright Enhancement Act after its introduction in the House of Representatives in November 1997. This bill would extend copyright protection to the digital environment and guarantee that provisions of current copyright l aw protecting fair use and other important education- and library-related issues would continue.

As educators and libraries examine the potential impact of the White Paper and pending legislation in Congress, it would appear that one of Bettig's "critical moments" is occuring now. Based on the frequency that copyright and IP is discussed and debated on writing- and library-related listservs, the issue is not going to go away. Legislation currently working its way through Congress will significantly affect the way that libraries and educational institutions operate in their ability to produce, maintain, access, and disseminate information. While dealing with the everyday practicalities of current law, educators and librarians must stay abreast of impending changes and work to ensure that their ability to access and disseminate information re mains an integral part of their function. It is perhaps, then, instructive and instrumental to examine how the Digital Era Copyright Enhancement Act will effect the various areas of copyright and its implication for the future.

Fair Use

Fair use, as defined by copyright law and subsequent court decisions, allows for limited copying of a work when necessary for public use and discussion and when it does not interfere with the creator's ability to profit. Courts have consistently used four criteria to determine fair use: purpose of the use, the nature of the work itself, the amount of the work that is copied, and whether the copying inteferes with the owner's ability to profit from the work. This ability to make copies of a work for use in the classroom or for other scholarly or research purposes without compensating the copyright owner has been fundamental to our educational system and to libraries' ability to disseminate information. Fair use has not been universally accepted, however. Attacks on fair use is nothing new; they have been made at least since the invention and proliferation of the photocopier, if not earlier. The question of whether and how fair use applies to the digital environment is complicated.

Copying under Fair Use has always (except in the case of interlibrary loan) been done of copies of works owned by the library in the its collection, and has been limited in the number of copies made. The extension of access to digital works places the library squarely in the face of allowing copying and dissemination of works that are not part of their physical collection; indeed, may very well not be part of anyone's "collection". Hence, the issue of fair use takes on new meaning in the online world, where a work may be copied and transferred to others innumerable times without the creator's consent or profit. The White Paper seems to narrow the definition of fair use by stating that transmission of a work is within the exclusive distribution rights of a copyright owner. This is cause for concern. If electronic transmission of a work is exclusively within the rights of the owner, will that mean that Fair Use will not apply to online versions of documents? Some fear this may be so. The Digital Era Copyright Enhancement Act offers language that keeps the current Fair Use doctrine technology neutral, extending it to apply to the digital environment.

However, even if the Digital Era Copyright Enhancement Act is passed as is, practical issues will still need to be worked out and most likely will be decided by the courts. For example, mail readers and other "current awareness" type services down load messages and files to a hard drive. Technically, a "copy" has been made and fixed. Will this be considered fair use even though such copying does not fall under the traditional definition of fair use or within the criteria traditionally used by the courts to determine fair use? How will the concept of "limited copying" be applied in an environment in which unlimited copying is not only feasible but seemingly encouraged? Perhaps what is needed is not so much an extension of the current Fair Use definition as a redefinition that will recognize the realities of how the Internet and World Wide Web (WWW) work.

Electronic Publishing

The debate over copyright is intrinsically linked with the issue of publishing. If we are to extend Bettig's argument to the publishing industry by asserting that control over copyright is a means for the publishing industry to maintain control over elec tronic publishing and hence maintain and potentially increase profits; then a critical moment has arrived and will persist into the indefinite future. Electronic publishing also raises the definition of authorship in an interactive, collaborative environ ment. However, libraries and educators must contend with the practical issues of producing and providing access to materials available electronically now.

Increasingly within the publishing world, licensing is replacing copyright. Similar to copyright, licensing is an economic means for publishers to protect their ability to make a profit from works they own by controlling access to information. Indeed, it may limit access by limiting the number of users who may access a work or by requiring pay-per-view. Libraries are increasingly faced with the dilemma of subscribing to/licensing online or print versions of journals and, in some cases, both. Subscribing to/licensing electronic versions of journals offered by traditional commercial publishers is a murky area. While it may seem desirable or practical for journals to be available online where only articles needed may be printed or copied, the reality is far from this ideal. Libraries which have adopted electronic journals into their collections have found that they are rarely in their complete form, making it necessary to collect both electronic and print forms. While many publishers or vendors may offer subscription to electronic versions at no additional charge, there is no reason to believe this practice will continue. Developing technology, such as the Digital Object Identifier (DOI), will allow publishers to standardize access to copyrighted materials on a fee-based system. The DOI was developed out of the Emerging Technologies Committee of the Association of American Publishers and has expanded to the incorportation of the International DOI Foundation in October 1997. In addition to the publishing industry, music and film industries have begun examining the DOI as a standardized method of protecting copyrighted materials.

In contrast to traditional commercial publishers, scholarly presses and others have begun offering electronic journals, some peer-reviewed, others not. Individuals have begun self-publishing via personal websites, circumventing traditional publishing veh icles. While these journals and self-published documents may be valuable, they raise the issue of access. Seldom are electronic journals or documents of this type indexed in traditional citation indexes, abstracts, or table of contents services. A researcher searching for articles on a topic may very well overlook an important work published in Kairos, for example, because it is not indexed in MLA. Given the weaknesses of search engines and the average person's inablity to perform an effective search, access to such material may be severly limited. Perhaps such materials will be circulated among a scholarly community as they become known or advertised by their author or publisher. And perhaps more reliable search mechanisms will eventually be developed that will allow for greater ease and accuracy of retrieval of materials on the Internet and WWW. For now, however, access to these articles is limited; contradicting the oft-stated position that technology allows for greater access to more and more information.

Lance Rose addresses the copyright dilemma for all of these various types of online publications in NetLaw by applying current law to each situation. For example, according to Rose, the copyright of individual posts to a discussion group is owned by the poster. "Threads" of discussions are considered "collective works" and owned, presumably, by the listowner or discussion group owner. It is a violation of copyright to post a verbatim copy of an article or file from elsewhere; indeed, Rose calls this laziness on the part of the poster who with a little more effort could have summarized. The writer of an e-mail message owns the copyright to that message (which is not to be confused with the right to privacy). The copyright for a text, image, or sound file belongs to the creator(s). The uploading of a file implies a license to others to download (or make a copy) but not to redistribute.

First Sale

Current law guarantees that anyone who has legally obtained a copy of a work may transfer it to another without the permission of or further renumeration to the copyright owner. First sale is the mechanism which allows libraries to lend books and other materials; the work leaves the physical possession of the library at the time of lending. This doctrine applies not only to print material but also to software, which may be transferred to another as long as it is deleted from the system of the original owner. The Digital Era Copyright Enhancement Act would extend the First Sale doctrine to digital works so long as at the time of transfer the work is eliminated from the owner's system. By extending the first sale doctrine into the digital environment, the law is distinguishing between transmision (or making a copy of a work) and transfer (or lending/reselling a work). In other words, the practice of the print world is being transferred to the digital. Whether this is practical given the realitie s of the digital environment remains to be seen. It would seem unrealistic and impractical for libraries or others to extend the concept of "lending" to the electronic environment by transferring a work to another and eliminating it from their own system. In effect, it would eliminate one of the greatest advantages of the technology: providing ready access at low cost.

Distance Education

Campuses across the country have seen an explosion in distance education programs and in non-traditional students not able or willing to travel to campus. These programs and students demand greater access to more flexible courses delivered in more innovative ways as well as to information on demand. The Digital Era Copyright Enhancement Act extends the use of personal computers and new technologies to distance education just as broadcast and closed-circuit technology has been used in the past. For educators, this will allow for distribution and use of works over a network. For libraries, the issues involved in providing service to distance education students remain murky. For example, document delivery to students at remote locations is technically and economically feasible via scanning of documents and transmission via e-mail or FTP. However, because of copyright laws, libraries have not explored the potential of providing documents in this way and have relied on traditional delivery systems or on the limited capabilities of full-text databases. In addition, access to catalogs and databases from remote locations, while not technically impossible remains potentially difficult due to licensing agreements with publishers and vendors. In addition, remote access requires user identification systems which allow for recognition of users from remote systems.

Incidental Copying

In the normal course of operation, a computer may produce a copy of a work in RAM or in cache. Some have suggested that such "ephemeral" copying is a violation of copyright. If true, this would eliminate the ability to browse electronic works of any type. The Digital Era Copyright Enhancement Act has addressed this issue by declaring that "ephemeral copies" are not infringement of copyright law since they are made in the normal course of computer operation.


As gatekeepers of information, libraries have traditionally preserved books and other materials so they will be available for study and use by future generations. Under current copyright law, libraries or archives are permitted to make one "facsimile" copy of a work for preservation purposes. Does a scanned copy into digital format fit the definition of "facsimile"? Apparently not, at least according to the publishing industry and the White Paper which states that current copyright law does not permit scanning for preservation or replacement. To overcome this, the White Paper recommended that libraries/archives be permitted to use new technologies to make three copies of a work. This recommendation has been incorporated into the Digital Era Copyright Enhancement Act.


The argument over copyright law is generally framed within the traditional concept of publishing and authorship. As the Internet and WWW continue to develop, definitions may well evolve and change as authors collaborate and work interactively and turn to non-traditional methods of publishing. These definitions will evolve out of the everyday practical nature of working via the online environment but will be effected and shaped by the law. The courts will continue to define copyright and IP by the laws as they exist and standards with which they are familiar. As Rose continually points out in Netlaw, cyberspace is not an escape from the laws that govern the physical world whether we believe those laws appropriate or not. If we as scholars, writers, and librarians believe that the transition being made to Internet technologies provides what Bettig describes as a critical moment in redefining how the law will be applied to a new technology, it is not only in our own best interests, but in the bes t interests of scholarship for us all to work for a guarantee of continued access to information and knowledge by all. Therefore, we must continue to establish and maintain a voice in how laws will be written and interpreted for the online world.

External Links for This Review

These are links from the review that point to sources outside of Kairos. Since these may change, this page gives the original URL and some descriptive information.
  1. Mark Lemley's 1995 essay, "Rights of Attribution and Integrity in Online Communications" in the Journal on Online Law

  3. leads to a copy United States Code, Title 17-Copyrights. This copy is online under the auspices of the Cornell Law School's Legal Information Institute

  5. links to the United States Patent and Trade Office site and to a copy of the "White Paper".

  7. leads to the homepage for the Digital Future Coalition, a lobbying organization that supports Fair Use protection.

  9. leads to a copy of H.R. 3048, The Digital Era Copyright Enhancement Act. This is located at Library of Congress's Thomas Server,

  11. leads to information about the Digital Object Identifier, an identification system for digital media designed to "link customors with publishers ... and enable automated copyright management systems."

  13. leads to the Association of American Publishers, one of the groups leading the development and acceptance of DOI, by the supporting the establishment of an Internation DOI Foundation, the group which represents the final external link at