The application of copyright law to digital media is a topic that has drawn considerable attention in the past few years. It seemed that the interest had peaked with the passage of the Digital Millennium Copyright Act (DMCA) in 1998. However, the attention devoted to such issues by Congress, state legislatures, and the courts in the ensuing months since the DMCA have proved that the issues are far from resolved. Interest in influencing the outcome of public policy and litigation is particularly acute in the library and higher education community where the stakes are high. Three recent events underscore the need for us to be vigilant in our advocacy of a federal copyright system that strikes an appropriate balance between the rights of creators and users of information.

The Technology, Education, And Copyright Harmonization Act (known as the "TEACH Act") of 2001 is an attempt to bring the copyright law up-to-date with the realities of distance education. In addition to "fair use" and other well-known provisions of the Copyright Act that have benefited colleges and universities, there is a lesser-known provision that was intended to accommodate "distance education." Unfortunately, the kind of distance education that was being conducted in 1976, the date when the provision was first created, is a far cry from the distributed learning facilitated by the Internet today. The "distance education exception" in the 1976 Act was designed to cover "face-to-face teaching" or education received at a "place that was normally devoted to instruction." The exception permitted the public performance and display in a classroom setting of certain kinds of works. The "distance education exception" permitted an extension of that practice to two-way, closed-circuit television. When Congress sought to expand that practice for today’s Internet-based education as part of the DMCA, the publishers and content community fought vigorously forcing a compromise that called for the U.S. Copyright Office to conduct a study and issue a report on distance education and copyright. The TEACH Act as it has made its way through the Senate and House Committees this year is a result of the Copyright Office report and several hours of intense negotiations between the higher education and content communities. The chances of the legislation passing seem good and the results are promising for ensuring appropriate uses of information resources in a distributed education setting. More information, including the current status of the legislation, is available from http://www.oit.umd.edu/units/pp/relations/teach/.

The Uniform Computer Information Transactions Act (known as UCITA) is a proposed model state law that has only been passed by Maryland and Virginia since it was first introduced to state legislatures two years ago. UCITA, while largely about contract law and electronic commerce transactions, cuts to the core of the controversy regarding the erosion of rights to fully use electronic resources in an era when licensing access to electronic databases and journals is rapidly replacing more traditional practices of purchasing copyrighted materials. UCITA gives legal weight to the enforceability of "shrink-wrap" or "click-through" license agreements and their controversial terms. Typical license agreements for software and information are very restrictive and strive to eliminate several of the rights afforded libraries and non-profit educational institutions under the Copyright Act. Software distributors and the publishing industry support UCITA; whereas, opposition has been voiced by a variety of constituencies including librarians, educators, consumer rights advocates, retail businesses, and segments of the information technology industry. The licensing of information products in a manner that unnecessarily inhibits access or reduces our rights to "fair use" is an unfortunate trend that UCITA seeks to validate. Other states have been slow to pass UCITA, largely because of its length and complexity and the surrounding controversy that is becoming more apparent as time passes. For more information, see http://www.oit.umd.edu/pp/policy/ucita.

The DMCA contained a provision making it a crime to circumvent a technological protection measure in order to gain access to a copyright protected work. However, Congress delayed the enforcement date of that section of the DMCA for two years until the U.S. Copyright Office could conduct a rulemaking procedure to determine whether or not exceptions were appropriate. The library and higher education community argued vehemently that "fair use" was a category that should be exempted from the provision. In the end, the Librarian of Congress endorsed the Copyright Office’s recommendation to only accept two exceptions and the "fair use" exception was not among them. Many observers note that the access restrictions made possible by the DMCA go too far. The Copyright Act is designed to govern creation and use of copyrighted works. However, the DMCA’s provisions also restrict access to a work and create a new set of legal rules (called "para-copyright law" by some) that go far beyond what was possible under the 1976 Act. This provision of the DMCA has been used to prosecute an individual who used a decryption device to decode DVD’s. It is also at the core of a current controversy and pending lawsuit involving several professors and computer security experts who published the results of their successful exploits at cracking an encryption system designed to protect digital music. The threat of criminal penalties is significant for the research community.

The application of copyright law to technology use in the college and university environment is fraught with challenges. It is also clear that the evolution of the legal framework did not end with the passage of the DMCA. Furthermore, we are not likely to find all of the solutions in the law itself. Therefore, some principles that might help us consider how to approach these complex and confusing issues follow:

Legal Principles

• Copyright law should provide incentives to authors, not publishers
• Copyright law should be technology-neutral
• "Fair Use" must be preserved
• Licensing should not be used to limit the exemptions under copyright law
• Government regulation should be limited and promote the public good

Policy Principles

• Legal risks should be weighed against educational benefits
• Freedom of thought and open access to information are the cornerstone of higher learning
• Rights must be accompanied by responsibilities
• Policies should uphold the law, reinforce community values, and encourage ethical behavior

Ethical Principles

• Colleges and universities should promote ethical student development
• Faculty and staff should model ethical behavior
• Policy enforcement should be accompanied by education
• Technology is the tool but people are the solution

If you are interested in learning more about these principles or the future of access to information resources and the influence of copyright law, you are encouraged to participate in the ForUM on Access to Information Resources (FAIR) (see box at top right).

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