copyright and electronic publishing

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Copyright and ElectronicPublishingPaul Gleason aa International Monetary Fund , 8101 TakomaAvenue, Silver Springs, MD, 20910, USAPublished online: 20 Jan 2009.

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COPYRIGHT

Copyright and Electronic Publishing:Background and Recent Developments

Paul Gleason

INTRODUCTION

Today’s national copyright laws serve several purposes: (1) to guar-antee an author a monopoly, or exclusive, right to control the uses

This article aims to discuss both the implications that electronic publishing hasfor the use of copyrighted works and some recent efforts made to protect such worksfrom infringement in the electronic environment. It focuses principally on books andother printed publications, but much of the discussion is also applicable to otherintellectual property products. Since discussing these complicated issues in a va-cuum–without providing sufficient background information–is likely to be confusingand misleading to nonspecialists, the article devotes considerable space to explaininghow the current copyright environment developed before getting into current issues.

Paul Gleason is Assistant Editor, Finance & Development magazine at the Inter-national Monetary Fund, 8101 Takoma Avenue, Silver Springs, MD 20910.

This article was first published, in a somewhat different form, in Publishing andDevelopment: A Book of Readings, edited by Philip G. Altbach and Damtew Teferra(Chestnut Hill, MA: Bellagio Publishing Network, 1998). The views expressedherein are those of its author and should not be interpreted as reflecting the views ofhis employer, the International Monetary Fund.

[Haworth co-indexing entry note]: ‘‘Copyright and Electronic Publishing: Background and RecentDevelopments.’’ Gleason, Paul. Co-published simultaneously in The Acquisitions Librarian (The HaworthInformation Press, an imprint of The Haworth Press, Inc.) No. 26, 2001, pp. 5-26; and: Publishing and theLaw: Current Legal Issues (ed: A. Bruce Strauch) The Haworth Information Press, an imprint of TheHaworth Press, Inc., 2001, pp. 5-26. Single or multiple copies of this article are available for a fee from TheHaworth Document Delivery Service [1-800-342-9678, 9:00 a.m. - 5:00 p.m. (EST). E-mail address:[email protected]].

� 2001 by The Haworth Press, Inc. All rights reserved. 5

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PUBLISHING AND THE LAW: CURRENT LEGAL ISSUES6

made of his or her own (original) work for a specified period; (2) toguarantee a publisher a monopoly right to publish (or arrange to pub-lish) and sell a work within national boundaries for a specified peri-od; (3) to provide financial compensation (royalties) to authors toreward them for their creative work; and (4) to encourage progress inthe country’s arts and sciences (understood here to encompass thehumanities and social sciences, as well as the ‘‘hard’’ sciences) inorder to foster its economic, social, and cultural development. EdwardPloman and L. Clark Hamilton observe that ‘‘copyright is used as alegal mechanism for the ordering of social and cultural life, or, putanother way, is one method for linking the world of ideas to the worldof commerce.’’1

National copyright laws have often created, and continue to create,considerable controversy and rancorous disputes among authors, pub-lishers, governments, and larger societies. In particular, the granting ofa legal monopoly to publishers–which clearly has helped to providethem with sufficient confidence in their chances of recovering,through sales, their investment in editing, publishing, marketing, anddistributing a work to justify their running the risks involved in almostany publishing venture–has conflicted with the reading public’s ‘‘needto know’’ and its desire for the freest possible flow of information,with publishers’ prices for books or other publications the main boneof contention. Such tensions have perhaps been inevitable because,although books, journals, or other traditional kinds of publications arephysical commodities, each of which is sold at a particular price, theinformation they contain is a resource whose value to society is notdiminished by the widest possible dissemination.

In their introduction to Copyright: Intellectual Property in the In-formation Age, Ploman and Hamilton explain that ‘‘copyright hasbecome one of the most complex, technically difficult branches of law,an arcane area populated by experts hiding behind an almost impene-trable jargon.’’2 Though it must be acknowledged that this branch oflaw has had to be designed to cover a wide variety of intellectualworks and transfers of ownership, it is also clear that many influentialbook publishers and other major owners of intellectual property havelong sought to protect their perceived economic interests by keepingnational copyright laws and the relevant international treaties obscureand by dominating discussion of these by governments and interna-tional organizations.

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Copyright 7

Not long after the printing press was introduced in Europe, bothsecular and religious leaders, who clearly perceived the significantinfluence of widely distributed publications on public opinion, startedto regulate the printing trade. They granted favored printers exclusiveprivileges to publish particular works and by this means were some-times able to both prevent the publication of works they viewed asundesirable and to censor publications. In England, the political de-cline of the monarchy and the rise of parliament gradually permittedthe book trade to have increased freedom of action, and the Statute ofAnne–the world’s first copyright law in the modern sense–was en-acted in 1710.3 Under the Statute of Anne, authors or any other per-sons, and not just printers as formerly, could own a copyright. Theterm of copyright was limited, and applicants for copyrights wererequired to comply with some formalities: authors had to registerbooks in their own names and to supply free copies of each protectedwork (sometimes referred to as deposit copies) to several Englishuniversities and libraries.

In considering the Statute of Anne or later copyright laws, it isimportant to bear in mind that, as Ithiel de Sola Pool has so succinctlyput it,

The new notion of intellectual property represented by copyrightwas rooted in the technology of print. The printing press was abottleneck where copies could be examined and controlled. . . .For modes of reproduction where such an easy locus of control asthe printing press did not exist, the concept of copyright was notapplied.4

Although copyright laws have come to cover many forms of intellec-tual property besides books over the past several centuries, the need tohave a locus of control over the reproduction of works remains theparamount concern in copyright enforcement today.

During the remainder of the eighteenth century and the early nine-teenth, copyright laws spread to the rest of Europe and the UnitedStates. International trade in books expanded rapidly, especially inEurope, and as it did so, the problem of international piracy grew.Piracy was rampant not only because of the quick profits it promisedbut also because intellectual property was still a relatively new con-cept. Although the concept of intellectual property and the idea that itwas something deserving legal protection had gradually gained adher-

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ents, primarily in Europe, during the seventeenth and eighteenth cen-turies, attitudes toward works of the mind in some other countrieswere rather different. For example, in the United States, whichadopted its first national copyright law in 1790, reprinting European(primarily English) works without either requesting permission ormaking payment was widespread in the 1800s. This activity was clear-ly piracy in the eyes of Europeans, but it was completely legal underU.S. copyright laws of that time, which protected only the works ofU.S. authors.

EMERGENCE OF INTERNATIONALCOPYRIGHT CONVENTIONS

When printing-press pirates operated from a publisher’s own coun-try, the publisher could use its domestic copyright law to shut downtheir businesses and subject them to penalties; but when the piratesoperated from another country, a publisher had no recourse unless thetwo countries happened to have a bilateral copyright agreement. Euro-pean countries first made considerable efforts to negotiate such bilat-eral agreements on the basis of reciprocity of copyright protection, butthe resulting web of such agreements proved to be unsatisfactory.Beginning in the 1850s, the idea of a common international frame-work for copyright protection emerged as the most promising solution.After many years of debate, agreement was reached in 1886 with theInternational Convention for the Protection of Literary and ArtisticWorks–more commonly known as the Berne Convention (named forBerne, Switzerland, the city where it was negotiated).

The Berne Convention, whose essential purpose, according to itspreamble, is ‘‘to protect, in as effective and uniform a manner aspossible, the rights of authors in their literary and artistic works,’’ wasdesigned to operate on the principle of national treatment: essentially,each member nation of the Berne Union (that is, a nation adhering tothe Convention) will afford copyrighted works originating in any oth-er member nation the same protection that works originating domesti-cally receive under its own copyright law. The Convention providesthat countries adhering to (that is, entering into a legally bindingagreement to comply with) it must also provide a minimum standardof protection–in terms of the content, scope, and duration of copy-right–to works originating in all Berne Union member nations. The

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Copyright 9

Berne Union, which began its existence with just 14 members, most ofwhich were European, has expanded over the years to 125 memberstoday.

World War II, which brought about many changes in the worldpublishing scene, marked the beginning of a new era in internationalcopyright relations. The United States, which had remained aloof fromthe Berne Convention primarily because it wished to avoid the sup-pression of domestic interests that adherence was expected to entail,emerged as a major publishing power and began to take a greaterinterest in exporting books. It became interested in the development ofa second international convention that would be acceptable to it, thenations of Latin America, and other nations that–mainly because theyhad so few works produced by their domestic authors and thereforewished to make works produced elsewhere as widely and cheaplyavailable to their citizens as possible–did not wish to accept all of theobligations of Berne adherence. In 1952, the United Nations Educa-tional, Scientific, and Cultural Organization (UNESCO) convened aconference in Geneva to work out such an agreement. The result wasthe Universal Copyright Convention (UCC), which came into effect in1955. The UCC, which was signed by 40 nations in 1952, currentlyhas 97 members.

DEVELOPING COUNTRIES CONFRONTTHE INTERNATIONAL COPYRIGHT SYSTEM

As the colonial empires of Europe broke up with the granting ofindependence to former colonies in the 1940s, 50s, and 60s, largenumbers of new, often weak nations appeared and set about the busi-ness of fostering their own economic development. Although thesenations’ resource endowments, climates, infrastructures, educationlevels, and political philosophies varied widely, they generally agreedthat they would need to obtain scientific, technical, and other informa-tion–much of which was in the form of copyrighted works–from theindustrial nations if they were to realize their hopes for development.More generally, Third World countries sought to decrease their depen-dence on the information production and distribution system largelycontrolled by the industrial powers, since this offered hope of remov-ing, or at least lessening, the fundamental inequalities between the twogroups of nations.

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As developing nations attempted to acquire more information fromthe industrial nations, the former’s very limited means posed a majorobstacle, as did the reluctance of many publishers and other producersof information in industrial nations to give up existing or potentialoverseas markets. In various international forums–including UNESCO,the administrator of the UCC; the United International Bureaux for theProtection of Intellectual Property (BIRPI), then the administrator ofthe Berne Convention; and the United Nations Conference on Tradeand Development (UNCTAD)–developing countries, using their com-bined voting strength and enlisting the support of some sympatheticpublishers and government officials in industrial countries, pressed fora lessening of their economic inequality with the industrial countries(the New International Economic Order) and, more particularly, areduction in industrial countries’ control of information productionand distribution (the New World Information Order).

THE STOCKHOLM AND PARIS CONFERENCES

In 1963, an African copyright meeting held in Brazzaville (in whattoday is the Republic of Congo) first suggested that the Berne Conven-tion be modified to give developing countries easier access to copy-righted works originating in industrial countries. This suggestion waspushed hard by developing countries before and during the 1967Stockholm Conference held to discuss revision of Berne. After diffi-cult and protracted negotiations, agreement was reached on a ProtocolRegarding Developing Countries, which was annexed to the BerneConvention. At the same conference, the World Intellectual PropertyOrganization (WIPO) was created to succeed BIRPI as the administra-tor of the Berne Convention. In 1974, WIPO became a specializedagency of the United Nations.

The Stockholm Protocol allowed several exceptions to the generallyhigh level of protection provided to the copyrighted works of BerneUnion members in order to assist developing countries. Among otherthings, it reduced the maximum term of protection of copyrightedworks sought by developing countries; reduced restrictions on accessto material developing countries needed for education and research;and provided for compulsory licenses–licenses provided by develop-ing country governments to their domestic publishers in consultation

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Copyright 11

with, but not necessarily with the consent of, the publishers or authorsholding the rights–to translate or reproduce copyrighted works in re-turn for what was considered equitable payment in the developingcountry concerned.

The Stockholm Protocol, conceived in controversy, failed to satisfyeither developing or industrial countries. Most industrial countriesrefused to ratify the Protocol. Many substantial industrial countrypublishers, reacting to a perceived threat to their overseas markets,stepped up their efforts to protect the copyrights they held. Nationalpublishers’ associations in industrial countries became more deeplyinvolved in international copyright issues, as did the InternationalPublishers Association, headquartered in Geneva. In addition, the In-ternational Group of Scientific, Technical & Medical Publishers(STM), headquartered in Amsterdam, was founded in 1968 partly toenable its members to better protect their copyrights.

Since the developing and industrial countries were stalemated intheir dispute over the Stockholm Protocol, it was decided in 1969 thatthe best way forward would be to convene a joint conference forsimultaneous revision of both the Berne and Universal CopyrightConventions. This conference, which was held in Paris in 1971, workedout revisions of both Berne and the UCC incorporating a compromisebetween industrial and developing countries on the latter’s use ofcopyrighted works for nonprofit educational and research purposes.The Paris revisions, ratified in 1974, provide that publishers mayreprint or translate works–subject to more extensive restrictions thanhad been included in the Stockholm Protocol–owned by copyrightholders in industrial country members of Berne or the UCC. Develop-ing countries thus obtained a significant, though limited, concession inParis from industrial countries.

Despite the big head of steam behind compulsory licensing at boththe Stockholm and Paris conferences, relatively few developing coun-tries have granted compulsory licenses to their domestic publisherssince 1971. Developing countries’ wide-ranging campaign for addi-tional concessions to help create a New International Economic Orderand a New World Information Order subsequently encountered stiffresistance from conservative industrial country governments, espe-cially during the 1980s, and was effectively, though not permanently,halted.

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PUBLISHERS LAUNCH AN OFFENSIVEAGAINST BOOK PIRACY

Book piracy continued to expand during the 1960s, 70s, and early1980s as technological improvements in manufacturing and shipping,and strong economic growth in parts of the developing world, espe-cially Asia, created many opportunities. While accurate figures on thevolume of piracy are extremely difficult to obtain, it is clear that totalannual losses of all copyright proprietors in industrial countries–in-cluding, among others, producers of films, videocassettes, audio tapes,compact disks, computer hardware and software, and books–frompiracy of their works were, and still are, quite substantial.

Industrial country publishers, which had long been concerned aboutpiracy and its effects on their balance sheets, became sufficientlyalarmed by its magnitude during the early 1980s to push for, andobtain, strong action by their conservative, pro-business governmentsto combat piracy. The United Kingdom negotiated with several Asiannations known to harbor major producers of pirated books, videocas-settes, films, computer software, etc., in order to win amendments in,and improved enforcement of, their copyright laws. At the urging ofthe International Intellectual Property Alliance (which includes theAssociation of American Publishers among its members) and otherknowledge industry representatives, the U.S. government used theleverage created by the trade preferences and foreign aid it grantsdeveloping countries to convince such major pirate bases as Taiwan,Korea, Singapore, Malaysia, Indonesia, and the Dominican Republicto bring their copyright laws into conformity with the two majorconventions and to beef up both enforcement of, and sanctions forviolators under, these laws.

New legal provisions, particularly those enacted as a result of diplo-matic and commercial pressure from overseas, have not always beenenergetically or effectively enforced but, on balance, considerableprogress has been made against book piracy in developing countries.Such piracy is now widely seen as declining, though far from eradi-cated. At the same time, however, industrial countries clearly arebecoming increasingly concerned about piracy in the countries ofEastern and Central Europe, as well as the states of the former SovietUnion, as their socialist economies and legal systems come to re-semble those of Western Europe.

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Copyright 13

Many industrial country publishers recognize, however, that piracycan only be minimized or eliminated over the long haul by reducingthe economic incentives that brought the pirates into publishing in thefirst place. In recent years, publishers in the industrial world haveresponded to piracy (including illegal photocopying as well as tradi-tional printing-press piracy) and compulsory licensing by makinggreater efforts to sell their own books in developing countries at af-fordable prices and to sell reprint and translation rights–that is, to sellnegotiated (voluntary) licenses–more reasonably than they had in thepast. Nonetheless, conflicts between the interests of the industrialcountry publishers and developing countries clearly remain.

As printing-press piracy has diminished, the knotty problem ofunauthorized photocopying of copyrighted works in developing coun-tries received greater attention. In developing countries, as in industri-al countries, the reproduction of copyrighted material without permis-sion or payment is commonplace. Indeed, after many years of havinghad the freedom to make copies for personal or commercial use, manyindividuals and firms have come to consider such copying a personalright. The losses of income sustained by publishers whose books havebeen copied have been significant, though it should be pointed out thatthe combined losses to publishers from printing-press piracy and ille-gal photocopying have been dwarfed by copyright holders’ lossesfrom the piracy of such products as audio tapes, videocassettes, com-pact disks, and computer software.

Industrial country publishers, with finite resources at their disposal,have had to concentrate most of their anti-piracy efforts abroad oncombating printing-press piracy rather than the much more frequentbut smaller-scale photocopying infringements. Nonetheless, as an ex-tension of their efforts to control unauthorized photocopying in theirhome markets through national collecting agencies, also known asreproduction rights organizations (RROs) (e.g., the Copyright Clear-ance Center in the United States, the Copyright Licensing Agency inthe United Kingdom, VG Wort in Germany, Kopinpor in Norway, andCEDRO in Spain) set up to collect royalties for the reproduction ofcopyrighted works, industrial countries have set up the InternationalFederation of Reproduction Rights Organizations (IFRRO).

As publishers and RROs have attempted to grapple with the photo-copying problem nationally and internationally, many–though not all–industrial country publishers have concluded that charging users–es-

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pecially large, institutional ones–on a transactional basis–that is,charging them individually for each copy made–is not feasible andthat, consequently, collectively licensing large users–that is, chargingthem a fixed license fee for all of their copying (strictly speaking, onlythe copying of those works for which rights are administered by theRRO) during a specific period–is the only practical way to collectroyalties.

While industrial country governments and their publishers havestepped up their efforts to combat book piracy in recent years, theeconomic and social development of some developing countries andthe advancement of their publishing industries have induced them tochange their attitudes toward the international copyright system.When a country reaches the point where it has substantial numbers ofcopyrights of its own authors and publishers to protect, it often be-comes convinced that joining and strictly adhering to internationalconventions are in its own best interests. Among other countries,Korea, Taiwan, and the members of the Association of SoutheastAsian Nations (ASEAN) have recently shifted their stances on inter-national copyright issues for similar reasons.

EFFORTS TO INCLUDE INTELLECTUAL PROPERTYIN THE GATT

In addition to their increased direct efforts to combat piracy over thepast decade, industrial country publishers–which have grown increas-ingly impatient with what they view as weak enforcement and inade-quate protection of their rights under Berne and the UCC–have per-suaded their generally conservative governments, many of which wereimpressed by the contributions made by copyright industries to theircountries’ export earnings and some of which viewed copyright con-cessions granted to developing countries as inappropriate internationalwelfare schemes, to press in new international forums for betterprotection of copyrighted works. These efforts can be viewed as partof a larger trend toward industrial countries attempting to hold interna-tional organizations on a tighter rein than formerly and to use theseorganizations more deliberately to pursue their own, sometimes rathernarrowly defined (national) economic and political interests. Duringthe protracted (eight-year) Uruguay Round of multilateral trade ne-gotiations that took place under the General Agreement on Tariffs and

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Copyright 15

Trade (GATT), which has its headquarters in Geneva, they worked toarrange inclusion of works of intellectual property for the first time.While developing countries and their publishers increased their in-volvement in the international copyright system over the past coupleof decades, they generally resisted the proposed spreading of interna-tional copyright jurisdiction to encompass not only WIPO andUNESCO but also the GATT, primarily because they feared that theGATT dispute-settlement mechanism would be used against them,with the consequence that their access to the copyrighted works ofindustrial countries would be further restricted.

In April 1994, the Uruguay Round negotiations were formally con-cluded in Marrakech, Morocco with the signing of the Final Act byrepresentatives of more than 120 countries. After receiving approvalfrom enough participating countries’ legislatures, the Final Act cameinto effect in January 1995. When the Final Act came into effect,publishers (and other owners of intellectual property) from industrialcountries won inclusion of provisions improving the protection of theintellectual property they own. In copyright matters, the agreementessentially requires all participants to comply with the substantiveprovisions of the Berne Convention. Participants must provide proce-dures under their domestic laws to ensure that intellectual propertyrights can be effectively enforced by both their own citizens andforeign rights holders. The agreement also set up a Council for Trade-Related Aspects of Intellectual Property Rights, more commonlyknown as the TRIPS Council, to monitor the agreement’s operationsand governments’ compliance with it. Any disputes concerning intel-lectual property rights are dealt with under the dispute-settlementprocedure of the World Trade Organization (WTO), the organizationthat succeeded the GATT when the Final Act came into effect.

At this writing, it seems that copyright holders from the majorindustrial countries have, through their strong influence on their gov-ernment’s negotiators, wrested important concessions from users ofintellectual property in developing countries. It will not be possible toknow how international flows of copyrighted materials will actuallybe affected, however, until more experience is gained with applicationof the Final Act’s provisions and the use of the WTO’s dispute-settle-ment mechanism. Thus far, only a few cases concerning copyrightedintellectual property have been brought to the WTO’s Dispute Settle-ment Body, and none of these have yet been settled.

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PUBLISHERS’ CONCERNS ABOUT COPYING

Publishers of books and other printed works, especially those en-gaged in scholarly or professional publishing, have seen widespreaduse of the photocopier considerably shrink the size of the markets fortheir works over the past several decades. They have often reacted,where competitive conditions have permitted, by raising prices of theirworks in an effort to maintain their earnings. Most publishers havesurvived, and some have prospered, during the photocopying revolu-tion, and their efforts to combat unauthorized photocopying have metwith some success. Nonetheless, they have found the experience to beprofoundly disturbing.

Photocopying has clearly threatened to undermine the economicfoundation of publishers’ businesses in a way that no earlier technolo-gy had. With the printing press no longer serving as a control point forcopies of a work, copyright enforcement became much more difficult,and many readers, businesses, and other institutions felt no compunc-tion about making large numbers of copies of all or parts of books orjournals, reasoning–to the extent they considered the economic andother issues involved–that publishers would make sufficient profit oncopies sold through traditional distribution channels. Among publish-ers, some were inclined to attribute unauthorized copying to a moraldeficiency among users and many called for stepped-up efforts toeducate the public about the economic, legal, and moral justificationsfor copyright.

Although some readers and many of the librarians that serve themare convinced of the justification for payment of royalties on copiesmade of copyrighted works, most readers have neither considered therelevant issues nor been persuaded of the value of respecting copy-rights. In such circumstances, many publishers, especially those incommercial publishing, have felt backed against the wall and havetended to view their customers (in the aggregate) with suspicion andmistrust, which has made true dialogue between publishers and read-ers hard to conduct and reasonable compromises very difficult toreach.

Many of the leaders of the publishing profession–especially in theUnited States, Europe, and other industrial countries–and their profes-sional associations have therefore become convinced they can hope tosurvive in the new world of electronic publishing, in which copying

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Copyright 17

has become far easier than in the print-on-paper world, only if radicalnew measures to protect copyrighted works are enacted and enforced.Not surprisingly, they have advocated the pursuit of single-minded,hardball approaches to achieving this goal.

TENSIONS OVER FAIR USE

Since an important purpose of copyright laws is to encourage theprogress of a country’s arts and sciences, there has and continues to bea need for people to be able to use portions of copyrighted works forfree toward this end. The concept of permitting such use under the law,which is known as ‘‘fair use’’ in the United States and ‘‘fair dealing’’in the United Kingdom, has its origins in English law and was estab-lished in the United States by various court decisions (case law) whichgradually, though somewhat erratically, increased its extent. It wasformally incorporated into U.S. statutory law with the coming intoeffect of the current Copyright Act in 1978.

Section 107 of the Copyright Act, which covers fair use, reads asfollows:

Notwithstanding the provisions of sections 106 and 106A [whichlist copyright owners’ exclusive rights], the fair use of a copy-righted work, including such use by reproduction in copies orphonorecords or by any other means specified by that section[sic], for purposes such as criticism, comment, news reporting,teaching (including multiple copies for classroom use), scholar-ship, or research, is not an infringement of copyright. In deter-mining whether the use made of a work in any particular case is afair use the factors to be considered shall include–

1. the purpose and character of the use, including whether suchuse is of a commercial nature or is for nonprofit educationalpurposes;

2. the nature of the copyrighted work;3. the amount and substantiality of the portion used in relation to

the copyrighted work as a whole; and4. the effect of the use upon the potential market for or value of

the copyrighted work.

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The fact that a work is unpublished shall not bar a finding of fairuse if such finding is made upon consideration of all the abovefactors.

The importance of fair use in the production of new works of themind has been profound, since it has facilitated intellectual, cultural,and economic growth. At the same time, because fair use has threat-ened to diminish publishers’ ability to earn a profit on the sale of theirbooks or other printed works (although it has also benefited them inanother way by facilitating the creation of new works), they havegenerally viewed it warily and have tried, through legal action, to keepits boundaries from expanding. Once the photocopier became com-monplace, thereby facilitating inexpensive copying of larger portionsof works than had previously been practical, their concerns aboutlosing control of their intellectual property–owing primarily to fair usebut also to other free uses of copyrighted works permitted by theCopyright Act, such as library copying carried out for various specificpurposes–were considerably heightened.

Against this background, the arrival of electronic publishing technolo-gies has made many publishers fearful that the greatly enhanced abili-ty of users to copy digital works–and to make copies that are visuallyindistinguishable from the electronic original–would make the ap-plication of fair use and other exceptions to publishers’ exclusiverights in copyrighted works an invitation to economic disaster. Theyhave therefore sought to either eliminate fair use or reduce its scope inthe electronic environment by both formulating the terms of licensing(contractual) arrangements with their customers and enacting changesin copyright law to accomplish this.

ELECTRONIC PUBLISHING’S IMPACT

When the Internet was originally used principally for electronic-mail exchanges and file transfers among scholars and, later, also forpublication of textual information (without graphics) on gopher sites,there were only a limited number of users and almost all of the infor-mation exchanged was noncommercial in character. The attitudes ofInternet users generally reflected the cooperative ethic of scholarlycommunication, with information sharing commonplace and unre-stricted access to information widely encouraged. In recent years,

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however, the increasing popularity of the Internet, both for e-mailexchanges and for obtaining access to information published on theWorld Wide Web that is readable using graphical browser software(Netscape Navigator, Microsoft Internet Explorer, Mosaic, and others),has brought commercial concerns–and, with them, copyright issues–tothe fore.

The ease with which the new technologies allow copies to be madeof information published electronically (digitally)–on the Web, throughelectronic bulletin boards, from proprietary databases, and so on–andthen downloaded to a user’s personal computer and transmitted by auser to other users’ PCs has been a boon to both scholarly and com-mercial communication and a cause of serious concern to publishersand other owners of intellectual property. On the one hand, owners ofcopyrighted information are attracted by the large audiences they canreach by publishing and distributing their works electronically; on theother hand, as was discussed earlier, they are alarmed by the risks ofinformation being obtained by many users without permission or pay-ment. For their part, many information users–and especially those indeveloping and transition countries and their governments–wish toobtain the maximum benefit from the new publishing and communica-tions technologies but are very concerned that they will be preventedfrom doing so by the costs of not only the equipment and trainingrequired but also the charges copyright owners have levied, and maylevy, for the use of information.

At the same time, both the scholarly community–in the humanitiesas well as the sciences–and the manufacturers of electronics and com-munications equipment and various providers of telecommunicationservices, such as telephone companies and Internet service providers(ISPs), strongly support the broadest possible access of users to infor-mation by electronic means. Although there is doubtless some risk inmaking statements about the views of general publics in various coun-tries on these issues, because of their great diversity and the varyingdegrees of individuals’ awareness of the relevant issues, it is clear thatthey also favor broad access to electronic information. The diverseviews of the affected parties have thus set the stage for a replaying–in,it is to be hoped, a less strident form–of the debate on the uses ofcopyrighted works in printed form (described earlier) that createdconsiderable controversy during the 1960s and 70s.

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Over the last several years, both individual publishers and theirnational and international associations have put considerable effortinto developing technical means to ensure their control over copy-righted information in electronic form. They have sought to developelectronic rights management systems (ERMSs) to monitor and li-cense interactive uses of copyrighted material–that is, uses made ofsuch material for which users choose when and where they will re-ceive it. Publishers’ efforts to ‘‘brand’’ their copyrighted material–embedding digital codes in it that enable the publisher to keep track ofwho uses it and to require payment, if the publisher wishes to do this,before the material can be used (for example, requiring receipt ofpayment before making encrypted material readable)–in this way haveresulted in the creation of various systems, some of which are current-ly being tested as pilot projects. The basic concept these systems seekto establish in the electronic environment, then, is transactional licen-sing–that is, customers pay for each use made of the copyrightedmaterial made available to them.5

In an electronic environment where many publishers fear that blan-ket licensing arrangements will offer them insufficient protectionagainst unauthorized and uncompensated uses of their intellectualproperty, they are embracing ERMSs eagerly. For instance, at the mostrecent annual Frankfurt Book Fair in October 1997, demonstrations ofthe digital object identifier (DOI) system, an ERMS that has beendeveloped under the sponsorship of the Association of American Pub-lishers and more recently has been supported by the InternationalPublishers Association, won glowing praise from publishers, especial-ly those specializing in scientific, technical, and medical (STM) sub-jects. Dietrich Götze, chief executive of Axel Springer Verlag, de-scribed the development of such systems as ‘‘one of the most importantevents in publishing for this century,’’ and Gerhard Kurtze, presidentof the Borsenverein (the German publishers association), termed it‘‘surely the most significant structural shift in academic and scientificpublishing since Gutenberg.’’6 It seems clear that such effusive praisestems partly from an anxiousness to see ERMSs be adopted as widelyand as quickly as possible to ensure protection of publishers’ interests.

Electronic management systems pose some serious problems, how-ever, and their widespread implementation is far from certain. For onething, they raise serious privacy questions: will users of copyrightedworks find it acceptable for copyright owners or some national or

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international administering body acting on their behalf to know whatmaterial they are using, as well as when and where they are using it?For another, the system of ‘‘pay per view’’ for copyrighted works indigital form that ERMSs could make possible would be unlikely toallow users any of their fair use rights. A third difficulty ERMSs arequite likely to face if they are extensively used is the devising ofelectronic means of getting around them–of allowing users to gainunauthorized access to information in which the publishers’ digitalcodes are embedded. In the United States, the Association of Ameri-can Publishers and other groups of intellectual property owners havebeen lobbying hard to make attempting to defeat ERMSs a violation ofU.S. copyright law (discussed later on).

Interestingly, these potential difficulties with ERMSs are quite simi-lar to those that arose a couple of decades ago when publishers at-tempted, with little success, to find a way to control the photocopyingof their printed works by various technological means, such as thelegally mandated installation of usage meters in photocopiers and thecreation of special papers on which text could not easily be photoco-pied. More recently, though, a change made in U.S. copyright law hasspecifically prohibited efforts to import, manufacture, or distribute anydevice whose primary purpose is to defeat mechanisms designed toprevent copies of sound recordings (which have traditionally enjoyedless extensive protection under the Copyright Act than other types ofcopyrighted works) from being made by digital audio devices. Also,the (U.S.) Communications Act–which is formally outside copyrightlaw–places similar prohibitions on devices that could be used to per-mit unauthorized decryption (unscrambling) of satellite signals carry-ing cable television programming.

It is clear that publishers need some form of special protection fortheir copyrighted works if their businesses are to remain economicallyviable in the electronic environment, but their need for this will pre-sumably have to be carefully weighed against the need to maintain thepublic’s fair use rights in this context.

NEGOTIATION OF NEW WIPO COPYRIGHT TREATY

In December 1996, after several years of discussion, negotiationson a new WIPO treaty intended to adapt international copyright prac-tices to the new world of digital technologies and communication were

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completed in Geneva. These negotiations were controversial, especial-ly in their final stages, as a result of the fundamental disagreementsbetween some of the major industrial country governments and copy-right owners, on the one hand, and an ad hoc alliance of developingcountry governments and the various groups of opponents in industrialcountries (mentioned above) of copyright owners’ plans to extendtheir control over uses made of works they publish in digital form, onthe other hand.

In a somewhat unexpected turn of events, the copyright owners andtheir governmental supporters–led by representatives of the UnitedStates (whose delegation was led by Bruce Lehman, Assistant Secre-tary of Commerce and Commissioner of Patents and Trademarks) andthe European Union–were soundly defeated in many of their efforts toget agreements passed to enhance their control over works they pub-lish in digital form. Interestingly, the strategy of the U.S. delegationhad apparently been to take the strongly pro-publisher provisions con-tained in Intellectual Property and the National Information Infra-structure–the report (more commonly known as the ‘‘White Paper’’)prepared by the interagency Working Group on Intellectual PropertyRights, whose legislative recommendations had generated little enthu-siasm or action in Congress after its publication in September1995–and bolster their chances of enactment by incorporating them,with the help of their European and other industrial country allies, intothe WIPO Copyright Treaty. Once the treaty had been negotiated bynational delegates in Geneva, it was felt, this would create a sense ofobligation in Congress to support passage of implementing legislation.

During the conference negotiations, attempts to make an incidentalcopy of a digital work produced in the random access memory (RAM)of a user’s computer–by, for example, downloading a page from acopyrighted Web page–subject to the control of the copyright ownerfailed, as did efforts to eliminate for digital works the ‘‘fair use’’exceptions to copyrights owners’ rights that are currently provided forunder various national copyright laws. Copyright owners and theirsupporters’ efforts to make intermediaries in the transmission of digi-tal works (for example, Internet service providers) liable for copyrightinfringements by their customers–to force them to serve, in effect, ascopyright police–also failed.7

Various improvements in the protection of copyrighted works were,in fact, enacted in the treaty: for example, the applicability of Article 9

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Copyright 23

of the Berne Convention, which covers reproduction rights in copy-righted works and permissible exceptions to these, to digital workswas clearly spelled out; the scope of protection for computer programsand original databases, and intellectual property owners’ right of rent-al were clarified; it was made clear that infringement of any rightcovered by the treaty or the Berne Convention covers both copyrightowners’ exclusive rights and their rights to be remunerated for usesmade of their works; the duration of copyright protection of photo-graphic works was extended from 25 to 50 years; and–perhaps mostsignificantly–signers of the treaty committed themselves to providelegal remedies to penalize persons who attempt to circumvent ERMStechnologies designed to protect copyrighted electronic works.8 None-theless, what didn’t go into the new WIPO treaty was considerablymore important than what did.

The treaty has now gone out to WIPO’s member countries forratification and any amendments of their domestic copyright laws thatmay be necessary to bring them into compliance with the treaty’sprovisions. As of May 25, 1998, 51 countries had signed the treaty–in-cluding the industrial countries of North America and Europe butexcluding Japan, Russia, China, India, Brazil, Australia, and mostcountries of Africa–and only two, Indonesia and Moldova, had ratifiedit.9 On May 14, 1998, the U.S. Senate passed implementing legislationfor the WIPO Copyright Treaty that included provisions mandatingpenalties for manufacturing or selling devices designed to circumventERMSs but also providing exemptions to nonprofit libraries, archives,and educational institutions to permit them to make acquisitions deci-sions and to computer software designers to permit them to engage insome forms of ‘‘reverse engineering’’ (analyzing software or anotherdevice to see how it works, with a view to creating a new device thatcan accomplish the same or a similar result in a somewhat differentway). As of this writing (June 1998), the House of Representatives iscurrently considering similar legislation, with heavy lobbying ex-pected by publishers, software firms, online service providers, li-braries, educators, and their respective national associations. It is clearthe U.S. ratification by the United States, through passage of thisimplementing legislation, would give a boost to ratification efforts byother countries that have signed the treaty.

At the December 1996 diplomatic conference at which the WIPOCopyright Treaty was agreed upon (as was the WIPO Performance

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and Phonograms Treaty, which will not be discussed here), a drafttreaty on intellectual property in non-original databases, which wassupported by intellectual property interests and their governmentalsupporters but opposed by numerous other groups including manyfrom the international educational and scientific communities, waspresented. Owing to the controversy over it and the lack of timeavailable to consider the implications of the sui generis protection ofdatabases (that is, a right of ownership in databases that would beinherent, regardless of their originality, which is seen by its advocatesas justified by the work done and expenditures incurred by their pro-prietors in assembling and maintaining them) it called for, however,the treaty was put aside for subsequent consideration.

In September 1997, WIPO held a three-day information meeting onintellectual property in databases in Geneva. It was characterized bywide-ranging discussions of the subject, and, in the words of the reportadopted by the meeting:

Many delegations stated that they needed more time for furtherstudy and consultations on national, regional and internationallevel [sic], and they stated that they needed further analysis toassess the need for such a system; furthermore these delegationspleaded for caution and [a] slower pace for international delib-erations.10

The meeting therefore decided that the International Bureau of WIPOshould thoroughly consider the discussions held at the informationmeeting and the issues raised, accept further submissions on relevanttopics from member governments and other interested parties, andreport back to its member countries on these by September 1998.Because of the preliminary stage of debate, no date was set for a futureWIPO meeting on intellectual property in databases.

OUTLOOK

Given publishers’ continuing fears about their economic viability inthe electronic environment, they are likely to use their considerablefinancial resources and tight, sophisticated organization to continuelobbying strenuously, in concert with other groups of intellectual prop-erty proprietors, for better protection of the copyrighted works theyown. Among other things, they can be expected to avail themselves of

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Copyright 25

opportunities created by legal changes enacted in other coun-tries–sometimes with U.S. publishers’ offstage support–or in interna-tional treaties to upgrade copyright protection in their own countries.

For example, in 1993, countries of the European Union decided(with heavy involvement by the continent’s publishers), as part ofefforts to harmonize their various national copyright laws, to extendcopyright protection from the life of the author plus 50 years, or 75years for works owned by corporations (as specified in the BerneConvention), to the life of the author plus 70 years, or 95 years forworks owned by corporations. Shortly afterward, U.S. intellectualproperty associations began lobbying Congress for an identical termof protection arguing–as Fritz Attaway, General Counsel for the Mo-tion Picture Association of America (MPAA), put it in 1997 congres-sional testimony–that ‘‘as the world leader in producing copyrightedworks, it would be unseemly, and just plain unthinkable, for the U.S.to lag behind other nations in protecting its copyright industry.’’11

Legislation permitting this extension–which would keep copyrightedworks out of the public domain for an additional 20 years, at consider-able cultural cost to the nation–has passed the House and is currentlybeing considered in the Senate.

If the protection of copyrighted works is to continue to serve thebroad public interest, as specified in the U.S. Constitution, librarians,educators, and other representatives of the public interest will have tolet Congress and the executive branch know why copyright owners’understandable desires to safeguard and supplement their revenuestreams need to be better balanced against the needs of the largersociety for a reasonably free flow of information.

NOTES

1. Edward W. Ploman and L. Clark Hamilton, Copyright: Intellectual Propertyin the Information Age (London and Boston: Routledge & Kegan Paul, 1980), p. 1.

2. Ibid., p. 2.3. Lyman Ray Patterson, Copyright in Historical Perspective (Nashville, Ten-

nessee: Vanderbilt University Press, 1968), pp. 6-7.4. Ithiel de Sola Pool, Technologies of Freedom (London and Cambridge, Mas-

sachusetts: Belknap Press of Harvard University Press, 1983), pp. 16-17.5. For further information on electronic rights management systems (ERMSs),

see Daniel J. Gervais, ‘‘Electronic Rights Management Systems (ERMS): The NextLogical Step in the Evolution of Rights Management,’’ paper presented at a confer-ence held in Seville, Spain in May 1997. It can be found on the World Wide Web, on

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the (U.S.) Copyright Clearance Center’s site, at http://www.copyright.com/stuff/ecms_network.htm. See also Clifford Lynch, ‘‘Identifiers and Their Role in Net-worked Information Applications,’’ in the Association of Research Libraries’ ARL: ABimonthly Newsletter of Research Library Issues, No. 194 (October 1997), pp.12-16.

6. Doreen Carvajal, ‘‘Electronic ‘Branding’ Receives Accolades at the FrankfurtBook Fair,’’ New York Times, October 20, 1997, p. D11.

7. For an interesting, though clearly partisan, discussion of the background to,and the actual WIPO Treaty negotiations at, the Geneva conference, see two articlesthat appeared, under the heading ‘‘Confab Clips Copyright Cartel,’’ in the March1997 issue (Vol. 5, No. 3) of Wired magazine: Pamela Samuelson, ‘‘Big Media Beat-en Back,’’ pp. 61-64+; and John Browning, ‘‘Africa 1, Hollywood 0,’’ pp. 61-64+.

8. For further details on the copyright treaty that emerged from the December1996 Geneva conference, see World Intellectual Property Organization, ‘‘DiplomaticConference on Certain Copyright and Neighboring Rights Questions: Agreed State-ments Concerning the WIPO Copyright Treaty,’’ WIPO Document No. CRNR/DC/6(English), December 23, 1996, available on WIPO’s Web site at http://www.wipo.org/eng/diplconf/distrib/96dc.htm. See also WIPO Press Release No. 106 (English),(untitled), December 20, 1996, available on WIPO’s Web site at http://www.wipo.org/eng/diplconf/distrib/press106.htm.

9. World Intellectual Property Organization, ‘‘WIPO Copyright Treaty (Geneva,1996): Status on May 25, 1998,’’ available on WIPO’s Web site at http://www.wipo.org/eng/ratific/s-copy.htm.

10. World Intellectual Property Organization, Information Meeting on IntellectualProperty in Databases, Paragraph 10 (chairman’s summary of the discussion) of ‘‘Re-port adopted by the Information Meeting,’’ WIPO Document No. DB/IM/6 (En-glish), page 3, available on WIPO’s Web site at http://www.wipo.org/eng/meetings/infdat97/db_im_6.htm.

11. As quoted in Gail Russell Chaddock, ‘‘When Is Art Free?’’ Christian ScienceMonitor, June 11, 1998, available on the newspaper’s web site at www.csmonitor.com/durable/1998/06/11/p51s1.htm.

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copyright and electronic publishing

Documents