NOTE: This paper was written in 1994 and a number of situations have changed, in particular with regards to the NII and Projects. At this point I am not planning to update this information so please don't use it as a reference.
- A SHORT HISTORY OF COPYRIGHT
- THE NATIONAL INFORMATION INFRASTRUCTURE (NII)
"Information wants to be free because it has become so cheap to distribute, copy, and recombine -- too cheap to meter. It wants to be expensive because it can be immeasurably valuable to the recipient. That tension will not go away. It leads to endless wrenching debates about price, copyright, "intellectual property," and the moral rightness of casual distribution, because each round of new devices makes the tension worse, not better."
-- Stewart Brand 
INTRODUCTIONThe Library of Congress is planning to digitize five million books, records and photos in their American Memory Project Collection by the year 2000 to form a National Digital Library at a cost that could easily top $1 billion. This collection will become a large part of the intellectual content of what the government is calling the National Information Infrastructure (NII).
But the word copyright haunts the promised NII and nowhere is this concept more confusing to both the information provider and user than in the area of digital imagery. The Library's five-year plan initially avoids the issue by digitizing public domain materials first. But eventually they will have to deal with the tangled and confusing network we call copyright law. They will need to locate and gain permission from copyright holders to digitize, reproduce, distribute or publicly perform or display these works that are not in the public domain.
The National Digital Library project and others like it will have an enormous impact on how we use digital images of art and, probably, change the way we think of art. What does this mean in terms of documentation for museums? The Library of Congress is already in the process of developing an electronic copyright management system called ECMS in collaboration with Advanced Research and Projects Agency (ARPA) and the Corporation for National Research Initiatives. ECMS will automate copyright registration and transfers and provide a framework for on-line clearance of rights as well as incorporate privacy measures to facilitate on-line transactions.
Though there are a number of fascinating social and political questions that arise concerning the notion of authorship and what we call "intellectual property rights", most people, museum staffs included, have only a vague notion of what copyright is. This paper will be concerned with the "nuts and bolts" of copyright, starting with a short history of the idea and the laws that developed around the concept, particularly the doctrine of fair use, then will attempt an overview of current government and private recommendations and projects and how they may affect the way we use digital images and shed some light on how museum staff will have to deal with them.
A SHORT HISTORY OF COPYRIGHTThough the principle of copyright, or authorship, has been known since ancient times it was the spread of the printing press that provoked the need for legal limits to respond to disruption caused by this new technology. The Republic of Venice granted John of Speyer the exclusive right to print the letters of Pliny and Cicero for a period of five years in 1469. Although printing with movable type began in 1451 and was introduced into England about 1476 the first modern copyright law was not passed in England until 1709 with the "Statute of 8 Anne."
Before this time royalty and government rewarded favored individuals with exclusive monopolies because they recognized that printing, unless controlled, was a threat to their rule. Queen Mary I granted a charter to the Stationers Company, a guild of printers, in 1556 with the right to burn prohibited books and jail the publishers. This charter was an attempt by government to control private enterprise through self-enforcement. The Stationers began keeping records of books approved by the royal censors and that entry began to be seen as the printer's (not the author's) exclusive right over the book.
The guild remained powerful into the seventeenth century and the members began to recognize the principle of "common law copyright," that held a man who printed an authorized book, or his heirs, had the right to profit from its distribution forever. Eventually authors, too, started to believe they had the right to profit from their works and joined the printers in seeking legislation to establish copyright law. In 1709 Parliament passed the Statute of 8 Anne recognizing authors' rights and giving them or their heirs exclusive powers to publish a book for 14 years after the first printing with an option, if still alive, for an additional 14 years. This limit of 28 years satisfied neither authors nor printers who wanted the rights in perpetuity as under the previous common law. In 1174 the case of Donaldson v Beckett brought the ruling that the 28-year limit pertained only to published works, leaving unpublished works under common law protection for perpetuity. This decision is the basis for modern copyright law in the United States.
United States Copyright LawU.S. copyright laws provide a balance between providers and users of information, giving the rights to print, reprint, publish and sell to the copyright owners for a limited time period while also providing for limitations of those rights, called Fair Use, to protect the interests of the public in regards to their joint cultural heritage. The U.S. Constitution, in Article I, section 8, gives Congress the power "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" and a statute based on the Statute of 8 Anne was enacted shortly after that giving the federal government statutory authority to administer copyrights. Since federal courts had no common law authority common law copyright was left to the state courts. As long as the creation was not published, meaning offered to the general public, the copyright was automatic and perpetual. Published works, however, had to have a copyright notice in a specified place or it would fall into public domain.
This two-tiered solution was maintained with slight modification until the Copyright Act of 1976, which was intended to allow the federal government to supersede the states' authority to deal with copyright and denying copyright under common law or statutes of any states. A creator's rights are now protected even without the proper notice affixed and regardless of whether the work is published or unpublished for a duration of the life of the owner plus 50 years.
In order to administer copyright law he courts have derived three basic requirements for copyright protection since the 1976 Act: originality, creativity and fixation. Original work must simply be one of independent creation, not copied from another. While the concept of originality may seem clear, the application can be problematic at times. An idea as such cannot be copyrighted under U.S. law, the idea must have a particular expression. It need not be novel as in patent law, or even good and the level of creativity required is low.
The requirement of fixation in a tangible medium of expression means either "copies" or "phonorecords" according to the Copyright Act and the wording was meant to leave considerable room for technological advances and states that the medium may be "now known or later developed." It is in this vague area of "fixation" that much of the disagreement surrounding digital images exists since the Act gives a copyright owner the exclusive right to distribute a work to the public. While fixation is clear in a material object such as a compact disc or a paperback book, it is unclear if the distribution rights apply to an unfixed stream of electronic impulses.
Fair UseThe fair use doctrine was invented by the courts to allow some uses of others' work without violating copyright and was made explicit by the Act of 1976. An old 1909 statute gave each copyright holder an exclusive right to print, reprint/publish, copy and vend the copyrighted. That wording proved so stringent that it could have prevented anyone but the copyright holder from making any kind of copy, even pencil and paper and was found to inhibit dissemination of information and, in any case, was virtually unenforceable. The courts devised the doctrine called "fair use" to automatically imply consent of the copyright owner to a fair use of the work for the advancement of science or art.
The factors to be considered by courts in determining whether the use made of a work in a particular case is a fair use include:
In general courts have been lenient with quotations used in scholarly works or critical reviews but have been less tolerant toward use for commercial or non-scholarly purposes or in works which are competitive with the original copyrighted piece. Wholesale copying is not fair use but copyrighted materials may be used as a guide for gathering information provided the writer performs an original investigation and expresses the results of such work in his or her own language.
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Libraries or archives are granted certain further exemptions to allow copies to be reproduced as long as they are made without the purpose of commercial advantage, the collections are open to the public and the reproduction includes a notice of copyright. These would include archival and replacement copies, articles and excerpts for users, out-of-print works, news programs and interlibrary loans, all with certain conditions. The fact that digital images can be so easily copied in whole and distributed has made this exception problematic since it was written with less efficient technology in mind.
Educational institutions are exempt from infringement liability if the copy is displayed in the course of a face-to-face teaching activity by a non-profit institution, it is a regular part of the curriculum, directly related to the teaching content and the reception is in a classroom or transmitted to another location because of disabilities. It is unclear how this exemption would relate to a student at home viewing digital images for a class via a modem and computer, or a non-student who has access to the digital images.
CasesA number of court cases since the mid-1960's have tested the doctrine of Fair Use in regards to copies of images and helped to define the law further. The landmark case involved the famous home movie of the assassination of President John F. Kennedy taken by Abraham Zapruder. Mr. Zapruder sold the original and three copies of the film to Life magazine, which registered the entire film in the Copyright office in 1967 and published frames from the film in three subsequent issues, which were copyrighted as periodicals. An author of a book on the assassination, Josiah Thompson, sought permission to publish the pictures in his book about the assassination and was refused. Thompson and his publisher, Bernard Geis Associates, copied certain frames anyway by paying an artist to make charcoal sketch copies. The court ruled that even though the sketches were, in fact, unauthorized copies, they fell under the doctrine of Fair Use because the book was not in direct competition with the magazine and the copies did not decrease the value of the copyrighted work and that the copying was in the public interest because the publisher had offered to give Life a royalty equal to the profits from the book in return for permission, which the magazine had refused. It is important to remember, though, that the court held that the charcoal sketches were to be considered copies even though they were done in another medium and the case was decided on the doctrine of Fair Use.
A more recent case, the Sony "Betamax" Decision of 1984,is a good example of what we now face in terms of the legality of copying and the dilemma of technological advances outrunning legislative and judicial efforts to contain them. Universal Studios sued Sony claiming the use of Sony's Betamax home taping equipment in homes by private individuals constituted copyright infringement. The case moved through the courts from 1979 until 1983 when a majority of the Supreme Court ruled that most viewers used recording as a "time-shifting" practice and enlarged the viewing audience without decreasing the value of the copyrighted work. But they also ruled that this was limited to noncommercial home uses and that copies made for commercial or profit-making purposes would be unfair. Libraries are granted the same kind of fair use to make certain types of copies (such as archival copies) but not to "library" copies, that is, make up their original collection from copies. It is unclear whether libraries or other institutions that may not be able to buy digital images from authorized vendors such as Sandak or Saskia or Art In America will be able to use the same images gained from other sources.
A third relevant case that was settled out of court involved the photographer Morton Beebe who sued the artist Robert Rauschenberg in 1976 for using his photograph of a young man diving in a number of his works without permission. Beebe agreed to settle for $3,000, a copy of a print and the promise that he would be credited in the catalogue with the image should the print be exhibited. It was the position of Rauschenberg that an artist working in the medium of collage has the right to make fair use of prior printed and published materials as a right guaranteed under the First Amendment and that most people were happy to see their images incorporated in his work. The photographer, obviously, was not so happy to see his image used without credit. Cases like this have, on the whole, been settled out of court but with the ease of copying provided by new technology the courts may find more art-related infringement cases on their docket. The recent case brought by Art Rogers against Jeff Koons did, however, go to court with Koons losing. Though not one involving new technology per se (Koons took a postcard by Art Rogers of a man and a woman holding puppies and made a sculpture from it) it is indicative of the way courts may view the concept of "serious" and "commercial" art.
International Copyright LawIn U.S. law the focus is on the rights of the copyright owner to reproduce and profit from their work and is a form of a property right. Most European and some Latin American nations also grant what is called droit moral or a moral right to the author of the work that is usually classified as a right of personality and protects the artist's character. Under droit moral an artist has a right of paternity, that is to be acclaimed as the creator and to prevent their works from being altered, distorted or destroyed, all easily done with digital images. Originally conceived in France in 1793 it was codified in the 1928 Berne Convention covering international copyright protection, which the U.S. did not sign until 1989 with many of the moral rights omitted arguing that equivalent protection already existed in American law. The passage of the Visual Artists Rights Act, which became law in 1991, provides for a limited form of moral rights protection within the context of the copyright code.
THE NATIONAL INFORMATION INFRASTRUCTURE (NII)The National Information Infrastructure (NII) is the name given by the government for an interconnected, interoperable telecommunications network of computer systems, televisions, fax machines, telephones and other "information appliances", software, information services and information databases owned and operated by the private sector. The government plans to accelerate the development of the NII by supporting long-term research and development by industry, universities and Federal labs, fund demonstration projects and develop forward-looking telecommunications policies that ensure access for citizens, encourage private-sector investment and create a competitive market for these services.
To do this the government must address information policy issues such as intellectual property rights because it is felt that what will drive the success of the NII is the content moving through it and the potential of the NII will not be realized if the content is not protected effectively because owners of intellectual property rights will not be willing to put their interests at risk if appropriate systems are not in place to set and enforce the terms and conditions under which their works are made available.
Information Infrastructure Working Group onIn order to implement the NII in February 1993 President Clinton formed the Information Infrastructure Task Force (IITF) of which the Working Group on Intellectual Property Rights is one of three committees. It is chaired by Assistant Secretary of Commerce and Commissioner of Patents and Trademarks Bruce A. Lehman. The committee issued a preliminary draft of their report in July 1994 and held public hearings and solicited comments from the public. The following is a summary of some of the recommendations made by the committee and response from the public that would involve the use of digital images on the NII.
Intellectual Property Rights Draft Report
RecommendationsThe Report analyzes current copyright law and its application in the NII environment and concludes that with limited amendments and clarifications the current Copyright Act will provide the necessary protection of rights in copyrighted works and the appropriate limitations on those rights.
Distribution by TransmissionThe Copyright Act gives a copyright owner the exclusive right to "distribute copies or phonorecords of the copyrighted work" to the public but it is not clear that a transmission can constitute a distribution of copies of the work under the current law. Since a transmission from one computer to any number of others results in the original copy remaining in the transmitting computer and other copies in the memory of or in a storage device of one or more other computers it is essentially a distribution of copies of a work so that transmitting a copy would be an infringement.
The Working Group recommends that the Act be amended to reflect the fact that copies of works can be distributed by transmission as well as by sale, rental, lease or lending and that such transmissions fall within the exclusive distribution right of the copyright owner.
Law Professor Pamela Samuelson of the University of Pittsburgh points out that this seems to be a logical provision that permits copyright owners to control a work that is not a material object, but a bit stream. Yet she questions whether it is necessary because recent court rulings have declared digital transmissions to violate copyright law and a statutory change may not be necessary. In fact, the change would give the copyright owner a great deal of control over "browsing" on the World Wide Web where a transmission is copied or "fixed" onto the RAM of the computer in order to view it and would favor publisher interests over public interest and may have greater ramifications in the future than are now evident on the rights of public performance and display giving images the same copyright protecting that only sound recordings now have.
The First Sale doctrine allows the owner of a lawful copy of a work to dispose of it in any manner, with certain exceptions, without infringing the copyright (meaning you can sell a book you bought to someone else at a garage sale). Since a transmission not only makes a copy to send but retains a copy the Working Group recommends that the Copyright Act be amended to make sure the first sale doctrine does not apply to transmissions.
Again, Prof. Samuelson feels that this may be unnecessary because the Act already limits the right of reproduction. If an owner of a lawful copy starts transmitting copies of that copy to thousands of others they will be infringing on the copyright. But to abolish the first sale rule in the case of digital transmission would make sending an image to a colleague an infringement if you don't immediately delete your copy. And again, this would favor the interests of copyright holders over public interest.
The Fair Use doctrine limits the copyright owner's exclusive rights, particularly in the case of libraries and educational uses, in order to provide the public with adequate access to copyrighted works. The Working Group found the principles of Fair Use to be applicable but felt the language may have to be changed in the context of digital works. Though the Working Group does not come out and advocate abolishing fair use (as many publishers would like to) it does seem to side more with the publishers than the public. and there has been concern that the group does not fully represent the public's interest in the matter of fair use and hearings were held during the summer of 1994 to give educational and library professionals a chance to testify.
Devices to Defeat Copyright Protection
The Working group feels that copyright owners who use technology in order to protect their work should have protection from those who would use technology for unauthorized access and recommends that the importation, manufacture and distribution of devices to avoid any protective mechanism be prohibited.
This is reminiscent of the Sony Betamax case and would overturn Supreme Court case law developed from that case and others. It is drawn much too broadly in favor, again, of copyright holders.
PROJECTSLibrary of Congress
As mentioned in the beginning of the paper, the Library of Congress is now engaged in a massive digitizing project to create a National Digital Library. The Library has also recently been given Leonard Bernstein's personal archive which will be used to create the Leonard Bernstein Multi-Media Archive that will be available for public access on-line.18
The Smithsonian's Office of Printing and Photographic Services has made images available on the on-line services CompuServe and America Online. In 1993 they inaugurated a small-scale experiment called Project Chapman with Apple Computer Inc. to make Smithsonian images available to all users of the Internet by using JPEG compression techniques instead of the larger GIF format. The project will also provide information about traffic patterns, encourage software development and allow Internet users direct access to high-quality color photographs.
The Getty AHIP Museum Educational Site Licensing Project
The Getty Art History Information Program has launched an initiative on digital-imaging standards called the Museum Educational Site Licensing Project that is meant to address, and perhaps solve, some of the problems we now face with digital images and copyright. Their goal is to bring together interested institutions in partnership with museums providing images and information and educational institutions providing networked access and test educational use. Museums will agree to provide 500 works each (for a total of at least 2,000) on campus networks during the academic year 1995-1996 with an additional 2,000 works added the following year. Educational institutions will agree that there will be a faculty commitment to use the material in at least one course in each of the two years, have an infrastructure to mount and distribute the data on a campus network with the ability to prevent access by non-campus users, monitor usage and have support personnel available.
The project is sponsored by the Getty Art History Information Program and MUSE Educational Media. Results of the study will be publicized on a regular basis.
CONCLUSIONSIn their report, "Excellence and Equity," the American Association of Museums (AAM) urged members to "communicate through a variety of means -- from exhibitions to interpreters to electronic media" and to "offer the opportunity for experiential, emotional, and intellectual learning that is self-directed and voluntary." In that report it was concluded that many museums have not made a strong enough commitment to make themselves true centers of learning for the diverse audiences they are responsible for serving. The NII is one opportunity for museums to fulfill that commitment in terms of making access to the collections, both intellectual and physical, not only easier but also expanded.
New digital technologies are going to force a new concept of ownership of intellectual property and how it is used. This battle will, most likely, be played out in the entertainment sector, particularly in regards to audio reproduction, and the results will impact on all forms of digital reproduction. While museums are becoming aware, more and more, that they compete for the leisure time and dollar of their visitors they must also keep in mind that they are more than entertainment: museums are education and cultural resources. And a cultural resource is meant to be used, perhaps in ways not foreseen because of new technologies. Expanded access also means the possibility of expanded use of digital images. Digital images are part of that expansion and, outside of obvious commercial uses that current copyright laws already cover, there is no reason that, along with being a source for scholarly data museums can't also be a source for images for the public to use in whatever ways the public can imagine. That kind of access, rather than restriction, fulfills the intent of the Constitution to promote advancement in science and art.
ENDNOTES Stewart Brand, The Media Lab: Inventing the Future at M.I.T. (New York: Penguin Books, 1988), 202.
 Brock N. Meeks, "The Crown Jewels of Content Go Digital," Inter@ctive Week, October 10, 1994, 62.
 _____, "Library Project Raises Copyright, Intellectual Property Issues," Inter@ctive Week, October 10, 1994, 64.
 R.C. DeWolf, Outline of Copyright Law (Boston: John W. Luce, 1925), 2.
 Philip Wittenberg, The Law of Literary Property (New York: World Publishing Co., 1957) 25-26.
 John Tebbel, A History of Book Publishing in the United States, Vol. I (New York: R.R. Bowker, 1972), 141.
 IITF Working Group Draft Report, Section I.A.1.a, para 4, fn. 17.
 _____, fn. 20.
 17 U.S.C.A SS107.
 Time Inc. v. Bernard Geis Associates 293 F.Supp. 130, 131-134 (S.D.N.Y.1968).
 Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774 (1984).
 Gay Morris, "When Artists Use Photographs: Is It Fair Use, Legitimate Transformation, or Rip-off?" ARTnews, January 1981, 102.
 Martha Buskirk, "Commodification as Censor: Coppyrights and Fair Use," October 60, Spring 1992, p.90, fn 20.
 The National Information Infrastructure Frequently Asked Questions obtained from the gopher site iitf.docs.gov.
 Preliminary Draft of the Report of the Working Group on Intellectual Property Rights obtained from the gopher site iitf.docs.gov. Background Section.
 Preliminary Draft Executive Summary obtained from gopher site iitf.docs.gov.,nd, Section A.1.a.
 Pamela Samuelson, Legally Speaking: The NII Intellectual Property Report, a paper to be published in the December 1994 issue of Communications of the ACM.
 Allan Kozinn, "Bernstein Archive to be Digitized for Public Access," The New York Times, November 9, 1993, C17+.
 Jennifer Trant, Museum Educational Site Licensing Project Call for Participation, posting to the Museum-l list, October 5, 1994 14:38:36 EDT.
 American Association of Museums, Excellence and Equity: Education and the Public Dimension of Museums, 1992, 12,13.