Bob Jensen at Trinity University
An Email Message Appeal From Bob Jensen on April 5, 1998
Please Help!
Please read and do everything you can to save Fair Use safe harbors for educators. First read and then follow the updates of the Digital Futures Coalition at http://www.dfc.org/
More importantly, contact your legislators about the scary things and helpful information that can be found at http://www.dfc.org/
Don’t wait since scary legislation is on the dock at this moment. Please contact your legislators today. A directory for locating members of the U.S. House and Senate can be found at http://www.webcom.com/~digitals/pages/congress.html
Probably the most important message in the "Are You a Crook?" satellite broadcast on April 2 is that the future of the entire Section 107 in U.S. Copyright law is in serious jeopardy due to pending legislation which may virtually strip away Fair Use safe harbors for educational purposes. This legislation will turn our students into whistle blowers and subject our schools to huge lawsuit risks if educators simply do what they are accustomed to doing under present Fair Use safe harbors.
Some bills now pending in Congress are supported by powerful lobbying interests from the publishing and recording industries. They are trying to kill the baby by throwing out the bath water. The voice of academe has been relatively mute to save Fair Use. In the satellite broadcast, an urgent appeal was made for all of us to contact our legislators and do our bit to save Fair Use safe harbors.
In the satellite broadcast it was claimed that, for protection of Fair Use, the best of the pending bills is Senator Ashcroft’s Bill (S 1146) and Boucher and Campbell Bill (HR 3048).
A very scary bill is the H.R. 2652, the Collections of Information Antipiracy Act, that will allow copyrights to apply to facts (such a phone directories) such that it may be a copyright violation merely to reproduce a list of phone numbers, addresses, email addresses, etc. According to Digital Future Coalition, this legislation will "entrench existing big companies in the information market making it impossible for small value-added databases to create their product. Moreover, a small handful of companies will have the ability to significantly control the flow of information over the internet. This bill will go to the House floor immediately after the April recess."
Bob
Professor Robert E. Jensen (Bob) http://www.trinity.edu/~rjensen
October 1995
Happenings in the United StatesVideo summaryGuidelines 6,
7-A, 7-B, 7-C, and 7-DMy
assumptrionsImpact upon
educators who are not developing multimedia electronic learning materialsPossibility
that students in the future will make a great game of whistle blowing harassmentNumerical limits
versus market impairmentGray zonesExcessive
constraints upon educational fair usePossible
rewordings of the proposed guidelinesJanuary 1997
Happenings in the United Nations
October 10, 1995
A new danger is emerging that may drag professors and institutions into a quagmire of student harassment and litigation. I would like you to consider publishing this discussion of the proposed Multimedia Fair Use Guidelines for Education and possible revisions of Section 107 of U.S. Copyright Law governing education "Fair Use" safe harbors. If my discussion is too long in its present form, feel free to cut it down to size. Proposed new guidelines discussed here extend well beyond information technology. They might blow existing ships out of present "Fair Use" safe harbors. Educators and learning institutions will have greatly increased legal exposures as well as exposures to student harassment. These exposures are far more serious than exposures under present educational Fair Use copying permitted under current copyright statutes.
First, let me say a few words about myself. I have been an active, albeit a not-for-profit, developer of hypermedia learning materials for my courses and for my hypermedia dog and pony shows. To date, I have been invited to over 135 universities in North America and Europe to show professors how to author and use hypermedia learning materials for CD-ROM recording, campus servers, and the World Wide Web. Under present Fair Use guidelines, I have been capturing text, audio, and video modules (which I originate or properly buy for presentation). In most instances, I find that it is more effective and efficient if I copy the learning materials to another medium (e.g., from video tape or a hard copy article to a CD-ROM disk) rather than having to juggle thousands of original copies. As long as I do not allow others to copy from my CD-ROMs, I see nothing wrong with what I am doing since I have rights to show the original versions to my students. What I'm doing under present Fair Use guidelines is displaying what I am authorized to show from copies scanned into my CD-ROM disks rather than the original hard copy and tapes stored in my office. My CD-ROM copies are more convenient to transport, search, and display in class.
On September 21, 1995, I viewed the satellite broadcast of the new proposed Multimedia Fair Use Guidelines from the Consortium of College and University Media Centers (CCUMA). The keynote speakers were: (1) Bruce Lehman, Chair of the Working Group on Intellectual Property Rights and Assistant Secretary of Commerce and (2) Mary Beth Peters, Register of Copyrights. CCUMA panelists were leading attorneys and other noted scholars representing the various conflicting interest groups concerned with the tremendous Fair Use problems of modern technology. In particular, technologies for digitizing, storing, and transmitting text, graphics, audio, and video over campus and world wide networks create enormous conflicts between parties concerned with timely and effective education versus parties who legally own copyrights or otherwise promote intellectual property rights.
The September 21 broadcast focused upon the proposed Multimedia Fair Use Guidelines. It was repeatedly stressed that the guidelines were incomplete and subject to revision. Indeed the main purpose of this article is to urge readers both to study the proposed Multimedia Fair Use Guidelines and to communicate to Bruce Lehman their concerns about the proposed guidelines. Mr. Lehman can be reached as shown below:
Bruce Lehman, Assistant Secretary of Commerce
and Commissioner of Patents and Trademarks
Chair of the Working Group on Intellectual Property Rights
Office of Patents and Trademarks
United States Department of Commerce
Washington, D.C. 20231
Phone: 703-305-8341
For email to Bruce Lehman, contact Andrew Hirsch at ahirsch@uspto.gov.
Video tapes of the September 21 broadcast can be obtained by sending $225 to the following address:
Phone: 515-294-1811
Although I have concerns about several of the proposed Multimedia Fair Use Guidelines, I will focus this article only upon proposed Guidelines 6, 7-A, 7-B, 7-C, and 7-D that were presented as follows in the September 21 broadcast:
Proposed Guideline 6 on Time Limitations: Educators may use their own multimedia programs, containing portions of copyrighted works incorporated under Fair Use and developed for educational purposes, of up to two years after completion of the finished multimedia product but use beyond that time period requires permission for each copyrighted portion incorporated in the production.
Proposed Guideline 7-A on Portion Limitations of Motion Media: Up to 10%, or 3 minutes, whichever is less, in the aggregate of a copyrighted motion media work may be reproduced or otherwise incorporated as part of a multimedia program produced by an educator or student for educational purpose.
Proposed Guideline 7-B on Portion Limitations of Text Material: Up to 10% or 1000 words, whichever is less, in the aggregate of a copyrighted work, consisting of text material may be reproduced or otherwise incorporated as part of a multimedia program produced by an educator or student for educational purposes.
Proposed Guideline 7-C on Portion Limitations of Music: Up to 10% of a copyrighted musical composition, or up to 10% of a sound recording may be included as part of a multimedia program provided by an educator or student for educational purposes.
Proposed Guideline 7-D on Portion Limitations of Graphics: The reproduction or display of photographs and illustrations is more difficult to define with regard to fair use because fair use usually precludes the use of entire works. Under these guidelines a photograph or illustration may be used in its entirety but no more than 5 images of an artist or photographer may be incorporated into any one multimedia program. When using photographs and illustrations from a collective work, not more than 10% or more than 15 images may be used in a multimedia program.
In the remainder of this discussion, I make the following assumptions:
My Assumption 1: The term "program" will be assumed to be a learning module prepared by an instructor for educational use. A program is not intended for distribution to any other person. It is also assumed that the instructor will never try to copyright any project that contains works of others for which permission of inclusion has not been granted (except for perhaps very short quotations of text or less than 30 seconds of motion material or audio allowed under present Fair Use traditions).
My Assumption 2: The instructor has the legal right to display someone else's material to students. This means that the "original" copy was either purchased or otherwise obtained in a legal manner in full compliance with the intellectual property rights. For example, if I am to show a Wall Street Journal article to my students, it is assumed that this is not a pirated copy of that article. Similarly, it is assumed that any portions of audio or video played back for students do not come from pirated tapes. It is assumed that the instructor has exclusive control over the purchased copy. This precludes copies purchased by any "library" in which more than one user may have access to a purchased "original" copy.
My Assumption 3: Unless noted otherwise a "convenience copy" is an educator's copy of his or her "original copy" defined in Assumption 2. Examples of convenience copies are copies of articles on overhead transparencies, copies of video and audio tape captured on data disks such as CD-ROM disks, and photocopies purchased through interlibrary loan services.
My Assumption 4: The term "policing" refers in this article to controls (over the storage and retrieval of learning materials) that prevent students or other persons from making unauthorized copies of any type other than handwritten notes. For example, a computer laboratory is "policed" if an official is present to prevent students from exceeding Fair Use guidelines when copying copyrighted screen images and audio to their personal computer files or printing devices. Handwritten notes should be allowed since it is customary and useful for students to take such notes in classrooms and learning laboratories. Reasonable allowances might be made for disabled students such as blind students who take notes on hand-held audio recorders. In any course where students are not "policed," access should not be given to an instructor's Fair Use convenience copies of learning materials. Student copying should be policed so that student projects do not violate Fair Use guidelines that apply to students. Student guidelines differ in some respects from educator guidelines even though educators and students have Fair Use safe harbors.
It is important to note how the proposed Guidelines 6, 7-A, 7-B, 7-C, and 7-D might impact upon educators who are not developing multimedia electronic learning materials. By way of example, suppose that I have 10 articles clipped from my copies of past issues of the Wall Street Journal. If I want to take the time and trouble, I can carry these 10 original articles into class and display them on some type of opaque projection of original copies onto a viewing screen. But most educators do not have opaque projectors. Also, it is very difficult to display a newspaper column if the column is still attached to the entire newspaper page. Instead, instructors might make an overhead transparency copy of each article. A strict interpretation of proposed Guideline 7-B, however, would make this an unethical and illegal violation unless instructors cut out 90% of each article before making the overhead transparency. This entails either mutilating the original copy or taking the time and trouble to retype up to 10% of each article (and retyping violates other proposed Fair Use guidelines). Guideline 7-B presents another dilemma in that an instructor can never be certain about what 10% of the article a student may want to ask about in class.
If the instructor still has the legal original copies of each article on file, the instructor probably feels no moral dilemma about keeping an overhead transparency of that article term after term. Under the proposed Guideline 6, the instructor would be required to destroy all overhead transparencies of copyrighted articles after two years even though the original copies of those articles can still be displayed from classroom opaque projectors.
In the above illustration, the instructor's long-term filings of both legal original copies and overhead transparency copies do not impinge upon the market of the Wall Street Journal. The newspaper's market is compromised only if the instructor makes it possible for students to obtain pirated copies of the original or overhead transparency copies. The Fair Use issue should focus upon how the market was compromised rather than upon artificial numerical limits like 10% of an article or two years of allowed storage of a copy. In the September 21 broadcast, panelists repeatedly stressed the market impact issue and how guidelines limits might be eased or tightened by market considerations. Nevertheless, they also continued to stress the numerical limits in terms of portions copied and storage time. An instructor that repeatedly exceeds portion constraints and storage time limits will likely be in trouble.
Next consider Guideline 7-A and 7C on portion limits on motion media and audio. Suppose an instructor has 10 video tapes and/or 10 audio tapes that are not pirated and can be legally used in class in part or in full portions. Classroom juggling of video and audio tapes is terribly inefficient, especially when portions have to be located within the tapes. Prices of CD-ROM (CD-R) recorders have dropped dramatically. Many educators now make their own CD-ROM or similar data disks that contain parts of or all of audio and video tapes as well as copies of text and pictures. Beginning in 1997, CD-DVD recording technology will emerge as a replacement for both CD-ROM and videddisc technologies. This will enable professors to copy hours of motion media onto one CD-DVD disk, thereby being a tremendous educational convenience if not limited by the portion limitations in the proposed guidelines.
Copying legally-acquired learning materials to a CD-ROM or other data disk is analogous to copying a newspaper article to an overhead transparency. In both instances, the educator is seeking efficiency in storage and retrieval for displaying the learning material to students. In the case of an overhead transparency, the convenience is mainly one of being able to use a traditional overhead projector rather than an expensive opaque projection system. In the case of digitized media on a data disk, the convenience is mainly one of random access to different media clips without having to make the class wait impatiently for the changing of tapes and the location of segments on those tapes. If the instructor never makes it possible for students to make pirated copies of the instructor's digitized copies of text, video, or audio clips, there is no injury to the market of the copyright holders. The instructor's digitized copies merely become a convenient form of locating and using the material for educational purposes. It is also convenient to copy works that are already on some form of disk. When the instructor makes a copy of digitized works purchased on CD-ROM disks, videodiscs, or CD-Audio disks, there can be a convenience in having clips copied to the instructor's disk rather than having to fumble in the classroom with multiple original disks.
What is very frightening under the proposed guidelines is the possibility that students in the future will make a great game of whistle blowing harassment. Instead of focusing on the educational content of an overhead transparency, some students may be busily counting words on the screen and later harassing the instructor if Guideline 7-B has been violated by displaying 25% of the words rather than staying within the 10% limit. The same type of harassment might arise when the instructor digitizes five minutes of a video tape rather than staying within the three minute restraint of 7-C. Students who have a grudge against an instructor might raise a fuss over an instructor's failure to destroy a digitized three minute video clip after two years (in violation of Guideline 6) even though the instructor has a legal right to show the entire video from the original tape rather than the CD-ROM copy. Fair Use safe harbors were created to make education more effective and efficient without seriously compromising intellectual property rights. Numerical constraints could, in effect, destroy most of the intended gains from Fair Use safe harbors.
Guidelines 6, 7-A, 7-B, 7-C, and 7-D focus upon numerical limits. However, iIn the September 21 broadcast, the panelists repeatedly stressed that the main issue is one of market impairment, including impairment of markets composed of student buyers and other instructors. Accordingly, the guidelines should be re-written to focus on issues of control over market degradations. When instructors have legal rights to show their original copies of text, audio, or motion media, the concern should not be on the portions copied to another medium for educational convenience. Educational Fair Use guidelines should instead focus upon restraining instructors from loaning or storing those copies in such a manner that students or other instructors can make pirated copies to avoid purchasing original copies.
What I recommend is that the proposed numerical restraints in Guidelines 6, 7-A, 7-B, 7-C, and 7-D be restricted only to files in which others have access that is not "policed" as defined in my Assumption 4. An instructor who captures 100% of a legally owned original video tape to a CD-ROM convenience copy should be entitled to do so for educational Fair Use (and keep the CD-ROM without a time limit) provided no other person has access to the CD-ROM disk in unpoliced settings. If that CD-ROM is to be placed on any form of network jukebox that can be accessed by other persons, then the more restrictive guidelines make more sense. For example, if the CD-ROM is to be placed on a network server that can be accessed by unpoliced students having passwords and PIN secret numbers, the instructor no longer has policed control over student pirating of computer images and sounds.
One especially tough gray zone in this arena is the emergence of more widespread distance education via computer networks such as distance education delivered into private homes and apartments. When instructors have students confined to a given classroom or a "policed" computer laboratory, illegal pirating of the instructor's learning materials can be prevented. When this control is lost with computer images being transmitted to settings that are not policed all the while computer images are in front of students, then it becomes much more likely that intellectual copyrights will be violated and intellectual property markets will be compromised. More restrictive Fair Use guidelines such as proposed Guidelines 6. 7-A, 7-B, 7-C, and 7-D are then necessary to protect intellectual property rights markets. However, this means that distance education students may get inferior convenience copies of an instructor's course materials vis-a-vis policed students in face-to-face classrooms and computer laboratories.
A second tough gray zone lies the specifics of policing. The September 21 broadcast took up the issue of an instructor's overnight loaning of a video tape to a student. This problem extends beyond the copying issue, because the tape may be the original copy purchased by the instructor. The Consortium of College and University Media Centers (CCUMA).panel on September 21 seemed to agree that this is acceptable provided the instructor is reasonably assured that the student will not copy the video tape. The gray zone here is what constitutes "reasonable assurance." New technology makes it possible, not necessarily probable, for a student to cheat on a promise not to make copies of text, video, and audio. It is very common in these times for students to have access to video and audio tape duplicating machines. An instructor's Windows CD-ROM provides screen images and audio on virtually any multimedia PC. Screen images can be put on the clip board with a simple pressing of the <Alt, Print Screen> keys. Photocopy machines and computer scanners are generally not difficult to find almost any time of day if the student is determined to make copies. In any case, the "reasonable assurance" gray zone issue extends well beyond proposed Guidelines 6, 7-A, 7-B, 7-C, and 7-D since this issue encompasses original copies as well as educational Fair Use convenience copies.
A third controversial gray zone is where the instructor or student uses some form of "library" or "departmental" copy that is available at times to other users. For example, it is common for instructors to show a school library or a departmental original copy of a video tape or video disk. It is convenient for the instructor to make duplicates of library or departmental materials to save the time and trouble of having to obtain the original copy before class time. However, making a 100% convenience copy compromises intellectual property rights markets. For example, if 100 professors and 500 students at the University of Texas make convenience duplicates of their school's library or departmental original copies, then substantial sales of that material may be lost. Use of library originals seems to implicitly underlie most of the September 21 CCUMC broadcast. Since markets can be severely compromised by copying of library materials, it is fitting that the portion limits and time limits such as those in proposed Guidelines 6, 7-A, 7-B, 7-C, and 7-D apply to educator and student convenience copies even though 100% of a library copy may be used during class time. It is fitting under the spirit of education "Fair Use" to allow students and educators to copy library materials for education purposes so long and time limit and portion limit guidelines are followed. This protects markets.
The proposed guidelines seem reasonable in any instance where piracy is convenient and usage is not policed. However, when original and convenience copies are policed to prevent unauthorized duplication, the guidelines are not reasonable. The original September 21 proposed "Fair Use" guidelines destroy the "Fair Use" concept that evolved before this age of digitization and networking. The proposed guidelines may even destroy Fair Use safe harbors now in existence."
I advocate rewordings of the guidelines along the lines of the revisions shown below, provided Assumptions 1, 2, 3, and 4 stated above are satisfied:
Suggested Guideline 6 on Time Limitations: Educators may use their own multimedia programs, containing portions of copyrighted works incorporated under Fair Use and developed for educational purposes, of up to two years after completion of the finished multimedia product but use beyond that time period requires permission for each copyrighted portion incorporated in the production. The two-year limit does not apply in instances where other persons are prevented from copying the instructor's original and convenience copies. The two year limit does apply to convenience copies made from "library" original copies that can be checked out by other students and/or faculty.
Suggested Guideline 7-A on Portion Limitations of Motion Media: Up to 10%, or 3 minutes, whichever is less, in the aggregate of a copyrighted motion media work may be reproduced or otherwise incorporated as part of a multimedia program produced by an educator or student for educational purpose. The portion limitations do not apply in instances where other persons are prevented from copying the instructor's original and convenience copies. The portion limits do apply to convenience copies made from "library" original copies that can be checked out by other students and/or faculty.
Suggested Guideline 7-B on Portion Limitations of Text Material: Up to 10% or 1000 words, whichever is less, in the aggregate of a copyrighted work, consisting of text material may be reproduced or otherwise incorporated as part of a multimedia program produced by an educator or student for educational purposes. The portion limitations do not apply in instances where other persons are prevented from copying the instructor's original and convenience copies. The portion limits do apply to convenience copies made from "library" original copies that can be checked out by other students and/or faculty.
Suggested Guideline 7-C on Portion Limitations of Music: For detailed information on present audio copyrights, see http://www.soundbyting.com/html/copyright_101/101_index.html. In the proposed guidelines, up to 10% of a copyrighted musical composition, or up to 10% of a sound recording may be included as part of a multimedia program provided by an educator or student for educational purposes. The portion limitations do not apply in instances where other persons are prevented from copying the instructor's original and convenience copies. The portion limits do apply to convenience copies made from "library" original copies that can be checked out by other students and/or faculty.
Suggested Guideline 7-D on Portion Limitations of Graphics: The reproduction or display of photographs and illustrations is more difficult to define with regard to fair use because fair use usually precludes the use of entire works. Under these guidelines a photograph or illustration may be used in its entirety but no more than 5 images of an artist or photographer may be incorporated into any one multimedia program. When using photographs and illustrations from a collective work, not more than 10% or more than 15 images may be used in a multimedia program. The portion limitations do not apply in instances where other persons are prevented from copying the instructor's original and convenience copies. The portion limits do apply to convenience copies made from "library" original copies that can be checked out by other students and/or faculty.
The above suggested revisions are much more realistic for educational institutions. Policing to prevent student unauthorized copying of instructors' files is much less costly and less complex than continuously policing all the learning materials of all instructors to ensure that portion limits and the two-year limit are not violated. Such limits are especially unrealistic when extended to traditional uses of overhead transparencies and electronic transparencies used in face-to-face classrooms. Unless revised along lines proposed above, student harassment of faculty and nuisance lawsuits will increase along with legitimate litigation regarding educational Fair Use violations. As an owner of copyrights, I prefer that an institution work to prevent copying piracy by non-owners of my work. I am not concerned about convenience copying of my work by educators who copy from their own purchased materials and neither willingly nor carelessly allow others to make duplicates of original and instructional convenience copies. The ultimate question should be whether the intellectual property rights market has been compromised.
Very truly yours
Robert E. Jensen
cc Bruce Lehman
January 1997
Happenings in the United NationsThe World Intellectual Property Organization (WIPO), a United Nations Agency, approved an international treaty on Internet copyright law. The treaty honors copyrights of text, data, images, music, and software distributed over the net. The treaty obligates users of transmitted material to honor the copyright privileges of the authors or other owners of the intellectual property rights. However, the treaty also protects carriers of the transmitted data from having to police content of traffic flow and respects the rights of privacy. More details are provided at http://www.bna.com/hub/bna/legal/r.WIPR.html.