UNIVERSITY OF CALIFORNIA
CONCERNS WITH COPYRIGHT LEGISLATION: 1997
The University of California, like all research universities, is a producer, owner, user, and repository of copyrighted materials and is deeply concerned that copyright law preserve the existing balance between owners and users. Like copyright law, the University's three-part mission of teaching, research, and public service is dedicated to the promotion of "the Progress of Science and the useful Arts." The success of our academic enterprise--and our ability to serve the public effectively--depends upon the vigorous and unimpaired circulation of ideas and information, as is reflected in the ethic of attribution that underlies teaching and research. We encourage our faculty and students to publish their ideas freely, we impose severe professional sanctions on those who attempt to appropriate the work of others as their own, and we accept responsibility for creating an institutional climate in which compliance with copyright law is the norm.
In confronting proposed changes in copyright law for the digital age, universities have particular concerns that arise from the character of educational activities and the nature of our employment relationships, and the University of California is no exception.
We are testing the ways digital technologies can help us extend the dissemination of knowledge beyond the campus--and increase our service to society.
For example, a major component of our preparation for a new campus in the San Joaquin Valley is the planned delivery of classes and educational material to that region by the Internet and instructional television and video. Our Extension units are also offering increasing numbers of professional classes in fields ranging from nursing to hazardous materials management through remote communications technologies, and we are participating in the development the California Virtual University. In another major initiative, we are launching the California Digital Library, which will eventually serve all of California. A major part of its initial acativity is the negotiation of appropriate licenses with the owners of copyrighted digital material.
Universities rely upon an employment relationship in which faculty are simultaneously our employees and independent researchers and teachers. We cannot maintain an environment of free inquiry and intellectual engagement if we are potentially liable as institutions for the acts of individuals that may infringe
Although we assign faculty to perform specific duties, we seldom instruct them how to do so, and we do not interfere with the content of their teaching and research. We require that they obtain external funding for many of their research activities.
These characteristics of academic organization lead to the following concerns with currently proposed copyright legislation.
Term (H.R. 2589/S.505)
The extension of the term of copyright for an additional twenty years will create substantial burdens for our libraries and teaching faculty, since many of the works used in the University environment lose their commercial value and disappear from the marketplace well before such a long period. Publishers do not systematically invest in maintaining archival copies of works that have gone out of print and are even less likely to do so for electronic works created in technologies that become obsolete before the expiration of copyright. Yet when copyright subsists past the viability of owners and beyond the availability of the work on the market, obtaining permission for reproduction, performance, or display of works may become an arduous and expensive process. Exemptions for library and educational use must be included in the extension of the copyright term and should incorporate the language suggested by the library community, which reflects the way archival preservation is managed.
Online service providers' liability (H.R. 2180)
By recognizing that online service providers may have no control or knowledge of the material their clients place online, H.R. 2180 takes a strong positive step. However, as written, it does not adequately address our concerns that the University may be held liable for the independent acts of individuals.
Specifically, the use of the term "person" in the bill does not distinguish between individuals and institutions and places universities--whose faculty or students may unwittingly place infringing material on a university network--in a very different position from telephone companies whose subscribers may do so. Although the University may not be aware of or condone an act of infringement on its networks, the fact that the infringing material was posted by an employee or student may leave the institution vulnerable.
For example, UCLA has newly required that every course in its College of Letters and Science have a home page in order to improve students' learning experience. Despite efforts to ensure that all faculty and students understand the requirements of copyright law, it is possible that some individuals will post infringing material on these home pages. The University will remove actually infringing material that is brought to its attention, but institutional exposure to litigation for such individual acts would seriously constrain the potential to use course homepages.
Additionally, H.R. 2180 as written does not make adequate provision for institutional due process in responding to allegations of infringement. Since fair use must be determined on a case by case basis, universities must be permitted to conduct their own investigations and reach their own conclusions as to whether an alleged act of infringement is actually so. A copyright owner should, of course, retain the right to pursue legal remedies from the individual.
Our systems administrators have a track record of removing infringing material, especially software, quickly once they have determined that it is in fact infringing, but the University cannot simultaneously respect academic freedom and unilaterally remove works that have been merely alleged to be infringing.
Circumvention of Copyright Protection Systems (H.R. 2281)
The proposed legislation--which exceeds what is required by the WIPO treaties--extends beyond the subject matter of copyright to prohibit the manufacture, import, offering to the public, provision or otherwise trafficking in any "technology, product, service, device, component, or part thereof" intended to circumvent technological protections of copyrighted works. Universities would be negatively affected in several ways by this legislation.
As a repository for copyrighted works, an increasing number of which are in digital formats, the University anticipates lawful and necessary requirements to overcome technological protections of works that have (1) passed out of the market, (2) passed out of copyright, or (3) are recorded in formats or media that have or are about to become obsolete. A copyrighted work that is no longer in the market may not be accessible for reading or analysis even by a lawful owner of a copy, because the copyright owner no longer provides services. Upon expiration of copyright, passage of a work into the public domain may be impeded by technological protections. A work may become permanently inaccessible if the medium or format in which it is fixed becomes obsolete and the copyright owner does not choose to invest in migration to a new format or medium. In any of these circumstances, circumvention of technological protections would be lawful and appropriate in order to preserve and/or make the work accessible to legitimate users. It would be impossible if the necessary technology (e.g., software) is not available.
Fair uses of works in digital format may at times require circumventing technological protections, particularly if the copyright owner is no longer in business and does not provide a key. Fair use and educational exemptions are as important in the digital as in the print environment.
Research in computer science and related fields may involve products and technologies that fall under the prohibitions of this bill even thought he research is not intended to circumvent technological protections of copyrighted works. In a particular, the development of new technological protections requires the ability to test them with the strongest possible circumvention technologies.
Focus on the act of infringement rather than on a tool that may be used to infringe would be far more appropriate.
Comprehensive approach (S. 1146)
Introduced in September and not yet the subject of hearings or other action, S. 1146 explicitly attempts to extend the balance between owners' rights and users interests into the digital copyright environment by addressing three subjects simultaneously. Its three titles cover online service provider liability; fair use, library, and educational exemptions; and WIPO implementation related to technological protection and copyright management information. The third title prohibits infringing activities rather than technology that can be used for such activities. By providing an alternative to the previously introduced bills, this creates negotiating space. S. 1146 is strongly supported in the library community but has not been fully reviewed by many institutions or the presidential associations.