Copyright and Electronic Publishing: Background and Recent Developments

Copyright is a relatively recent concept in international law. Paul Revere ʹs engraving of the Boston Massacre has actually become more famous than the work of Henry Pelham which Revere pirated and re-published with impunity in March, 1770. Book piracy also flourished in 18th century America as publishers re-printed pirated editions of British books for American readers. Yet, nobody complained, as the sharing and communication of ideas seemed more important than the ownership of those ideas. Consider the vast quantity of material published by those prolific writers "Anonʹ" and "Anonymous." It was only when authors and artists saw the support of their wealthy patrons diminish and eventually disappear that they had to rely on the public for their livelihoods. The protection of intellectual property then took on a greater urgency and resulted in the promulgation of copyright legislation. Copyright is based on the principle that, even though it is intangible, information can be owned. The expression of oneʹs ideas in fixed form constitutes property just as much as the fabrication of a tangible object. Copyright, then, attempts to balance an ownerʹs rights and usersʹ rights and tries to regulate the economy that surrounds these rights. As statutory enactments, copyright laws apply to everybody; but they govern copying principally. Copyright protects only creative expression, not facts or ideas. Copying raw factual information from a telephone directory or a baseball box score is not infringement, no matter how much money the copier makes. (Licensing, a much more recent development in the regulation of intellectual property, is broader in scope as it stipulates how that property can be used.) In this paper, we plan to review the history and development of copyright in the United States and the formulation of the concept of fair use. We shall look at the principle of fair use and its application in higher education, examining the four factors to keep in mind in deciding whether an application is fair use or not. We shall also examine the development, formulation, and status of the Fair Use Guidelines for Educational Multimedia produced by the Committee on Fair Use. We shall then consider what is happening on the international front regarding copyright protection and fair use in the digital era. We shall look at the provisions of the treaties emanating from the World Intellectual Property Organization, the ratification process, and U.S. legislative efforts to implement those treaties, particularly the Digital Millennium Copyright Act. We shall also provide some resources for educators to consider in deciding whether or not their applications constitute fair use.