Digital Rights Management and Copyright

July 1, 2004 3:43 am Tags: No Comments 0

I thought it would be helpful to provide links to define some commonly used terms that can be hard to nail down concisely. I’ve linked up to the “Free Online Encyclopedia” at Wikipedia, the authoritative internet resource. Click a link to be taken to their encyclopedia entry for the term:

Digital Rights Management
Fair Use
Copy Protection

See also –

Stanford Law School Guide to Copyright and Fair Use
The Berne three-step test is a set of constraints on the limitations and exceptions to exclusive rights under national copyright laws.

In addition to DRM and Copyright, I attended an NMC conference workshop on Fair Use : WHAT IS FAIR USE?

And also, by way of introduction, here’s a crash course in copyright:

Someone owns just about everything
Fair use lets you use their things
– But not as much as you’d like to
Sometimes you have to ask for permission
Sometimes you are the owner …

think about that!

This seminar was attended by 17 people from a cross section of Universities, including UPenn, UC-Berkley, and the U of Michigan.
As I imagine will be the norm at the NMC conference there was a wide range of job positions, from a library director to all levels of web development, faculty and support staff.

Everyone had a wide range of issues. During my introduction, I mentioned that I was interested in content produced by faculty (and for faculty) within the Blackboard system. I also mentioned that I was looking at Creative Commons as a solution for the work done by the Digital Media Center. I’ve been reading over creative commons quite a bit with an eye towards the project that Layne and I had been working on, the Digital Archives Management system. It was neat to see people who hadn’t heard of Creative Commons get excited about the underlining concepts.


Traditionally, copyright law was the domain of a very limited group, which was just as well because legal scholars, including at least one Supreme Court Justice, had admitted that fair use was one of the most difficult areas of the law to understand. But then most people really didn’t need to understand it since it affected so few.

The electronic environment has changed everything
Suddenly, ordinary people can copy others’ works with incredible ease, become publishers, and use others’ works as the basis for new works, incorporating things here and there. These potential creators and publishers work for or attend our universities so we and they need to understand copyright law. But, if copyright law was hard to understand in the print environment, it now borders on inscrutable because we must identify copyright issues, apply 200 year old law to cutting edge technologies and create guidelines that real people will follow. This is no small order.

The situation is very nearly critical. Many simply want resolution. But to the university community, it is essential, for we have alot to lose if our interests aren’t considered in the resolution of the problems presented by new technologies.

Eventually, these problems will recede into the background once again, because intellectual property and information are becoming much too important to leave in limbo. They are staples of industry, and industry needs more certainty to do business in the electronic environment than academia has been willing to tolerate. Between now and then, however, there is much work to be done.

Understand the issues


Universities are the ones that get sued for the wrongs committed by their employees –

The current status of the law regarding the liability of entities like universities that provide the kinds of services to our communities that we do (Internet access and publishing capability) indicates that we can be held liable for infringements of faculty and staff, and perhaps even of students (unrelated third parties). In at least one case, a defendant’s failure to have and follow a policy for addressing allegations of infringement was a significant element in the court’s analysis of liability.

Costs of carelessness
The rules of the road in the electronic environment are being worked out through the legislative process and in our courts. The courtroom is not where most of us would like to have our influence! Nevertheless, copyright owners are having considerable success lately pursuing strategies to narrow the scope of fair use, to hold Internet service providers liable for the infringements of their customers, let alone their employees, and to make license agreements that no one reads legally enforceable. They also have had considerable success in obtaining passage of legislation to create new rights for users to infringe.

Still, potential litigation is really just a risk of cost. More real to most of us are the costs we absorb through the inflated prices we pay for books and journals that incorporate a substantial mark-up for campus and library copying that the publishing community believes is infringing.

Costs for subscriptions to scientific, medical and technical journals have been spiraling out of control. Many universities have cut back on monograph acquisition to purchase journals. Some cancel subscriptions and rely upon interlibrary loan, a practice that many publishers complain is illegal in itself. Even then, costs of interlibrary loan are escalating as well.


The Legal framework:

17 USC Section 201(a) vests ownership of copyright in a work with the author of the work. Section 201(b) provides that the employer or other person for whom a work-for-hire is prepared will be considered the author for copyright purposes. Works-for-hire are works created by employees within the scope of their employment, or by others pursuant to written contract, if the work created falls into one of the nine categories set out in the definition of work-for-hire in Section 101 .

University intellectual property policies

Universities have for the most part altered the statutory scheme either through tradition or through policies that permit faculty ownership of their scholarly writings . It is unclear whether the law would compel the conclusion that faculty writings are works within the scope of employment, but resolving the issue seemed of little consequence until recently. As we will discuss in a moment, this policy has contributed to the escalating prices universities must now pay to buy back the scholarly works their own funds helped to create.

New challenges

The allocation of ownership interests in the end products of university research is just the tip of the iceberg. Today there are more subtly nuanced variations on this once-straightforward theme:

  • Scholarly works implemented in software
  • Multimedia courseware
  • Blackboard and distance learning objects
  • The changing nature of authorship ( joint and collaborative electronic works )

More so than any other force on our campuses today, is focusing our attention on ownership and other interests in educational materials, for we can see that if we fail to assert our interests today, we may see the rights to use these works slip out of our hands like our rights in scholarly works did over the last 40 years.


More often than not, the university does not own copyright in the works its faculty and students need to read. In the print world, this means the library must buy books and subscribe to journals. It also means that universities may need to acquire additional rights as well:

  • Obtain permission to Digitize, display, perform and distribute print works
  • With Respect to licensed electronic works, universities may have to:
    • Obtain rights to make uses that are not covered by the access license; or
    • Negotiate better access licenses that cover all anticipated educational uses
  • But when is permission required and when does fair use apply ? The simple answers, “never” and “always” are unfortunately, not the right answers. Learning to analyze a use to determine whether it’s a fair use, while not impossibly difficult, does require some effort.

    Universities must focus upon licensing for those uses that go beyond fair use. We must learn more about transactionally based and blanket licenses, assess their strengths and weaknesses, and know when to exploit each type to most efficiently promote copyright compliance.

    We also must move quickly to provide support for staff who must negotiate license agreements for initial access to electronic works, for to the extent we can acquire sufficient access upfront, we may not need additional permissions for the uses that we know we’ll need to make of electronic works.