It looks to me like the anti-circumvention provisions of the Digital Millenium Copyright Act constitute the most serious copyright problem facing libraries today. How will library services be affected it if is illegal "to manufacture, import, offer to the public, provide, or otherwise traffic in any technology product, service, device, component, or part thereof" designed to circumvent copy-protection or access-protection technology? What effect does this provision have on fair use (17 U.S.C. 107) and library exemptions (17 U.S.C. 108)? How can libraries define fair use and exemptions with regards to digital works if the DMCA makes non-commercial and traditionally non-infringing copying of otherwise copyrighted works illegal on the reasoning that this will prevent piracy?

Further reading of the recommended text, Paul Goldstein's (1994) Copyright's Highway: The Law and Lore of Copyright from Gutenberg to the Celestial Jukebox, and of another book I found while looking for Goldstein's book in my public library's stacks, Jessica Litman's (2001) Digital Copyright, has shown me that the threat to fair use and library exemptions goes beyond library copying. In Goldstein's and Litman's books, I found the stories of libraries' legal battles over their right to make photocopies, particularly in Williams & Wilkins v. The United States, as struggles for very specific, concrete entitlements (how many non-infringing copies can libraries make) as much as struggles for broad social values that have been supported in the balancing act between the Constitution's intellectual property mandates and the goals of the First Amendment. How can libraries secure intellectual wealth for the public through intellectual property mandates as well as freedoms of speech and inquiry for individuals if the DCMA provisions give copyright owners control over every use, including private uses, of their works?

Sutton explores some solutions in his lecture on what he calls "the rights management arsenal" in which copyright is only one of the ways that copyright owners can enforce their economic rights over their works. Other valid tools at their disposal to achieve 100% protection of their economic rights include contract, access technology, and copying technology. The discussion forums brought out the ability of copyright owners to monitor the use of their copyrighted works and someone suggested that market awareness may be one of the tools that they can use rather than overextending their copyrights into every realm where their copyrighted works are used. Litman suggests broader participation at the negotiating table,

"As the entertainment and information markets have gotten more complicated, the copyright law has gotten longer, more specific, and harder to understand. Neither book publishers nor libraries have any interest in making the library privilege broad enough so that it would be useful to users that aren't libraries...Negotiated privileges tend to be very specific, and tend to pose substantial entry barriers to outsiders who can't be at the negotiating table because their industries haven't been invented yet. (p. 25)"

"As important as it is, library copying is only one aspect of the much larger problem of changing technology, and we feel the statute should deal with it in terms of broad fundamental concepts that can be adapted to future developments." (quoted by Goldstein (1994), p. 136)

Paul Goldstein (1994) uses the term "celestial jukebox" as a metaphor that best expresses what might be possible, technologically, in the future. He describes it as

"a technology-packed satellite orbiting thousands of miles above the Earth, awaiting a subscriber's order - like a nickel in the old jukebox, and the punch of a button - to connect him to any number of selections from a vast storehouse via a home or office receiver that combines the power of a television set, radio, CD player, VCR, telephone, fax, and personal computer" (p.199)

How is the celestial jukebox a positive notion? Here I will quote the full concluding paragraph in Goldstein's (1994) book, Copyright's Highway:

The digital future is the next, and perhaps ultimate, phase in copyright's long trajectory, perfecting the laws early aim of connecting authors to their audiences, free from interference by political sovereigns or the will of patrons. The main challenge will be to keep this trajectory clear of the buffets of protectionism and true to copyright's historic logic that the best prescription for connecting authors to their audiences is to extend rights into every corner where consumers derive value from literary and artistic works. If history is any measure, the result should be to promote political as well as cultural diversity, ensuring a plenitude of voices, all with the chance to be heard. (p. 236)

How is the celestial jukebox a negative notion? Here I will draw on Jessica Litman's book, Digital Copyright, which looked at copyright from a pessimistic, perhaps even cynical, view of the processes in drafting and enacting copyright laws. She writes,

"the law is moving us closer to a day when reading, viewing, and listening may be subject to control by copyright police. (p. 194.)

"the music and motion picture industries have therefore concentrated on identifying and taking out intermediaries. What's so frightening about the Internet is that in many contexts, intermediaries are, while extremely useful, nonetheless optional." (p.195)

Goldstein treats the subject of intermediaries matter-of-factly,

But tomorrow's author, artist, or composer who has access to a networked computer - most will - can bypass not only these corporate entities but also libraries and retail outlets, to communicate directly with his intended audience.(p. 235)

"the celestial jukebox will not entirely displace traditional copyright markets, where exemptions will still be needed. Also, some of the 1976 Act's exemptions are there, not because of transaction costs, but because certain uses and users serve socially valuable ends. (p. 224)

Reading Goldstein's book made me understand better the economic bases of copyright laws, something that we haven't shown much appreciation for in our discussion forum on intellectual property rights notwithstanding Stuart's terse assertion in the forum that "there is no question that Anglo-American copyright *IS* an economic doctrine." Reading Litman's book made me understand better how copyright laws are negotiated between interested parties and how the economic relationship between copyright owners and consumers of literary and artistic works have eclipsed the social relationship between authors and the public in these negotiations. There is a tension, a balance to be dealt there, for sure, as Sutton emphasized in his lectures. But I tend to be optimistic about the roles of libraries in a world where much of the information will be dispensed from a celestial jukebox. It will be the opportunity for libraries to provide the "(1) right information, (2)) to the right person, (3) at the right time, (4) in the right form, (5) at the right place, and (6) at the right price." (Sutton, 1996, p. 137). I also agree with Sutton that there are other tools at the copyright owners' disposal to protect their economic rights. If copyright owners have an arsenal of rights management to protect their economic rights, I believe that individuals and institutions also have an arsenal of creative tools that they can use to protect their right to use works "for purposes such as criticism, comment, news reporting, teaching, scholarship, or research" (17 U.S.C 107).

Against my will to try to see the good in a law, I must agree with Litman "that consumers' widespread noncompliance offers a very real ray of hope." Not in the sense that I condone piracy or acts of copying stemming from a shallow need to get something for nothing but because I believe as Litman believes that the public should have a say at the bargaining table of copyrights. If the public cannot be at that bargaining table, then the public can have some ways of showing in the marketplace how bad a law can be and make it ineffective. [I still I say this even during a week in which the RIAA filed (and settled some) lawsuits against individuals suspected of pirating music over the Internet.]

The concept of "fair use" captures the principles embodied in the U.S. Constitutional mandate on intellectual property:

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.

Copyright law gives copyright owners exclusive controls over reproductions of a work but not over all reproductions and for a limited time. Public libraries have the mission to advance the public interest by upholding principles of intellectual freedom as well as by respecting intellectual property rights. Fair use supports this mission by allowing libraries and its patrons to make a limited number of reproductions of copyrighted works that could advance the public interest such as criticism, research, teaching, news reporting, comment, or scholarship without inflicting substantial harm to the economic rights of copyright owners.

However, the concept of "fair use," as it is being used in recent times to update the copyright law, has tended to view it only as a "safety valve" or a loophole that can be closed once the reason for its being - the impractical costs of asking copyright owners for permission for every little reproduction of a copyrighted - can be eliminated. Sutton mentioned in his lecture that the Clinton administration described fair use as a mechanism of market failure. It follows that if the market for copyrighted works can be perfected as in the metaphor of a celestial jukebox that we will no longer need fair use. I disagree with this logic because it presupposes that the perfect, ideal relationship between authors and users of copyrighted works is a direct economic transaction. There are socio-cultural dimensions to the relationship between authors and users of works that feed the creative process and that need both private and public intermediation to be fully expressed. Public libraries are one of those public entities that can provide that public intermediation between authors and users of literary and artistic works. Fair use supports this intermediary role of the public library by providing a safe space in which individuals and institutions can freely draw ideas and inspiration from copyrighted works through limited privileges of copying that will not cause harm to the economic rights of copyright holders.

I appreciate the wisdom in the constitutional requirement of originality for a work to be protected by copyright (17 U.S.C 102(a)) and that this protection does not extend to any "idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work" (17 U.S.C 102(b)). Nevertheless, I was most surprised by its implication to database design and development - that the database as a compilation may have some minimal degree of originality in its selection and arrangement and thus may be copyrightable but that the facts - raw data - inside them cannot be afforded copyright protection.

I can appreciate the court's rejection of the "sweat of the brow" argument in deciding the Feist v Rural case (telephone directories) but I would find it simplistic to regard computer databases as mere mechanical compilations of facts in rows and columns. Even if a computer database is just a standard database of inventory data, personnel data, or sales data, it does have features that enable users to combine and recombine these pieces of data into various reports, a feature which static print telephone directories do not have. Are reports derived from facts stored in a database copyrightable? If the "sweat of the brow" test cannot be applied to facts stored in databases, then what kinds of legal protections are there for dynamic data?

Databases are only one of the dynamic resources that information professionals have to deal with in the digital age but they oftentimes contain an organization's or a company's most valuable information assets, as Sutton noted in his lecture. The design of many databases takes considerable creativity and it may not be hard to prove a minimal degree of originality in the design to qualify for copyright protection. There could be considerable labor expended on collecting and entering data into the rows and columns of a creatively-designed database structure but I still agree that copyright law is not the right law to afford protection to facts. Copyrights, patents, trademarks, or trade secrets may not protect the data in databases but there may be market forces and access technologies that will. But even in the face of these available access controls, the challenge still remains to balance the economic rights of data producers with the broader goal of promoting the progress of science and the useful arts.

So, I have here a photocopying request that I am absolutely sure does not fit within the library exemptions in Title 17, Section 108, what would I do?

In Sutton's lecture, he says that exemptions are a two-part analysis. He says that it is a misguided assumption to think that if the individual patron's photocopying request is not permitted in Section 108 of Title 17, that it is not permitted by law. He says that we always have Section 107 of Title 17 to fall back on. So I would use the following fair use criteria in section 107 to determine if I could still do the photocopying for the patron:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

If the request still does not meet the criteria above then I will seek advice from other staff (preferably upper management) as to what to do next.