Fair Use, CONTU Guidelines, CONFU Guidelines and the DMCA

Fair Use, CONTU Guidelines, CONFU Guidelines and the DMCA@ M S Sridhar*
1. Introduction: Copyright Acts and their implications are more known through word of mouth than personally reading the complex legal texts. As a result, lot of myths surrounds the knowledge of the users and libraries about infringement of copyright acts. Many are scared by the warning note printed almost indiscriminately by the publishers on verso of title pages of the books. There are others equally quite careless and boldly keep infringing copyright act. 2. Fair use: Often conveniently libraries and users cite 'fair use' provision to take shelter against copyright violation. Fair use, dealt in Section 107 of US Copyright Act, expects libraries to make an assessment whether a use is fair or not based on the following four factors or tests: i. ii. iii. iv. The purpose or character of use The nature of the work [document] The amount or portion of the work reproduced [in relation to the whole work] The impact of use on the market or value of the work.

These four tests should be applied by libraries to balance their own interests with the interests of the copyright holders. Beyond above four tests, there are no checklists, sub clauses or cross references to other sections of the act. 3. CONTU Guidelines: Section 108 of the Act, prescribes several limitations on the exclusive right of copyright holder to enable libraries and archives to reproduce under specific conditions to fulfill the requirements of their service mission. Among other subsections, subsection 108 (d) states that the interlibrary loan requests from other libraries for a single article or small part of the work may be fulfilled subject to the fact that the requestor specifically states that it would be used for private study, scholarship or research and the library providing copy prominently displays the warning note of copyright act. Subsection 108 [g] is a protection against systematic reproduction of parts (particularly journal articles) over a period so that it becomes a substitute for a subscription to journal or purchase of such work. It is here that commercial publishers of scholarly journals became more concerned since what constitutes a systematic reproduction is left for interpretation. In order to resolve this issue, publishers, authors and librarians sat together and worked out what are called the CONTU guidelines [also called rule five]. They are informal agreements for interpretation of systemic reproduction. Both CONTU guidelines and CONFU guidelines [to be discussed later] cannot be contested or upheld by law. These guidelines are applicable only to materials [journals] less than five year old [i.e., by date of publication] and a library can request and have up to five articles from a single journal title during a calendar year under interlibrary loan. Further, requesting library must state copyright compliance in its request, maintain records of all such requests and fulfillments for at least three years. However, a library having
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Fair Use, CONTU Guidelines, CONFU Guidelines and the DMCA

subscription to the journal and unable to immediately trace/access it is exempted from above restrictions. In case of non-periodicals it is six copies of articles/ chapters/ small parts over the entire term of copyright of the work. For reproducing anything beyond CONTU guidelines, permission of copyright holder should be obtained. 4. CONFU Guidelines: While CONTU guidelines were evolved in response to the final report [Jul 31, 1978] of the National Commission on New Technology Uses of Copyright Works. The CONFU Guidelines were evolved during discussions of best practices and the final report [Nov 1998] of the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force constituted [in 1993] by President Clinton. CONFU guidelines are considered highly prescriptive and lack flexibility. Unlike CONTU Guidelines, CONFU Guidelines are rejected by most librarians, but accepted and used in the areas of distance education and music. Those who rejected CONFU guidelines are obviously continue to depend on Fair use doctrine of Section 107 of copyright act. Out of five areas discussed in CONFU guidelines, interlibrary loan and e-reserves were eventually dropped as no consensus could be arrived at. The remaining three areas, namely, distance learning, digital images, and educational multimedia are enumerated under CONFU Guidelines. Out of about 100 organizations/institutions representing copyright holders and users participated, majority of library representatives have even rejected CONFU guidelines relating to other three areas also. The general concerns expressed by ARL on these guidelines are worth noting: (i) Unduly narrowing down of interpretation of fair use by moving away from the four factor analyses to bring in quantitative limitations and restrictions (ii) Rigid, specific and premature guidelines on rapidly evolving technologies without having adequate experience (iii) The new responsibilities and liabilities added are considered technically and administratively burdensome to libraries. 5. The DMCA: The latest in the series, which affected sections 107 & 108 of copyright act, is DMCA [The Digital Millennium Copyright Act]. The DMCA is incorporated into the Copyright Act with effect from October 2000. Unlike balancing of interests of both parties in the original Copyright Act, i.e., protecting information and providing affordable access to needy, the DMCA, is bitterly criticized for strong tilt in favor of copyright holders. It is believed that the DMCA originally designed to implement WIPO, threatens the fair use doctrine. Like No Electronic Theft Act [1997], the bill of DMCA was supported by the software and entertainment industry and sternly opposed by scientists, librarians and academics. It was even challenged in courts with several cases and a new legislation was also thought of to redress some undermining clauses of this law. The DMCA is considered a complex act addressing several issues under five titles. Three of the titles are of direct and serious concern to libraries. i. It prohibits and hence considers it as a crime to circumvent protection technologies like passwords, encryption etc. as well as manufacture, sale of devices designed to
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Fair Use, CONTU Guidelines, CONFU Guidelines and the DMCA

defeat technology protection measures. However, certain activities like reverse engineering, security testing, privacy protection and encryption research as well as libraries, archives and educational institutions are exempted under certain circumstances. ii. The DMCA, while exempting libraries, archives and educational institutions, `adds some limits/ copyright liabilities for online service providers like that of necessity of storing information in ones own computer system and providing location tools, hyperlinks, etc. This enables the demanding of removal of information and the service provider must oblige by removing such information from online site. iii. The authorized institutions are permitted to make three copies and loan soft copies only to other qualifying institutions/for replacing an obsolete digital format for digital preservation purpose. In nutshell, the DMCA [1998] amended several copyright laws including sections 108 in three significant ways: i. Copies must include a notice of copyright [or a legendry stamp] that appears on the copy ii. Three copies allowed for preservation purposes and for replacement of an obsolete format or damaged, deteriorated, lost or stolen work should not be made available to the public outside the library or archive. iii. In order to use the copyright provision to reproduce and distribute within the last twenty years of any term of copyright, libraries should make reasonable efforts to determine that a) the work is not subjected to normal commercial exploitation b) a copy cannot be obtained at a reasonable price and lastly and more importantly c) the copyright holder has not filed a notice with the registrar of copyright regulation that either of a and b above conditions apply. 6. Conclusion: Lastly, in conclusion, it may be noted that we have to function under peculiar conditions of multiple and complicated copyright and related acts of not only our country but also that of other countries particularly that of USA. Originally copyright acts are to protect the form and not idea. Interestingly, copyright arises automatically without any registration in UK, but it should be registered in USA. A sort of deposit arrangement with the third party [bank, solicitor, etc] is required to establish the date of creation of work. Anonymous /pseudonymous works are also protected by copyright for seventy years. Further a publisher is required to take permission of the author to publish the out of print book. Even TOC cannot be copied and circulated / distributed without the signed declarations. Users must declare at the time of copying that (a) copy has not been previously supplied (b) copy will not be used except for research or private study and copy will not be supplied to any other person (c) no person with he or she works has already made a copy or intends to make a copy for the same purpose and (d) if the declaration is found false, it should be considered as infringement. ---------------------------------------------------------------------------------------------------------------M S Sridhar Page 3

Fair Use, CONTU Guidelines, CONFU Guidelines and the DMCA

Fair Use, CONTU Guidelines, CONFU Guidelines and the DMCA (Guest Editorial), SRELS Journal of Information Management, June 2011, 48 (3) 241-244.
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M S Sridhar

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