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Intellectual Property

Intellectual Property

Copyright

Until now, most people have needed only a passing acquaintance with the principles of copyright law. But today, the new technologies involved in the Information Superhighway make it important for the general public to acquire a basic knowledge of copyright.

Whenever someone uses the Information Superhighway, she may be using a copyrighted work, and at the same time may be creating a copyrighted work. In both situations, she needs to understand what types of material are protected by copyright, and what types of uses require permission. These copyright basics are an important part of the Information Superhighway, "rules of the road." The four key questions to be asked are the following:

Is the material protected by copyright?

Is the proposed use within the copyright owner's exclusive rights?

If so, is it permissible under an exception to those rights?

If not, is it covered by a license, either explicit or implied?

Copyright Scenarios and Discussion offer real life examples of how copyright questions can be addressed.

Other Intellectual Property Protection

The use of the Information Superhighway may also raise issues of intellectual property law other than copyright.

A word or logo identifying the source of products or services, such as a brand name or a school mascot, may be protected by trademark law. The names and likenesses of real people are protected against certain unauthorized commercial exploitation. And some of the electronic or mechanical components of the technology involved in the Information Superhighway may be covered by patents.

The principles involved in these other bodies of law are not discussed in this document. However, documents and information sites listed in Resources in Print, and Resources On-line may offer guidance in these areas

Copyright Scenarios and Discussion

These scenarios are intended to assist school administrators and teachers, librarians, and community center personnel who may actually confront situations involving copyright. This material is intended only to sensitize Information Superhighway users to the issues and to provide a general framework for resolving them. These analyses are not intended as a substitute for obtaining legal counsel when necessary. Creation of Multimedia Works Using Online Material Downloading of Copyrighted Images Use of Library Computer Terminals Electronic Mailing Lists and Use of Copyright Notice E-Mail Discussion Groups Digitizing and Uploading Print Materials Distance Learning Library Preservation and Updating of Materials Digital Manipulation of Copyrighted Materials Performance of Downloaded Music Enterprising Student as Service Provider Use of Works from Unknown Sources

Copyright

Copyright law protects original works of authorship. These include creative works such as fiction and nonfiction writing, movies, TV and radio programs, art, music, sound recordings, databases, and computer software. Our legal system grants copyrights not simply to reward the author for the act of creation, but to benefit the public as a whole. The ultimate purpose of copyright is to expand the pool of information and knowledge available to society as a whole, by spurring creativity in a free market economy while encouraging the interchange of ideas and information. Allowing authors to control the use of their works, and therefore profit financially, gives them an incentive to invest time and effort in creating new works. The more works that are created and disseminated by authors and their publishers, the richer the spectrum of material available to the public. This benefits all of us, by promoting the progress of science and the arts.

As a practical matter, most people, up to now, have been required to have only a passing acquaintance with the principles of copyright law. The new technologies involved in the Information Superhighway make it more important today for the general public to acquire a basic knowledge of copyright. For the first time, the average person sitting at her home computer can gain access to a wide range of every type of copyrighted material, and can easily copy or communicate that material virtually instantaneously. If copyrights in these works are not respected, many copyright owners may be reluctant to make their works available online.

Public education about the meaning and importance of copyright is therefore critical to the Information Superhighway's successful implementation. It is obviously unrealistic to expect everyone to become a copyright expert, but people can learn to be responsible Information Superhighway users by becoming aware of the issues involved when they create, access, receive, or transmit materials on the Information Superhighway. This will enable them to resolve simple issues on their own and recognize when it is appropriate to seek outside help for more detailed knowledge and advice. A list of organizations that can serve as copyright resources is included in the "Resources for Communities" section.

Even for those who are familiar with copyright law, the Information Superhighway context raises new issues. With traditional technologies, such as photocopiers, it is easy to see that a work has been copied. However, when the digital form of a work is accessed and the results are communicated electronically from one computer to another, it is not obvious to the user whether and at what point in the process a copy has been made or a performance has occurred. Nor is it obvious whether a performance or display of a work at various points in the communications pathway as well as at the point of reception is public or private -- a key distinction in copyright law.

The law is evolving in this area. Whether and to what extent the Copyright Act must be amended to take into account the issues raised by new technologies is currently the subject of debate. Some amendments and clarification may turn out to be advisable. Existing rights of copyright owners and creators whose works are used on the Information Superhighway should not be diminished or weakened, and should be able to be exercised in a meaningful way. At the same time, the public's ability under current law to gain access to works and make reasonable uses of them under the fair use doctrine and other exceptions to the copyright owner's rights should also apply on the Information Superhighway.

In some respects, the Information Superhighway will simplify the mechanics of the copyright system. The new technology will eventually make it easier not only to gain access to a wider variety of works, but also to identify legal claims and, where indicated, who would be contacted to obtain permissions and/or make payments. It is in everyone's interest, both copyright owners and users of copyrighted materials, to make these transactions as simple and painless as possible. On the Information Superhighway, licensing information should become more readily available than it is today. Some mechanisms are already in place that can handle licensing; other mechanisms to license online in a matter of seconds are likely to be developed.

The fundamental point is that copyrights should be respected. Each of us is potentially both a copyright owner and a copyright user. While someone may choose to donate his work to the public domain or allow it to be freely used, the choice should be his. Others may want to control who accesses their work and in what context, or may have invested substantial time and money in the work's creation which they need to recoup.

At the same time, the conditions facing users should not be difficult to cope with. A license may often cover the proposed use, and may be easily available. If not, if the user exercises judgment in taking only the amount of work that is necessary, for reasonable, noncommercial purposes that do not interfere with the copyright owner's market, the use may well qualify as fair use or be covered by another exemption.

In other words, we should all do the right thing, exercising common sense.

The use of the Information Superhighway may also raise issues of intellectual property law other than copyright. A word or logo identifying the source of products or services, such as a brand name or a school mascot, may be protected by trademark law. The names and likenesses of real people are protected against certain unauthorized commercial exploitations. And some of the electronic or mechanical components of the technology involved in the Information Superhighway may be covered by patents. The principles involved in these other bodies of law are not discussed in this document.

Four Key Questions

Whenever someone uses the Information Superhighway, she may be using a copyrighted work, and at the same time may be creating a copyrighted work. In both situations, she needs to understand what types of material are protected by copyright, and what types of uses require permission. These copyright basics are an important part of the Information Superhighway "rules of the road." The essential questions to be asked are the following: is the material protected by copyright? is the proposed use within the copyright owner's exclusive rights? if so, is it permissible under an exception to those rights? and if not, is it covered by a license, either explicit or implied?

1. Is the Work Protected by Copyright?

Some materials that can be found on the Information Superhighway are protected by copyright, and some are not. Copyrights are withheld from certain works for policy reasons; other works have lost their copyrights because of a failure to comply with past legal rules, or because the works are so old that the copyrights have expired. Two general categories of works that are likely to be in the public domain, and therefore free to be copied, are works created by the U.S. Government, and works that were published more than 75 years ago. For many works, unfortunately, there is no simple way to tell. The answer depends on a variety of facts such as who created the work; when, where, and how copies of the work have been distributed to the public; and the date of the author's death. For most newer works, the copyright will last for 50 years after the author's death, or 75 years after publication. If it is important to know the status of a particular work, legal advice should be obtained.

Although copyright owners often use a notice of copyright, and/or register claims in their works with the Copyright Office in Washington, D.C., they are not required to do either under current law. So the fact that a work has no notice on it and does not show up in the Copyright Office's records is not a guarantee that it is in the public domain. A wise approach is to assume that material is protected unless you have reason to believe that it is not.

This is true even for works from other countries. Foreign materials found on the Information Superhighway will often be protected by copyright in the United States. Our law protects works that come from other countries with whom we have a treaty or other copyright relations, in return for their willingness to protect American works within their borders. It is only a small handful of countries today with whom the United States has no such relationship, and whose works are therefore not protected here.

As a creator of material in digital form, the Information Superhighway user may become a copyright owner as well. Often someone using the Internet inputs his own thoughts in the form of an e-mail message, or by posting material to an electronic bulletin board. This material, if it is original with the creator, and has at least a minimal amount of creativity, will be protected by copyright. Even some less visible types of creative expression are copyrightable. For example, selecting from a group of preexisting materials, and combining or arranging them in a manner that requires thought and judgment, may itself result in a copyrightable work (assuming the use of the materials does not infringe any copyrights).

Moreover, any work created while using the Information Superhighway is automatically protected by Federal copyright law as soon as it is fixed in the computer's memory. The creator does not need to apply for a copyright, register the creation with a government office, or even place a notice of copyright on it. The result is that she can, if she chooses to do so, prevent others from making various unauthorized uses of the new material.

2. Is the Use within the Copyright Owner's Rights?

Finding out whether a work is protected by copyright is only the beginning. A copyright does not give a monopoly over all of the work's contents. Ideas or facts cannot be protected by copyright, and, absent other legal considerations, can be taken directly from a copyrighted work. What is protected is the author's creative expression -- the choice of language used to describe the ideas, not the ideas themselves.

In addition, not all types of uses of copyrighted material require the owner's consent. For example, a purely private display or performance of a work is always permitted. Simply looking at a work is not an infringement. The acts that the copyright owner is legally entitled to control are the making of copies, the distribution of copies, the use of the work as the basis for a new work, and acts of public performance or public display.

Most uses of a work on the computer, however, are likely to involve one or more of these acts -- sometimes in ways that are not obvious. For example, it is important to understand that copies can be made in many ways, not only by the use of a printer or photocopier, or by pressing a function key. When information in digital form is communicated from one computer to another, it can be argued that a copy occurs in the receiving computer. Some legal questions surrounding copying in the electronic environment have yet to be resolved. (Technically speaking, an exact replica of the information as it existed on the first computer will not generally occur. In particular, the bits may manifest themselves differently on the receiving computer as a result of software operations within both computers, as well as other transformations that may occur in between. Nevertheless, a copyright owner's rights may still be implicated.)

3. Is the Use Permissible under an Exception to the Copyright Owner's Rights?

There are a number of exceptions to the copyright owner's rights -- situations where conduct that interferes with those rights is permitted because Congress or the courts have determined that the conduct is justified even without permission or payment. Where appropriate, these exceptions should apply in the Information Superhighway.

The most important exception is fair use. Fair use is a flexible doctrine, intended to allow uses that are reasonable and beneficial to the public without requiring the copyright owner's consent. Whether a particular use qualifies as fair is based on an evaluation of all the circumstances. This includes a balancing of four factors set out in section 107 of the Copyright Act: (1) the purpose and character of the use, including whether it is commercial or 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. The complexity of this balancing, and its fact-specific nature, make outcomes hard to predict. There are, however, some generally accepted interpretations of the fair use doctrine. For example, the Supreme Court has held that it is a fair use to copy a free broadcast television program at home on your VCR in order to watch it at another time. The classic example of fair use is the quotation from a book in a book review, in order to illustrate the reviewer's point. In less clear circumstances, particularly if the stakes are high because of the time or money involved, or the extent of dissemination of the line, it would be advisable to obtain legal advice.

The availability of reasonable licensing arrangements may be weighed in determining whether a particular use is fair. Efficient and inexpensive means of identifying and locating copyright claimants using network capabilities is essential to encourage new and creative uses.

It is a common misconception that copies or performances made for personal use, or for nonprofit educational use, or for research, are always permitted. The reality is that such uses may be permitted, when they fall within a specific exemption or qualify as fair use, based on an examination of all the circumstances. The personal, nonprofit, or educational nature of the use will, however, strengthen a fair use claim.

Other exceptions to the copyright owner's rights are more specific and detailed. The law contains provisions, for example, dealing with library copying for interlibrary loans, secondary transmissions of broadcasts by cable companies, and the making of a single copy of a computer program for archival purposes. Although there is no general exception permitting all nonprofit or educational uses, a number of provisions exempt certain specific uses of this type. All of these exceptions may be found at sections 108-120 of the Copyright Act.

4. Is the Use Covered by a License?

For many works that are available on the Information Superhighway, it will be possible to get a license from the copyright owner allowing use of the work. As a general rule, it is up to the copyright owner to decide whether or not to grant a license; he has the option of simply saying no. Payment or credit alone is not a substitute for permission. But as a practical matter, if the work has been made generally accessible on the Information Superhighway by the copyright owner, he may be willing to disseminate it further -- particularly for a typical individual use by a member of the public.

Licenses may be obtained in many different forms. The easiest case is the general license, where a copyright owner announces to the world that anyone is free to use the work in any way. Some uses of works on the Information Superhighway by individuals will be covered by licenses already in place through service providers. For other uses at locations such as libraries, community centers, and schools, it will be possible to obtain "site licenses," allowing specified uses by multiple users located on site. In addition, some types of use can be licensed for many works at once through organizations set up by groups of copyright owners to administer their rights. And a license can be requested for a single particular use, either through traditional communications media or online. It is also possible to associate simple terms and conditions with the data itself as well as procedures for locating and accessing such data on the Information Superhighway. Finally, permission to use a work may be implied in appropriate circumstances.

Who has the right to grant a license? For users of the Information Superhighway, the answer will be clear in most cases from information posted on the work itself. When creating a work on the Information Superhighway, the answer will be more complex if more than one person participates in the creation process. Sometimes the owner will be the person or business who paid for the work to be created, rather than the actual creator. For example, if an employee creates a work as part of her job, her employer will own the copyright and she cannot use it herself without permission. And if several people work together to create a single work, they may be considered coauthors, jointly owning the entire work. If so, each would have the right to license the work without the others' consent (assuming they shared any profits with them). In addition, copyright rights can be sold or given away voluntarily to new owners.

To assist school administrators and teachers, librarians, and community center personnel who may actually confront situations involving these principles, the following scenarios and discussions are provided. This material is intended only to sensitize Information Superhighway users to the issues and to provide a general framework for resolving them. These analyses are not intended as a substitute for obtaining legal counsel when necessary.



Copyright Scenarios and Discussion

1. Creation of Multimedia Works Using Online Materials

A class studying American history is assigned to "surf the Net" and put together a multimedia "collage" of materials on a topic of their choice. This collage may take the form of a computer program that is based on or incorporates preexisting works. The Internet offers a variety of resources for them to use, including textual databases, film footage, photographs, and sound recordings that have been converted into various digital formats. What should the teacher tell the class with regard to protection of intellectual property? What are the students' rights in their own work product?

The first issue raised by this scenario is whether the materials the students are using to create their collages are protected by copyright. Unless the materials are clearly in the public domain, or explicitly state that they are dedicated to the public, the answer is probably yes.

The fact that the materials are protected by copyright doesn't necessarily mean that the students can't use them. The next issues to address are what type of uses the students will make of the materials, and whether those uses are covered by a license.

There are several uses that the students may make of the materials without legal risk. Uses that do not involve copying the materials or performing or displaying them publicly are generally permitted. For example, assuming access is permissible under other bodies of law, a student may review an archives table of contents to determine what material is available. In addition, he should be able to search for, and obtain a list of, particular material he is interested in through the use of queries or key words.

Other uses are less clear. The students will probably wish to access the materials they have found. Doing so may entail the making of a copy in the computer's memory, even if that copy is not permanently retained. Depending on the terms under which the materials have been placed on the Internet, this type of transient internal copying might be considered fair use, or permitted by an explicit or implied license, since it is necessary in order to interpret the data and manifest the results.

What about printing out single copies of textual items, solely for the students' personal use to refer to and take notes on in the process of working on their projects? And finally, what about incorporating portions of the materials into the final collages? These acts may involve not just storage in memory but possible interpretation and other manipulation by computer programs of the information in various digital formats. If a substantial amount is copied, permission will be needed unless the use falls within an exception to the copyright owner's rights.

The most obvious exception to consider here is fair use. The students are making the copies for nonprofit educational purposes, which will help in the overall balance. The fair use claim may be particularly strong with regard to the use of small portions of works, or printouts made purely as a matter of convenience in order to avoid taking notes directly from a display on their computer screen. In any event, individual printouts for personal purposes may be covered by the license giving access to the archives.

This scenario, like those that follow, also raises issues of secondary liability for the institution where the acts take place. It would be advisable for the school to have guidelines in place on how to handle copyright issues, particularly when the teacher is giving an assignment that specifically envisions the copying of copyrighted material.

Another set of issues relates to the students' rights as authors of their collages. If the collages are made lawfully, they will be protected by copyright as soon as they are fixed on paper or in the memory of the computer. In most cases, the students' copyrights will protect the creative judgment they used in choosing what materials to include, and in deciding how to combine and arrange them. Likewise, in most cases, the students will have the right to prevent others from copying substantial portions of the collages without their consent. The copyrights in the collages will not, however, give the students the right to prevent copying of the preexisting materials themselves.

2. Downloading of Copyrighted Images

The director of a community center learns that teenagers regularly use the computer terminals at the center to access copyrighted pictures that have been converted into digital form, storing them in personal file areas to which only they and he have the passwords. What should he do?

This scenario raises issues of both intellectual property and privacy. "Accessing" pictures in digital form is likely to involve acts that potentially infringe copyright; when the data are downloaded by the teenagers into the computer's memory, data representing the works will be stored in the files. Unless the owner has granted a license covering this use, the copying may constitute infringement. The fair use doctrine is unlikely to apply where entire works are copied for purposes of entertainment, as a substitute for purchasing them from the copyright owner.

The community center's role here is more passive than the school's role in the first scenario. Assuming that the center is doing no more than providing equipment, which is capable of significant noninfringing uses, and is not requesting or encouraging the teenagers to access and store copyrighted material, it is unlikely to be found liable for the teenagers' acts. The advance posting of a clear copyright policy would put the center in a better position. On the other hand, a decision to supervise the teenagers' uses might increase the center's risk of liability. And once the center staff becomes aware of infringing uses, it should take action to prevent them in the future.

3. Use of Library Computer Terminals

A local public library sets up a computer room filled with computer terminals. Library patrons can use the terminals to watch movies and listen to music on videotapes and CDs purchased by the library. They can also run software programs, and download and print copyrighted materials from databases. The library has site licenses for these programs and databases. What types of policies should the library adopt with respect to intellectual property concerns?

The use of a terminal to watch a movie or listen to music on a videotape or CD placed in that terminal involves the performance of a copyrighted work. If a performance is private, it does not infringe the copyright in the work; if it is public, it may. The question is whether the performance is public or private when an individual patron views, hears, or executes the work on a computer terminal in the public library. If the patron took a movie home and watched it on her home computer, there would be no problem. But because the library is a place open to the public, the performance could be considered public, and therefore potentially infringing. It is possible that one of the specific exceptions to the copyright owner's rights would apply here, but the application of these exceptions to the online environment is not yet clear.

As to the use of databases and software, the question is what acts are covered by the library's licenses. Software licenses may specify a particular number or group of people who are authorized to use the software. In order for the downloading from a database to be lawful, the license must permit accessing some or all of the data to perform operations such as printing, executing, and viewing.

Most database licenses do permit the downloading or printing of individual items, or of reasonable amounts of these items.

4. Electronic Mailing Lists and Use of Copyright Notices

A current events discussion group meets weekly at a neighborhood community center. The group decides to establish an electronic mailing list of friends and acquaintances around the country. Once a week, it will send to the mailing list their own compendium of entertaining news items from the press, with its own humorous comments on each one. Can the discussion group lawfully create and distribute the weekly compendium? Can it place restrictions on the uses that others may make of the compendium, such as prohibiting them from making any changes? On the other hand, can it disclaim any copyright rights and place the work in the public domain?

The facts of the news themselves cannot be protected by copyright, and thus anyone is free to repeat them. However, the language of the article that reports the news in the press is usually copyrightable expression. Whether or not the discussion group is infringing copyrights in the news items will depend on the nature of the material included and the use they make of the compendium. If they create the compendium only for their own amusement, they may be engaging in a fair use. The more widely the compendium is disseminated and the more commercial the dissemination, the less likely the use is to be excused as fair.

Assuming that there is no infringement, the compendium itself may be copyrightable, since it is created through the use of selective judgment as to what news items to include from a vast pool and contains original humorous comments. As soon as each compendium is fixed in the memory of a computer, it is automatically protected by Federal copyright. Since the compendium is a single work merging their individual contributions, those members of the discussion group who contributed creative authorship may be joint authors.

As copyright owners, the discussion group would be able to bar the copying of the compendium without authorization. Although the law does not require it, it would be helpful to place a copyright statement on the screen to let users know that they do claim rights. On the other hand, one is always free to make one's work available to others if one wishes to do so. Again, a simple statement on the screen to that effect would suffice.

It may also be possible to place conditions on the use of one's work even beyond the limitations imposed by copyright law. As a matter of contract, one could tell Internet users when they access the material that they may only use it in specified ways as a condition of access. While the law is not entirely clear, such contracts may be enforceable.

5. E-Mail Discussion Group

At the suggestion of their teachers, students at several schools in different States establish an e-mail discussion group on the topic of the government's role in education. What are the rights of the participants in their contributions to the discussion?

Copyright protects all types of authorship, from the formal structured book published in an edition of tens of thousands to the informal, short note that someone sends to a friend. Any form of expression, as long as it is original with its author and minimally creative, is protected by Federal law as soon as it is fixed in a tangible form. This means that individual comments contributed to an e-mail discussion may be protected by copyright. Accordingly, permission is needed to make copies or to perform and/or display the work publicly, whether done electronically by forwarding a digital version of the work to another person's computer or posting it on an electronic bulletin board, or done the old-fashioned way by printing it out on paper and posting it on a cork bulletin board.

On the other hand, permission does not have to be formally requested and formally granted. By participating in this type of discussion group, the student may have given his implied consent to sharing his thoughts, at least to some extent. The question is whether that consent extends beyond the circle of the discussion group, and if so, how far. There may be a difference, for example, between forwarding the message to other students who would be eligible to join the discussion group, and forwarding it to a broader audience.

6. Digitizing and Uploading Print Material

You are the adviser to the high school newspaper. A student editor digitizes an article by a parent that appeared in the newspaper, along with a cartoon created by another student to illustrate the article, and places both of them on an electronic bulletin board on the Internet, from which they can be downloaded by any subscriber. What policies should the newspaper adopt to deal with this type of situation?

First, it would be wise to adopt a policy assuming that new and original works of authorship such as the article and the cartoon are protected by copyright. Protection exists whether or not the parent writer or student artist took steps to claim copyright, by using a notice or registering a copyright claim in the work, or even knew that the work was protected by copyright.

Second, the newspaper should flag the possibility that this type of use may infringe. Several courts have held that either unloading material onto an electronic bulletin board, or downloading material from such a bulletin board, constitutes copyright infringement. In addition, the digitizing itself may be considered to infringe.

Finally, the student staff should be directed to look at the scope of the newspaper's license. While the parent and the student artist have presumably given the newspaper permission to publish the article in paper form, that permission doesn't necessarily extend to the online environment. Depending on what was said and understood, permission may have been limited to publication in the newspaper, to be distributed to its ordinary circulation at the school.

7. Distance Learning

A teacher demonstrates to her class how to use various word processing programs. The programs are licensed for her computer. Information sufficient to recreate the screen displays is communicated to students at a distance learning site on personal computers, which are linked to hers via a wide area network. Should the school allow this use of the programs?

Computer programs such as word processing programs are copyrightable works. The first question raised by this scenario is whether any of the copyright owner's rights have been infringed. Again, it is necessary to look to the scope of the license. The teacher's license allows her to use the software on her own computer. When the screen display information is shared with the other personal computers, however, copies may be made of portions of the programs in the computers' memories to the extent that the copies incorporate renderings of the original programs. If this additional copying is not authorized by the license, it may constitute infringement as well as breach of contract.

In addition, the communication may infringe the copyright owner's rights of public performance and display. A performance or display of a work is public, and therefore within the copyright owner's control, when it is communicated to members of the public by electronic means, even if they receive the performance or display in separate places and at separate times.

The school should look into the possibility that one of the Copyright Act's exemptions might apply. When the communication of a performance is done as a regular part of systematic instruction for a nonprofit educational institution, it may be permissible even without the copyright owner's consent. The performance may also qualify as fair use, upon consideration of all the circumstances.

8. Library Preservation and Updating of Materials

A library wishes to adapt to and take advantage of modern technology. It makes digital copies of those books in its collections that are beginning to deteriorate physically, in order to preserve them. The original paper books are kept on the shelves. The library also "refreshes" those works it acquired in digital form. This involves making an exact replica of the original and transferring it to the latest storage media, as well as updating the electronic storage format for use by newer operating systems and retrieval software. The library does not retain the old versions of the digital works, so that it does not end up with more copies than it originally acquired. Are these acts by the library lawful uses of the works it has purchased?

The fact that the library has purchased the initial copies of these works does not mean that it is free to make additional copies. Ownership of a physical copy of a copyrighted work does not carry with it the ability to exercise the copyright owner's rights. Moreover, there is no general exemption permitting all uses of copyrighted works by public or nonprofit libraries.

The copyright law does, however, contain a specific exemption for libraries, allowing them to do a number of things that would otherwise constitute infringement. The library should check this exemption, and determine the extent to which it covers these activities. In the traditional paper-based world, some but not all of the acts of copying in this scenario would be permitted under the exemption. The extent to which the exemption should be extended to allow similar preservationist and archival copying in the digital environment is still unsettled.

Even if the exemption were not extended to digital copying, or for those acts of copying that wouldn't be covered by the exemption, the library may be able to invoke a fair use defense. A court would consider the noncommercial, limited nature of the copying, as well as the extent to which the library's use would substitute for a new purchase from the copyright owner.

9. Digital Manipulation of Copyrighted Materials

A student working at the school computer lab searches through a database on the Internet. She finds a magazine article on the subject of violence in the schools, illustrated by several photographs. As a prank, she changes the references in the article from a center-city neighborhood to the suburbs where she lives, and combines two of the photographs to depict a cache of a frightening assortment of weapons placed on the front steps of her own school. She then transmits the modified versions to her friends at school, and posts them on an electronic bulletin board, without indicating that any changes have been made from the originals. How should school administrators respond?

This scenario involves the manipulation of data and material protected by copyright in a way that is misleading. The ease of such manipulation in the digital environment is one of the major differences from more traditional means of communication.

Recipients of manipulated materials will not get what they think they are getting. Depending on the nature of the data, the dissemination of inaccurate data may lead to real personal or economic harm.

As a legal matter, such manipulation may violate copyright and other laws. Where the materials are protected by copyright, the copyright owner is losing control of the content of the work, which may among other things affect its reputation and hurt its future market. One of the copyright owner's exclusive rights is to create new, derivative works based on the original. An unauthorized manipulated version of the original would likely be considered to violate that right. In addition, other State and Federal laws may protect the author of the original article and the photographer from having their works changed without their consent, and then published misleadingly above their names.

Again, the circumstances of the use may change the legal outcome. A manipulation that is intended as a joke or humorous comment might be permissible as fair use in appropriate circumstances. A fair use claim would be strengthened if the manipulated version was circulated, without any charge, to only a few friends.

One possible eventual technological solution may be the use of digital signature to validate the accuracy and integrity of material obtained online. In any event, students should be educated as to the potential negative consequences of what may seem to be a harmless prank.

10. Performance of Downloaded Music

A high school has a student-run radio station, that transmits only within the school building. Instead of purchasing records, cassettes, or CDs for transmission over the air, the students decide that they will download songs from an interactive online service. When asked for advice about whether licenses are necessary, how should school administrators respond?

Two separate copyrighted works are involved in this scenario: the musical composition, and the recording of the particular performance of that music -- i.e., the combination of recorded sound that makes up what is known as the "sound recording."

First, when the students store the songs from an interactive online service, they are making reproductions of both the sound recordings and the underlying musical compositions. These reproductions may require licenses from the copyright owners of both works. Moreover, when music is played over the air in the school, a public performance takes place. Even though the school building may not be open to the general public, it contains a substantial number of people beyond the normal circle of a family and its friends. Although the law does contain various exemptions for public performances for educational purposes, they are generally limited to performances as part of a regular course of instruction.

The students will therefore need to obtain licenses for the public performance of the music. Such a license is easy to obtain, for a fee tailored to the nature of the user (i.e., its size and its commercial or nonprofit character), from collection organizations set up for that purpose by music copyright owners. The students will not, however, need a license from the record producers to perform the sound recordings, unless they perform the sound recording digitally on an interactive service or as part of certain kinds of subscription services.

11. Enterprising Student as Service Provider

An enterprising student, wishing to be the local supplier of weather information for the school library, writes an interactive computer program that accesses various digitized materials on the Information Superhighway such as maps, unprocessed data from weather sensors, and government historical information. The program is continually refreshed and provides an informative and entertaining presentation on current and historical weather patterns. Can the program be run by the school library without obtaining further permissions? Can the student make the program available to the local TV station or others for use by the public? What policies should the school adopt to cover situations such as these?

The weather analysis generated by the student's computer program may or may not incorporate any preexisting material subject to copyright. The output would probably be more than simply information stored in a database. Whenever the program is asked to predict the weather, the resulting analysis would represent the results of a performance of the program created by the student, and, if the performance is embodied in a local TV broadcast, this may constitute a public performance for copyright purposes.

As to the preexisting data incorporated in the program, such as the unprocessed data from weather sensors and government historical information, much of it may constitute unprotectible facts or be sources from the Federal Government, and therefore is likely to be in the public domain. The copyright status is less clear, however, if the student links in to a commercial service to access the data. The problem is that the student may get some of the data in the program from an independent private source that has manipulated it in such a way as to create a new version, in itself subject to copyright (such as an interactive weather map). It then becomes difficult to separate out the preexisting unprotectible material from the newly added authorship. Moreover, once the student's program has further manipulated the data, it may be difficult to determine what data came from what source.

There may also be cases in which, while the data itself is in the public domain, commercial entities provide access to the data in real-time in exchange for a limited time duration license on its use. Thus, if the program is updated in real-time using a commercial provider of the weather data, caution must be exercised to ensure that accessing that data does not violate the provider's license from the government or others.

Often, permissions may be obtained, free of charge, to use preexisting information, provided that credit is given to the source. This basic courtesy is often required by contract even where the activity in question may be a fair use or otherwise covered by some exemption. Teachers supervising use of school equipment should be aware of student activity, however, since copyright payments and other fees may be associated with access to various repositories of information, and the school may be liable for such payments. To avoid potential controversies, a school should develop policies relating to student-generated works that are widely publicized.

Finally, since the program may be asked for predictions on which people may rely as a basis for making judgments or decisions that could have important consequences in their lives, there could be noncopyright liability issues relating to the source and accuracy of the content.

12. Use of Works from Unknown Sources

A student using one of the school's workstations obtains several pieces of software from the Internet and adds code of his own to form a novel agent-based program. Given queries from other students, the program generates and launches software agents into the network which return with information collected and preprocessed by the agents. The student's program integrates the information and stores the result in a database operated and maintained by the school which the students can use at their leisure. Is the school entitled to run such a database for use by the students? Can it make the database accessible throughout the school district? What rights do the student and the school have in the program or the database?

Since school equipment is being used, it is advisable to instruct students on basic copyright principles and alert them generally to the need to obtain prior authorizations. The application of the doctrine of fair use to the acquisition of various software elements from the Internet is as yet undeveloped. Absent security mechanisms to prevent or inhibit access to program elements, it is at least arguable that this activity may be permissible in certain cases. For example, there may be an implicit authorization for contacting and manipulating other network software by a remote agent where the program is designed for such agent manipulation and is publicly accessible on the Information Superhighway.

However, until the situation is clarified, a school should exercise caution in facilitating this activity.

While there are important patent, communications, and other issues that should be addressed in connection with works expressed as sequences of binary digits (or "bits"), from a copyright perspective the student's activity raises legal questions. For example, in the event substantial portions of preexisting programs are incorporated in the student's agent-based program, and provided that these program elements are protected by copyright, it is necessary for the student to obtain permission before making the derivative work. Further, since the program will generate and launch software agents in the network, permissions to perform the underlying program elements in public may also be required.

Again, the analyses of copyright considerations in the above scenarios are not intended as a substitute for obtaining legal counsel when necessary.

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