Copyright Questions and Answers for Information Professionals: From the Columns of Against the Grain

Chapter 9: The Internet and the Web

153 CHAPTER 9 The Internet and the Web The digital environment has affected the users of copyrighted works as well as the producers. Not only are librarians and teachers increasingly familiar with locating information on the web, so are library users, who often request digital copies. The wide availability of much free material on the Internet has caused many librarians to question whether the same copyright rules that exist for print and analog works apply when the work is found on the Internet. For many schools and libraries, digital works are licensed (see chapter 4, “Permissions and Licensing”), and what a library may do with materials is governed by the license agreement. But what about materials found on the open web? Copyright still applies just as always. There is no requirement that authors put notice of copyright on their works, so lack of notice does not mean lack of copyright. On the other hand, many works are posted on the Internet by their authors with an invitation for others to use them freely. There are usergeneratedcontentsites ,suchasblogsandWikipedia,thataremadeavailable under a Creative Commons license (see http://creativecommons. org/). Materials found on the Internet are subject to fair use and the other exceptions to the exclusive rights of the copyright owner. Two sections of the Copyright Act apply only to the Internet. Enactedin1998 ,theDigitalMillenniumCopyrightAct(DMCA)1 amended 1 Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998). Chapter 9 154 the Copyright Act and added two new sections to the Act. Section 512, onlineserviceprovider(OSP)liability,isdesignedtoexcusefromliability e-mail service providers as well as providers that host Internet content if the service provider meets certain requirements. This is importanttolibraries ,educationalinstitutions,andcorporationsthatprovide e-mail service to their employees and/or host Internet content. While the user of the online service is still liable for copyright infringement, the service provider can escape liability. These “passive conduits” that provide only e-mail services are not liable for a user’s infringing activity if they neither direct the content, nor select the recipients, nor receive any financial benefit from transmitting the copyrighted content in an e-mail message. For both types of OSPs, the provider must terminate the access of any user who is found to be infringing. For OSPs that host content, the requirements are more stringent. The OSP must remove any material that it knows or has reason to believe is infringing. Further, if it receives notice from the copyright holder that protected works are posted, it must take down the material and may not return it to the web until it determines that it is a fair use and so notifies the copyright holder. The second provision added by the DMCA is section 1201, the anti-circumvention provision, which has a small exception for libraries . It violates the statute to remove any anti-circumvention devices that copyright owners use on a digital work to control access to it. Moreover, trafficking in devices that circumvent these technological protection measures is infringement, and there are even criminal penalties for such activity. Libraries, however, may circumvent such technological protection if the purpose of the circumvention is to examine a protected work to determine whether or not to purchase it. Questions in this chapter pertain to reproduction of works from and for the Internet, audio podcasts, website password protection, faculty-created works on the web, sharing Internet searches within a corporation, and posting versus linking. • • • Q209 Is three paragraphs of a copyrighted work too much to put on a web page? The Internet and the Web 155 To answer this question requires a fair use analysis. (1) What is the purpose of the use? If the text on a password-protected website is restricted to enrolled students in a particular course in a nonprofit educational institution, the purpose of the use is different than if the text is on an open website. (2) What is the nature of the copyrighted work? Is the work a novel, a poem, a scientific article? How old is the work? Is it still in print? (3) What percent of the copyrighted work do the three paragraphs represent? If the three paragraphs are from a full-length novel, then they are a very small portion. However, if the work is a poem printed on two pages, three paragraphs represents a fairly substantial portion. Even if the copied paragraphs are a small portion of the copyrighted work, if the...