The digitization of content, from print to video to audio and beyond, has major implications for corporations and consumers. Never has content been more flexible and accessible, and never has the threat of misuse of copyright been greater. As approximated in Outsell’s 2005 report, “The Global Copyright Pandemic: A First-Aid Kit for Publishers and Information Providers,” more than 56 billion documents are passed over the internet each year, many without proper copyright permissions. And that’s a conservative estimate.
Digitization of content—and the resultant ease of electronically passing it along via email, linking, and feed—is only part of the problem. The same Outsell study found in its survey of 2,000 U.S. knowledge workers that 60% of them felt that “it’s fine to share” information found on the open web, and that 89% of them forward information regularly. Even when organizations do have licenses for use of electronic content, employees aren’t always clear on what constitutes acceptable use.
Under the Berne Convention, virtually every original new work—article, blog entry, podcast, song—is copyright protected, whether it’s marked and registered or not. Penalties for copyright infringement are high; statutory damages can range from $750 to $150,000 per work infringed. Bill Burger, VP of marketing for Copyright Clearance Center (CCC), points out another potentially higher cost: “For large companies that aggressively protect their own intellectual property assets, misusing someone else’s intellectual property can open them to criticism.”
Copyright Law Tries to Keep Pace
The first copyright legislation was introduced in England in the 1600s to protect authors from unscrupulous printers who were copying and selling their books without remuneration to the author. These days, copyright legislation is scrambling to keep up with the explosion of content types covered, from photos to videos and podcasts, as well as the expanding number of digital distribution channels.
One piece of legislation that had significant impact on the distribution of digital media was the 1998 Digital Millennium Copyright Act (DMCA). The act, which makes the production and distribution of technology, devices, or services that are used to bypass access controls to copyrighted works illegal (whether or not they’re effective), is strongly supported by movie studios, publishers, and record companies.
Critics of the DMCA say that it is tilted too far in favor of the media companies it seeks to protect and that it prohibits legitimate acceptable usage of copyrighted material. For instance, under the DMCA content producers may send “takedown” notices to websites that display or link to content that may infringe on copyright. Once a website owner receives such a notice, they are so strongly motivated to remove the (potentially) infringing content by the DCMA— which says they will not be held liable if they remove the possibly infringing content from their site immediately—that very little case law is emerging to contest the reach of the act.
Gartner analyst Mike McGuire observes, “Fair use is supposed to be an exemption to copyright infringement, but under the DMCA it’s hard to say what is and isn’t fair use. It would be nice if the law would acknowledge the realities,” citing as an example people who want to back up their digital music libraries to an external drive in case their computer crashes.
In February 2007, Representatives Rick Boucher (D-VA) and John Doolittle (R-CA) introduced the FAIR USE Act in Congress. This act, which has been applauded by free speech advocates and the library community, seeks to return “fair use” rights to consumers by allowing them to circumvent digital locks in six narrowly defined areas. Additionally, it would allow libraries and archivists to circumvent DRM technologies for preservation of a deteriorating work—for instance, enabling a VHS copy of a film to be transferred to DVD format without worrying about copyright infringement. The act remains under consideration at the time of this writing.