PUBLIC POLICY ISSUES IN FAIR USE

After welcoming remarks by Yvonne Zecca, Associate Director of The Annenberg Washington Program, Thomas J. Galvin, convenor of the colloquium, and Professor of Information Science and Policy, Nelson A. Rockefeller College of Public Affairs and Policy, the University at Albany, State University of New York, presented the opening address. Mr. Galvin traced the origins of "fair use," then discussed scholarly journal publishing trends and public policy issues related to electronic publishing. He stressed that the most complex issues of information policy reflect a conflict among opposing values of proprietary, privacy, and access rights. Privacy rights are a concern when scholars are working on a network where their information can be accessed. Fair use balances the rights of copyright proprietors with the public's access to information.

Mr. Galvin defined the fair use doctrine as a provision which permits limited copying of copyrighted materials for private use without the permission of the copyright holder. Under copyright law, "fair use" is allowable for criticism, comment, news reporting, teaching, scholarship, and research. When Congress codified the principle of fair use for the first time, in the 1976 Copyright Act, the Act specified four factors to be considered in deciding whether or not a use is fair:

  1. the purpose and character of the use;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the copying in relation to the copyrighted work as a whole; and, of particular interest for electronic publishing,
  4. the effect of the use on the copyright owner's potential market.
Although open to a variety of interpretations, Mr. Galvin said the courts have used these factors to guide information flow decisions through an era of increased photocopying and microfilming technologies. The question of how to apply "fair use" to the publishing of scholarly journals is a relatively new concern and phenomenon.

Mr. Galvin next focused on the scholarly journal as a dominant communication device in the academic disciplines. As universities have placed more and more emphasis on scholarly research as a determinant of tenure and promotion, and as the volume of the world's knowledge has increased, the number of journals has grown exponentially, creating collection and acquisition problems for libraries, and for large research libraries in particular. At the same time, control of scholarly journals has, in many instances, moved from non-profit universities and scholarly societies to commercial for-profit publishers. In this situation, an adversarial relationship is often created between research libraries with limited budgets and broad information needs, and publishers whose subscription fees are rising in response to a shrinking market.

Computers and telecommunications technologies could solve many of the information dissemination problems created by slow and expensive paper-bound journal production. Networked systems such as NREN, the National Research and Education Network, can create large information-sharing consortia, but with this change in the scholarly communications process comes concern about proprietary rights for copyright holders. As pointed out by Mr. Galvin, it is within the reach of our current technology to create a digital library where the world's total information resources can be made accessible from any individual's desktop work station. However, this fundamental change in the character of the scholarly communications process has economic implications for information proprietors.

Although some journals are already published electronically, and others will soon be available in dual format (print and on-line); not all scholarly journals are expected to move immediately to an electronic format. History has shown that new technologies commonly supplement existing technologies, rather than totally replace them, and dual formats may be the rule in the future, although it is hard to predict how fast the transition to the electronic format will take place.

Mr. Galvin closed his presentation with policy considerations about the relevancy of the fair doctrine in the networked electronic journal dissemination environment. To stimulate thought and discussion along these lines, he suggested participants consider four proposals to test for "fair use" durability, relevance and value:

  1. that any future system needs to recognize and be responsive to four groups of stakeholders: authors, publishers, librarians, and information users;
  2. that costs need to be shared among these stakeholders and the general public;
  3. that a strong and diverse information and publishing industry is vital to the quality of the information environment; and
  4. that any modification of the current intellectual property system should neither create new nor increase existing barriers to information access.