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Fair Use, Liabilities and Electronic Toll Booths

By Roger Knutsen, Green River Community College, former NCHE President

Imagine how your teaching would change if you did not have "fair use" rights to use articles or images in your classroom. Imagine what it would be like if our libraries, schools or colleges were liable if someone violated copyright protections using one of our networks. Or imagine what it would be like if your students had to pay a fee every time they wanted to access a data base containing information collected by the census bureau.

When 850 representatives from some 125 nations gathered in Geneva for the World Intellectual Property Organization's (WIPO) Diplomatic Conference last December 2–20, those bleak scenarios could have been the outcome. The delegates were there to consider three proposed treaties to: (1) update copyright protections of literary and artistic work to fit the digital age, (2) extend those protections to music and recordings, and (3) extend copyright protections to data bases. Your NCHE President was there as a Private Sector Advisor to the US delegation, representing NEA President Bob Chase.

Those of us who work in schools, colleges and libraries, as well as service providers and members of the scientific community, had three major concerns. First, as initially drafted, the treaties represented a drastic reduction in the rights of "fair–use", severely reducing the ability of librarians, teachers and researchers to carry out their work. For example, as drafted, the mere browsing of the Internet and viewing of a document or picture would have been considered making a copy and therefore subject to copyright protections, including compensation for such "use".

Secondly, language in the draft treaties to regulate the transfer of documents and images by electronic means would have made service providers liable for copyright violations. As defined, service providers would have included not only commercial services such as AOL or MCI, but schools, colleges and libraries as well. Any school or college which set up a server for student or faculty use would have been liable.

Then there was the data base treaty, which would have extended copyright protections to data bases whether or not there was anything unique or original about their design or content. As a result something as mundane as a phone book could be copyrighted, as could information from public sources, severely limiting the free flow of information and dramatically affecting costs to users by setting the stage for electronic tolls.

I came away from this experience with two important lessons learned. The first is really an old one: the importance of working with others to meet our members needs. In Geneva we had strong allies in the American Library Association and the American Council of Learned Societies and, working together, we were successful in changing the direction of the US Delegation and the language of the treaties that were the product of the conference.

Secondly, it is evident that our professional lives are affected more and more by what happens outside the electoral/legislative arena. As an Association we are heavily involved in politics and have had some great successes in achieving our legislative goals. But these treaties came from a whole different arena. The US delegates were drawn from the departments of State and Commerce. Our supporters in Geneva included AOL and MCI and developing nations, while the European Union took strong exception of our positions.

It's only after the negotiations are complete that the treaties now come to the US Senate for an up–or–down vote. Starting now to attempt to amend or defeat bad treaties would have been too late. Learning from this experience we must continue to focus some of our attention and energies on what is happening in agencies of the administrative branch of government, and to find allies outside of education with whom we can work. Only then can we continue to meet the needs of members.