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Net's Glitch: Copyright Law

Schools: A computer on every desktop? That may happen, but don't count on educators getting hassle-free access to data soon. The confusion exists over just what 'fair use' is.

May 29, 1997|MICHAEL J. YBARRA | SPECIAL TO THE TIMES

Carroll Blue was all set to roar onto the information superhighway when she crashed into the tollbooth. Blue, an associate professor at San Diego State University, wanted to put together a CD-ROM about how women have been portrayed throughout film history, from the silent classic "Birth of a Nation" to the more recent cyber-thriller "The Net."

Not too long ago, Blue might just have rented the videos, taped brief scenes, spliced them together with the rest of her multimedia presentation and passed the resulting educational tool around to her students in the school of communication. And no one would have thought of calling the copyright cops.

But the school's instructional technology office informed Blue that she should write to the film companies for permission, who told her: no way. Of course, they said it like lawyers, with regret and references to contractual restrictions and corporate policy and a nice reminder that unauthorized use of their material would constitute copyright infringement.

"I can understand someone like Ted Turner buying up archives and wanting to make money," Blue said. "But I don't understand how you can't even have educational access."

President Clinton's dream of a computer on every school desktop might come true, but that doesn't mean that students will be able to see much on their screens--at least without coughing up a little cash, and maybe not even then. The Information Age, it turns out, is also the age of copyright cyber-sleuths. And content providers are also copyright holders determined to hold onto as much control as they can.

"We have grand dreams of using the Internet as a tool for education, but at every step you run into copyright issues that we haven't really begun to deal with," noted Martha Winnacker, the copyright point person in the office of the president at the University of California. "All these things that the Internet seems to offer require some resolution of the copyright quandary."

More than 100 organizations of educators, librarians, record companies and publishers (which called itself the Conference on Fair Use, or Confu) tried to do just that at a meeting outside Washington earlier this month--with little success.

Traditionally, teachers have been able to use some copyrighted material in the classroom without having to pay for the privilege (or even ask permission) under what is known as the fair use doctrine. There has always been squabbling over what exactly constitutes fair use, but the issue has become supercharged with the dawn of the Digital Age.

Professors beam about the possibility of virtual classrooms that use the Internet to break geographic boundaries and interactive multimedia presentations that make learning fun for a generation of video-game addicts. At the same time, publishers are terrified that their livelihoods will be destroyed by the anarchic ethos of cyberspace, and have been fighting hard for more extensive copyright protection.

"There's a lot of instructors, quite frankly, who have grown accustomed to a very broad interpretation of fair use that might not be possible in the digital environment," said Peter Fowler, an attorney with the U.S. Patent and Trademark Office, who chaired the Confu talks. "Is that a restriction of fair use? The copyright owners might say no because it was never fair use in the first place."

Implicit in the concept of fair use is the idea that educational copies would be just that: inferior reproductions of copyrighted work, a photocopy of a chapter instead of a finished book. But in the digital world, there is often no difference in quality between what the publisher would sell and a fair use version. And technology promises to make it possible to track the replication of information in a way that was impossible when teachers were largely on the honor system.

All of which is making some educators jittery. "The whole purpose of copyright law is to let society have access to information," said Allison Bunting, a librarian at UCLA. "Now publishers are taking the opportunity to challenge the rights we have long fought for and taken for granted. If we move totally to a situation where you have to pay a fee for access, some will have access to information and some won't."

Publishers bristle at being portrayed as corporate leviathans determined to squash creativity in the arts and sciences in the pursuit of profit. "Nobody is trying to limit fair use," said Carol Risher, vice president for copyright and new technology for the American Publishers Assn. "Libraries want to be able to do anything and I don't think that's acceptable."

At the recent Confu confab, participants threw up their arms and, after more than two years of discussions, finally agreed to disagree.

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