Will the information that comprises our digital libraries be available for free in the future? Will we at least have a level of access to information comparable to what we have now to information in print form in non-digital libraries? Given the differences between digital libraries and conventional libraries, should we? If we have to pay each time we access some piece of information on the network, will it be affordable to the public at large? The answers to these questions will depend in part on the technical, business, and legal environment in which digital library services develop. Some of the legal issues were partially addressed this past month when the Librarian of Congress issued his rulemaking on acceptable exemptions to the anti-circumvention measures of the Digital Millennium Copyright Act (DMCA).
Congress recognized that the passage of the DMCA in 1998 might adversely impact the ability of persons to make noninfringing uses of copyrighted works, such as fair use. The DMCA includes provisions against circumventing technological access controls; however, these limits on access to copyrighted works might also restrict legitimate uses of those same works, and thus undermine the historic balance between copyright owners and users. To address such concerns, Congress required the Librarian of Congress, upon the recommendation of the Register of Copyrights, and in consultation with the Assistant Secretary for Communications and Information of the Department of Commerce, to determine in a rulemaking proceeding particular classes of works to exempt from the prohibition against circumvention. Any such exemptions were to be based on whether persons who are users of a copyrighted work are, or are likely to be, adversely affected in their ability to make non-infringing uses of a particular class of copyrighted works. After a two-year investigation, the Librarian issued a Final Rule on 27 October 2000 that interprets the classes of works exempt from the anti-circumvention provisions very narrowly. Only two exemptions were identified: compilations of websites blocked by filtering software applications; and literary works (including computer programs and databases) that are protected by malfunctioning, damaged, or obsolete access control mechanisms. For either of these classes of works it may be legal to circumvent technological barriers; otherwise unauthorized access to protected material may be subject to a civil action for infringement, or constitute a criminal offense.
In formulating its response, the Copyright Office considered input from information providers who argued for limited, or no, exemptions, as well as library associations, users, and the National Telecommunications and Information Administration who supported a more expansive set of exemptions on the grounds of fair use. Admittedly, the legislation placed the Copyright Office in the difficult position of trying to maintain a balance that Congress itself could not resolve in the DMCA. Its final ruling, however, represents a very conservative interpretation of the law.
The Librarian recognized that the impact of the ruling on scholarship is uncertain and, as the law requires, will reexamine the matter in three years when the current ruling expires. It is very difficult, however, to measure the impact on scholarship caused by overlooked and unconsulted research, or the opportunities lost when research funds are used to support what may be inappropriate pay-per-use fees. In the absence of direct, measurable harm to the public good, it may be difficult to demonstrate a need for additional exemptions from the prohibition against circumvention of technical measures.
While the future is still unclear, some believe the Librarian�s ruling has moved us one step closer to a world where a user accessing the virtual equivalent of a "bricks and mortar" library may be required to pay a fee to browse and make other uses of copyrighted works expressed in digital form. Over the next three years researchers who are concerned about access to information should watch for situations in which their work may be hampered by technological access controls, so that, in the next rulemaking process (which will probably begin in about two years), this information can be presented along with supporting factual data. This area will remain of continuing concern to both producers and consumers of digital information subject to copyright.
Peter B. Hirtle
Copyright© 2000 Corporation for National Research Initiatives