DIGITAL MILLENNIUM COPYRIGHT ACT: A MIXED BAG

March 1999

On October 28, 1998, President Clinton signed the Digital Millennium Copyright Act (DMCA). Public Law 105-304 made substantial changes to the existing copyright law in several areas that are important to information professionals. The next several columns will be devoted to discussions of the DMCA and its impact on libraries. Some of these are changes in the requirements for including notice with reproduced copies of works, preservation and replacement of materials; reproduction of videotapes, copyright management information and online service provider liability. Database protection was omitted from the bill in the final days, but it likely will be reintroduced early in 1999.

Library associations, with support from the education community, were able to ensure consideration of some important issues in Section 108, many of which made it into the final version of the CMCA. An interesting change is found in 108(a)(3) concerning the notice that libraries must place on works they reproduce works under the library exemption.

Notice of copyright traditionally has been important not only to copyright holders but also to users. Under the 1909 Act, an owner lost her rights if she published a work and failed to include notice. In the author-friendly 1976 Copyright Act, the automatic loss provision was softened, and today it has disappeared altogether. Users depended on the notice of copyright to differentiate between works in which the owner claimed rights and those works that are in the public domain. Libraries that reproduce works under the library exemption are required to put a notice of copyright on the copies they make. The whole idea is to alert users that just because the library was able to make a copy of a work for them, the work is not free of copyright restraints.

There are three requirements that libraries and archives must meet in order to qualify for the library exemption to reproduce a work as detailed in Section 108: (a) there may be no direct or indirect commercial advantage to the library; (b) the library must either be open to the public or to researchers doing research in the same or a similar field; and (c) the reproduction must contain a notice of copyright. There continued to be debate over the meaning of “a notice of copyright.” Notice of copyright is a term of art in copyright law, and most copyright lawyers believe that it meant the library should include the three traditional elements that comprise notice of copyright under Section 401(b): the word “copyright,” the abbreviation “copr.,” or the symbol, ©; the name of the copyright holder and the year of first publication. Some librarians argued that a library should be permitted to stamp photocopies and other reproductions with the American Library Association recommended statement “Notice: This work may be protected by copyright." Despite this debate, the matter has never been litigated. Many libraries have religiously used a stamp containing the ALA recommended wording, while others had a stamp made with ©, __________, 19__. Then library staff members would fill in the name of the owner and the year of publication on copies it reproduced.

In 1988 the United States joined the Berne Convention, and notice of copyright became optional on the part of the copyright holder. Section 108 was not amended, however, and libraries still were required to place a notice of copyright on copies they reproduced under the exemption. This seemed fundamentally unfair. If the copyright owner did not have to bother with alerting the world to his claim of copyright by including a notice on the work, why should libraries have the burden?

The change made in the statute by the DMCA may not be exactly what the library community intended, however. Section 108(a)(3) now reads: “The reproduction and distribution of the work contains a notice of copyright that appears on the copy that is reproduced, or includes a legend stating that the work may be protected by copyright if no such notice appears on the work.” Thus, there is no longer any option. The library must include the notice that appears on the work. This can be done by reproducing the page that contains this notice or by creating a rubber stamp with ©, ________(for copyright owner) , _______(for year published) and filling in the notice information as appears on the work.

The only instance in which the stamp or legend; “Notice: this work may be protected by copyright” may be used now is when the copyright holder does not place a notice on the work. Many libraries will find themselves out of compliance with this provision unless they alter their current practices immediately.

Libraries that have an annual authorization license with the Copyright Clearance Center may be excused from having to place any notice of copyright on works they reproduce under the license. To determine if your library is exempt from this requirement, consult the license agreement or contact the CCC.

The new amendment also has implications for the World Wide Web. While webpages are copyrighted, often the developer does not include a notice of copyright. Contrary to popular opinion, publishing a webpage without notice does not place the page in the public domain. When printing or reproducing webpages for users, according to the newly revised statute, librarians must either print the page containing the notice of copyright or stamp the reproduction with “Notice: This work may be protected by copyright” if there is no notice on the webpage.