3.891 copyright: MLA and resonse to Hart (207)

Willard McCarty (MCCARTY@vm.epas.utoronto.ca)
Tue, 2 Jan 90 20:25:14 EST

Humanist Discussion Group, Vol. 3, No. 891. Tuesday, 2 Jan 1990.

(1) Date: 2 January 1990 11:53:57 CST (138 lines)
From: "Michael Sperberg-McQueen 312 996-2477 -2981" <U35395@UICVM>
Subject: copyright

(2) Date: Tue, 02 Jan 90 13:06:39 CST (49 lines)
Subject: Michael Hart's 3rd question:

(1) --------------------------------------------------------------------
Date: 2 January 1990 11:53:57 CST
From: "Michael Sperberg-McQueen 312 996-2477 -2981" <U35395@UICVM>
Subject: copyright

At the Modern Language Association convention in Washington last week, I
had the opportunity of attending a session on copyright, fair use, and
electronic texts, chaired by Helen Aguera of the Research Projects /
Tools program of the National Endowment for the Humanities. Since
Humanist has always been fond of arguments about copyright, I post the
following report.

Charlotte Givens of at the Library of Congress began by reviewing the
basics of copyright law: its role as one of the three branches of
intellectual property law, its protection of original expression without
restraint of independent development, its application to music, drama,
dance, art, motion pictures, sound recordings, and literary works
(including computer programs and, under the rubric of "compilations",
electronic data bases). Works created after 1977 are protected under
U.S. law for the duration of the author's life, plus 50 years; in the
case of works for hire, anonyma, and pseudonyma, the term is 75 years
from publication or 100 years from creation. Copyright protects the
right to reproduce, prepare derivative works, distribute copies or
phonorecords publicly, perform, and display the work, but the public may
make fair use of copyright matter without permission. In determining
whether a use is "fair use" the courts consider the purpose and
character of the use, whether the work has been published, the amount
and substantiality of the use (portion used), and the effect of use on
the potential value of the copyright material.

She also distributed circulars 1 (Copyright Basics) and 21 (Reproduction
of Copyrighted Works by Educators and Librarians) of the Copyright

Richard A. Lanham of UCLA then spoke from his experience as an expert
witness in copyright cases, with particular emphasis on the concept of
"total concept and feel" introduced into the law in a greeting-card case
and since become famous in the computing community thanks to the efforts
of Apple to insist that Microsoft stole Xerox technology from Apple.
(My interpretation -MSM.) The notion of "total concept and feel", Mr.
Lanham argued, has become a loose cannon on the deck, allowing
unregulated judicial indulgence in Romantic impressionism and providing
judges, in effect, with a way to reach whatever decision they choose
without adducing any evidence of specific similarities or differences
between two works.

Timothy King of John Wiley (and the head of the Committee on
Electro-Copying of the Association of American Publishers) discussed the
concept of "electro-copying" (basically, copying by electronic rather
than photo-electric means) and gave nine sample instances:

1 scanning a copyrighted text with a scanner
(I distinctly remember him saying "copyrighted text" -- I
don't understand why it's not copying if the text is public
domain. -MSM)
2 viewing the text on your PC monitor
3 printing the text on your PC printer
4 transferring the text to a file server or LAN
5 transferring the text to another site or location
6 posting the text to a bulletin board
7 displaying the text from a bulletin board
8 printing the text from a bulletin board
9 copying the text from one medium to another (e.g. disk to disk)

These apply, say the AAP, even if only part of the document (e.g. its
abstract) is copied.

Mr. King described the results of unregulated electro-copying in terms
that would be familiar to any reader of Ted Nelson (or of Humanist);
ultimately, any scholar could develop a large personal database of
relevant texts which could be scanned very fast for relevant passages or
items. Unlike Nelson or most Humanists, however, Mr. King appeared to
find such an unregulated state of affairs most undesirable. He called
for system software and hardware to ensure that all of these activities
would be subject to appropriate controls ensuring the integrity of the
data, the firm attachment of attributions to the text and all its parts,
and the payment of appropriate amounts to the copyright holders. The
discussion period was too brief to ask why the AAP committee apparently
believes that the English word "copy" includes the sense "look at" or to
encourage them to read about Xanadu.

Leroy F. Searle of the University of Washington quoted Coleridge as
warning a young acquaintance "never pursue literature as a trade", which
seemed apposite, and distinguished sharply between the rights of an
author (to be distributed and attributed) and those of the publisher,
without whom no writer's "trade" could exist at all. The point of
transition between one state and another, he suggested, usually takes
place about the time when people realize a transition is imminent and
call their imaginations into play to predict the new state of affairs --
succeeding, for the most part, only in projecting all the salient
characteristics of the old state of affairs into the new. Copyright, he
suggested, might well not survive in the electronic age in any
recognizable form, which might not be such a tragedy.

Royalynn O'Connor of Oxford University Press first distinguished OUP
from the Oxford Text Archive and described the liberal licensing terms
typically given by Oxford Electronic Publishing. No tracking of copies,
individual or site licenses, and different prices for commercial and
educational uses. The true tangle, from OUP's viewpoint, is in
subsidiary rights, but OUP has never yet, Ms. O'Connor said, denied a
permission to anyone to use an Oxford text electronically. Some
dickering over terms might well happen, but no flatout noes.

Helen Aguera concluded the session by reminding the audience than NEH
does not claim copyright on texts prepared with NEH funds (although they
do reserve the right to reproduce the texts for governmental purposes
without paying royalty). NEH is concerned, though, that some projects
might end up working from manuscripts rather than printed editions,
solely to avoid copyright complications (thus raising costs and causing
scholarly problems), or else that NEH's funds might be further strained
by the need to pay royalties for the use of printed editions.

In the question period, I was able to put to the experts the
hypothetical case discussed a while back on Humanist: assuming

a the first volume(s) of the OED are out of copyright
b the CD-ROM version has a new copyright covering the new
material on the CD-ROM

would it be legal to copy the CD-ROM version of the first volume(s) of
the OED, if one deleted in the process any new material (e.g. tags) to
which the new copyright might apply? Would it be legal, since the
matter copied is in the public domain, or illegal, since one would be
copying from a copyrighted object? The opinion of the experts was that
as described the copying would be legal under copyright law (which seems
to confirm Michael Hart's position on the subject), unless of course
interim copies were made which did in fact contain new copyrighted
material. Whether it would be legal under one's license from TriStar
(the publisher of the OED CD-ROM) is another issue.

It was not possible to get a clear opinion on whether reading
copyrighted material from the CD-ROM into the CPU in order to examine it
and copy or delete it would constitute an illegal copying. (The
discussions of copyright and shrink-wrap agreements always seem to
regard use of I/O devices to copy into the CPU as constituting a copying
of the work.)

-Michael Sperberg-McQueen
University of Illinois at Chicago
(2) --------------------------------------------------------------68----
Date: Tue, 02 Jan 90 13:06:39 CST
Subject: Michael Hart's 3rd question:

3. What will happen happen when the combined price of media, etexts
and distribution is such that anyone with a computer will easily
afford a private library comparable to the Library of Congress?

To me, the main problem that such a scenario raises is not copyright
(which will probably be worked out by market forces) but organizational.
No individual has the resources to organize a private library comparable
to LC or any other large research collection. I would argue that the
organizational problem will limit the size of such personal collections
for most people. Even if scholars acquire "meta-information" in the
form of cataloging data with the electronic texts that they acquire,
maintaining control, in the form of a consistent vocabulary over a long
period of time, is a task that appears to be beyond the capability of
any individual, unless applied to a relatively small collection of (for
the sake of argument) somewhere between 10,000 and 100,000 items, which
is several orders of magnitude smaller than the Library of Congress.
* * * * * *
Response by Michael S. Hart

I would suggest that, at least in the case of those who collect and
produce such vast quantities of etexts, that the advent of programs to
assist in an enlightened use of them will quickly follow as in the case
of an electronic dictionary and thesaurus for those who use word
processors. Now that the same amount of money it originally took to buy
an IBM with 10M hard drive will basically buy me a desktop mainframe
with 8M of RAM and ??G of hard drive space, we must expect another leap
in programming, which will be as much above what we see today as the
640K program space allowed in any any comparison to the previous 64K
space and how that compared to 16K, etc. I, myself, am planning a 10G
library to be available on CD-ROM, for several hundred dollars in the
year 2000. It is quite possible that the program to search the library
will cost as much as the library itself, as I expect the search software
to occupy at least several megabytes and incorporate expert systems and
artificial intelligence techniques. For instance (my personal) programs
will know who my favorite authors are, and will search their books
first, and they will continue to search in the background for other
quotes, even after I have begun to use the first selections. They will
also have a reservoir of information concerning the length of quotes I
usually use, and another set of indicators for my tastes in related
topics, so there will be an indication to me of quotes which involve
other topics in which I have an interest.