Copyright Office Ruling Possible Setback to Fair Use

By Robert Menta- 10/30/00

In an effort to give copyright holders more protection, the US Copyright office decided to allow only two narrow exemptions to a new federal law that gives copyright holders a whole new level of protection. The law, which makes it illegal for Web users to hack through any barriers copyright holders put around their content, will be in effect for three years.

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This content, which extends to everything from music to books to films, caused a firestorm among libraries and universities who argued that the law is too broad and media companies could use the new law to restrict their traditional rights.

These rights could include something as simple as lending out archive copyrighted material. For example, if libraries in the future switch to digital books their users may now be forced to pay each time they read one.

When Congress enacted the anti-hacking provision, it left it to the copyright office to create any exemptions that might be needed to maintain a balance between the rights of copyright holders and the people who use copyrighted material.

But, the copyright office only offered two minor exemptions. The first involves software that blocks and obscene or other controversial material from children. The second gives the right to bypass malfunctioning security features on copyright material.

An official of the American Library Association, Miriam Nisbet, said the decision will "significantly impede efforts for libraries to continue to provide information in the digital age."

John Vaughn, executive vice president of the Association of American Universities agreed. Vaughn said he was "disappointed" in the ruling and added that universities now face "three years of loss of access to information." The association asked for an exemption for digital versions of scholarly journals, maps and certain databases, arguing they were valuable mainly for their facts, which can't be copyrighted.

Presently, fair use implies that once an entity purchases a particular copyright works, they have the right to share that work with others within reasonable boundaries. Libraries can freely lend out best sellers, for example. Those with music and video archives do the same.

Now, copyright holders can add encryption's that force the user to pay for each time they take out that CD, tape, or program file, denying that open access we all presently enjoy. This new law gives copyright holders the implied right to do this by making a crime to circumvent such a feature.

It also makes it easier for companies to say you don't purchase copyright material you only rent it. It's a theoretical change that claims the buyer of a particular CD or tape does not become the "owner" of the material on the medium they just purchased. Therefore, they are subject to repeated billings on that song or movie should the copyright holder desire it.

Media companies have taken this stance because they realized it stands to make them more money.

The copyright office's goal here is to seek balance between the rights of copyright holders and public in general and they are trying to mold present copyright law to accommodate. But the issues brought about by the digital age are far more convoluted and taxing to present copyright law, which many feel needs a significant overhaul.

The concern is this ruling may over time tilt that balance away from the consumer and towards the conglomerates that control the distribution of the material, possibly setting the stage to eventually strip rights consumers have, in practice, enjoyed for decades.

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