*************************************************************************** STATEMENT OF JOHN W. BERRY on behalf of the University Library The University of Illinois at Chicago before the Working Group on Intellectual Property Rights of the White House Information Infrastructure Task Force September 14, 1994 Ida Noyes Hall The University of Chicago Chicago, Illinois My name is John Berry, Director of Advancement and Special Programs at the University Library, the University of Illinois at Chicago (UIC). The University Library at UIC is a member of the Association of Research Libraries (ARL), a non-profit membership organization consisting of 119 of the largest research libraries in North America. The following statement is based on a May 1994 "Statement of Intellectual Property Principles" adopted by the ARL membership at its 124th meeting in Austin, Texas. For each of the past three years, the University Library, Academic Computer Center, Office of University Counsel, and Intellectual Property Office of the Office of the Vice Chancellor for Research at UIC has hosted an annual copyright symposium directed at the university community and librarians and university legal staff from across greater Chicago based on our belief that intellectual property rights are fundamental to the academic research community and to the free and orderly flow of scholarly communication. AFFIRMING THE RIGHTS AND RESPONSIBILITIES OF THE RESEARCH LIBRARY COMMUNITY IN THE AREA OF COPYRIGHT The genius of United States copyright law is that it balances the intellectual property rights of authors, publishers and copyright owners with society's need for the free exchange of ideas. Taken together, fair use and other public rights to utilize copyrighted works, as established in the Copyright Act of 1976, constitute indispensable legal doctrines for promoting the dissemination of knowledge, while ensuring authors, publishers and copyright owners protection of their creative works and economic investments. The preservation and continuation of these balanced rights in an electronic environment are essential to the free flow of information and to the development of an information infrastructure that serves the public interest. Although the emerging information infrastructure is raising awareness of technological changes that pose new challenges to copyright systems, the potential impact of technology was anticipated by the passage of the Copyright Act of 1976. Congress expressly intended that the revised copyright law would apply to all types of media. With few exceptions, the protections and provisions of the copyright statute are as relevant and applicable to an electronic environment as they are to a print and broadcast environment. The Major Issues * Fair use for libraries and other relevant educational organizations must be preserved so that copyright ownership does not become an absolute monopoly over the distribution of and access to copyrighted information. The loss of these provisions in the emerging information infrastructure would greatly harm scholarship, teaching and the responsible operation of a free and democratic society. * In the age of information, a diminished scope of public rights could lead to an increasingly polarized society of information haves and have-nots. In an electronic environment, this could mean that information resources are accessible only to those who are able to pay. The public information systems that libraries have carefully developed over the past century could be replaced by commercial information vendors. * By continuing fair use, the library and other relevant educational organizations covered by the Copyright Act of 1976 applied in an electronic environment offer the prospect of better library services, better teaching, and better research, without impairing the market for copyrighted materials. The research library community believes that the development of an information infrastructure does not require a major revision of copyright law at this time. In general, the stakeholders affected by intellectual property law continue to be well-served by the existing copyright statute. Just as was intended, the law's flexibility with regard to dissemination media fosters change and experimentation in educational and research communication. However, some specific legislative changes may be needed to ensure that libraries are able to utilize the latest technology to provide continued and effective access to information and to preserve knowledge. It is here that modifications to the CONTU guidelines referred to in earlier testimony are quite relevant. The Association of Research Libraries has affirmed the following intellectual property principles as they apply to librarians, teachers, researchers, and other information mediators and consumers. As a large land grant institution, we at the University of Illinois join our national leaders in the determination to develop a policy framework for the emerging information infrastructure that strengthens the constitutional purpose of copyright law to advance science and the useful arts. Statement of Principles Principle 1: Copyright exists for the public good. Fair use and other public rights to utilize copyrighted works, specifically and intentionally included in the 1976 revision of the law, provide the essential balance between the rights of authors, publishers and copyright owners, and society's interest in the free exchange of ideas. Principle 2: Fair use, the library, and other relevant provisions of the Copyright Act of 1976 must be preserved in the development of the emerging information infrastructure. Fair use and other relevant provisions are the essential means by which teachers teach, students learn, and researchers advance knowledge. The Copyright Act of 1976 defines intellectual property principles in a way that is independent of the form of publication or distribution. These provisions apply to all formats and are essential to current and emerging library and information services. Principle 3: As trustees of the rapidly growing record of human knowledge, libraries and archives must have full use of technology in order to preserve our heritage of scholarship and research. Principle 4: Licensing agreements should not be allowed to abrogate the fair use and library provisions authorized in the copyright statute. Licenses may define the rights and privileges of the contracting parties differently than those defined by the Copyright Act of 1976. But licenses and contracts should not negate fair use and the public right to utilize copyrighted works. The research library community recognizes that there will be a variety of payment methods for the purchase of copyrighted materials in electronic formats, just as there are differing contractual agreements for acquiring printed information. The research library community is committed to working with our publisher colleagues and database producers to develop model agreements that deploy licenses that do not limit fair use or other copyright provisions. Principle 5: Librarians and educators have an obligation to educate information users about their rights and responsibilities under intellectual property law. Institutions of learning must continue to employ policies and procedures that encourage copyright compliance. For example, the Copyright Act of 1976 required the posting of copyright notices on photocopy equipment. This practice should be updated to other technologies which allow the duplication of copyrighted works. Principle 6: Copyright should not be applied to U.S. government information. The Copyright Act of 1976 prohibits copyright of U.S. government works. Only under selected circumstances has Congress granted limited exceptions to this policy. The Copyright Act of 1976 is one of several laws that support a fundamental principle of democratic government--that the open exchange of public information is essential to the functioning of a free and open society. U.S. government information should remain in the public domain free of copyright or copyright-like restrictions. Principle 7: The information infrastructure must permit authors to be compensated for the success of their creative works, and copyright owners must have an opportunity for a fair return on their investment. There is every reason to believe that the increasing demand for and use of copyrighted works fostered by new information technologies will result in an equivalent or even greater compensation for authors, publishers and copyright owners. The information infrastructure however, must be based on an underlying ethos of abundance rather than scarcity. With such an approach, authors, copyright owners, and publishers will have a full range of new opportunities in an electronic information environment and libraries will be able to perform their roles as partners in promoting science and the useful arts. I conclude by quoting Supreme Court Justice Sandra Day O'Connor: "The primary objective of copyright is not to reward the labour of authors, but to promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art." Thank you for you attention. John W. Berry Director of Advancement and Special Programs The University Library (m/c 234) University of Illinois at Chicago Box 8198 Chicago, IL 60680 (312)996-2716 (312)413-0424 (FAX) jberry@uic.edu .