Written by Christy DeShong

What Is “Copyright”? A Brief Overview

Put simply, “copyright” refers to the control an individual has over anything he or she creates, be it music, art, writing, or anything else that can be permanently recorded in any form. U.S. copyright law is incredibly extensive. The entire text of the law can be found at the U.S. Copyright Office’s Web site, here. Please bear in mind that these laws apply only within the U.S. Other countires are subject to their own copyright laws, which may be more or less strict.

In the United States, a person automatically owns the copyright on anything he or she creates upon the moment of its creation. Other individuals generally cannot use this material without the express permission of the copyright holder. However, there are some exceptions to this rule.

Public Domain
Copyright protection is not eternal. As the U.S. Copyright Office’s “Copyright Basics” article explains, copyright only extends for 70 years after the death of the author (or last surviving author, in the case of works with multiple authors). Works made for hire or anonymous works have a copyright duration of 95 years from creation (p. 5).

After copyright expires, works are considered “public domain”. Since no one owns the rights to these works, the general public is free to use them as they please. Individuals also sometimes willingly choose to give up their rights to a work because they desire it to become public domain.

Fair Use
Works that are not public domain can still be used by individuals to some extent without permission. The acceptable ways in which they may be used are lumped into a general catagory called “fair use”. Unfortunately, the legal limits of “fair use” are, for the most part, not strictly defined.

The Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law in 1961 listed some of these acceptable uses:

While some of these examples seem clear enough, others remain vague. For example, “parody” is not necessarily a clearly-defined concept. Also, this report dates from 1961, an age when household computers were not yet a reality. The arrival of the digital age and the Internet made copyright infringement easier than ever.

In 1996 a gathering of over 95 organizations met in an effort to create a set of more modern established fair use guidelines. Their results can be found in this report from

the United States Patent and Trade Office. Though these guidelines cover many situations and can be very useful, they are just that: guidelines. They are not legally binding and may not necessarily apply to any given situation.

What does this mean for libraries?
Obviously, any kind of librarian has access to a vast amount of information. All of that information was created by someone and may or may not be currently copyright-protected. If a public librarian wishes to hold a film screening accompanied by an educational lecture concerning the film’s contents, must the librarian seek permission to screen the film, or does fair use protect the viewing, since it is being used in an educational setting? May a library patron make photocopies of a reference book that is not in circulation in order to view some of its contents at home? Often, these questions are never addressed since the copyright holder is never even aware the instances have occured, but does that really make the question moot?

Copyright laws also apply to things like the computer software used within the library. Does the library have the right to install software to an unlimited amount of computers? Can programs be installed onto personal computers if a librarian wishes to work from home? Obviously in this case the librarian would have to refer to the software’s liscencing agreement, which varies from program to program.

Discussion
Google Books is a search function developed by Google that allows users to search for sections of text in thousands of books. Many publishers are concerned that this violates Fair Use, yet Google does not actually list the full text of any books without permission from the publishers. Do you think this qualifies as Fair Use? Why or why not?

In 2007, a YouTube video of a toddler dancing while a Prince song plays in the background was pulled from YouTube after Universal Studios, who owns the rights to the music, issued a takedown notice. After reading the CNET article here, do you agree or disagree with the judge’s decision?

A Few Interesting Links
Key Court Case Summaries on Fair Use from the Copyright Center at Indiana University
Project Gutenberg, a website that lists full text of thousands of copyright-free books

Works Cited

United States Copyright Office. (2008). Copyright Basics. Retrieved from http://www.copyright.gov/circs/circ1.pdf

United States Copyright Office. (1998). Reproduction of Copyrighted Works by Educators and Librarians. Retrieved from http://www.copyright.gov/circs/circ21.pdf

Lehman, Bruce A. (1996). The Conference on Fair Use: An Interim Report to the Commissioner. Retrieved from http://www.uspto.gov/web/offices/dcom/olia/confu/report.htm

Censorship derives from the Latin title Censor, which refers to a type of ancient Roman magistrate who was simultaneously in charge of taking censuses and improving public morals. This was in turn derived from the word censere meaning “to appraise.”

Censorship has taken on many separate meanings over the years. Because it is such a politically charged word, political groups often use it as a pejorative towards their opponents, regardless of the label’s accuracy.

The most common definition of censorship is: “The use of force to prevent the creation, expression, and dissemination of information which the force user deems undesirable.” Since the government attempts to hold a monopoly on the use of offensive force in its jurisdiction, the government is usually the agent doing the censoring.

To put this in concrete terms, this means that if you create, express, or disseminate information the government deems undesirable, it will send police officers with guns to your door to arrest you and put you in jail. If you try to defend yourself, you will be injured or killed by the police.

The First Amendment to the Constitution specifically forbids this type of censorship by the government. In the 1973 case Miller v. California the Supreme Court ruled that the First Amendment does not prohibit the use of coercion against types of expression called “obscenity.”

The word “censorship” is also used in other contexts. One example of this is “self-censorship.” This term is sometimes used in a manner cogent with the common definition of censorship, such as when a movie studio polices its output out of fear of the government. However, it can also be used to refer to when someone suppresses their own expression for a milder reason, such as fear of embarrassment and ridicule.

One common controversy is whether the threatening to withhold money from a person who creates or disseminates offensive content is censorship. If the government threatens to withhold funds from an artist who creates offensive paintings, or a library that refuses to filter their computers, is it censorship? People who believe it is not point out that the government will not send police with guns to arrest the artist or librarians, it will simply stop giving them money. People who believe this is censorship argue that many organizations are dependent on government money and that refusing to fund them will have the same ultimate results as coercive censorship. Regardless of whether it is censorship or not, current legal precedent holds that the First Amendment does not prohibit it.

The word censorship is also used by some economists as a term for government price controls and regulations. Their justification is that since prices have been shown to be a decentralized manner of communicating information about supply and demand, controlling them has similar effects to censorship, especially since it is accomplished by threat of force. There have been times in Americans history, such as the Lochner era, when(1890-1937) when price controls were prohibited, but generally other justifications than the first Amendment were used. Current legal precedent does not prohibit them.

The philosophy behind censorship is called “memetic frailty” (this is derived from the Latin word meme, meaning idea). This is the belief that people are not competent to assimilate certain types of information without being corrupted into anti-social behavior by it. Because of this, it is necessary for the elite to control information. Under this philosophy, the best way to stop evil ideas from spreading is the use of force against those who create and disseminate them. This has been the dominant philosophy around the world for most of human history.

The philosophy opposing censorship is often called “memetic maturity.” This belief argues that people are competent to absorb and evaluate information without necessarily being corrupted. Even if they aren’t, the elite are just as frail and corruptible as everyone else. Under this philosophy, the best way to stop evil ideas from spreading is to counter them with good ideas. Proponents of memetic maturity also often make the utilitarian argument that free spread of ideas helps societies advance.

In most of the Western world, memetic maturity has recently become the dominant philosophy. Memetic frailty is so unpopular that it is usually political suicide to advocate it.

However, there is one area where memetic frailty still has political credibility. This is the exposure of children to information. While it is usually considered unpopular and elitist to censor information from adults, censorship that is intended towards children is often politically credible, or even popular. Most of the censorship libraries face today comes with the goal of “protecting” children. Proponents of this censorship argue that children are more easily corrupted by bad information than adults. Opponents argue that there is little scientific evidence for this, or that observing censorship in action causes children to develop authoritarian personalities that will do far more harm than whatever corruption the censored material would cause.

Another major censorship controversy is the definition of “bad” information. For example, some would argue that media promoting homosexual lifestyles are a negative influence on society and should be censored, while others would argue that they are a positive influence that should be promoted.

The philosophy behind librarianship has evolved considerably over the years, and interestingly parallels society’s transition from the memetic frailty to memetic maturity. Libraries in the modern West began as storehouses of books with librarians as gatekeepers who protected their collections from the public. This can be viewed as a variant of memetic frailty, the public need the elite (librarians) to control their access to information.

In the nineteenth century the movement began to convert librarianship into a public service profession. Librarians were now seen as having the goal of helping the public gain access to information, rather than restricting it. This can be viewed as a belief in memetic maturity, it was no longer the librarian’s job to protect and guide the public, it was merely their job to help them obtain information in a nonjudgmental fashion. It is not unworthy of note that as these changes were taking place Western society was undergoing a quantum leap in the expansion of civil liberties.

Hence the modern philosophy of librarianship is diametrically opposed to the philosophy of censorship, as one the first is an embodiment of belief in memetic maturity, while the second is an embodiment of belief in memetic frailty. This is why modern libraries and the Library Bill of Rights have such a strong anti-censorship streak in them.

Discussion Questions:

• 1. Do you believe withholding funds someone needs to create or spread information is censorship in the same way that using force to suppress information is?

a. If you answered “yes” consider this question: If a man stops you on the street and asks for you to donate one dollar to help him complete a sculpture glorifying the Ku Klux Klan, are you censoring him if you say no?

b. If you answered “no” consider this question: If a religious fundamentalist group in a town runs a successful campaign to defund a public library that carries books on safe-sex, are they censoring it?

• 2. The Supreme Court has ruled in Miller v. California that the First Amendment does not protect obscene material. Do you agree with them? If you do, what specific passage of the First Amendment is the one you believe can be interpreted to justify censoring obscenity?

• 3. If there is conclusive, scientific or historical evidence that exposure to violent or pornographic entertainment material causes people to behave in a violent, misogynistic, or otherwise negative manner, do you believe censoring them is justified?

a. If you answered “yes,” consider this question: There is indisputable historical evidence that people motivated by religious fundamentalism have committed numerous acts of murder, tyranny, and genocide. Since these are obviously negative acts, do you support censorship of the Bible, Quran, and other religious texts?

b. If you answered “no,” consider this question: Would you consider the speech of someone actively trying to talk someone into committing a crime to be protected?

• 4.  As other posts on this blog have indicated, privacy is considered an important value by many people. Privacy issues are very controversial in modern society. Since the concept of privacy hinges on being able to restrict people’s access to information about yourself, could privacy be considered a form of censorship?

Bibliography:

Censorship. (2002).

Brin, D. (1998). The Transparent Society: Perseus Books.

Greer, Roger, Robert Grover, and Susan Fowler. (2007). Introduction to the Library and Information Science Professions: Libraries Unlimited.

Heins, M. (2001). Not In Front of the Children: Hill and Wang.

Sowell, T. (1980). Knowledge and Decisions: Basic Books.

Book censorship, and consequently the censorship of intellectual freedom, is not a modern construct. Long before Gutenberg developed his press around 1439, books, pamphlets and any other materials that were hand-written and later copied, were often burned or destroyed when it was felt that said materials were deemed dangerous, immoral, unsuitable or even heretical. The ones who usually would bring up these charges would be religious or governmental authorities, typically when said works were reactions against the current ideologies or policies of the time.
The suppression of intellectual freedom even goes so far back to Plato, whom in 360 B.C.E. is quoted as saying in regards to his building of an ideal Republic, “Our first business will be to supervise the making of fables and legends; rejecting all which are unsatisfactory…” (Mullally, 2008 ¶ 2).

Thus, as long as there has been printed material available for the consummation by the masses, there has been a centuries long war on the idea of just what is acceptable and what is not acceptable for the general public. History has a long and detailed account of book censorship that encompasses rulers such as Henry VIII enacting a licensing scheme in which all books were to be submitted to the Church of England for approval before publication to the Roman Catholic Church forming the Index Librorum Prohibitorum in 1559 as the first published book containing a list of forbidden and banned publications. The Index was kept active, totaling over 5000 entries, until it was eradicated in 1966 by Pope Paul VI.

In the 21st century, book challenges and banning, and yes even book burning, is still as prevalent in society as it was when Gutenberg developed his moveable type. In 2003, in Greenville, MI, Pastor Tommy Turner of the Jesus Non-denominational Church organized a book burning specifically for the Harry Potter series. But what was to be a local event, became nationwide media. The reason for the burning, according to Pastor Turner, was to save the souls and that the Harry Potter series in particular, “glorify wizardry and sorcery will lead people to accept and believe in Satan” (WZZM, 2003 ¶ 3). Other items, including CDS, that did not glorify God were also burned.

According to the American Library Association (ALA), more than a book a day is challenged and or removed from U.S. public libraries and schools (ALA). The reasons for the challenges tend to fall in one of four categories:

• 1. Family values.
• 2. Religion.
• 3. Political views.
• 4. Minority rights.

In the ALA’s Library Bill of Rights, Article 3 states, “Libraries should challenge censorship in the fulfillment of their responsibility to provide information and enlightenment” (ALA, 1996). Even the landmark case of Board of Education, Island Trees Union Free School District No. 26 v. Pico, in 1982 in which the students of Island Trees sued the school district for access to challenged and banned books, in which the students won by a 5-4 vote in the Supreme Court, has not seemingly created enough of a headway to allow students (and consequently, the public) the freedom to read what they like, when they like.

Topic questions:

• 1. One way that libraries are working towards making their collections accessible to everyone is by making their collections prevalent to the community that they serve. This could mean that some topics that may not be considered as something that will circulate (and thus taking up valuable shelf space) may not be included in their collections. Is this a good compromise? Why or why not?
• 2. The Federal Anti-Obscenity Law, also known as the Comstock Law, came into being in 1873 and remarkably, still remains on the books. The Comstock Law bans the mailing of materials that could be deemed “lewd, indecent, filthy or obscene.” One could interpret that using ILL to transport a book that could fall into one of those categories is illegal. Should libraries make patrons aware of this? Why or why not? Also, should libraries (and subsequently, the ALA) works to getting the law abolished? Why or why not?
• 3. One topic that kept coming up was the cleansing of books to make them more politically correct or modernized. Several examples were used such as the Tin Tin graphic novels, which have been often challenged as being racist due to the artists depiction of Africans and African-Americans. One perspective is that one has to take into consideration of when the book was published, the political climates and the culture of the times the books were written in. Do you think that books that are not, today, considered “politically correct” should receive this treatment? Why or why not?

References

— (1982). Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico (No. 80-2043). Retrieved October 11, 2008, from http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0457_0853_ZS.html

— (2003). Church Burns Harry Potter Books. Retrieved October 11, 2008, from                   http://www.wzzm13.com/news/news_article.aspx?storyid=8041

— (n.d.). American Library Association. Retrieved October 11, 2008 from http://www.ala.org/ala/aboutala/offices/oif/bannedbooksweek/bannedbooksweek.cfm

— (n.d.). National Coallition Against Censorship. Retrieved October 11, 2008 from http://www.ncac.org/action_issues/Books.cfm

Maxwell, Ronald F. (2008). Sweeping Questions: On banning books and hunting witches. Retrieved October 11, 2008, from http://article.nationalreview.com/?q=OTgwNTdiZTNjNjdlMThlNDExZmZiYWQ0MGUyYTM4ZjE=#more

Mullally, Clarie (2008). Banned Books. Retrieved October 11, 2008, from http://www.firstamendmentcenter.org/speech/libraries/topic.aspx?topic=banned_books

Ockerbloom, John Mark (n.d.). Banned Books Online. Retrieved October 11, 2008, from       http://onlinebooks.library.upenn.edu/banned-books.html

Ockerbloom, John Mark (2008). Why Banned Books Matter. Retrieved October 11, 2008, from http://everybodyslibraries.com/2008/09/29/why-banned-books-week-matters/

For Fun
Guardian’s Banned Book Quiz.

In the days and weeks that followed the attacks on New York City and Washington, DC, on September 11, 2001, fear was high that another attack was imminent. Notably, during this time the FBI was attempting to solve the mysterious appearance of anthrax-laden letters received by the offices of several news media and legislative figures. This atmosphere of fear led to what is considered by some to be the overly hasty passage of a piece of legislation that has helped to define the United States’ war on terrorism (Foerstel, 2008, preface). Though the legislation is commonly referred to by its acronym, its full title is “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001.” Considered to be “one of the longest, most complex, and most controversial bills ever passed by Congress” (Foerstel, 2008, p. 46), the act was signed into law by President George W. Bush six weeks after the terrorist attacks of September 11^th.

The Patriot Act remains controversial a full seven years after its passage. Proponents say that “while safeguarding Americans’ civil liberties, this legislation also strengthens the U.S. Department of Justice (DOJ) so that it can better detect and disrupt terrorist threats, and it also gives law enforcement new tools to combat threats” (United States White House, 2008, para. 2). Opponents warn that it gives powers to the DOJ that can potentially be abused. Section 215 of the Patriot Act, in particular, has been referred to as the act’s “library provision” because “the library profession has anticipated its use to seize library records and has publicly warned of the abuse of such power” (Foerstel, 2008, p. 62).

Section 215 of the Patriot Act states, in part:

The Director of the Federal Bureau of Investigation . . . may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution . . . (Foerstel, 2008, p. 61).

Further, Section 215 states that:

No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section . . . (Foerstel, 2008, p. 62).

The American Civil Liberties Union considers Section 215 to be unconstitutional because it:

• Violates the Fourth Amendment, which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.

• Violates the First Amendment’s guarantee of free speech by prohibiting the recipients of search orders from telling others about those orders, even where there is no real need for secrecy.

• Violates the First Amendment by effectively authorizing the FBI to launch investigations of American citizens in part for exercising their freedom of speech.

• Violates the Fourth Amendment by failing to provide notice – even after the fact – to persons whose privacy has been compromised. Notice is also a key element of due process, which is guaranteed by the Fifth Amendment (American Civil Liberties Union [ACLU], 2003).

Both the American Library Association and the ACLU consider this section of the legislation to be a “gag order” imposed upon the library and its personnel (ACLU, 2003 and McDermott, & Sheketoff, 2006). The gag order is understood to mean that once the library has turned over the requested information to the FBI it is prohibited from disclosing to anyone, including the subject of the investigation, the general public, or even to a member of Congress, that such a request had been made. The gag order is interpreted to be in effect indefinitely (Foerstel, 2008, p. 77), with violators being subject to severe penalties (Foerstel, 2008, p.170).

There have been a few challenges to Section 215 of the Patriot Act. Notably, the ACLU represented a small group of Connecticut librarians who filed suit anonymously because of the potential felony penalties. A federal judge ruled the gag order to be unconstitutional and lifted it. The government appealed the ruling, and the gag order continued to be in place throughout the appeal. During this time, Congress voted to reauthorize the Patriot Act in March of 2006. Once the reauthorization was complete, the government dropped its appeal. In effect, this legal maneuver succeeded in keeping the librarians from speaking to Congress while the reauthorization was under consideration (Foerstel, 2008, p. 176).

Questions for discussion:

Do you think Section 215 of the Patriot Act can be reconciled with the American Library Association’s Library Bill of Rights? Why or why not?

Some librarians have found creative ways to inform the public about FBI visits while still adhering to the law. One librarian reports at each monthly meeting of her library board that the library has not received any warrants under the Patriot Act. In this way, if there is ever a month that she does not make that report, the library board can infer that the opposite is true. What do you think about this librarian’s approach?

References

Foerstel, H. N. (2008). The Patriot Act: A documentary and reference guide. Westport, CT: Greenwood Press.

United States White House. USA Patriot Act. Retrieved 10/14/2008, from http://www.whitehouse.gov/infocus/patriotact/

American Civil Liberties Union. (2003). Surveillance under the USA PATRIOT Act. Retrieved October 14, 2008, from: http://www.aclu.org/safefree/general/17326res20030403.html

McDermott, P. & Sheketoff, E. (2006, February 10). The American Library Association expresses disappointment in USA PATRIOT Act compromise.[Press release]. Washington: American Library Association.

Filtering the Internet in Libraries

One of the hot-topics in libraries today is whether or not they should filter the internet on their computer terminals. Some of the reasons this is such a hot-topic is that some people are concerned that filtering the internet infringes on their intellectual freedom while others say that that computers need to be ‘safe’ for children to use . The Supreme Court ruling on the Children’s Internet Protection Act (CIPA) has an impact on the filtering of computers at libraries that choose to receive funding under that act. Libraries that do not or choose not to accept funding under the CIPA have to decide individual whether or not to filter their computers and to what degree.

Children’s Internet Protection Act

The Supreme Court has ruled in the June 2003 decision in the case UNITED STATES, et al., APPELLANTS v. AMERICAN LIBRARY ASSOCIATION, INC., et al. that requiring filtering on computers in libraries that accept money from the E-rate program and Library Services and Technology Act (LSTA) does not violate the constitution. Although it was decided that it was unconstitutional not to disable the internet filter for adults who ask “to enable access for bona fide research or other lawful purposes.” (“UNITED STATES V. AMERICAN LIBRARY ASSN., INC.,” 2003)

The Supreme Court declared that CIPA was constitutional because “when the Government appropriates public funds to establish a program it is entitled to define the limits of that program.” (“UNITED STATES V. AMERICAN LIBRARY ASSN., INC.,” 2003), libraries do not have to accept the funding, libraries are not forums for public speech, and it is not an unreasonable burden for an adult patron to ask to have the internet filters disabled. (“UNITED STATES V. AMERICAN LIBRARY ASSN., INC.,” 2003)

What does this mean for libraries?

If the library accepts funding from CIPA they have to filter their internet on their computers and when an adult asks to have the filter disabled the library has to disable the filter. The Supreme Court concluded that having an adult patron ask to have the internet filters disabled was not and unreasonable burden.

Libraries have a choice in accepting the funding so the government is not infringing on their constitutional rights by deciding that libraries under this program have to filter their internet. Neither is the government suppressing free speech because “Internet access in public libraries is neither a “traditional” nor a “designated” public forum”. (“UNITED STATES V. AMERICAN LIBRARY ASSN., INC.,” 2003) In short, if a library does not want to filter their internet do not accept this funding. This decision does require all libraries that filter their internet to disable the filters when an adult patron asks because not disabling the filter in that case is not constitutional.

What about libraries that do not accept funding from CIPA but are unsure if they want to filter their internet?

The major pro for filtering the internet at libraries is it keeps materials harmful to minors away from minors. The major con for filtering the internet is that the library is censoring information from minors.

Proponents of filtering the internet say that “Courts have balanced freedom of speech and society’s interest in keeping children from harmful material by upholding as constitutional restrictions that do not outlaw harmful material, but limit the time, place, or manner of distribution.” (Johnson, 2006). Another pro for filtering the internet is people who wish not see pornography on a computer screen in their library do not.

People against this say it violates the Library Bill of Rights by it is not providing equal access to patrons regardless to age. (“ALA Interpretations,”) Also, adults could be too embarrassed to ask to have the filter removed so they would never ask to have the filter removed. Additionally, the library can install privacy filters on the monitor so the image on the screen is only visible to people that are directly facing the screen

For the reader

Which should a library choose, accept funding from the E-rate or LSTA program or not accept the funding? Why or why not?

For libraries that do not have to follow the CIPA, should they filter all their internet terminals, filter only the internet terminals that are used by minors, or not filter at all? and Why or why not?

References

ALA Interpretations. Retrieved 10/10/2008, 2008, from http://www.ala.org/ala/aboutala/offices/oif/statementspols/statementsif/interpretations/default.cfm

Johnson, R. W. (2006). Trademark for Creating a Kid-Friendly Cyberplayground on the Internet (Publication. Retrieved 10/10/2008, from LexisNexis Academic

UNITED STATES V. AMERICAN LIBRARY ASSN., INC. (Supreme Court 2003).

If you have not discovered indexed yet, you should. Jessica Hagy puts together via graphs, diagrams and charts, everyday ideas that seem simple enough but sometimes cannot be expressed in words. Monday’s topic is on book censorship, my new specialty, and I thought it was appropriate for the first post. 😉