‘fair use’, contu guidelines, confu guidelines and the dmca

‘Fair Use’, CONTU Guidelines, CONFU Guidelines and the DMCA

M S Sridhar

‘Fair Use’, CONTU Guidelines, CONFU Guidelines and the DMCA@

M S Sridhar*

1. Introduction: Copyright Acts and their implications are more known through word of

mouth than personally reading the complex legal texts. As a result, lot of myths surrounds the

knowledge of the users and libraries about infringement of copyright acts. Many are scared

by the warning note printed almost indiscriminately by the publishers on verso of title pages

of the books. There are others equally quite careless and boldly keep infringing copyright act.

2. Fair use: Often conveniently libraries and users cite 'fair use' provision to take shelter

against copyright violation. Fair use, dealt in Section 107 of US Copyright Act, expects

libraries to make an assessment whether a use is fair or not based on the following four factors

or tests:

i. The purpose or character of use

ii. The nature of the work [document]

iii. The amount or portion of the work reproduced [in relation to the whole work]

iv. The impact of use on the market or value of the work.

These four tests should be applied by libraries to balance their own interests with the interests

of the copyright holders. Beyond above four tests, there are no checklists, sub clauses or cross

references to other sections of the act.

3. CONTU Guidelines: Section 108 of the Act, prescribes several limitations on the

exclusive right of copyright holder to enable libraries and archives to reproduce under specific

conditions to fulfill the requirements of their service mission. Among other subsections,

subsection 108 (d) states that the interlibrary loan requests from other libraries for a single

article or small part of the work may be fulfilled subject to the fact that the requestor

specifically states that it would be used for private study, scholarship or research and the

library providing copy prominently displays the warning note of copyright act. Subsection

108 [g] is a protection against systematic reproduction of parts (particularly journal articles)

over a period so that it becomes a substitute for a subscription to journal or purchase of such

work. It is here that commercial publishers of scholarly journals became more concerned

since what constitutes a systematic reproduction is left for interpretation. In order to resolve

this issue, publishers, authors and librarians sat together and worked out what are called „the

CONTU guidelines‟ [also called „rule five‟]. They are informal agreements for interpretation

of systemic reproduction. Both CONTU guidelines and CONFU guidelines [to be discussed

later] cannot be contested or upheld by law. These guidelines are applicable only to materials

[journals] less than five year old [i.e., by date of publication] and a library can request and

have up to five articles from a single journal title during a calendar year under interlibrary

loan. Further, requesting library must state copyright compliance in its request, maintain

records of all such requests and fulfillments for at least three years. However, a library having


M S Sridhar

subscription to the journal and unable to immediately trace/access it is exempted from above

restrictions. In case of non-periodicals it is six copies of articles/ chapters/ small parts over the

entire term of copyright of the work. For reproducing anything beyond CONTU guidelines,

permission of copyright holder should be obtained.

4. CONFU Guidelines: While CONTU guidelines were evolved in response to the final

report [Jul 31, 1978] of the National Commission on New Technology Uses of Copyright

Works. The CONFU Guidelines were evolved during discussions of „best practices‟ and the

final report [Nov 1998] of the Working Group on Intellectual Property Rights of the

Information Infrastructure Task Force constituted [in 1993] by President Clinton. CONFU

guidelines are considered highly prescriptive and lack flexibility. Unlike CONTU Guidelines,

CONFU Guidelines are rejected by most librarians, but accepted and used in the areas of

distance education and music. Those who rejected CONFU guidelines are obviously continue

to depend on Fair use doctrine of Section 107 of copyright act. Out of five areas discussed in

CONFU guidelines, interlibrary loan and e-reserves were eventually dropped as no consensus

could be arrived at. The remaining three areas, namely, distance learning, digital images, and

educational multimedia are enumerated under CONFU Guidelines. Out of about 100

organizations/institutions representing copyright holders and users participated, majority of

library representatives have even rejected CONFU guidelines relating to other three areas

also. The general concerns expressed by ARL on these guidelines are worth noting:

(i) Unduly narrowing down of interpretation of fair use by moving away from the four

factor analyses to bring in quantitative limitations and restrictions

(ii) Rigid, specific and premature guidelines on rapidly evolving technologies without

having adequate experience

(iii) The new responsibilities and liabilities added are considered technically and

administratively burdensome to libraries.

5. The DMCA: The latest in the series, which affected sections 107 & 108 of copyright act, is

DMCA [The Digital Millennium Copyright Act]. The DMCA is incorporated into the

Copyright Act with effect from October 2000. Unlike balancing of interests of both parties in

the original Copyright Act, i.e., protecting information and providing affordable access to

needy, the DMCA, is bitterly criticized for strong tilt in favor of copyright holders. It is

believed that the DMCA originally designed to implement WIPO, threatens the fair use

doctrine. Like „No Electronic Theft Act‟ [1997], the bill of DMCA was supported by the

software and entertainment industry and sternly opposed by scientists, librarians and

academics. It was even challenged in courts with several cases and a new legislation was also

thought of to redress some undermining clauses of this law. The DMCA is considered a

complex act addressing several issues under five „titles‟. Three of the titles are of direct and

serious concern to libraries.

i. It prohibits and hence considers it as a crime to circumvent protection technologies

like passwords, encryption etc. as well as manufacture, sale of devices designed to


M S Sridhar

defeat „technology protection measures‟. However, certain activities like reverse

engineering, security testing, privacy protection and encryption research as well as

libraries, archives and educational institutions are exempted under certain

circumstances.

ii. The DMCA, while exempting libraries, archives and educational institutions, `adds

some limits/ copyright liabilities for online service providers like that of necessity of

storing information in one‟s own computer system and providing location tools,

hyperlinks, etc. This enables the demanding of removal of information and the service

provider must oblige by removing such information from online site.

iii. The authorized institutions are permitted to make three copies and loan soft copies

only to other qualifying institutions/for replacing an obsolete digital format for digital

preservation purpose.

In nutshell, the DMCA [1998] amended several copyright laws including sections 108 in three

significant ways:

i. Copies must include a notice of copyright [or a legendry stamp] that appears on the

copy

ii. Three copies allowed for preservation purposes and for replacement of an obsolete

format or damaged, deteriorated, lost or stolen work should not be made available to

the public outside the library or archive.

iii. In order to use the copyright provision to reproduce and distribute within the last

twenty years of any term of copyright, libraries should make reasonable efforts to

determine that a) the work is not subjected to normal commercial exploitation b) a

copy cannot be obtained at a reasonable price and lastly and more importantly c) the

copyright holder has not filed a notice with the registrar of copyright regulation that

either of a and b above conditions apply.

6. Conclusion: Lastly, in conclusion, it may be noted that we have to function under peculiar

conditions of multiple and complicated copyright and related acts of not only our country but

also that of other countries particularly that of USA. Originally copyright acts are to protect

the form and not idea. Interestingly, copyright arises automatically without any registration in

UK, but it should be registered in USA. A sort of deposit arrangement with the third party

[bank, solicitor, etc] is required to establish the date of creation of work. Anonymous

/pseudonymous works are also protected by copyright for seventy years. Further a publisher is

required to take permission of the author to publish the out of print book. Even TOC cannot

be copied and circulated / distributed without the signed declarations. Users must declare at

the time of copying that (a) copy has not been previously supplied (b) copy will not be used

except for research or private study and copy will not be supplied to any other person (c) no

person with he or she works has already made a copy or intends to make a copy for the same

purpose and (d) if the declaration is found false, it should be considered as infringement.

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M S Sridhar

@ “‘Fair Use’, CONTU Guidelines, CONFU Guidelines and the DMCA (Guest Editorial)”, SRELS

Journal of Information Management, June 2011, 48 (3) 241-244.

* Former Head, Library and Documentation, ISRO Satellite Centre, Bangalore 560017.

Address: 1103, „Mirle House‟, 19th B Main, J P Nagar 2nd Phase, Bangalore – 560078; Ph:

26593312; Mobile: 9964063960; E-mail: [email protected]

mailto:[email protected]

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