Experiences with Copyright

Introductory Essay / ILS 604

Copyright © 1995 Paul F. Schaffner
ALL RIGHTS RESERVED

Even acting in my current, mostly private, roles, I am confronted daily with questions of legal and (if lawyers do not cringe at the term) moral copyright. Invariably, copyright appears chiefly as a source of confusion, resentment, rationalization, and bad conscience. As an "information professional," whether as a librarian or otherwise, I expect these decisions to become more consequential, and the issues more pointed, than those I face as an individual, in so far as they will surely involve institutional rather than merely individual policy, responsibility, and liability. I already have, I think, a good sense of the diverse perspectives on the issues, especially those afforded by the various economic interests involved. What I hope for from the course is some clarity on the current state of law and practice, some sense of what a prudent library policy might consist of (and of where corners can safely be shaved), and perhaps even a means by which I might become politically engaged with some of the issues. What follows below is not a argument for any position, but a list of a few of the many circumstances in which copyright affects me at present. It will, I trust, suggest where some of my interests in the subject lie.

Font Design

Runic Font DisplayedAs a medievalist in need of many characters not in the standard (or even the non-standard) character sets, I have long generated my own screen and printer fonts. Some of these (e.g. the bitmapped (PCL4) runic font displayed at left by most browsers) were created from scratch with a font editor such as QFONT or SoftCraft's SCFE. Others, e.g. that in which this paper was originally printed, were rasterized from a commercial outline, in this case Bitstream's Baskerville in .BCO format, then modified by the alteration of some characters (either by changing their actual shapes, or by adding diacritics), the addition of non-standard characters (such as the Gothic h-v digraph or the early Welsh 6-shaped "W"), and even by merger with a font, or individual characters from a font, sold and copyrighted by another company, these characters themselves often modified (e.g., Greek characters sold by SoftCraft and incorporated into the Bitstream-Baskerville-based font. I have done the same with several typefaces (e.g., Helvetica).

Helvetica font displayedI am fairly certain that I am allowed to do this, either on my own behalf or on behalf of my organization: the font in which the latest fascicles of the Middle English Dictionary is printed was created in just this way from Bitstream's version of Times Roman (not my choice!). But am I allowed to distribute the modified font (or even an unmodified but renamed rasterization of a commercial outline font) or place it in the public domain? Does anyone have a copyright on the resultant font? Can I attach my name to such a hybrid? Can anyone else remove it? Does the licensing agreement included with the Bitstream and SoftCraft software apply to modified bitmaps or only to outlines? (It is rather obscure.) Are shrink-wrap licenses binding in any case? If so, subject to what kind of jurisdiction? I confess that I do not know the answers to any of these, though I have in fact distributed copies to interested fellow-medievalists.

Symbol font displayedSimilar issues have arisen this month in connection with my work for the U of M's "Humanities Text Initiative," this time involving outline fonts. Several of the projects associated with the HTI require modified Truetype fonts in order properly to display the manuscript characters, ligatures, and abbreviations, as well as some phonetic information, contained in their texts. In order to distribute a font containing these characters, must I create it entirely from scratch? May I instead edit an existing public-domain font? If so, are the standard fonts included in Mac O/S and MS Windows distributions "effectively" (as is often said) "in the public domain"? Who if anyone will complain at the distribution of a modified Times Roman? What modification, if any, to a copyrighted outline or to its hinting removes its copyrighted status? These questions appear regularly in the discussions on comp.fonts, usually in connection with "clone" fonts, and usually inconclusively. Clearly, in the case of font design, I, like others, would like to have it both ways: I would like to protect my own designs, or at least to be able to specify the level of protection that they enjoy, while being free to use, modify, and redistribute the designs of others, with or without their names attached.

E-mail, the net, moral rights

It has been said that copyright law, like other societal and governmental controls, is ill-suited to the cirucumstances of the internet and those who inhabit it, and that as a result the problems to which copyright law might have offered a solution have instead been worked out by practice and custom, often accompanied by protracted debate. Moral rights, as they are sometimes called, seem to be underlying issue in several online disputes that seem so far to be without resolution. As a contributor to the Bryn Mawr Medieval Review, I was interested to see, for example, J.J. O'Donnell's complaint on HUMANIST a couple of years ago in which he expressed his dismay at finding that dozens of gopher sites had lifted copies of the Bryn Mawr Reviews without permission, and without keeping the files up to date. Responses ranged from wholehearted condemnation of such discourtesy to remarks to the effect that having out-of-date sets of an electronic journal is no different from terminating one's subscription to a print journal, and no more to be condemned. Perhaps the best responses compared gophers to publishers, suggesting that scholars would soon come to know the reputable ones and to spurn the ill-managed ones, even as they might now decline to cite a mass-market paperback in a published article in favor of an authoritative edtion from a reputable publisher.N1 A similar case is mentioned by the author of a FAQ entitled "Not Just Cows: A Guide to Agricultural Resources on the Net." He had come upon various versions of his work, often broken up and distributed among menus or otherwise distorted, and often with the attribution to him removed. He too would have liked to retain some "moral rights" in his work, even while distributing it free of charge.N2 Once again, both interests--that of the site-creator, who wishes to impose a uniform style on documents contained in the site, and perhaps also to update, enlarge, or abridge them, or create a compilation from documents of various origin; and that of the creator, who wishes to obtain the credit due him or her--seem valid, though neither seems to be covered by U.S. laws of copyright per se. I have myself been in both positions. Explicit conditions of use, sometimes modelled on the GNU license, seem to be becoming increasingly common, but even when present can be ignored with seeming impunity.

List postings and other "public" e-mail seem likewise better dealt with by courtesy, custom, and respect for moral rights than by legal copyright. Certainly, I have never particularly concerned myself with where my hundreds of list postings have ended up, or who has made use of them. But every list seems destined to go through at least one legalistic discussion of the issue, many have posted prominent copyright notices, as have many individuals (including idiosyncratic prohibitions on distribution by Microsoft), and copyright is something to be considered whenever one is tempted to forward or repost a message, or to quote or cite one (as I have done here, without permission).

Academic Publishing and Fair Use

As a sometime teacher, I have been particularly devoted to the problematic practice of supplying my students with handouts and with teacher- and service-prepared course packs, inescapable necessities when one is teaching anything but the most standard of textbook-equipped courses--and something that I am sure this course will attend to. As a researching scholar, I have often been driven to photocopy articles and (often) entire books for my own use when they are out of print, unavailable, inconveniently located, or simply too expensive. On the other hand, as a publishing scholar, I depend on the prestige of my publisher to establish and distribute my work, and on copyright to keep my work intact and my publisher in business.

Since most of my handouts, and many of my personal copies, consist of excerpts from ancient and medieval texts, as does much of my own editing (in Middle English) they raise the additional question of the copyright status of ancient texts in modern editions or transcriptions (a matter also of concern to HTI and to the associated SEENET). The single text that seems to receive the greatest attention to medievalists in this regard is that indispensible vademecum, the CCAT text of the Beuron/Stuttgart Vulgate, in which the UBS retains copyright but which it has for years offered free of charge, provided that a licensing agreement is signed and submitted. This arrangement has come to be first threatened, then undone, by the existence of apparent copies (with unknown alterations) of the CCAT/UBS text in public archives (e.g., Wiretap) with all attribution to CCAT or UBS removed. The copyright situation is further confused by the facts that the holder has long issued the text gratis, that the holder is in Germany, that German copyright law (supposedly) extends protection to modern editions of ancient works only for ten years after publication, that the text is of just such an ancient work itself long in the public domain, and that the textual apparatus is usually omitted in the pirated copies. N3

The more important general question, that of the dispensibility of the publisher in academic publishing, is one that concerns scholars and librarians alike and is likely to do so increasingly as the costs of books increase and as electronic publication raises the possibility of eliminating the middle man. This was of course the subject of last year's "AAU Task Force on Intellectual Property Rights in an Electronic Evironment," which considered what alternatives might be open to the university, as both source and consumer of copyrighted information, to the current system of yielding faculty copyright to external publishers. A case reported on HUMANIST a few years ago, in which a professor reproduced a typescript of his own book for his students rather than pay hundreds of dollars in fees to his publisher, revealed much frustration with the current system, and occasioned an apparent consensus that this action, though illegal, should be the pattern for future academic publishing. It is often noted how foolish are the academic policies that insist on publication in print journals and series, then complain about the cost of buying the resultant materials for the library. Cooperation in producing e-texts of public-domain documents is also frequently urged (as in the Vincent of Beauvais project in which I am involved), so that commercial and other restrictive publishers could be eliminated. As always, of course, much of this is more easily prescribed than accomplished.N4

Word Lists

As a lexicographer and indexer, the copyright status of word lists, concordances, indices, tables of contents, and other factual materials abstracted from copyrighted books necessarily concerns me. It appeared at one point, at least, that the Feist decision might be relevant.N5

I could add many other examples. Who owns the right to reproduce illustrations from early printed books and manuscripts (a question often vital to those publishing on medieval subjects)? Is a microfilm copy of an ancient manuscript itself a copyrightable pictorial work? What illustrations may I use on the handout bibliographies that I prepare for the local public library? Was I within my rights to show a videotape to a class without securing the public-performance rights? May I tape movies off the air for private viewing even if they say "Do Not Copy" (as do many of those shown on TVO)? May I give someone a sampler taped from a variety of CD's? May I allow my office's copier be used to copy whole books? May I give away (or sell) old versions of software after I buy the update? I shall be glad to be able to give a firm answer to at least some of these by the end of the course.


Notes

  1. See, e.g., messages from James J. O'Donnell (jod@ccat.sas.upenn.edu), University of Pennsylvania, HUMANIST, 28 April 1993; Ann Okerson (ann@cni.org), ARL, HUMANIST, 28 April 1993; David Sewell (dsew@troi.cc.rochester.edu), HUMANIST, 4 May 1993; Donald Spaeth, University of Glasgow, HUMANIST, 6 May 1993; Kyle Barger, Haverford College, HUMANIST, 7 May 1993; C.M.Sperberg-McQueen, University of Illinois, HUMANIST, 8 May 1993); Douglas Greenberg, ACLS, HUMANIST, 8 May 1993.RETURN
  2. See Bill Drew, PACS-L, 19 July 1994 and summary 20 July 1994; Bob Michaelson, PACS-L, 20 July 1994; Tim Knight, PACS-L, 21 July 1994.RETURN
  3. See Bob Kraft, CCAT, University of Pennsylvania, MEDTEXTL, 3 August 1993; Timothy Reuter, MGH, Munich, MEDTEXTL, 26 July 1993; Peter D. Junger, Case Western Law School, MEDTEXTL, 31 August 1993; James J. O'Donnell, CCAT, MEDTEXTL, 2 September 1993.RETURN
  4. See Jim Cahalan, Indiana Univ. of Pennsylvania, HUMANIST, 16 December 1991; Lloyd Davidson, HUMANIST, 17 December 1991; David Bantz, Univ. of Chicago, HUMANIST, 18 December 1991; Dan Lester, Boise State University, HUMANIST, 19 December 1991; David J. Reimer, Wilson Laurier Univ., HUMANIST, 3 January 1992; Matthew Wall, Swarthmore College, HUMANIST, 7 January 1993; Robin Cover, HUMANIST, 1 and 3 May 1991; Ellis Knox, HUMANIST, 1 May 1991; Joel Goldfield, HUMANIST, 27 April 1991; Robert Hollander, Princeton Univ., HUMANIST, 5 May 1991.RETURN
  5. See Peter D. Junger, Case Western Law School, HUMANIST, 2 April 1991; Adam Engst, HUMANIST, 3 April 1991; Jean Veronis, HUMANIST, 13 November 1991; Lorne Hammond and Judy Koren, HUMANIST, 17 November 1991.RETURN

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Paul Schaffner / pfs@umich.edu / 11 September 1995; rev.4.11.95