American public schools are spending less than three percent of their budgets each year on textbooks and other copyrighted works--approximately $5.4 billion out of current expenditures of well over $200 billion. Many teachers and students are either doing without the material or pirating it. One study found that some 32 percent of 1,349 participants had illegally copied software, a finding consistent with an informal survey for this paper.
Enter computer networks, the ultimate copying machines. Networks make it easier for students and teachers to share knowledge, but at the same time copyright holders want strict protection of their rights. How to resolve these dilemmas? The issues go far beyond piracy. For example, some copyright owners in the future may challenge even current practices--such as the casual use of "links" on the World Wide Web to make it easier for readers to go to Web sites on related topics.
In the end, the main issue emerges as this: "Who pays?" Nothing is free, and at times the lines between copyright holders and users may blur. A K-12-oriented educational association, for example, may sell software and be a victim of piracy just like Microsoft. Still, if Draconian anti-piracy laws go into effect without adequate resources for schools and libraries, then someone else may pay: the children cheated of the books and software that they need for the best education. The goal of this paper is to enlighten the K-12 community about the issues involved. It will examine the following issues:
K-12 teachers and students are on computer networks ranging from the Internet to BBS connections, along with commercial services such as American Online, CompuServe, and Prodigy. And the K-12 community is greatly benefiting this medium that lets millions talk and publish to each other electronically. The popular term here is "many to many." The community finds it a welcome change from the "one-to-many" model of TV networks and paper books.
For example, rather than passively absorbing information from textbooks, students can exchange messages with young people in the next state or as far off as Australia or New Zealand. Suddenly students can learn geography and foreign languages directly from people abroad, or they can swap information in science experiments. What's more, students enjoy new opportunities to improve their reading and writing skills. Children can see complete strangers taking an interest in them and their writings; they can grow not only intellectually but also in self-esteem. Even elementary schools can become global publishers by way of the World Wide Web, the multimedia part of the Internet. Eight- and ten-year-olds can learn how to format Web pages.
What delights this global community, however, may horrify copyright holders. Today an entertainment conglomerate may require permission from bakeries before they can reproduce cartoon characters on birthday cakes. Now what happens if Sally can spread images of Mickey Mouse and Donald Duck all over the World Wide Web? And suppose Bob wants to make Pluto's fur a new color. Or let's say that Jose wants to quote from a chapter of a children's book published by Disney or another company. Just how many words can he reproduce online without violating the law?
Rather serious questions arise, moreover, about links--one of the chief means through which users of the Web can share knowledge. Edgar might be doing a high school term paper on the Gulf War and oil prices, and he may find just the right story in a commercial database available for free on the Internet. He might paraphrase from a news magazine article and highlight the article's headline in a special color. Then his readers could speed directly the article for the full details. All they would have to do is click their mouse on the headline, and their computers would enter the Web area of the magazine. Edgar wouldn't have copied from magazine, but some would say that the effect would be the same. Should Edgar have to obtain the magazine's permission before doing his linking? Should the magazine enjoy complete control, so that K-12 readers have to pass through the requisite amount of advertising before they can see the article?
Similarly, what if Alice in Kansas City wants to e-mail copies of a digitized newspaper article to her classmates--or, for that matter, to young people in Singapore or Hong Kong? Some in publishing would brand her an international copyright criminal. They might not prosecute her but at the least they would be highly distressed. After all, within minutes, Alice can distribute the article to thousands of people at once.
Questions also arise about libraries, both the school kind and the public libraries on which the K-12 community so heavily relies. In the past only one student at a time could check out a book. But today just a single library could put online a copyrighted book for thousands and perhaps millions for students to read. This would be illegal, and no self-respecting librarian or educator would treat a copyrighted work this way. But the technological capability exists.
Even anti-copying schemes aren't certain protection. Several years ago the novelist William Gibson published a long poem on a disk that wiped out the poem after readers scrolled through it. Today one can find Gibson's Agrippa all over the Internet. A Gibson fan may simply have read the material into a recorder and typed it out into a computer. Even paper books may no longer be safe in the new era. A Japanese company has unveiled a copying machine that can automatically flip the pages of books, and if that is possible, there is no technological reason why a machine could not do the same to scan the material into a popular computer format for the Internet.
Of all media, electronic text, the one most associated with literacy, is the most vulnerable. Customers will demand the right to print long sections of material, which, in turn, could be scanned back into digitized form.
Not surprisingly, many copyright holders see global computer networks and other new technology as a threat to their livelihoods. Traditional copyright law has relied heavily on physical possession of a book or painting or CD-ROM. The new technology changes the rules. Whatever the medium, text, still images or even moving pictures, some copyright holders depict the Net as a pirate's pipeline. In its place they want a new electronic marketplace with many opportunities for pay-per-download endeavors.
Even legal activities on today's Internet can trouble some publishers and other content providers. Certain copyright holders see the many-to-many nature of computer networks as a blessing--as a way to transmit samples of their products and increase their usefulness. But others are not quite as enthusiastic toward the many-to-many approach. After a conference held on satellite television, a representative for some copyright holders noted that members of the panel could answer only so many questions at once on the air. The lobbyist mentioned computer networks. How much good, she asked, could all the interactivity do with these bottlenecks? And won't the networks spread misinformation rapidly?
"What you don't understand," many in education would retort, "is how much the members of the audience would benefit from discussing the program among themselves. Students teach each other in person. And they can do the same on the networks, especially if you'll let us spread copyrighted material around by way of the new technology."
At the same time, copyright holders say certain educators are impervious to the legitimate business worries of publishers, writers, programmers, and other content providers. Publishers say a copyright-free Net might actually harm education by reducing the incentives to create valuable content. Whether the copyrighted work is a book or a computer program, the publishers have a point. Software such as electronic encyclopedias can cost millions of dollars to create and refine. Too, copyright holders accurately say many in the K-12 community do not understand the limits of fair use laws allowing students and teachers to use certain material for free. And they also say they are prepared to work with schools to help them get more content for their money
It is impossible, however, to reconcile the two sides fully--the K-12 side and the copyright holders' position.
Copyright law does not protect ideas. But it safeguards the way they are expressed--for example, the dialogue of a play or the coding of OS/2. Many can write drama about failed businessmen. Only Arthur Miller could have created Death of a Salesman. Understandably, then, the U.S. Constitution empowers Congress to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Of course, as the above makes clear, the Founding Fathers wanted copyright law to contribute to public enlightenment, not just protect copyright holders. Writing in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., Supreme Court Justice Sandra Day O'Connor said promotion of progress is the "primary objective" here.
In this spirit, the law has traditionally allowed for fair use; that is, the ability to use material without necessarily having to obtain permission from a copyright holder. And some educators have seized on fair use as a justification for sharing whole articles, movies, and other works with students in their classes. Isn't such-and-such use for educational purposes? Does not the law mention "teaching" among the other justifications for fair use? Isn't there even a reference to "multiple copies for classroom use"?
The truth, alas, is often more complicated than some would expect. Under Section 107 of Title 17 of the U.S. Code, fair use depends on:
"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
"(2) the nature of the copyrighted work;
"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
and (4) the effect of the use upon the potential market for or value of the copyrighted work."
A school, in other words, could not raise money by showing The Lion King to the general public. It could not even let children see the film as a reward for good behavior. On the other hand, thanks to fair use, a few scenes from The Lion King might fit very well and very legally into a high-school course in pop culture.
Similarly, without asking permission from a writer or publisher, a teacher could reproduce part of a short story in a creative writing course. Educators, in fact, under certain circumstances, can even use entire works for free as long as they don't lessen the market for or value of the properties. A teacher could see a newspaper clip and, spontaneously, decide to share it with a class.
The above examples are not part of law per se. But they would be within the "safe harbor" guidelines." Educators, librarians, and copyright holders have agreed on these general rules, which, though not definitive in the opinion of some copyright holders, are widely respected by the courts.
New controversies, however, have arisen--and not just because of the ease of replicating electronic works. Changes in international copyright law have only complicated matters. Years ago, to qualify for copyright protection, a work had to carry a copyright mark or be registered with the Copyright Office within the Library of Congress. But in the late 1980s the United States agreed to the Berne Convention, extending copyright protection even to unregistered works.
A writer, in other words, acquires a copyright as soon as he or she types out a word on a computer screen, or at least saves it to a floppy or hard drive. The creator may not be able to collect full damages by suing people who use the materially illegally--but, undeniably, he or she will hold a copyright. Some lawyers, not all, would say that material does not even have to be preserved on a disk to qualify for copyright. They would support the idea of "fixation in RAM" or Random Access Memory; fixation in effect means that the work is in a form qualifying for copyright if it is otherwise copyrightable.
Consider the legal risks that could arise for users of a many-to-many medium such as the Internet. Even without fixation in RAM, electronic mail is or may be eligible for copyright. And so might be public messages posted to Usenet (a series of discussion areas found on the Internet and thousands of bulletin-board systems). A few authorities might argue that e-mail, Usenet, and BBS messages would not qualify for copyright, but most believe otherwise. Too, the prevailing opinion is that creators may copyright works distributed on the Web.
The very most prudent educators, then, even now, may want to treat material from cyberspace as if it is in a formally published book or article. That means either living by the fair use rules or asking permission if need be from copyright holders, who, of course, might charge. The market value might be not be substantial. But the very distant possibility of a suit still exists even if the material is not from a commercial source such as an online newspaper.
Worsening matters, in the opinion of some educators and sympathetic lawyers, is a major report titled Intellectual Property and the National Information Infrastructure. The short name is the "white paper"; a draft was called the "green paper." This report was released by the Intellectual Property Working Group of the Information Infrastructure Task Force (IITF). The task force has helped shaped the Administration's policy toward America's data highways.
K-12 critics of the white paper complain that education is not the paper's first priority. They say commerce instead is. Only one librarian and one K-12 educator were appointed to the 37-member advisory council for the National Information Infrastructure. "Both the white paper and the agencies responsible for it appear almost totally focused on the information infrastructure's commercial potential," said ALAWON, the electronic newsletter from the Washington Office of the American Library Association (September 8, 1995). ALA believes that the "infrastructure can and should be used to expand markets, but that such expansion must be accompanied by the expansion of equitable public access to information for students, scholars, small business men and women, and people who can't afford their own computers."
Supporters of the white paper, however, see data highways as a way to increase employment and prosperity for the nation as a whole and help the country's trade balance. The white paper says, "More than half of the U.S. work force is in information-based jobs, and the telecommunications and information sector is growing faster than any other sector of the U.S. economy."
The supporters might argue further that in some respects the white paper is school- and library-friendly. Like certain copyright holders, the paper appears to acknowledge that through passwords and limited access, putting material online for a school or class isn't the same as putting it online for the entire world. Moreover, the white paper proposes that nonprofit organizations could "reproduce and distribute to the visually impaired--at cost--Braille, large type, audio, or other editions of previously published literary works in forms intended to be perceived by the visually impaired, provided that the owner of the exclusive right to distribute the work in the United States has not entered the market for such editions during the first year following first publication of the work."
More than a year after the release of the first draft of the white paper, the controversy goes on between the paper's defenders and critics. The white paper is not law. But its spirit has been embodied in S. 1284 and H.R. 2441 (both under discussion as of this writing), which would change American copyright law in a way that would give new powers to copyright holders. The white paper may influence future legislation, too, as well as rulings from the courts, not just through its recommendations but through its interpretation of existing law. Here are some of the issues that the white paper has created for K-12 educators and allies such as librarians:
Copyright holders, educators, and others have been meeting to discuss fair use, and so far the white paper philosophy appears to be prevailing. Consider the use of parts of copyrighted works in multimedia programs. Under one proposal, educators would face a two-year limit on the fair use of portions of such works. What's more, educators working under fair use could use no more than 10 percent or 3 minutes, "whichever is less," of a motion picture. The limit for text would be "up to 10 percent or 1,000 words, whichever is less." If the tentative sentiments of certain copyright holders prevail, and if Web-style links eventually require permission, the results of the aforementioned requirements could be onerous. Questions also arise, in an era of links, of just how meaningful the word limits will be. If nothing else, consider that the white paper says schools should indoctrinate children about copyright holders' rights--without similarly emphasizing the importance of fair use, which, if not taken advantage of, will eventually fade away.
The final irony is that, as noted earlier, the white paper approach would actually harm many writers and artists, in the opinion of some authorities. An honest "educational" program would educate children that creators typically enjoy just a fraction of the money from a book or a motion picture, and that the creators are consumers as well as producers of information.2
Of all the above issues, some lawyers for educators and librarians might consider the focus on licensing arrangements to be among the more dangerous. The Paper, to be sure, "encourages copyright owners to explore with libraries and schools special, institutional licenses. These licenses would enable the costs to be borne, for instance, by the library so that its patrons might access and use works without direct costs, as they generally do in the print domain. The Working Group also endorses increased funding for libraries and educational institutions to assist their ability to purchase and license works in digital form." However, the white paper is bereft of specifics on how to make this increased funding possible. Meanwhile, as noted earlier, some librarians and others fear that the licensing arrangements would chip away at fair use.
The white paper does acknowledges that the NII can allow for many copyright models such as the waiver of copyright to allow free use of work. Still, given the profit-driven nature of publishing, the motion picture, and related industries, such concessions are likely to be rarer than would be hoped for. Some concessions may be actually be made just to increase for-profit sales. Publishers, for example, may post the first chapters of copyrighted books in hopes of enticing the prospective buyers, or they may put collateral materials such as workbooks in the public domain. But such items will not substitute for the full works. Under this scenario, students and teachers in low income districts may suffer especially--teased by the partial offering of a novel or motion picture, but not permitted to enjoy the whole. While the World Wide Web does contain a wealth of free materials, they are no substitutes in many cases for works requiring large amounts of time or money to create.
Consider, moreover, the needs of poorer districts. Covington, Mississippi spent just $19.55 per student on textbooks in that period, and just $61.44 on other instructional materials, according to Market Data Retrieval. The same patterns of widely varied funding would apply to public libraries, on which so many students rely. Today Beverly Hills, California, is spending some $34 per citizen per year on library materials, while cash-strapped Shasta County in the same state is spending just 25 cents--35 cents with private donations included. In 1987 Shasta even had to close its ten library branches, just three of which it has reopened.
Different school districts and library systems use different accounting systems, so all expenditures for materials must be regarded as approximate, but even with that in mind, it is clear that many cities and counties either cannot or will not spend sufficient amounts on copyrighted works. In response to the "will not," many educators would argue that fixed expenses such as salaries and construction costs would make their options far more limited than outsiders would dare imagine.
Whether this is true or not, it would appear that many teachers and students may be adjusting to the scarcity of legally provided resources through the use of unauthorized copies. The mere existence of programs to educate teachers and student about copyright law, and warn them of penalties, might not suffice, in light of the wide discrepancies between students' needs for copyrighted works and the amount of funding available to satisfy them. The next section addresses the question of the relationship between resource adequacy and observance of the law.
PART III: ATTITUDES OF EDUCATORS AND OTHERS TOWARD COPYRIGHT LAW
The white paper's approach could meet strong resistance eventually at the grassroots level--particularly from teachers and parents worried that Washington was willing to compromise children's education in the interest of protecting copyright holders.
This was evident in an informal survey taken on the Internet with help from the Consortium for School Networking (COSN). A questionnaire answered by three dozen respondents on the Net suggests that the funding crisis may make it difficult in many cases to assure compliance with copyright laws. While a number of respondents said they would comply with the laws under any circumstances, others indicated ambivalence or a willingness to break the law. Or some said they had witnessed willful violations by those around them.
If a strict copyright regime is imposed on the schools in an era when network technology makes piracy easier than before, schools may have to audit use of copyrighted works much more closely than today and perhaps even rate faculty in part by compliance with the law. Should this happen, however, schools may be distracted from their main mission focused on academic content. Many educators believe that a strict copyright policy would be detrimental to the children.
Please note that those conclusions from this small sample of three dozen respondents are not scientific. But they are consistent with two formal studies, summaries of which appear after the comments from the Internet study done with COSN's cooperation.
Below, condensed and slightly edited for clarity, are opinions from teachers and others, in regard to copyright law or its observance.
"Off record of course I have used copyrighted material in my classroom. I have photocopied it, scanned it, and made more copies than my license allowed. Why? Certainly we do not have the budget to buy enough for all of the students and secondly educational vendors charge too much. I do not sell or make a profit on this illegal use. My students will become users of much of the stuff I introduce as software. Education should be exempt from copyright laws to an extent. The education budget stinks and is not comparable to the military...I did a stint at a major publisher. I learned that the educational division made a lot of money which picked up slack from…losing enterprises. I find this practice disgusting. The kids are footing the bill for others. Isn't it supposed to be others footing the bill for the kids?"
--Eight-grade teacher in New York
"As someone who has taught computers to younger children, I am concerned. I know kids generally like to spend a little time looking at a whole lot of things rather than the other way around. Therefore, if you made everything on pay-per-view basis, it would really hamper kids learning, not to mention monetary gaps between social classes."3
--Former teacher in the Washington, D.C., area
"I probably have violated copyright, not knowingly at times, but I am very aware now of what I can and cannot do and use… The reasons given for violating [by others]: (1) I need it now! (2) We couldn't get from the publisher (out of print). (3) The district won't give me any additional money for my music budget."
--Music teacher in Washington State.
"I've violated copyright laws, usually with a justification in mind. I've mounted software on computers for training sessions when lab packs had been ordered but not received. I've videotaped off-the-air broadcasts when I've seen an announcement of something a teacher could use, even if the school hasn't made a request….I think that it is very important that copyright be maintained to provide reasonable recompense for intellectual work. I appreciate copyright notices which make provisions for educational use of materials without a need to make application for permission."
--Classroom teacher and librarian who has worked in K-6 and middle schools
"I use lots of copied articles and short pieces or segments from recent books in my high school chemistry and physics program. I could not do so if I had to pay for the reproduction or had to buy original copies for my students. I violate the rules all the time. My district view is, Don't tell us and don't get caught. I don't have the money or the time to buy the materials in class lots or to get permission for use. Several magazines wanted anywhere from $1 to $3.50 each for reprints of articles I wanted to use in my classes. Others would not give permission but told me to buy copies of the magazines! I know dozens of teachers who [pirate]. A plan to 'educate' teachers in copyright law sounds like another bit of Beltway stupidity. Redefine educational fair use and cut to the chase."
Texas teacher in a middle school
"I teach in an urban high school where there is very little parent and community support. No jobs, no business, produce no donations. The money comes out of our supplies fund. We have $1,500 for the year for 3,000 students out of which we must purchase supplies and incidentals...I have photocopied poems, short stories, and essays for anthologies so that my students could each have a copy and mark it up if they wanted. How else would I be able to allow students to have access to these materials when the schools are so strapped for money?...The laws need to be changed, or educators need distribution laws that will allow them discretion."
--High school English teacher
"[A] principal...sent me five videos he wanted me to dub, all illegal. I told the student he sent to get me a written directive to violate the copyright law and I would then consider whether I could risk it. He never returned!...I never knowingly violate copyright for any reasons. Don't change copyright drastically! Plug in law for new technologies as they are needed and get the interpretations out quickly in plain English, Spanish, or whatever."
--Middle school librarian in North Carolina, who says she benefited from an article clarifying copyright issues
"Students need to learn the value of intellectual properties and associate theft of those materials as they would someone's lunch or a car. Students can learn how to obtain permission. I use a lot of copyrighted materials in my work."
--Senior systems analyst for an Oregon school district
"Copyright operates under law. It doesn't make any difference what we think about its importance or not; it is the law…From my experience in speaking to groups on copyright, many people need basic information on it and its requirements--all this despite their wishes or desire to operate because they are small, poor, or whatever."
--Library cooperation specialist in Minnesota.
"It's a HUGE mistake to effectuate policies concerning poverty and wealth distribution by screwing around with the intellectual property laws. I'd keep them strict and give schools more money to buy...If the public wants to subsidize education, then let the public subsidize education; don't ask the software industry or the publishing industry to do the public's job."
--Virginia law professor
In November 1991, Richard L. Rice, Jr., of the University of Alabama attended the annual meeting of the Mid-South Educational Research Association and presented a paper called "Behavior, Opinions, and Perception of Alabama Public School Teachers and Principals Regarding the Unauthorized Copying and Use of Microcomputer Software." Participating were 1,349 computer science teachers, 433 principals, and 489 non-computer science teachers. As summarized in an abstract available through the ERIC database, the "major findings" of the study were:
The Alabama study found that 31.8 percent of the respondents had copied software illegally for the classroom and that 17.6 percent would probably make unauthorized copies in the future. "Many respondents (14.2 percent) were undecided whether they probably will make copies."
Earlier, in a paper presented in April 1990 at the Annual Meeting of the American Educational Research Association, Batya Friedman, a Ph.D. candidate at the University of California at Berkeley, reached somewhat similar conclusions from a nine-month study of district administrators, principles, computer instructors, and students. "In sum," she wrote, "the observed conflicts surrounding classroom interactions pertaining to copying software were partly in response to the institutionalization at the district level of a policy that upheld the property rights status of computer programs while not providing compensatory funding for purchasing programs. This inadequate funding caused a dilemma for the teachers who, while sensitive to the ethical problem of copying, were also unwilling to compromise students' education."
None other than the Association of American Publishers had teachers surveyed in 1995 and found a serious enough textbook shortage to justify the following headline in a press release: Two in Five Teachers Say Kids Don't Have Enough Textbooks: Many Say They Can't Assign Homework. The release, distributed in February 1996, noted that Americans spent $2 billion on textbooks in 1994 "as compared to $16 billion for pet food." And it went on to summarize major findings of the survey conducted with help from the National Education Association:
Sharing the sentiments of many teachers who commented for the present paper, a Florida teacher told the survey-takers that "I have had to beg for books and supplies and computers. I spend about $2,000 of my own money each year in my class."
What's more, the AAP release noted the concerns of parents, not just teachers. It quoted Carol Ruley, a PTA official in California: "When parents see their children bringing home books they used when they were in school, or not bringing home books at all, they know there is a major problem. It is disheartening that American children are exposed to wrong information and are not being assigned homework simply because there isn't an up-to-date textbook for every child."
The publishers' group itself observed: "The Berlin Wall has fallen, the Cold War is over and Nelson Mandela now leads South Africa. Not so, according to the social studies books from which many American children learn. In many of these, America and the USSR are engaged in a cold war, Germany is divided and Mandela is behind bars." Clearly, then, at least one important group of copyright holders would appear to be aware of the seriousness of the intellectual property crisis in the schools.
Imagine the social tensions that may arise in a networked era with Draconian copyright law but a growing need for up-to-date information for K-12 students. The question is, "Who will pay?"
In no particular order, here are some possible options:
Option 1
Continue the present system under which individual school and districts are the main sources of funds to pay for the use of copyrighted materials in schools. Under such circumstances, tracking of materials would have to be simplified. Also, school districts would need to adjust to spending a higher percentage of their revenue on copyrighted material. Connecting K-12 Schools to the Information Superhighway, a report that McKinsey and Company, Inc., developed for the National Information Infrastructure Advisory Council, suggests that schools could do much to adjust. The report says, for example, that they could buy fewer textbooks of the paper variety--and more software and online services. But this locally oriented approach is far from a cure when so many cities and counties are cash-strapped; what's more, it would aggravate "savage inequalities" (as author Jonathan Kozol has termed them) that exist among school districts. In particular, a matching fund approach could worsen the problem if applied to copyrighted material without the appropriate safeguards in place. Richer districts would have more money to spend and thus could enjoy a major advantage over poorer ones.
In all districts, the need for copyrighted materials will only grow in an era of rapidly changing information; students will have to accustom themselves to coping with the deluge. No longer will schools be able to limp along with old textbooks or software equivalents. The dynamic nature of the online world could end up exacerbating the other problems.
Granted, the Internet does contain a wealth of free material, but it alone is not enough to take up the slack. Dr. W. Curtiss Priest is a former M.I.T. professor who has written on the economics of information and has studied educational technology for the MacArthur Foundation. He correctly notes: "Materials that are out of copyright are most likely to be found on the Internet. So plan on finding Shakespeare and not finding authors within the last 100 years for free. Their works usually have price tags. I go to www.newspage.com--the PR Newswire pieces are 'free,' but they have already been paid for by the clients! If I want to look up a Reuters, Associated Press or other article on a subject of interest, I pay from $1 to $3 per article." As Dr. Priest notes, some publishers and writers distribute "teaser" items to boost reader interest, but these are not substitutes for entire electronic books. Furthermore, some of the copyrighted works on the Internet are there illegally, and the business community and Washington plan to crack down on such practices.
Option 2
Streamline licensing agreements, use techniques such as site licenses, and make use of on-demand publishing (the creation of customized text offering no more material than teachers demand) to allow for greater efficiencies. This is a solution favored by a representative for some copyright interests. But many educators would question whether the efficiencies were substantial enough to get the appropriate materials into the students' hands. Dr. Priest, moreover, warns that "site license" agreements may create more hardships for libraries and schools than expected. A school might have to tighten access to a certain machine not in the interest of overall efficiency but because this was the only way to comply with copyright law. Yet another issue is the question of lifelong learning; if there is site licensing, it might be far better accomplished at the community rather than the school level. That, however, still leaves open the issue of replicating online the "savage inequalities"; funding for libraries varies geographically just as school funding does.
Use efficient distribution technology (besides on-demand publishing and the Net itself)--one way to lower costs so that more money can go for content. In some cases, where educational quality would not suffer, schools might want to rely on CD-ROMs in the new Digital Video Disc format holding 17 gigabytes each. This would reduce communications costs. Dr. Priest has calculated that "ten of these disks (at a production cost of around $1.00 each) will contain most of the materials residing on the present Internet that any teacher may wish to use" for Web-style applications. Certainly there is the possibility that students could download information from the disks to use on their own machines. A positive of this approach is that many children would want to access the same material as their classmates, and could call up the popular items again and again without having to log on the Internet. One negative, of course, is that the Net is constantly changing. But software could be devised to allow updates to be downloaded off the Net. Yet another issue here would be the copyright question; some creators of Web sites may object to this use of their material if it occurs without contributing to the page counts on which many rely as partial justification for funding. If such issues can be resolved, however, this particular technology could be excellent as a cost-reducer. Site licenses would be one way to address the copyright questions, as long as there were not contractual complications raised in regard to fair use. DVD technology could even work with option 8, a well-stocked national digital library.
Option 4
Relax the fair use laws so that they are more in line--as advocates of this approach would see it--with the characteristics of the new technology. Get other customers of copyright holders to subsidize the fair use, in effect, though higher fees. Considering the substantial influence of copyright holders in the political process, however, this approach is unlikely to prevail.
Abolish copyright entirely. Copyright-holders could enjoy revenue in other ways, such as through interactive bulletin boards. One problem with this approach is that it would penalize creators of, say, long fiction if there were no protections. Yet another problem is that such an approach would force content providers to rely too heavily on technological solutions such as encryption. An encryption company has proposed charging publishers some 35 percent for its services, according to PC Week of December 13, 1993. If technology alone, then, were used to protect intellectual property, both publishers and readers might suffer under this disturbing scenario. Encryption companies could be kings. If just one company's product set the standards in the marketplace, it could be in a position to overcharge massively. The answer here is not regulation of encryption but rather the use of copyright and technological protections alike.
Option 6
Encourage government organizations such as the Library of Congress not only to make content available but also develop it. One problem with this approach is that it could encourage the proliferation of bland, government-approved art. Steps would have to be taken to isolate such programs from the day-to-day political process. The positive of this approach is that literature and other fields would reflect short-term market pressures less than today. Children's material would be designed more with educational needs in mind.
Option 7
Let K-12 schools team up in consortiums with universities and libraries and others capable of producing content unencumbered by the normal restrictions of commercial copyright. The consortiums could be regional rather than Washington-based, reducing the possibility of a D.C.-dominated system. Consortiums could exchange properties.
Create a tax-supported national digital library with provisions for compensation of copyright holders. Such a library could reduce the possibility of technology exacerbating the "savage inequalities." Its cost might be justified through an accompanying hardware procurement program for schools and libraries. They would be a core market for machines that would not only be book-friendly but also good for electronic forms--which could save billions each year in the public and private sectors. Copyright holders would be paid in most cases by the number of accesses, and they would be allowed to gamble money up front to bypass librarians. The disadvantage of this approach is that priorities might have to be set. Text might be a focus, with some multimedia material available from public and public-domain sources. Significantly, new technology has made the national digital library approach increasingly attractive, not just because of the efficiencies of retrieving the information, but also because of new ways to track its use. The same encryption-based technology used to bill users of pay-per-read systems could be a means for a national digital library to track use of the material to assure fair compensation for creators based on the number of accesses. Readers would not be allowed to unscramble additional material until they reported previous use, probably via modem. This could be done with minimal effort--in fact, automatically in many cases--and in ways respectful of privacy. An encryption-style approach could work even with material distributed on CD-ROMs of the kind described in option 3. Teachers and students could access material without going online, but rely on modems at convenient intervals to report usage.4
Option 9
Rely on a mix of the above, with the exception of option 5. For the benefit of the K-12 community, publishers, and creators alike, copyright must survive in one form or another.
[1] The author wishes to thank Laura N. Gasaway (laura_gasaway@unc.edu), director of the law library and professor of law at the University of North Carolina at Chapel Hill, for serving as legal advisor and legal fact-checker. Any possible mistakes here, though, are the author's and should be reported to him. Thanks also to Kenneth D. Crews, associate professor of law at Indiana University at Indianapolis, and associate professor of library and information science at Indiana University-Purdue University at Indianapolis; I. Trotter Hardy, professor of law at the College of William and Mary; and Brad Cox, who teaches at the George Mason Program on Social and Organizational Learning and is author of Objects as Property on the Electronic Frontier--all of whom Rothman consulted to varying extents by phone or e-mail. Rothman also wishes to thank the Consortium for School Networking (which aided him during his copyright survey) as well as the Consortium of College and University Media Centers. Views expressed are his, and not necessarily those of the authorities or organizations named in this paper.
[2] For much more on fair use and many related issues, readers may want to see Pamela Samuelson's article The Copyright Grab in the January 1996 issue of . Wired Magazine
[3] The white paper does not mandate pay-per-view reading but makes such an option more practical from a commercial perspective.
[4] See references in Footnote 1 for more on a national digital library.
Contributor's Note: David H. Rothman, a member of the Consortium for School Networking, the Authors Guild, the National Writers Union, and Washington Independent Writers, is author of the TeleRead chapter of Scholarly Publishing: The Electronic Frontier (Cambridge, Massachusetts: The MIT Press and the American Society for Information Science, 1995). He is also author of NetWorld!: What People Are Really Doing on the Internet, and What It Means to You (Rocklin, California: Prima Publishing, 1996) and six other books. His e-mail address is rothman@clark.net; his mail address, 805 North Howard St., Unit #240, Alexandria, VA 22304; his telephone number, 703-370-6540.
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Last modified September 19, 2001 (KJ).