Comment Concerning Copyright
I share with many others the view that the act of displaying a printed document on the Internet as the equivalent of displaying the said document on the shelves of a library open to the public, but with the advantages that Internet publication can be accomplished at reduced cost and that the published items become accessible more rapidly and to a wider audience.
Interested readers are encouraged where possible to buy the original document from the publisher, which being on the printed page is not only handier to read and to work with, but is more detailed and complete, and is more likely to remain on the purchaser's shelf a decade or two from now than is the electronic copy to remain on the Internet or on the reader's hard drive or storage medium for the same length of time. With respect to the internet reproduction of photographs or works of art it may similarly be said that the Internet versions are typically severely cropped and of low resolution in comparison to the original hard-copy versions, which again places the Internet version in the role of an inducement to the user to consult the hard-copy original for a more informative or edifying experience. It is acknowledged that in order to survive, publishers must be paid for their printed materials, and electronic reproduction of these materials in whole or in part is permissible only to the degree that it does not detract from hard-copy sales, and more particularly where it stimulates them.
As the Internet versions of hard-copy publications are inferior in detail, completeness, and longevity it is not possible for the former to compete with the latter; rather, Internet versions play a supportive role for hard-copy publications, pointing to their existence and sparking interest in them. Thus, the beneficiaries of Internet publication are primarily the reader who is given readier access to the posted materials, the author whose work is given broader dissemination, and the original publisher whose name is brought to wider attention. In fact, Internet publication sometimes approximates, and plays a role similar to that of, promotional material that the original publisher would otherwise have to pay fees to procure, or that he in parallel already pays fees to procure.
Relevant to the question of copyright might be the following laws on Canadian "fair dealing" and US "fair use," Article 19 of the United Nations Declaration of Human Rights, and as well an excerpt on Fundamental Freedoms from the Canadian Charter of Rights and Freedoms:
Canadian Fair Dealing
Canada's Bill C-32 (received Royal Assent in April 1997)
29. Fair dealing for the purpose of research or private study does not infringe copyright.
29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer's performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
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U.S. Fair Use
Section 107. Limitations on exclusive rights: Fair Use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
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. |
Article 19 of the United Nations Declaration of Human Rights
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ARTICLE 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information
and ideas through any media and regardless of frontiers. (The Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948)
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Canadian Charter of Rights and Freedoms
FUNDAMENTAL FREEDOMS.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
. . .
Section 2(b) protects all forms of expression, whether oral, written, pictorial, sculpture, music, dance or film. The freedom of expression referred to, moreover, extends to those engaged in expression for profit and those who wish to express the ideas of others, and to the recipients as well as to the originators of communication.... ... The burden is on the person challenging government action to ... show that the activity in issue promotes at least one of the principles and values underlying the freedom. Those principles and values are: that seeking and attaining the truth is an inherently good activity.... ... The term "expression" embraces all content of expression irrespective of the particular message sought to be conveyed and no matter how invidious and obnoxious the message.
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The Pentagon Papers
Also relevant to the use of copyrighted materials on the Internet are precedents such as the publication by The New York Times and The Washington Post in 1971 of the Pentagon Papers — classified documents relating to the Vietnam War, stolen from the Pentagon by Daniel Ellsberg; as well as publication over the Internet of the Tobacco Papers stolen from Brown and Williamson by employee Dr. Jeffrey Wigand.
Concerning the publication of the Pentagon Papers, I reproduce a few quotations below from The New York Times Staff, The Pentagon Papers: The Secret History of the Vietnam War, Bantam, New York, 1971. The relevance of the Pentagon Papers quotations lies firstly in that the freedom of dissemination of information which is not only prized, but is essential to the functioning — indeed the survival — of our society is not only a freedom of the press, but rather a freedom of dissemination of information through all media, including today's Internet. The relevance of the Pentagon Papers quotations below lies secondly in that the institutions susceptible to corruption are not only governments, but also non-governmental institutions — sometimes more powerful than governments — which therefore need just as badly to have corrected their tendencies toward secrecy or toward broadcasting manipulative disinformation. Indeed, sometimes it may be the case that the press itself stands as a monolith practicing deception upon the people, and in such a case would fall the responsibility of correction to non-press channels of communication, among them the Internet. To imagine that the press was immune from the same temptations to secrecy and disinformation as is the government or business would be unrealistic; and any such argument coming from the press must be greeted with the same incredulity as it would be coming from the government or business. The freedom to disseminate information, thus, must be seen as a freedom not only of the press to expose deception by government, but as a freedom by all to expose deception by all, and more generally a freedom of all to communicate to all.
What was the reason that impelled The Times to publish this material in the first place? The basic reason is ... that we believe "that it is in the interest of the people of this country to be informed...." A fundamental responsibility of the press in this democracy is to publish information that helps the people of the United States to understand the processes of their own government, especially when those processes have been clouded over in a hazy veil of public dissimulation and even deception.
As a newspaper that takes seriously its obligation and its responsibilities to the public, we believe that, once this material fell into our hands, it was not only in the interests of the American people to publish it but, even more emphatically, it would have been an abnegation of responsibility and a renunciation of our obligations under the First Amendment not to have published it. (Excerpt from a New York Times editorial of June 16, 1971, in The Pentagon Papers, 1971, p. 644) |
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"A cantankerous press, an obstinate press, an ubiquitous press, must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know," Judge Gurfein declared. "These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form." (Excerpt from a New York Times editorial of June 20, 1971, in The Pentagon Papers, 1971, p. 645) |
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The material was not published by The Times for purposes of recrimination or to establish scapegoats or to heap blame on any individual in civilian or military ranks. It was published because the American public has a right to have it and because, when it came into the hands of The Times, it was its function as a free and uncensored medium of information to make it public. This same principle held for The Washington Post when it too obtained some of the papers. To have acted otherwise would have been to default on a newspaper's basic obligation to the American people under the First Amendment.... (Excerpt from a New York Times editorial of June 21, 1971, in The Pentagon Papers, 1971, p. 645) |
Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law ... abridging the freedom of the press." Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions or prior restraints.
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the Government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, The New York Times, The Washington Post and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the founders hoped and trusted they would do. (Mr. Justice Black, with whom Mr. Justice Douglas joins, concurring in the U.S. Supreme Court decision in favor of The New York Times, in The Pentagon Papers, 1971, p. 663)
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