In the lengthy question-and-answer period that followed PETERS's presentation, the following points emerged:

* The Copyright Office maintains that anything mechanical and totally exhaustive probably is not protected. In the event that what an individual did in developing potentially copyrightable material is not understood, the Copyright Office will ask about the creative choices the applicant chose to make or not to make. As a practical matter, if one believes she or he has made enough of those choices, that person has a right to a.s.sert a copyright and someone else must a.s.sert that the work is not copyrightable. The more mechanical, the more automatic, a thing is, the less likely it is to be copyrightable.

* Nearly all photographs are deemed to be copyrightable, but no one worries about them much, because everyone is free to take the same image. Thus, a photographic copyright represents what is called a "thin" copyright. The photograph itself must be duplicated, in order for copyright to be violated.

* The Copyright Office takes the position that X-rays are not copyrightable because they are mechanical. It can be argued whether or not image enhancement in scanning can be protected. One must exercise care with material created with public funds and generally in the public domain. An article written by a federal employee, if written as part of official duties, is not copyrightable. However, control over a scientific article written by a National Inst.i.tutes of Health grantee (i.e., someone who receives money from the U.S. government), depends on NIH policy. If the government agency has no policy (and that policy can be contained in its regulations, the contract, or the grant), the author retains copyright. If a provision of the contract, grant, or regulation states that there will be no copyright, then it does not exist. When a work is created, copyright automatically comes into existence unless something exists that says it does not.

* An enhanced electronic copy of a print copy of an older reference work in the public domain that does not contain copyrightable new material is a purely mechanical rendition of the original work, and is not copyrightable.

* Usually, when a work enters the public domain, nothing can remove it. For example, Congress recently pa.s.sed into law the concept of automatic renewal, which means that copyright on any work published between l964 and l978 does not have to be renewed in order to receive a seventy-five-year term. But any work not renewed before 1964 is in the public domain.

* Concerning whether or not the United States keeps track of when authors die, nothing was ever done, nor is anything being done at the moment by the Copyright Office.

* Software that drives a mechanical process is itself copyrightable.

If one changes platforms, the software itself has a copyright. The World Intellectual Property Organization will hold a symposium 28 March through 2 April l993, at Harvard University, on digital technology, and will study this entire issue. If one purchases a computer software package, such as MacPaint, and creates something new, one receives protection only for that which has been added.

PETERS added that often in copyright matters, rough justice is the outcome, for example, in collective licensing, ASCAP (i.e., American Society of Composers, Authors, and Publishers), and BMI (i.e., Broadcast Music, Inc.), where it may seem that the big guys receive more than their due. Of course, people ought not to copy a creative product without paying for it; there should be some compensation. But the truth of the world, and it is not a great truth, is that the big guy gets played on the radio more frequently than the little guy, who has to do much more until he becomes a big guy. That is true of every author, every composer, everyone, and, unfortunately, is part of life.

Copyright always originates with the author, except in cases of works made for hire. (Most software falls into this category.) When an author sends his article to a journal, he has not relinquished copyright, though he retains the right to relinquish it. The author receives absolutely everything. The less prominent the author, the more leverage the publisher will have in contract negotiations. In order to transfer the rights, the author must sign an agreement giving them away.

In an electronic society, it is important to be able to license a writer and work out deals. With regard to use of a work, it usually is much easier when a publisher holds the rights. In an electronic era, a real problem arises when one is digitizing and making information available.

PETERS referred again to electronic licensing clearinghouses. Copyright ought to remain with the author, but as one moves forward globally in the electronic arena, a middleman who can handle the various rights becomes increasingly necessary.

The notion of copyright law is that it resides with the individual, but in an on-line environment, where a work can be adapted and tinkered with by many individuals, there is concern. If changes are authorized and there is no agreement to the contrary, the person who changes a work owns the changes. To put it another way, the person who acquires permission to change a work technically will become the author and the owner, unless some agreement to the contrary has been made. It is typical for the original publisher to try to control all of the versions and all of the uses. Copyright law always only sets up the boundaries. Anything can be changed by contract.

SESSION VII. CONCLUSION

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ GENERAL DISCUSSION * Two questions for discussion * Different emphases in the Workshop * Bringing the text and image partisans together *

Desiderata in planning the long-term development of something * Questions surrounding the issue of electronic deposit * Discussion of electronic deposit as an allusion to the issue of standards * Need for a directory of preservation projects in digital form and for access to their digitized files * CETH's catalogue of machine-readable texts in the humanities * What const.i.tutes a publication in the electronic world? *

Need for LC to deal with the concept of on-line publishing * LC's Network Development Office exploring the limits of MARC as a standard in terms of handling electronic information * Magnitude of the problem and the need for distributed responsibility in order to maintain and store electronic information * Workshop partic.i.p.ants to be viewed as a starting point * Development of a network version of AM urged * A step toward AM's construction of some sort of apparatus for network access * A delicate and agonizing policy question for LC * Re the issue of electronic deposit, LC urged to initiate a catalytic process in terms of distributed responsibility * Suggestions for cooperative ventures * Commercial publishers' fears * Strategic questions for getting the image and text people to think through long-term cooperation * Clarification of the driving force behind both the Perseus and the Cornell Xerox projects *

In his role as moderator of the concluding session, GIFFORD raised two questions he believed would benefit from discussion: 1) Are there enough commonalities among those of us that have been here for two days so that we can see courses of action that should be taken in the future? And, if so, what are they and who might take them? 2) Partly derivative from that, but obviously very dangerous to LC as host, do you see a role for the Library of Congress in all this? Of course, the Library of Congress holds a rather special status in a number of these matters, because it is not perceived as a player with an economic stake in them, but are there roles that LC can play that can help advance us toward where we are heading?

Describing himself as an uninformed observer of the technicalities of the last two days, GIFFORD detected three different emphases in the Workshop: 1) people who are very deeply committed to text; 2) people who are almost pa.s.sionate about images; and 3) a few people who are very committed to what happens to the networks. In other words, the new networking dimension, the accessibility of the processability, the portability of all this across the networks. How do we pull those three together?

Adding a question that reflected HOCKEY's comment that this was the fourth workshop she had attended in the previous thirty days, FLEISCHHAUER wondered to what extent this meeting had reinvented the wheel, or if it had contributed anything in the way of bringing together a different group of people from those who normally appear on the workshop circuit.

HOCKEY confessed to being struck at this meeting and the one the Electronic Pierce Consortium organized the previous week that this was a coming together of people working on texts and not images. Attempting to bring the two together is something we ought to be thinking about for the future: How one can think about working with image material to begin with, but structuring it and digitizing it in such a way that at a later stage it can be interpreted into text, and find a common way of building text and images together so that they can be used jointly in the future, with the network support to begin there because that is how people will want to access it.

In planning the long-term development of something, which is what is being done in electronic text, HOCKEY stressed the importance not only of discussing the technical aspects of how one does it but particularly of thinking about what the people who use the stuff will want to do.

But conversely, there are numerous things that people start to do with electronic text or material that n.o.body ever thought of in the beginning.

LESK, in response to the question concerning the role of the Library of Congress, remarked the often suggested desideratum of having electronic deposit: Since everything is now computer-typeset, an entire decade of material that was machine-readable exists, but the publishers frequently did not save it; has LC taken any action to have its copyright deposit operation start collecting these machine-readable versions? In the absence of PETERS, GIFFORD replied that the question was being actively considered but that that was only one dimension of the problem.

Another dimension is the whole question of the integrity of the original electronic doc.u.ment. It becomes highly important in science to prove authorship. How will that be done?

ERWAY explained that, under the old policy, to make a claim for a copyright for works that were published in electronic form, including software, one had to submit a paper copy of the first and last twenty pages of code--something that represented the work but did not include the entire work itself and had little value to anyone. As a temporary measure, LC has claimed the right to demand electronic versions of electronic publications. This measure entails a proactive role for the Library to say that it wants a particular electronic version. Publishers then have perhaps a year to submit it. But the real problem for LC is what to do with all this material in all these different formats. Will the Library mount it? How will it give people access to it? How does LC keep track of the appropriate computers, software, and media? The situation is so hard to control, ERWAY said, that it makes sense for each publishing house to maintain its own archive. But LC cannot enforce that either.

GIFFORD acknowledged LESK's suggestion that establishing a priority offered the solution, albeit a fairly complicated one. But who maintains that register?, he asked. GRABER noted that LC does attempt to collect a Macintosh version and the IBM-compatible version of software. It does not collect other versions. But while true for software, BYRUM observed, this reply does not speak to materials, that is, all the materials that were published that were on somebody's microcomputer or driver tapes at a publishing office across the country. LC does well to acquire specific machine-readable products selectively that were intended to be machine-readable. Materials that were in machine-readable form at one time, BYRUM said, would be beyond LC's capability at the moment, insofar as attempting to acquire, organize, and preserve them are concerned--and preservation would be the most important consideration. In this connection, GIFFORD reiterated the need to work out some sense of distributive responsibility for a number of these issues, which inevitably will require significant cooperation and discussion.

n.o.body can do it all.

LESK suggested that some publishers may look with favor on LC beginning to serve as a depository of tapes in an electronic ma.n.u.script standard.

Publishers may view this as a service that they did not have to perform and they might send in tapes. However, SPERBERG-McQUEEN countered, although publishers have had equivalent services available to them for a long time, the electronic text archive has never turned away or been flooded with tapes and is forever sending feedback to the depositor.

Some publishers do send in tapes.

ANDRE viewed this discussion as an allusion to the issue of standards.

She recommended that the AAP standard and the TEI, which has already been somewhat harmonized internationally and which also shares several compatibilities with the AAP, be harmonized to ensure sufficient compatibility in the software. She drew the line at saying LC ought to be the locus or forum for such harmonization.

Taking the group in a slightly different direction, but one where at least in the near term LC might play a helpful role, LYNCH remarked the plans of a number of projects to carry out preservation by creating digital images that will end up in on-line or near-line storage at some inst.i.tution. Presumably, LC will link this material somehow to its on-line catalog in most cases. Thus, it is in a digital form. LYNCH had the impression that many of these inst.i.tutions would be willing to make those files accessible to other people outside the inst.i.tution, provided that there is no copyright problem. This desideratum will require propagating the knowledge that those digitized files exist, so that they can end up in other on-line catalogs. Although uncertain about the mechanism for achieving this result, LYNCH said that it warranted scrutiny because it seemed to be connected to some of the basic issues of cataloging and distribution of records. It would be foolish, given the amount of work that all of us have to do and our meager resources, to discover multiple inst.i.tutions digitizing the same work. Re microforms, LYNCH said, we are in pretty good shape.

BATTIN called this a big problem and noted that the Cornell people (who had already departed) were working on it. At issue from the beginning was to learn how to catalog that information into RLIN and then into OCLC, so that it would be accessible. That issue remains to be resolved.

LYNCH rejoined that putting it into OCLC or RLIN was helpful insofar as somebody who is thinking of performing preservation activity on that work could learn about it. It is not necessarily helpful for inst.i.tutions to make that available. BATTIN opined that the idea was that it not only be for preservation purposes but for the convenience of people looking for this material. She endorsed LYNCH's dictum that duplication of this effort was to be avoided by every means.

HOCKEY informed the Workshop about one major current activity of CETH, namely a catalogue of machine-readable texts in the humanities. Held on RLIN at present, the catalogue has been concentrated on ASCII as opposed to digitized images of text. She is exploring ways to improve the catalogue and make it more widely available, and welcomed suggestions about these concerns. CETH owns the records, which are not just restricted to RLIN, and can distribute them however it wishes.

Taking up LESK's earlier question, BATTIN inquired whether LC, since it is accepting electronic files and designing a mechanism for dealing with that rather than putting books on shelves, would become responsible for the National Copyright Depository of Electronic Materials. Of course that could not be accomplished overnight, but it would be something LC could plan for. GIFFORD acknowledged that much thought was being devoted to that set of problems and returned the discussion to the issue raised by LYNCH--whether or not putting the kind of records that both BATTIN and HOCKEY have been talking about in RLIN is not a satisfactory solution.

It seemed to him that RLIN answered LYNCH's original point concerning some kind of directory for these kinds of materials. In a situation where somebody is attempting to decide whether or not to scan this or film that or to learn whether or not someone has already done so, LYNCH suggested, RLIN is helpful, but it is not helpful in the case of a local, on-line catalogue. Further, one would like to have her or his system be aware that that exists in digital form, so that one can present it to a patron, even though one did not digitize it, if it is out of copyright.

The only way to make those linkages would be to perform a tremendous amount of real-time look-up, which would be awkward at best, or periodically to yank the whole file from RLIN and match it against one's own stuff, which is a nuisance.

But where, ERWAY inquired, does one stop including things that are available with Internet, for instance, in one's local catalogue?

It almost seems that that is LC's means to acquire access to them.

That represents LC's new form of library loan. Perhaps LC's new on-line catalogue is an amalgamation of all these catalogues on line. LYNCH conceded that perhaps that was true in the very long term, but was not applicable to scanning in the short term. In his view, the totals cited by Yale, 10,000 books over perhaps a four-year period, and 1,000-1,500 books from Cornell, were not big numbers, while searching all over creation for relatively rare occurrences will prove to be less efficient.

As GIFFORD wondered if this would not be a separable file on RLIN and could be requested from them, BATTIN interjected that it was easily accessible to an inst.i.tution. SEVERTSON pointed out that that file, c.u.m enhancements, was available with reference information on CD-ROM, which makes it a little more available.

In HOCKEY's view, the real question facing the Workshop is what to put in this catalogue, because that raises the question of what const.i.tutes a publication in the electronic world. (WEIBEL interjected that Eric Joule in OCLC's Office of Research is also wrestling with this particular problem, while GIFFORD thought it sounded fairly generic.) HOCKEY contended that a majority of texts in the humanities are in the hands of either a small number of large research inst.i.tutions or individuals and are not generally available for anyone else to access at all.

She wondered if these texts ought to be catalogued.

After argument proceeded back and forth for several minutes over why cataloguing might be a necessary service, LEBRON suggested that this issue involved the responsibility of a publisher. The fact that someone has created something electronically and keeps it under his or her control does not const.i.tute publication. Publication implies dissemination. While it would be important for a scholar to let other people know that this creation exists, in many respects this is no different from an unpublished ma.n.u.script. That is what is being accessed in there, except that now one is not looking at it in the hard-copy but in the electronic environment.

LEBRON expressed puzzlement at the variety of ways electronic publishing has been viewed. Much of what has been discussed throughout these two days has concerned CD-ROM publishing, whereas in the on-line environment that she confronts, the constraints and challenges are very different.

Sooner or later LC will have to deal with the concept of on-line publishing. Taking up the comment ERWAY made earlier about storing copies, LEBRON gave her own journal as an example. How would she deposit OJCCT for copyright?, she asked, because the journal will exist in the mainframe at OCLC and people will be able to access it. Here the situation is different, ownership versus access, and is something that arises with publication in the on-line environment, faster than is sometimes realized. Lacking clear answers to all of these questions herself, LEBRON did not antic.i.p.ate that LC would be able to take a role in helping to define some of them for quite a while.

GREENFIELD observed that LC's Network Development Office is attempting, among other things, to explore the limits of MARC as a standard in terms of handling electronic information. GREENFIELD also noted that Rebecca GUENTHER from that office gave a paper to the American Society for Information Science (ASIS) summarizing several of the discussion papers that were coming out of the Network Development Office. GREENFIELD said he understood that that office had a list-server soliciting just the kind of feedback received today concerning the difficulties of identifying and cataloguing electronic information. GREENFIELD hoped that everybody would be aware of that and somehow contribute to that conversation.

Noting two of LC's roles, first, to act as a repository of record for material that is copyrighted in this country, and second, to make materials it holds available in some limited form to a clientele that goes beyond Congress, BESSER suggested that it was inc.u.mbent on LC to extend those responsibilities to all the things being published in electronic form. This would mean eventually accepting electronic formats. LC could require that at some point they be in a certain limited set of formats, and then develop mechanisms for allowing people to access those in the same way that other things are accessed. This does not imply that they are on the network and available to everyone.

LC does that with most of its bibliographic records, BESSER said, which end up migrating to the utility (e.g., OCLC) or somewhere else. But just as most of LC's books are available in some form through interlibrary loan or some other mechanism, so in the same way electronic formats ought to be available to others in some format, though with some copyright considerations. BESSER was not suggesting that these mechanisms be established tomorrow, only that they seemed to fall within LC's purview, and that there should be long-range plans to establish them.

Acknowledging that those from LC in the room agreed with BESSER concerning the need to confront difficult questions, GIFFORD underscored the magnitude of the problem of what to keep and what to select. GIFFORD noted that LC currently receives some 31,000 items per day, not counting electronic materials, and argued for much more distributed responsibility in order to maintain and store electronic information.

BESSER responded that the a.s.sembled group could be viewed as a starting point, whose initial operating premise could be helping to move in this direction and defining how LC could do so, for example, in areas of standardization or distribution of responsibility.

FLEISCHHAUER added that AM was fully engaged, wrestling with some of the questions that pertain to the conversion of older historical materials, which would be one thing that the Library of Congress might do. Several points mentioned by BESSER and several others on this question have a much greater impact on those who are concerned with cataloguing and the networking of bibliographic information, as well as preservation itself.

Speaking directly to AM, which he considered was a largely uncopyrighted database, LYNCH urged development of a network version of AM, or consideration of making the data in it available to people interested in doing network multimedia. On account of the current great shortage of digital data that is both appealing and unenc.u.mbered by complex rights problems, this course of action could have a significant effect on making network multimedia a reality.

In this connection, FLEISCHHAUER reported on a fragmentary prototype in LC's Office of Information Technology Services that attempts to a.s.sociate digital images of photographs with cataloguing information in ways that work within a local area network--a step, so to say, toward AM's construction of some sort of apparatus for access. Further, AM has attempted to use standard data forms in order to help make that distinction between the access tools and the underlying data, and thus believes that the database is networkable.