Permissions on Digital Media Drive Scholars to Lawbooks

When some 20,000 first-year American medical students reported to their schools last summer, they received a free 20-minute multimedia collage of music, text and short video clips from television doctor dramas, past and present, burned onto a CD-ROM.

"The patients you meet in the coming years may have doubts about you because of the doctors they see on prime-time television," the introduction reads. "The aim of this presentation is to explore why that is, and suggest what you can do about it."

But the CD was perhaps more of an education for its developer, Joseph Turow, a professor at the University of Pennsylvania's Annenberg School for Communication.

"It's crazy," Professor Turow said of the labyrinth of permissions, waivers and fees he navigated to get the roughly three minutes of video clips included on the CD, which was paid for by a grant from the Robert Wood Johnson Foundation. The process took months, Professor Turow said, and cost about $17,000 in fees and royalties paid to the various studios and guilds for the use of clips. The film used ranged from, for example, a 1961 episode of "Ben Casey" to a more-recent scene from "ER."

This Friday, Professor Turow and other experts will meet at a conference sponsored by the Annenberg School to debate how digital media fits into the concept of "fair use" - a murky safe harbor in copyright law that allows scholars and researchers limited use of protected materials for educational or commentary purposes.

The conference title itself is a lament: "Knowledge Held Hostage: Scholarly Versus Corporate Rights in the Digital Age." Many scholars, librarians and legal experts see rich promise for the use of multimedia materials in research and education. But the possibility of litigation over file-sharing and confusion over digital copyright protections have scholars feeling threatened about venturing beyond the more familiar world of printed texts, Professor Turow said.

"It's a pain in the tuchis, frankly," said Rachel Durkin-Drga, the production manager at the Performing Arts Center at the University of Texas at Austin, recalling 10 years of attempting to secure permission to use various pieces of music. Even when educators seek to pay for use, she said, simply finding and contacting all of the people and agencies necessary to get clearance can be prohibitively daunting.

In one instance, she tried unsuccessfully for months to secure permission to use a song to accompany a piece choreographed by a faculty member for students in an undergraduate dance program. The dance was performed in silence.

Edward W. Felten, a professor of computer science at Princeton University, was at the center of a legal battle in 2001, when representatives of the recording industry threatened to sue him and the university over the publication of a paper analyzing a set of digital watermarking technologies designed to secure music files. The recording industry based its claim on the 1998 Digital Millennium Copyright Act, which makes it a crime to circumvent antipiracy measures built into digital media.

"After a long legal fight involving withdrawal and later resubmission of our paper, and our filing of a lawsuit against the parties who tried to suppress our work," Professor Felten wrote in response to a call from conference moderators for tales of copyright woe, "we won the right to publish our paper. Attempts to create a research exemption to the D.M.C.A. have failed thus far."

Whether academia's difficulties in navigating the world of multimedia copyrights is entirely the result of corporate bullying is a matter of debate, however.

Bruce A. Lehman, who ran the federal patent and trademark office from 1993 to 1998 and who was at the forefront of the contentious battles over digital rights legislation, has long insisted that criticisms and complaints about copyright controls are overblown. He has argued that academia and industry simply need to find ways of streamlining the licensing process for digital media in the same way they have for printed material.

"There is an element in the user community that just wants to get it all for free," said Mr. Lehman, who is now senior counsel in Washington at Akin, Gump, Strauss, Hauer & Feld, a law firm. He added that demonizing copyright holders simply causes "fear where there really shouldn't be any."

That echoes the thinking of Peter Andrew Jaszi, a professor of law at American University's Washington College of Law and one of the panel members scheduled to speak at Friday's conference. Professor Jaszi concedes that "in some cases, the fair-use doctrine in copyright law may actually not be adequate in its present form for the uses of researchers," but he also believes part of the problem is that scholars are poorly informed about what they can and cannot do.

"The likelihood of litigation is low to begin with," Professor Jaszi said, but the lack of coordination in academia on these issues probably makes the confusion worse.

"There are no disciplinary rules of best practice for cultural historians or film scholars or medical historians," he noted. "And, in the absence of that kind of collective understanding, it's no wonder that individuals give up the game before it begins."

The conference is intended, in part, to change this situation. But persuading scholars to test the boundaries of fair use in the digital age will be an uphill battle.

"A lot of this is self-censorship," Ms. Durkin-Drga said, "but, frankly, who can afford to take a chance?" After all, she pointed out, the Recording Industry Association of America "is going after teenagers."