Janice R. Walker
Department of English
University of South Florida
February, 1996

Cyber-Property: Copyright, Citation, and the World Wide Web

The move to cyberspace poses unique problems in copyright and citation, but existing copyright laws and citation guidelines stop short of these new electronic frontiers. Copyright law was developed in the first place to promulgate intellectual property by assuring--not access to information and ideas--but rather protection of financial interests; in Harper and Rose v. Nation, the Supreme Court stated that "By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas" (USPTO). These same interests are now in the forefront of developing new legislation, not to protect the rights of authors, but to protect the rights of publishing companies, recording industries, film companies, and others whose primary motive is financial. We, as educators and scholars, need to be pro-active as laws and regulations are developed to address these new spaces.

Protected under U.S. Copyright law are original works of authorship "fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." A work is fixed when "its embodiment in a copy or phonorecord . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration" (USPTO). That "of more than transitory duration" bit is problematic for electronic documents, however. First, World Wide Web publications may change or disappear entirely at any moment at the whim of the author or the author's service provider. Second, in order to read these works at all, they must be downloaded into a computer's Random Access Memory, or RAM, providing a temporary storage of the work. Information in RAM is capable of being "perceived, reproduced, or otherwise communicated" and thus consititutes a "copy" of the work under this law, yet this copying is also transitory--all information in RAM is lost when the computer user exits the program or turns off the computer, unless the information is first saved to hard drive or diskette.

Simply reading a work on the WWW, then, is actually an infringement of copyright, since to do so requires copying the work, if only momentarily, into memory. According to the Report of the Working Group on Intellectual Property Rights:

[W]hen a computer user accesses a document resident on another computer, the image on the user's screen exists--under contemporary technology--only by virtue of the copy that is reproduced in the user's computer memory. It has long been clear under U.S. law that the placement of copyrighted material into a computer's memory is a reproduction of that material.

Offline mail readers, programs which automatically download electronic mail files to be read at a later time when the user is not connected via phone lines or other connectors to a service provider, would, thus, also be illegal, as they copy the words of others onto the reader's hard drive. But offline mail readers are used by millions of Internet and Bulletin Board subscribers to circumvent the high costs of on-line time (commercial providers such as America On-Line and Prodigy may charge $2.95 per hour in addition to monthly fees and telephone charges).

However, electronic mail and synchronous communication sites such as Internet Relay Chat (IRC) and various forms of MUDs (Multi-User Dungeons or Dimensions)--sites which allow for "live" communication between users--are not protected under the Copyright Act. The Report says:

A transmission, in and of itself, is not a fixation. While a transmission may result in a fixation, a work is not fixed by virtue of the transmission alone. Therefore "live" transmissions via the NII [National Information Infrastructure] will not meet the fixation requirement, and will be unprotected under the Copyright Act, unless the work is being fixed at the same time as it is being transmitted.
Part of the problem with this (other than the fact that it would seem to negate the previous instance wherein web browsing via transmission of information was viewed as infringement by deeming that such information held in RAM was a "copy") is that the author(s) of the words may have no idea whether or not a transmission is being "fixed." Most computer users have the ability, with a single button or click of the mouse, to save entire on-line conversations without the knowledge of the participants, thereby fixing the words. How, then, do these conversations differ from other types of electronic files? Personal e-mail messages are also not protected under existing laws, even though most members of the on-line community would agree that electronic mail messages are more-or-less permanent communications (or, at least, as permanent as anything else in cyberspace).

Fair Use and Abuse

Infringement is infringement--the doctrine of fair use doesn't negate that; it is simply an "affirmative defense." But Section 107 of the Copyright Act plainly says:

[T]he fair use of a copyrighted work, including such use by reproduction in copies of 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. (USPTO)

The burden of proof in defenses of "fair use," however, lies with the user, not the copyright owner, and this doctrine has been given short shrift, for the most part, in courts, even in cases involving educational context. A recent federal appeals court decision ruling that preparation of a course packet of copyrighted materials for classroom use was "protected by the fair use' provisions of copyright law" may have actually paved the way for even more disputes, however. The court found that "the Copyright Act does not prohibit professors and students who may make copies themselves from using photoreproduction services of a third party in order to obtain those same copies at less cost," and that "the publishers had not proved that the course packs affected the current or potential market for the original works" (Geraghty). But these course packs were prepared on paper, for distribution to a limited class enrollment. What happens when the course is on-line and the works are to be disseminated to the class via the World Wide Web?

And what about sending a copy of a file via the Internet for personal use? For instance, if I access a document on the World Wide Web and e-mail it to myself or to someone else--have I violated copyright laws? Or is this fair use? According to the Report, "the distribution must be a distribution to the public.... Therefore, the transmission of a copyrighted work from one person to another in a private e-mail message would not constitute a distribution to the public." So, this would not constitute infringement. But public university servers are considered state property--and all messages thereon are saved to tapes, and liable to review in cases where it is determined that untoward activity has taken place. Recently, for example, a former University of South Florida professor was suspected of terrorism, and the tapes of his personal electronic mail were subpoenaed. How "private," then is electronic mail?

Exemptions for Libraries and Educational Uses

Certain uses of copyrighted materials are exempted from Copyright law for libraries and educational uses provided that "(1) the reproduction or distribution must be made without any purpose of direct or indirect commercial advantage; (2) the collections of the library must be open to the public or available not only to researchers affiliated with the library, but also to other persons doing research in a specialized field; [and] (3) the reproduction or distribution of the work must include a notice of copyright" (USPTO). Libraries may thus produce, under proscribed circumstances, archival copies, replacement copies, articles and short excerpts for users, and copies of out-of-print works for scholarly purposes. Section 110(2) also "exempts from liability the transmission of a performance or display of a copyrighted work if (1) the performance or display is a regular part of the systematic instructional activities of the non-profit educational institution; (2) the performance or display is directly related and of material assistance to the teaching content of the transmission; and (3) the transmission is made primarily for reception in classrooms or similar places or by persons to whom the transmission is directed because of their disabilities." Many universities are looking at (or have already moved to) cyberspace as a site for distance learning--can a MUD be considered a "classroom"? How about posting course materials on a class home page on the World Wide Web for access by students from around the world? Under the Copyright Act, "A library that has acquired ownership of a copy is entitled to lend it under any conditions it chooses to impose" (emphasis added). Why, then, cannot those conditions include "lending" such work via the World Wide Web?

International Rights

Although there is no such thing as an international copyright law, various treaties and agreements have been entered into that, basically, provide that foreign works will receive whatever protection is afforded to citizens in member nations. Americans are not the only ones concerned with how these agreements will be affected as we move into cyberspace. Copyright laws may vary substantially from country to country, and other countries are attempting to address what the rules that govern this new space should entail. In its report, the Working Group says that "The complexity that . . . [the Global Information Infrastructure] creates will make electronic commerce' over the information superhighways difficult unless the United States moves promptly to identify needs for protection and initiates efforts to work toward a new level of international copyright harmonization" (emphasis added) (USPTO). Who died and left us in charge?

Anglo-American common law privileges economic rights in works of authorship, while many European countries instead privilege the "moral" rights of authors, which "include the right of an author to be named as the author of a work and the right to object to uses of the work which could bring dishonor or discredit on the author's reputation" (USPTO). Economic rights, then, may be subordinated to the author's moral rights in these nations. Any laws the United States makes concerning the use of materials on the Internet must take into account these disparate approaches to intellectual property rights. The Working Group, while not making any substantial recommendations about how to address these differences, does recommend that current laws regarding importation of "infringing literary work" be expanded to include importation by electronic transmission. While this is (and should be) a logical conclusion if electronically-published works are to be accorded the same protections as traditionally-published works, the problem with this centers around the culpability for such infringement. The Working Group would place responsibility on service providers in order to encourage the "development of marketplace tools that could be used to lessen their risk of liability and the risk to copyright owners" (USPTO). In other words, the Working Group wants to make providers foot the bill for any infringements by their subscribers, thereby forcing providers to either severely limit or curtail their services (i.e., by imposing strict censorship rules and/or limiting access to within national boundaries) or, alternatively, forcing providers to foot the bill for development of technological means to enforce the "law of the land."

Citation of Sources

Of course, using portions of a work, even if they qualify as "fair use," and respecting the "moral" rights of authors, requires giving proper credit. The MLA Handbook for Writers of Research Papers recognized this need in its 4th edition and included formats for many types of electronic information, including Internet sources. However, says Eric Crump:

The current standards weren't designed for the natural textual forms of the net. We need citation conventions that emerge from the shapes of net/texts, so continuing to bow to the authority of the MLA, et al., is holding us back, not moving us forward.
The Alliance for Computers and Writing voted in March of1995 to endorse the Walker/ACW Style Sheet, which presents a clear and concise citation format for Internet resources. Developed by me, an online junkie, it recognizes the unique structure of the online resources, their fluidity, and their transitoriness. The format for the citations is simple, and, in keeping with MLA standards, it recognizes authorship where possible.

A recent edition of the Chronicle of Higher Education forefronted this debate over citation of electronic resources, specifically pointing to the three formats devised for electronic sources for APA-style by Xia Li and Nancy Crane, Turabian style by Melvin Page, and MLA Style by Janice R. Walker. But, like the Web itself, these formats are in a state of flux. Some of the problems include the fact that page numbers do not really exist in a stable form in cyberspace. Screens, printer dependency, monitor capability, software--all effect the "page" and/or "screen" representations. So, how do we point to the exact position within an electronic document? (Do we need to?) MLA calls for publication and/or issue dates on the works themselves, and a discussion online recently attempted to set standards for WWW publications that would include publication of URLs (uniform resource locators) on works for ease of identification in printed formats, and the WGIPR calls for depositing hard copies of electronic works with the Copyright office. All of these recommendations are attempting to negate some of the important differences between electronic and print publications.

In endorsing the Walker/ACW Style Sheet, the Alliance for Computers and Writing took a pro-active stance. Members of online communities are now turning to issues of copyright as well. A recent online discussion recommends that we, as educators and scholars, help to determine policy in this area. Marcy Bauman of the University of Michigan says, "My own personal view about these things is that the courst [sic] haven't yet decided what fair use' is on the Internet--so when they go to make that decision, I want there to be a huge quantity of material out there being used as _we_ deem fair. Not them. And personally, I think it's fair for students to have access to materials they need. . . . Intellectual property decisions are being made on behalf of record companies, publishing houses, musicians, photographers -- on behalf of the people who stand to make money from the way those laws are written. . . . I say, let's do some defining of our rights OURSELVES and then worry about the laws."

"Publishers and copyright holders make up the dominant voices on the NII taskforce that is making copyright recommendations," says Nick Carbone. "In addition, publishers seek now to retain electronic rights to a work even if it is bought for a print publication. As a academics [sic], we don't generally get paid, except for some book contracts and publications to general interest magazines. We rely on our ideas, with full and proper citation since those things matter when we're up for promo. or tenure, to be used as frequenty [sic] and often as possible."

The decisions now being made regarding copyrights, fair use, citation formats, intellectual property--all of these decisions will affect the day-to-day lives of educators and scholars as we move into cyberspace. These decisions will affect our print publications, scholarship, and teaching as well as promotion and tenure decisions. Can we afford NOT to be involved in this process?


To circumvent the problem and attempt to ensure copyright protection to all works published on the Internet, Theodor Nelson has proposed what he calls a "transcopyright," which would, according to Nelson, allow for "broad re-use of materials" by creating a cyberworld wherein "...words and ideas [are] freed from the technological limitations of paper and ink":

Nelson described a world spanning network of information repositories containing all th information in the world' cross-referenced, linked and transcluded'. [sic] The central tenant of his work, Transcopyright, provides unimpeded access to information to those quoting excerpts in a new context (transclusion) while automatically providing compensation and protection to the holder of the copyright of transcluded media. (Epstein)
This proposal would, in effect, " meter' each use of a copyrighted work, and ... charge a user a fee for the use" automatically. However, citing only portions of a document may, thus, require some payment, and would, therefore, entirely negate the concept of "fair use" in cyberspace (USPTO).

The WGIPR recommends that the "Copyright Act be amended to expressly recognize that copies or phonorecords of works can be distributed to the public by transmission, and that such transmissions fall within the exclusive distribution right of the copyright owner." Effectively, then, it would be an infringement of the copyright to even read such a work electronically. They exclude personal e-mailing of works and "live" (or synchronous) communications and recommend amending library exemptions "to accomodate the reality of the computerized library by allowing the preparation of three copies of works in digital form, with no more than one copy in use at any time (while the others are archived)." These strictures, again, would severely limit access to information, and could create a new layer of bureaucracy to police libraries and providers that could cripple the growth of the "information superhighway," changing its entire concept from a medium to exchange ideas and information into, in effect, a vending machine of limited use.

Martha Woodmansee and Peter Jaszi in "The Law of Texts: Copyright in the Academy" propose that we consider, in these electronic spaces, disclaiming authorship (781). Citing Lunsford and Ede's study that "most writing today. . .is in fact collaborative" (783), they argue for resistance to "perpetuating a one-sided legalistic concept of author's rights' in our own institutions through a punitive approach to plagiarism" and for "greater recognition" of collaborative work for purposes of tenure and promotion, thereby legitimating "a range of writing practices rather than holding our students and colleagues to the exclusive and unattainable Romantic model of sole, originary authorship" (783).

While the Internet has often been heralded as a venue for the free sharing of information and ideas, its development is funded by private as well as government and educational interests. I fail to see how these interests can be reconciled to funding the development of such an altruistic and utopian ideal.


I see the Internet as a publishing venue, regardless of the sometimes transitory nature of the works. The WGIPR agrees, but wants to require that electronically-published works be deposited with the Copyright office. This could limit (even by imposition of a nominal fee) who could afford to publish and create yet another level of bureaucratic control of our "press." While such depositing would ensure that original works would remain stable, it is conceivable that an untoward burden could be added to our government agencies as they contend with the massive amounts of information never intended for print. What if all of our students decided their home pages were "published" and filed them in hard copy with the Copyright Office? I believe WWW documents should be deemed as "deposited" with the U.S. Copyright office simply by virtue of their existence, even momentarily, in Cyberspace. However, without capturing these real-time communications in some way, no proof of such copyright protection would be available to the author. But authors could still file formal copyright applications if they so desired.

Moreover, capturing or reading files for personal use, including downloading to a hard drive or printing out a hard (paper) copy, should NOT be considered as copyright infringement. And real-time synchronous communications (i.e., IRC, MOOs, etc.), e-mail and WWW publications should be afforded equal copyright protection. An author owns his or her words from the time they are written, whether that writing be permanently inscribed on a dead tree, or momentarily inscribed on the screens of readers. The mere fact that a work is of a a transitory nature should not negate its protection under copyright laws. Copyright laws need to be revised to reflect the often transitory and always mutable nature of this new publishing technology, and the intentions of the authors as well as the readers with respect to these works should be considered in any suits under this law. The Internet and other forms of electronic communication allow for metered as well as free offering of ideas; the choice of the author-as-publisher should be honored. Even before the advent of the "information age," advances in technology--in production, distribution, tape recording, video recording, etc.--made potential abuses of copyrighted works all too feasible and all too much out of the control of the copyright police. The Internet and other online communications have simply added to that capability, not changed it. Further strictures on educational use of copyrighted material, further restrictions on the doctrine of "fair use," and further proscriptions on what can and cannot be accessed online will only increase the already mammoth gap between the information have's and have not's. Yes, we need to retain copyright protection for printed as well as electronic works. Yes, we need to retain some sense of private property and allow for commercial profit. But in so doing, let's not protect ourselves out of all we own--let's not protect ourselves out of the right to share in the worldwide explosion of information and ideas and to participate fully as members of the global community. We must also remember that strictures on American providers, making them liable for their subscribers' actions, will, in effect, limit access to within our own national boundaries. We cannot pass laws about copyrights or about decency or about anything else that will be binding on extra-nationals. And if we attempt to do so (as we already have with passage of the Communications Decency Act), we will only ensure, not a "decent" and fully copyright-protected cyber-world, but a sterile and empty one--one that will ensure further insularity and ignorance within our borders--and one that will create even further divisions between us and the rest of the world.

Works Cited

© J. Walker, 1996.

Last modified 6 Sep. 1996.
Published in: The Federal Lawyer, May 1996.