Wisconsin Legislature: Copyright; Libraries; Public Records;

75 Op. Att'y Gen. 133, 141 (1986)

The general intention behind the provision is as follows:

75 Op. Att'y Gen. 133, 141 (1986)

General Intention Behind the Provision. The statement of the fair use doctrine in section 107 [this section] offers some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 [this section] is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.

75 Op. Att'y Gen. 133, 141 (1986)

1976 U.S. Code Cong. & Ad. News 5680.

75 Op. Att'y Gen. 133, 141 (1986)

1. Purpose and character of the use.

75 Op. Att'y Gen. 133, 141 (1986)

The controversial use here involves the extraction of bibliographic entries from the OCLC data base and through various stages and processes the production of an individualized computer tape that can be used by a local library in Wisconsin for its particular holdings and needs. The service provided by DPI is entirely nonprofit. Indeed, the service is subsidized to some extent by state funds. There is no commercial motive. The motivating purpose is to improve the state's library system. All these factors are strong indicators of "fair use."

75 Op. Att'y Gen. 133, 141 (1986)

2. The nature of the copyrighted work.

75 Op. Att'y Gen. 133, 141 (1986)

Assuming OCLC qualifies as a copyrightable compilation, it has already been noted that compilations exist at the fringe of the copyright laws.

D&B

, 552 F. Supp. at 91. Also important is the fact that the critical input into the data base comes from and is really accomplished completely by the members, and OCLC provides only the mechanism. These factors indicate a lower form of copyright interest.

75 Op. Att'y Gen. 133, 142 (1986)

3. The relative amount of the portion used.

75 Op. Att'y Gen. 133, 142 (1986)

It is my understanding that the OCLC data base holds approximately 12 million titles and you extract about 2.6 million of those for the WISCAT data base for use in Wisconsin. When computer tapes are provided through DLS and Brodart for a local library, the number of titles ranges from 25,000 to 40,000 titles.

75 Op. Att'y Gen. 133, 142 (1986)

Williams & Wilkins Company v. United States

, 487 F.2d 1345,

aff.

, 420 U.S. 376 (1973), it was held that the absolute volume of copying is not decisive.

Williams

, 487 F.2d at 1355. There the National Institute of Health and the National Library of Medicine were copying

930,000

pages a year mainly from medical journals, but that volume did not preclude a decision that their use was a fair use.

75 Op. Att'y Gen. 133, 142 (1986)

In the instant situation a local library in Wisconsin is typically obtaining less than one-half percent of the total OCLC data base.

75 Op. Att'y Gen. 133, 142 (1986)

4. Effect on market for or value of the copyrighted work.

75 Op. Att'y Gen. 133, 142 (1986)

The burden would be on OCLC to show some substantial injury flowing from DLS's use of the data base, and OCLC could not simply rely on the assumption that your service is depriving it of clients.

Williams

, 487 F.2d at 1358-59.

75 Op. Att'y Gen. 133, 142 (1986)

The court in

Williams

was not convinced that the suppression of copying would result in more sales by the publisher. There are other means, or one could simply go without.

Williams

, 487 F.2d at 1359.

75 Op. Att'y Gen. 133, 142 (1986)

The same may be true here. If the local libraries cannot obtain computer tapes of their holdings from DLS, it may be very unlikely that they would be able to go to OCLC for the service. The result would be a return to the less efficient card catalog systems and interlibrary loan systems. The quality of the state's library system would suffer, and ultimately school children and others who rely on libraries would be deprived.

75 Op. Att'y Gen. 133, 142 (1986)

In addition to weighing the foregoing factors, the court in

Williams

also took into account the fact that there was some question as to the legal basis for the infringement claim.

Williams

, 487 F.2d at 1359. That factor is present here as well, as discussed earlier. Another factor vitiating against OCLC is that it has acquiesced to this practice since its inception. If there is a market, DLS has created it.

75 Op. Att'y Gen. 133, 143 (1986)

In the end, one must balance the public interest to be served against the copyright interests to be protected.

Williams

, 487 F.2d at 1359.

75 Op. Att'y Gen. 133, 143 (1986)

Williams

, the court decided that the risk to the plaintiff's business was unproven while there would be an obvious detrimental impact on medical science if copying of journal articles was suppressed. The court held the use to be a "fair use."

75 Op. Att'y Gen. 133, 143 (1986)

In the case before us, it appears equally true that suppression of established services to local libraries will have a detrimental effect on the state's library system without necessarily generating any benefit for OCLC. This, along with the fringe nature of OCLC's underlying copyright claim, lead me to believe that a reviewing court would hold your use to be a fair one.

75 Op. Att'y Gen. 133, 143 (1986)

COPYING COMPUTERIZED RECORDS

75 Op. Att'y Gen. 133, 143 (1986)

At the time when the only general statutory law on public records was section 19.21, the attorney general opined that there was a right to obtain a copy of computer tapes, including those containing computer programs. 59 Op. Att'y Gen. 144, 147 (1970); 63 Op. Att'y Gen. 303, 304 (1974). The question is whether the expanded codification of the public records law enacted by chapter 335, Laws of 1981, requires a change in that interpretation. It certainly does in part since section 19.36(4) now provides that a computer program is not subject to examination and copying. However, the new statutes do not prohibit the copying of computer tapes. Indeed section 19.36(4) affirmatively provides that the data base and "product of the computer program," which could be a computer tape, are subject to copying. If this were the end of section 19.36(4), I would say the law as expressed by the earlier opinions of this office with respect to computer tapes remains unchanged. That is, there is a right to copy a computer tape under the public records law.

75 Op. Att'y Gen. 133, 143-144 (1986)

However, further analysis is necessary because section 19.36(4) says it is subject to exceptions in section 19.35. Section 19.35(1)(a) carries over any common law principles. Section 19.35(1)(c) and (d) specifically authorize the copying of audio tapes and video tapes, and there is no specific authorization for copying of computer tapes. It may be argued this omission constitutes an implicit exception. But I do not believe this to be the legislative intention. In my opinion, there need be no specific authorization in section 19.35(1) to copy a computer tape, because sections 19.36(4) and 19.21, as previously interpreted, authorize copies of computer tapes.

75 Op. Att'y Gen. 133, 144 (1986)

Section 19.35(1)(e) reads as follows: "Except as otherwise provided by law, any requester has a right to receive from an authority having custody of a record which is not in a readily comprehensible form a copy of the information contained in the record assembled and reduced to written form on paper." It appears from the drafting files in the Legislative Reference Bureau that the drafters had computerized information in mind when they drafted this paragraph. The language first appeared in the drafts that became Assembly Substitute Amendment 1 to 1981 Senate Bill 250, and the initial drafting instructions (LRB S 0810) included the following notation for section 19.35(1): "Computer (right to demand transcription)." Again, it may be argued that by specifically authorizing a copy of computerized information in written form,

i.e.

, a printout, the Legislature intended to prohibit copying of the computer tape that holds the information. Again, it is my opinion that such an exception by implication is not necessary or compelling and should not be found to overcome the affirmative provisions of sections 19.35(1)(a), 19.36(4) and 19.21, as previously interpreted.

75 Op. Att'y Gen. 133, 144 (1986)

If the Legislature had intended to preclude the copying of computer tapes it would have said so in section 19.36(4), where it expressly precludes the copying of computer programs. This is especially so since it specifically included "computer tapes" in the definition of a record in section 19.32(2).

75 Op. Att'y Gen. 133, 144 (1986)

It is well to note that statutory exceptions due to silence and implication are based on the general rule of statutory construction

expressio unius est exclusio alterius

which provides that the express mention of one matter excludes other similar matters not mentioned.

Teamsters Union Local 695 v. Waukesha County

, 57 Wis. 2d 62, 67, 203 N.W.2d 707 (1973). But our supreme court has cautioned against its use:

75 Op. Att'y Gen. 133, 144 (1986)

Although based upon logic and the working of the human mind, it is not a "Procrustean standard to which all statutory language must be made to conform."... Factually, there should be some evidence the legislature intended its application lest it prevail as a rule of construction despite the reason for and the spirit of the enactment.

75 Op. Att'y Gen. 133, 145 (1986)

Columbia Hospital Asso. v. Milwaukee

, 35 Wis. 2d 660, 669, 151 N.W.2d 750 (1967).

75 Op. Att'y Gen. 133, 145 (1986)

In my opinion, section 19.35(1)(e) is intended to be supplemental. It makes clear that a requester may have computerized data reduced to written form if the data is otherwise not comprehensible to the requester. However, if a computer tape is comprehensible to the requester because the requester has a machine that can read a computer tape, it is my opinion the requester may obtain a copy of the computer tape. Indeed, in some cases I would expect that the computerized record would be meaningful and manageable only through access to the computer tape, and that a printout would be worthless.

75 Op. Att'y Gen. 133, 145 (1986)

Therefore, it is my opinion that any agreement to refuse to provide copies of computer tapes, other than those containing computer programs, would be inconsistent with the state's public records law.

75 Op. Att'y Gen. 133, 145 (1986)

BCL:RWL
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