The Need for Educating Technical Communicators on the Changing Face of Copyright  
and its Impact on the Public Domain and Fair Use 
by 
Karen J. Williams 
December 2014 
Director of Thesis: Dr. Michelle Eble 
Department of English 
 
 This thesis presents a framework for understanding the historical basis of copyright in the 
United States and the impact that recent events have had upon the public domain and fair use. 
The necessity of technical communicators as writers and educators becoming educated on 
copyright so that they can knowledgeably navigate copyright laws and emerging issues is the 
central argument of this thesis.  
 Federal laws and international treaties have caused significant changes. The latest 
extension of the term of copyright under the Sonny Bono Copyright Act of 1998 has increased 
the length of copyright for another two decades, benefiting the copyright holder and trade 
interests, but causing a delay in the arrival of these works within the public domain. It’s the 
public that reaps the benefits of these works when they enter the public domain since they may 
then freely use these works for knowledge or new creations. This is part of the historical balance 
of copyright where the creator benefits for a limited time and then the public gains access for its 
own benefit. Due to changes to copyright laws, this balance has changed, with critics of these 
changes arguing that the public benefit has been lessened. International treaties also have 
depleted the public domain since foreign works with an expired American copyright still receive 
copyright protection if their foreign copyright remains in effect. The eroding public domain also 
affects the ability of technical communicators and others to access important information for a 
number of uses. 
 The passage of the Digital Millennium Copyright Act in 1998, which makes it illegal to 
circumvent technological controls that prevent unauthorized access to digital content, has made it 
more difficult for technical communicators as writers or educators to view this protected content. 
This lack of access may prevent them from finding the latest information, necessary for the 
production of a technical document. It also hampers the practice of fair use, which has 
historically occurred without permission, and allows for the partial and limited use of material. 
That use of material could include writing reviews or expressing opinions, including criticism. In 
the classroom, it could include using portions of the content to educate students. By preventing 
access, these technological controls create walls between information and knowledge and the 
public. Ultimately, this denial of access affects free speech since there can be no comments or 
criticism made about information that cannot be viewed. 
 This thesis draws upon the research and writings of academics and lawyers who are 
concerned about these copyright changes and their impact on society. It argues that there is a 
need to educate technical communicators about these issues so that they may navigate copyright 
without infringement and be aware of their rights to use information in the public domain or 
through fair use. 
 
 
  
   
The Need for Educating Technical Communicators on the Changing Face of Copyright 
and Its Impact on the Public Domain and Fair Use 
 
A Thesis 
Presented to the Faculty of the Department of English and other faculty 
East Carolina University 
 
In Partial Fulfillment of the Requirement for the Degree of  
Master’s of Arts in English, 
Concentration: Technical and Professional Communication 
 
By 
Karen J. Williams 
December 2014 
  
  
 
 
© 2014 
Karen J. Williams 
  
The Need for Educating Technical Communicators on the Changing Face of Copyright  
and its Impact on the Public Domain and Fair Use 
by 
Karen J. Williams 
 
APPROVED BY:   
  
DIRECTOR OF   
THESIS: _______________________________________________________   
  Michelle Eble, Ph.D.   
    
COMMITTEE MEMBER:___________________________________________________    
   Jonathan Dembo, Ph.D.   
    
COMMITTEE MEMBER: ___________________________________________________   
   Brent Henze, Ph.D.   
 
COMMITTEE MEMBER: ___________________________________________________   
 Dorothy Muller, Ph.D. 
  
CHAIR OF THE DEPARTMENT   
OF ENGLISH: ______________________________________________    
   Jeffrey Johnson, Ph.D.   
  
DEAN OF THE   
GRADUATE SCHOOL: ____________________________________________________ 
       Paul J. Gemperline, Ph.D.  
  
  
Acknowledgements 
 
 I would like to recognize the director and members of my thesis committee for taking the 
time to assist me in this endeavor. Dr. Michelle Eble directed my efforts, as did committee 
members Drs. Jonathan Dembo, Brent Henze, and Dorothy Muller.  
 Special Collections Curator and professor of Academic Library Services Dr. Dembo has 
worked with me from the beginning, before there was a thesis committee, as supervisor of my 
directed reading on copyright. He has always shown great patience, and has guided me carefully 
during my reading and initial research. We have had many fascinating discussions about 
copyright.  
 Dr. Muller, director of the Office for Faculty Excellence, has always been willing to help 
me fine-tune my writing. She also assisted me in locating information for my thesis pertaining to 
fair use and the public domain. Dr. Muller always showed a genuine interest in my topic and 
supported me before the committee existed.  
 In a way, my thesis resembled a group project with members of the committee 
generously providing their time and expertise to guide me toward its completion. 
 
 
  
Table of Contents 
Title page ........................................................................................................  i 
Copyright page .............................................................................................  ii 
Signature page .............................................................................................  iii 
Acknowledgements......................................................................................  iv 
Chapter One: Introduction ........................................................................... 1 
 Overview of thesis organization ....................................................................................2 
 Legal definitions and statutes.........................................................................................3  
 The impact of the Internet ..............................................................................................7 
 Why the Digital Millennium Copyright Act passed ......................................................9 
 Public domain ..............................................................................................................10 
 Fair use .........................................................................................................................11 
Chapter Two: Literature Review ............................................................... 13 
 A shift in power ...........................................................................................................16 
 A change to the balance .............................................................................................. 17 
 The impact on free speech .......................................................................................... 18 
 Law viewed as inadequate .......................................................................................... 22 
 Effect on technical writers .......................................................................................... 23 
 Potentially chilling effect  ............................................................................................25 
Chapter Three:  Perspectives on the Public Domain......................................27 
 Decided legal challenges .............................................................................................29 
 Pending legal challenges  .............................................................................................31 
 Guidelines for navigating the public domain  ..............................................................31 
Chapter Four:  Perspectives on fair use ............................................................ 33 
 Reasons behind corporate concerns  ........................................................................... 36 
 Digital Millennium Copyright Act of 1998 (DMCA) ...............................................  38 
 Treaties encourage DMCA ..........................................................................................41 
The impact of DRMs ................................................................................................   41 
Other constricting factors ............................................................................................ 43 
Navigating fair use  ..................................................................................................... 44 
Possible strengthening of fair use ..............................................................................  45 
Google wins fair use battle ........................................................................................  46 
A hesitancy to exercise fair use  ................................................................................. 48 
Chilled speech  ............................................................................................................ 49 
Chapter Five: Educating technical communicators ...................................... 50 
 Educational fair use......................................................................................................50 
Other issues affecting technical communicators ........................................................ 54 
Linking and deep linking  ..........................................................................................  55 
Guidelines for deep linking   ........................................................................................56 
Web uses  ...................................................................................................................  58 
Using digital images  .................................................................................................  59 
Domestic law:  
A need for training and education ..............................................................................  60 
Guideposts for technical communicators: 
Copyright   ...................................................................................................................62 
Perspective on international copyright law for researchers:    
Technical communicators as researchers    ..................................................................63 
Chapter Six: Conclusion .............................................................................. 68 
 Implications .................................................................................................................70 
References ....................................................................................................  73 
  
Chapter One 
 
 
Introduction 
A legal maelstrom is swirling about the control of intellectual property, with some 
academics, librarians, technical writers and others, opposing the increasingly restrictive climate 
that the corporate sector is supporting and enforcing. Changes to the laws governing one form of 
intellectual property called copyright and actions taken to control access, resulting from the  
proliferation of digital content, has critics voicing objections to what they perceive as curtailed 
fair use and an eroded public domain. Intellectual property law encompasses more than 
copyright, the focus of this thesis. It also includes protection for the creator or owner in the forms 
of trademarks, trade secrets, and patents. However, it is copyright law that has undergone recent 
changes that have prompted criticism and legal challenges, and these developments directly 
impact technical communicators in the workplace and in academia. 
Technical writers and educators, collectively referred to as technical communicators 
when they work in the field of technical communication, are among those who customarily make 
legal use of portions of copyrighted material for allowable purposes legally defined as fair use or 
who may mine the riches of the public domain, legally defined as material no longer qualifying 
for intellectual property protection. As a result, they may find themselves opposing current law 
and corporate entities that are lobbying for evermore restrictive laws. These opponents assert that 
expanding the constraints on access to print and digital material make it more difficult for them 
to draw upon existing information. Some of these opponents also argue that these constraints 
hamstring free speech since knowledge becomes less available for people to use for purposes 
2 
 
including criticism, commentary, and the advancement of knowledge, a critical function of our 
American democratic culture (Herrington, 1998a).  
The purpose of this thesis is to frame these issues within their historical and legal 
contexts, fostering understanding of the reasons for their existence and the importance of 
navigating copyright issues properly. This thesis also provides a more current look based upon 
recent court cases, whether these cases are decided or pending in the courts. It is a goal of this 
thesis to familiarize the reader with today’s copyright climate so that they consider it worthwhile 
to become educated about copyright, as well as recognizing the necessity of keeping abreast of 
the latest developments, generally resulting from court decisions. These issues are highly 
important to technical communicators, and domestic law should be thoroughly understood while 
international law should be at least generally understood. Due to its complexity, international law 
will typically be within the purview of copyright attorneys. The proper application of domestic 
law also requires consultation with a copyright attorney for specific matters. This thesis contains 
information that may or may not be applicable to specific situations. 
Overview of thesis organization 
 
In the following chapters, which includes a review of the literature, this thesis will 
examine public domain and fair use, in chapters respectively titled, “Perspectives on the public 
domain” and “Perspectives on fair use.” These chapters will detail the reasons why public 
domain and fair use have become topics germane to technical writers in the workplace and 
educators. The views of supporters of the laws and treaties that have led to the current 
intellectual property climate regarding copyright and fair use and the public domain will be 
presented, along with those of their critics. These issues are broad and while they are intertwined, 
3 
 
they are more easily understood in separate discussions. Technical communicators and others in 
the academic world who argue that practitioners should be well-versed in applicable copyright 
law will present their arguments in the concluding chapter titled, “Educating technical 
communicators.” As part of the final chapter, the Conclusion and the Implications sections will 
summarize the cumulative effects of these changes to copyright law, particularly their impact on 
technical communicators. 
This thesis limits itself to discussing the use of others’ work. The law as it applies to 
technical communicators own work raises separate issues and is outside the scope of this thesis. 
The rest of this chapter discusses the legal definitions and how the Internet complicates copyright 
law and concludes by introducing public domain and fair use.  
Legal definitions and statutes  
 
Black’s Law Dictionary (2009, p. 881) defines intellectual property as “a commercially 
valuable product of the human intellect, in a concrete or abstract form, such as a copyrightable 
work, a protectable trademark, a patentable invention, or a trade secret.” Copyright law applies 
as soon as the original work takes tangible form. Copyright doesn’t pertain to the actual idea or 
facts. It’s about protecting the expression of an idea, providing a limited period during which the 
holder of the copyright has the sole right of making use of that work by reproducing it or creating 
derivative works. The first copyright law was enacted in 1790 and it granted a basic copyright 
term of 14 years, with the possibility of a 14-year renewal if the author was still living. 
Copyright has since seen several extensions in terms, among other revisions. The Copyright Act 
of 1909 increased the copyright term to 28 years, with a renewal term of 28 years as long as the 
author was still living. With Congress’ passage of The Copyright Act of 1976, the term of 
4 
 
copyright was again extended to the life of the author plus 50 years. The term was longer for 
works made for hire, anonymous or pseudonumous works, either 75 years from publication or 
one hundred years from creation, whichever is less (17 U.S.C.A. § 102(a)). 
The Copyright Act of 1976, still the controlling law, grants the following rights to the 
copyholder: 
Subject to sections 107 through 122, the owner of copyright under this title has the 
exclusive rights to do and to authorize any of the following: 
(1) to reproduce the copyrighted work in copies or phonorecords; 
(2) to prepare derivative works based upon the copyrighted work; 
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or 
other transfer of ownership, or by rental, lease, or lending; 
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and 
motion pictures and other audiovisual works, to perform the copyrighted work 
publicly; 
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and 
pictorial, graphic, or sculptural works, including the individual images of a motion 
picture or other audiovisual work, to display the copyrighted work publicly; and 
(6) in the case of sound recordings, to perform the copyrighted work publicly by means 
of a digital audio transmission (17 U.S.C.A. § 106). 
The Copyright Act of 1976 also made copyright protection possible for works that had 
not been published, allowing it to apply to works that had been “fixed in a tangible medium of 
5 
 
expression.” It has since been amended, including an amendment to once again lengthen the term 
of copyright. 
The passage of the Sonny Bono Copyright Extension Act of 1998 added two decades to 
copyright protection, from life plus 50 years for natural authors to life plus 70 years for works 
created on or after January 1, 1978. It also increased the length of copyright for work-for-hire 
works, often created for the corporate sector, from 75 years to 95 years from publication or up to 
120 years from the time of creation for works created on or after January 1, 1978. (17 U.S.C.A. § 
304(a)(c), 1998). The consequences of this copyright extension will be discussed in the 
subsequent chapters titled “Perspectives on the public domain” and “Perspectives on fair use,” 
respectively. 
Under the Copyright Act of 1976, the rights and limitations on reproduction for libraries 
and archives are explained in statute 17 U.S.C.A. § 108 (1976), which limits such activities to 
the creation of one copy or phonorecord [an object with fixed sounds as with a compact disc] and 
limits its distribution to noncommercial uses. The display of the copyright must be included on 
the copy.  Copying for other users is limited to what is outlined under fair use. Black’s Law 
Dictionary (2009, p. 676) defines fair use as: “A reasonable and limited use of a copyrighted 
work without the author’s permission, such as quoting from a book in a book review or using 
parts of it in a parody.” This dictionary also defines fair use as a defense to an infringement 
claim.  
Portions of a copyrighted work may be used by anyone without obtaining permission if 
that usage falls within the bounds of fair use. It is an established, time-honored practice, and fair 
use operates in the absence of any requirement that prior permission be obtained.  Despite its 
6 
 
limited ability to be used—solely for specific purposes—fair use is still threatened by laws and 
treaties that act as filters, preventing it from being put into practice.  These filters prevent 
unauthorized access, and this thwarting of access means that fair use cannot occur. Fair use of 
intellectual property was a historically respected common law doctrine that in terms of copyright 
was written into statutory law with the Copyright Act of 1976. As defined in federal statute, 17 
U.S.C.A. § 107 (1982), fair use allows limited reproduction of a copyrighted work “. . . for 
purposes such as criticism, comment, news reporting, teaching (including multiple copies for 
classroom use), scholarship, or research . . . “. Such uses do not constitute an infringement of 
copyright.  
The statute spells out the limitations on exclusive rights for fair use by describing the 
factors that are considered in determining whether a use is an infringement or a fair use, 
providing the guiding criteria for the courts.  These factors are as follows: 
(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 
 (17 U.S.C.A. § 107, 1982). 
The statute also contains guidelines for classroom reproduction to address the “need for 
greater certainty and protection for teachers” discussed in greater depth in the fair use chapter. 
Other than that provision for educators, no other sector is addressed specifically. 
7 
 
Fair use and the public domain are historical rights that were designed around print uses, 
not the Internet, when copying and modifying materials could be easily accomplished. They 
were not designed around digital use and the appearance of Digital Rights Management (DRM) 
devices, which include technological controls like encryption. As Shipley (2008) states: 
“Traditional definitions of copying, performance, distribution, publication, and display do not 
necessarily make sense in this environment” (p. 5). When print forms were predominant, fair use 
could be put into practice without permission. There were no controls safeguarding materials. 
Applying copyright law to digital forms creates a different set of issues, complicating fair use 
interpretations, giving rise to legal cases where the Courts must determine if fair use took place 
(Anderson, 2001). 
The impact of the Internet 
 
The World Intellectual Property Organization (WIPO, n.d.) website discusses the impact 
of digital material on established practices of fair use in general, and its effect on the United 
States in particular. The WIPO’s website section titled, “The Impact of the Internet on 
Intellectual Property Law,” acknowledges that digital material has acted as a catalyst, altering 
historical balances as follows:  
The Copyright system has traditionally maintained a balance between protecting 
creators’ property rights and the exclusive right to control uses of copies of their work, 
and the public good in fair access to and use of such materials. Copyright laws permit 
exceptions to copyright, in order to maintain this balance. …  
This balance is now in question because of digital technologies, and the way in 
which they have changed how we access and use information. … 
8 
 
In addition, increasingly, copyright works are not sold, in the way that a book or a 
videocassette was sold in the past, but are licensed under certain terms and conditions of 
use. Our access to copyright works is increasingly governed by contract, which may 
impact on the application of exceptions and limitations, the traditional checks and 
balances of the copyright system, aimed at preserving the rights of consumers and the 
public interest (“The Impact of the Internet on Intellectual Property Law,” n.d., p. 5). 
Griffin (2013) describes the way that licensing is often used instead of sales of works 
with digital content. He noted that creators can now distribute their works without a publisher. 
They also can use technology to track copyright infringements. They may use Copyright 
Management Information (CMI) methods to identify permission and use encryption to limit 
access, in addition to DRM devices. However, all of these technologies also mean that fair use is 
prevented since these technologies operate under the assumption that any unauthorized use is an 
infringement (Griffin, 2013, p. 16). Mazzone (2011) states that there are numerous ways to 
control access. It’s not just licensing that’s used; contracts also may be required, including 
“shrinkwrap” contracts for software that restrict all forms of reverse engineering, even those 
allowed under law. Such contracts typically require the user to agree to specified terms before 
removing the wrapping from the software. The increasing use of restrictions to govern access to 
content and the rise in the use of DRM devices are the result of the passage of the Digital 
Millennium Copyright Act in 1998 (DMCA), which was passed to protect digital works from 
infringement. Imfeld (2003) states the balance once inherent to copyright has been tipped in 
favor of copyright owners, increasing their ability to control the dissemination of digital content 
under DMCA with DRM devices. In addition, there’s been a failure to acknowledge the public’s 
need to access these works (p. 125).   
9 
 
Why the Digital Millennium Copyright Act passed 
 
The Digital Millennium Copyright Act (DMCA) was passed by Congress in an effort to 
keep pace with digital developments. The law endowed digital material with an additional layer 
of copyright protections beyond the standard provisions. The act included language prohibiting 
the circumvention of technological methods employed by copyright owners to control access and 
prohibited tampering with these controls, according to a U.S.  Copyright Office Summary (“The 
Digital Millennium Copyright Act of 1998,” December 1998).  The DMCA statute describes this 
circumvention, in part, as:  
No person shall circumvent a technological measure that effectively controls access to a 
work protected under this title (17 U.S.C. § 1201(a)(1), 1998).  
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in 
any technology, product, service, device, component, or part there of that (17 U.S.C. § 
1201(a)(2), 1998 — 
(A) is primarily designed or produced for the purpose or use of circumventing a 
technological measure that effectively controls access to a work protected under this 
title; … (17 U.S.C. § 1201(a)(2)(A), 1998). 
The trend under DMCA is to use technology to prevent the copying and sharing of 
content so that copyrighted material is protected. This technology could include digital 
watermarking, “embedding information into a signal,” and digital rights management, 
“deploying information in the signal” to prevent unauthorized access (Berti, 2009, p. 44). It also 
encompasses encryption devices use for this same purpose. The impact of DMCA will be 
10 
 
discussed in detail in the literature review and fair use chapters. Meanwhile, other changes to 
copyright have affected the public domain. 
Public domain 
 
The public domain also has been altered by recent copyright developments, which are 
unrelated to digital content, such as the extended term of copyright under the Sonny Bono 
Copyright Extension Act of 1998 and international treaties signed by the United States. Black’s 
Law Dictionary (2009, p. 1349) defines the public domain as “… The universe of inventions and 
creative works that are not protected by intellectual property rights and are therefore available for 
anyone to use without charge.” 
Factors leading to these changes such as longer copyright terms that delay a work’s entry 
into the public domain and treaties that have taken works out of America’s public domain if their  
foreign copyrights were in effect have been supported by various interests. Longer copyright 
terms are a way to add to corporate coffers. Increasing copyright protection can extend 
profitability to creators and foster trade, priorities for the U.S. government. Meanwhile, critics of 
corporate copyright holders point to what they view as the resulting erosion of the public domain 
since material takes longer to be eligible for inclusion within the public domain. With longer 
copyright terms, works are protected for decades longer, restricting the public from use of these 
works, impacting the advancement of knowledge. International treaties also have played a part 
since the United States wanted to align its copyright laws with other countries that also signed 
these treaties. As a result of these international treaty negotiations, the United States was legally 
bound to honor the copyright terms of other countries. This caused works originally published in 
these other countries to be removed from the public domain in the U.S. when the U.S. copyright 
11 
 
term had expired if the original foreign copyright remained in force. After books and other 
material in the public domain in the United States were retracted and placed back under 
copyright protection due to treaties (Uruguay Round Agreement Act, and its impact on member 
countries from the Berne Convention to be discussed in the Perspectives on the public domain 
chapter), a lawsuit challenging this action as an impediment to the public domain was filed 
against the federal government. The plaintiff lost the case when the U.S. Supreme Court ruled 
that Congress had not acted outside its authority in Golan v. Ashcroft (2012), a case discussed 
further in the public domain chapter. There have been other legal challenges as well, including 
an unsuccessful one where the plaintiff argued that Congress didn’t have the authority to extend 
the copyright term, and that doing so had violated the constitutional language of “limited” terms. 
That U.S. Supreme Court case, Eldred v. Ashcroft (2003), will be discussed further in the fair use 
chapter. 
Those critics who object to the longer term for copyright argue that the term extensions in 
the Copyright Act of 1976 and the Sonny Bono Copyright Extension Act of 1998 dilute the 
vitality of the public domain by delaying the free availability of material, which the public may 
use for various purposes, including for inspiration to create new works.  Other copyright issues 
are centered around fair use, which critics say also has been adversely affected by recent changes 
to federal law. 
Fair use 
 
Some technical writers and educators, along with librarians, argue that corporate interests 
were behind the passage of the Sonny Bono Copyright Extension Act of 1998 and the 1998 
passage of the Digital Millennium Copyright Act (DMCA). They charge that these laws have 
12 
 
had a detrimental effect on the public’s right to fair use. While on the other side of the spectrum, 
business interests and Congress consider the term extension and the expanded controls over 
digital access encouraged under DMCA as necessary measures crafted to ensure the profitability 
of copyright and to promote America’s trade interests. 
When material does fall within the public domain, it does so for a number of reasons. It 
could be due to the fact that copyright renewal steps weren’t followed or it could be the result of 
an expiration of the length of time the copyright could remain in force. Fair use, however, means 
accessibility within prescribed boundaries despite copyright protection. Both uses of material—
public domain and fair use—are widely viewed as crucial constitutionally protected uses of 
information to further the gain of knowledge, and encourage creativity and new works. Changes 
to U.S. law such as the extension of the longer copyright term with the Sonny Bono Copyright 
Extension Act and the passage of the DMCA, along with the U.S. government’s compliance with 
international treaties it has signed, has created a climate that strictures fair use and access to the 
public domain to the detriment of technical writers and others who as a result have less access to 
material or who may now be understandably concerned about challenges to their use of material.  
These changes require them to keep apprised of copyright issues to forestall allegations 
of infringements. Technical writers and others need to understand the background of these issues 
and become knowledgeable about current developments in order to navigate the copyright terrain  
as writers and as educators.
Chapter Two 
 
 
Literature Review  
This literature review is designed to put the subsequent chapters in a historical and legal 
context. The background of copyright law and recent developments needs to be understood, 
since various forces have created a new copyright environment that technical communicators and 
others need to master. This thesis argues that technical communicators need to be educated and 
kept informed about the public domain, fair use, and the rights of educators in order to perform 
their jobs within the laws’ prescriptions and without inadvertently paying unnecessary fees and 
licenses for content that should be freely available.   
Some outspoken academics, including technical communicators, law and English 
professors and librarians, who perceive recent legal developments as acts that are depleting the 
public domain and as attacks on fair use, have written articles in scholarly journals or given 
interviews to the media. For example, attorney and law professor Jennifer Jenkins, director of 
Duke University’s Center for the Study of Public Domain, was interviewed as a legal expert for a 
2013 article in which writer Leslie Klinger said that he was being unfairly asked to pay a royalty 
fee for using Sherlock Holmes content, which had long dwelled within the public domain. This 
status was not acknowledged by the heirs of the late creator Sir Arthur Conan Doyle. Jenkins 
agreed with Klinger that any material that was pre-1923 was rightfully available for use. (“Public 
domain: Who owns Sherlock Holmes?” 2013, p. 2). The U.S. Court of Appeals for the Seventh 
District in Chicago decided in Klinger’s favor in 2014 that pre-1923 Sherlock Holmes writings 
were public domain material (Conan Doyle Estate Ltd. V. Klinger, 2014).  By exercising its right 
14 
 
to decline to hear the case, the U.S. Supreme Court let this decision stand in November 2014. In 
addition to its discussion of the then-pending lawsuit, the article goes on to describe other 
instances where filmmakers and television producers paid fees to Doyle’s estate for public 
domain material solely to avoid legal disputes despite their knowledge that the heirs had no 
justification for requesting payment. Mazzone (2011) also names instances where users were 
improperly charged to use other works lying within the public domain. He points to numerous 
examples, including classic works, such as reprints of Shakespeare’s plays, and reprints of works  
by Charles Dickens, Jane Austen, and Benjamin Franklin, which sometimes have improper 
copyright notices attached by publishers (2011, p. 9). 
Jenkins bemoans the erosion of the public domain in a 2013 article titled “In Ambiguous 
Battle: The Promise (and Pathos) of Public Domain Day, 2014” where the impact of longer 
copyright terms is discussed. She explains that many works created during a present-day reader’s 
lifetime will not become part of the public domain during that reader’s lifetime. Jassin (n.d.) an 
intellectual property attorney and author states that this delay means that works published in 
1923 will not be public domain material until 2019. He also notes that in the future, public 
domain will be harder to determine since copyright law no longer requires registration, 
potentially making it difficult for users to know the status of a copyright or its owner. Jenkins 
agrees, noting that the former requirement of an “evidentiary trail” allowed the public to 
efficiently obtain permission or a license for use. Without this required trail, it can become more 
difficult to determine the “dividing line between copyright and the public domain” (Jenkins, 
2013, p. 5). 
In addition to improper claims of copyright for public domain works, there have been 
numerous cases where fair use was discouraged and claims were allegedly wrongfully made to 
15 
 
prevent the implementation of fair use (Netanel, 2008). In the book titled Copyright’s Paradox, 
Netanel explain how fair use may be stymied w hen public domain works available 
electronically cannot be copied or reproduced. He describes how an early Adobe System’s e-
book edition of Lewis Carroll’s classic Alice’s Adventures in Wonderland had carried restrictions 
on its copyright page, preventing the copying of text selections to the clipboard, sharing a copy, 
or reading the book aloud, even though it’s clearly in the public domain and freely available for 
use (p. 67).  
A pending U.S. District Court case in the Central District of California filed in 2013 by 
documentary filmmakers alleges the lyrics to “Happy Birthday to You” dwell in the public 
domain. The plaintiffs refused to pay the fees demanded by a publisher, choosing to take their 
fight to court instead in the lawsuit, Good Morning to You Productions Corp. v. 
Warner/Chappell Music, Inc. (No. 13-CV-4460, 2013). The plaintiffs are requesting that the 
publisher refund millions in fees they say were unfairly charged to a number of people and 
organizations. An earlier case that was filed in New York was voluntarily dismissed by the 
plaintiffs in 2013 and this California case was filed instead. This lawsuit represents an example 
of continuing efforts by plaintiffs to take their arguments about the public domain to the courts 
when they perceive the public domain is threatened.  
In the same New York court as the lawsuit about “Happy Birthday to You,” Google 
successfully argued for the dismissal of a 2005 lawsuit by copyright holders related to its avowed 
fair use of digital books in partnership with libraries. This project was created to allow searches 
of library-provided books, displaying a limited amount of material from those volumes as the 
result. Goggle argued in the case of The Authors Guild, Inc. v. Google Inc. (2013) that this 
limited display of material constituted fair use, similar to the activities practiced by the libraries 
16 
 
that had provided the books, an argument accepted by the Court. This case is examined in greater 
detail in the fair use chapter. 
A shift in power 
 
There is a school of thought that copyright law’s emphasis has shifted toward protecting 
copyholder rights at the expense of the public. (Anderson, 2008; Herrington, 1998a; Imfeld, 
2003; Netanel, 2008; Shipley, 2008). Congress, aware of the hindrances to fair use posed by the 
DMCA, did enact two narrow exceptions to the practice of circumventing access. These are: 
Web site compilations blocked by software and literary works protected by ineffective or 
outdated “access control mechanisms” (Anderson, 2008, p. 113). Still, critics of the DMCA 
argue that the law goes too far, decimating what was meant to be a balanced copyright 
environment that rewarded creativity for a limited period and then allowed the public to reap its 
benefits in the public domain, instead shifting to copyright as a property right that shortchanges 
society.  
Along with the public domain, critics argue that fair use is being thwarted by DMCA and 
by the technological safeguards in use by copyright holders to prevent unauthorized access to 
digital material. In addition, these critics argue that the intent of our forefathers when enacting 
intellectual copyright law was to ensure that copyright existed for a limited time, meaning that it 
was a period of time with a reasonable conclusion. These critics reference the appearance of the 
word, “limited,” in the description of their interpretation of copyright’s boundaries (Herrington, 
1998a; Herrington, 1998b; DeVoss & Porter, 2006). As the U.S. Constitution states: “Congress 
shall have power . . . To promote the Progress of Science and useful Arts, by securing for limited 
Times to Authors and Inventors the exclusive Right to their respective Writings and 
Discoveries;” (U.S.C.A. Const. Art. I § 8, cl. 8.). These critics refer to the phrasing used to 
17 
 
describe Congress’ power over copyright and its purpose as proof that the forefathers intent was 
that copyright would be for a “limited” period, which in their view, Congress has exceeded 
(DeVoss & Porter, 2006; Herrington, 1998a; Herrington, 1998b; Herrington, 2011). However, 
the courts have disagreed, finding that having a limited period of time no matter its duration met 
the requirement of limited time in Eldred v. Ashcroft (2003). The courts also decided in Eldred 
that the power of Congress to change copyright law was constitutionally granted. 
A change to the balance 
 
Critics of the expanded copyright term assert that our forefathers aim was to fashion a 
balance that allowed the creator to profit so there was an incentive to create, while ensuring that 
the work would enter the public domain, so that it could be used freely by others, thereby 
increasing knowledge for all, and possibly leading to further knowledge. The current copyright 
climate, however, impedes this process. Hoffmann (2005), author of the book titled, Copyright in 
Cyberspace 2, noted that the longer copyright term of the Sonny Bono law harms libraries and 
information industries. Technical writers who rely on information to produce publications, often 
seeking the latest knowledge, are among those in the information industries who are impacted. A 
challenge to the reinstatement of copyright to foreign works that were once located in the United 
States’ public domain, was turned aside by the courts, who said the action was the product of an 
international treaty that the government had to honor (Golan v. Ashcroft, 2012). 
There is a group of writers from a number of disciplines who charge that the Internet and 
the World Wide Web are now under the dominion of the corporate sector (DeVoss & Porter, 
2006; McKee & Porter, 2010). DeVoss and Porter write: “Through a combination of legislative 
lobbying, legal threats and bullying, and the pure power of money and media advertising, 
corporations are trying to seize control of what others are trying to construct (although not 
18 
 
without difficulty) as a ‘free’ citizens’ network and as an educational and political forum (2006, 
p. 191). Lawrence Lessig is one of the more prolific book authors arguing for a valued public 
domain where material that’s part of the culture can be drawn from without censure (p. 192). 
Interestingly, some critics of DMCA object to it on entirely different grounds albeit related to 
education. Encryption researchers charge that DMCA prevents encryption researchers at 
universities from bypassing DRM controls for educational purposes, hindering their ability to 
further knowledge (Franklin, 2009; Imfeld, 2003). An exception does exist for this activity if the 
research is done to identify flaws in the encryption technologies or if the protection devices are 
faulty, as described in the U.S.  Copyright Office Summary (“The Digital Millennium Copyright 
Act of 1998,” December 1998). 
The impact on free speech 
 
Companies such as Disney and Microsoft are so concerned about making their digital 
material inaccessible that they’ve lost sight of the public’s rights under fair use (Herrington, 
1998b). Herrington, an academic and an attorney, also asserts that the closing off of the public’s 
access to information harms the democratic process since free speech is hindered when 
information is hoarded away from the public, preventing the public from expressing related 
opinions and criticisms, among other uses (1998a). She states that “… it falls to the legal system 
to provide markers for how to ensure that these functions of a body of self-governing individuals 
remain feasible” (p. 128). This prohibition of access unless permission is granted or a fee paid or 
a license acquired under DMCA means that fair use cannot occur since the very tenet of fair use 
is that it is used without permission (DeVoss & Porter, 2006; Herrington, 1998b; Imfeld, 2003). 
The proper implementation of fair use provides a legal defense to allegations of infringement. 
However, with DRM devices, the role of the courts in deciding whether or not infringement had 
19 
 
occurred or if the use fell within the bounds of fair use may no longer be as necessary (Gillespie, 
2006). The DRM devices circumvent unauthorized access for the onset, so fair use can’t take 
place or be raised as a defense. Shipley (1996) raised concerns in advance of the passage of 
DMCA that the fair use doctrine would lose ground in a digital environment. He questioned 
whether or not the fair use doctrine could operate with “full force and effect in the digital 
environment” (p. 6). 
On the other side of the debate, Berti (2009) defends DRM devices as essential for the 
prevention of illegal downloads and copying. He dismisses the attitude in existence mostly 
among younger age groups that it is revolutionary to freely exchange copyrighted material and 
that such actions don’t cause any harm (p. 43). He writes that it’s not just industry associations 
that lose profits, it’s the copyright holders who lose financial compensation as a result of such 
unauthorized uses. A competing view is offered by DeVoss and Porter (2006) who argue that 
what is ensuing is actually a culture clash fueled by youth accustomed to sharing and distributing 
digital content, who have “… a view of the Internet as a public living space” and those who see 
this same digital content as property (p. 185). These youth value the collaboration possible with 
electronic works as opposed to corporate copyright holders who value protecting their economic 
interests (p. 185).  
Another voice for the corporate view can be found in Hausmann who works in the digital 
content management field. He wrote an essay titled “Protecting Intellectual Property in the 
Digital Age,” describing his view that DMCA is an essential law. He’s of the opinion that a 
model that relies on legal licenses, where customers pay for content, provides the material to 
consumers at a low cost while also encouraging legal access. Further, he says that such controls 
stabilizes the digital media marketplace (Hausmann, 2002). 
20 
 
For supporters of DMCA, including the digital content management industry and the 
corporate producers or copyright holders of the content, the law is an asset.  More control means 
that profitability is protected (Hausmann, 2002). The WIPO website’s report states that the 
DMCA addresses the right of reproduction as defined by the Berne Convention as copies “in any 
manner or form,” and that this protection from illicit copying is crucial to e-commerce and the 
business sector” (n.d., p. 2). In the view of DMCA’s supporters, including many copyright 
lawyers, digital content is under siege due to the mushrooming popularity of the Internet, along 
with the resultant ability of users to copy and share content in the absence of technological 
restrictions preventing these actions. The advent of the digital age and the resulting avalanche of 
digital content meant that the existing copyright law was no longer adequate since it had been 
designed to meet the needs of a print marketplace. Unlike print, digital content that’s accessible 
to the public allows for the creation of an unlimited number of “perfect” copies, which can be 
shared with other computer users. Infringement lawsuits decided by federal courts, including the 
U.S. Supreme Court, generally have held that in most cases, using or supplying technology that 
can be used for illegal copying and distribution is prohibited.  
In the music file sharing case of A & M Records, Inc. v. Napster, Inc. (2001), the federal 
courts in California decided that copyright infringement had taken place due to the distribution of 
free software designed to download and share MP3 music files. In another case, the U.S. 
Supreme Court upheld the California courts decision against Grokster, ruling that the company 
had knowingly provided software so that copyrighted music and movies could be downloaded 
and shared without using computer servers through the use of peer-to-peer networks (Metro-
Goldwyn-Mayer Studios Inc., et al. v. Grokster, Ltd., et al., 2005). However, the court found in 
Sony Corp. of America v. Universal City Studios, Inc. (1984) that when the manufacturer wasn’t 
21 
 
cognizant of a device’s use for copying copyrighted material, the manufacturer wasn’t liable. In 
that decision, the consumer use was for private purposes, not for commercial showings of 
television programs. Sony had petitioned the U.S. Supreme Court to hear its appeal of a 
California appeals court decision that had held that Sony was liable for copyright infringement. 
The Supreme Court decided that the buyers of Sony’s videorecording equipment had engaged in 
fair use when videocopying television programs for private at home viewing since it was a 
commercial for-profit use (Sony Corp. of America v. Universal City Studios, Inc., 1984).  
The guidelines the law provides about fair use also have caused confusion since they 
refer to minimum uses, not to maximum uses. Courts interpret whether fair use is a defense to 
copyright infringement by applying the four-pronged test, examining the purpose and character 
of the use, the nature of the copyrighted work, the amount and context of the portion used, and 
the expected impact of the unauthorized use on the market value of the copyrighted work. The 
vagueness of the law is deliberate so that cases can be judged individually. However, with the 
emergence of digital content, courts are being asked to define it further (Anderson, 2008). 
In another case that illustrates the tensions that exist between new technology and 
copyright, the U.S. Supreme Court heard oral arguments in April 2014 about a company that 
used technology to make copies of locally broadcast television programs for its subscribers. 
Aereo, a New York-based company, used a multitude of antennae along with other devices to 
retransmit the programs, allowing subscribers to watch the programs or record them onto their 
computers. The lower courts ruled that it was unlikely that the television stations would prevail 
in court, and the stations appealed. At issue was whether the retransmission of television 
programs was the same as the copyright infringement activity of a “public performance” shown 
without permission. In an October 2014 decision, the Court found that Aereo’s retransmissions 
22 
 
violated copyright and banned this activity in American Broadcasting Companies, Inc., v. Aereo, 
Inc. (2014).  
Law viewed as inadequate 
 
All sides of these issues pertaining to the public domain and fair use appear to agree that 
copyright law needs to address copyright as it pertains to digital works and new technologies 
more thoroughly. Berti agrees on one point with critics of the DMCA. He also considers 
copyright laws as in need of improvement to facilitate “awareness and general education” (p. 
44). There appears to be a general consensus that Congress needs to take some form of action; 
however, Anderson (2001) advocates for a slow approach where time is taken to examine all 
sides of the issue so that the public good is ultimately advanced.  
It has been acknowledged that copyright law, with the exception of the DMCA, was 
developed for traditional media. Critics of the current trends of using DRM devices are 
advocating for changes to the law that remove some of the restrictions. They argue that there are 
better alternatives to the current technological safeguards of digital content, pointing to other 
technological means that could be tried or to the proven ability of the marketplace to balance 
interests. Adjustments to the law are perceived by technical writers and educators as necessary to 
ensure that digital information can be accessed and used fairly without undue restrictions.  
The availability of licenses through Creative Commons has provided one option where 
the website provides a marketplace that seeks to balance the interests of parties (Rife, Westbook, 
DeVoss, & Logie, 2010). According to its website, Creative Commons distributes licenses that 
address conflicts, and the company is committed to bridging the “… conflict between innovative 
digital culture and archaic copyright laws” (“Culture,” n.d., para. 1). Rife (2010) describes 
Creative Commons as an Internet provider of licenses that give creators the ability to personalize 
23 
 
boilerplate licenses by stating specific uses and restrictions. Creative Commons is seen as a way 
to streamline the copyright process of digital works for creators and users.  
Some critics of the DMCA dispute the need to safeguard copyright at all. For example, 
James Boyle, a law professor at Duke University, who works with Jenkins at the Center for the 
Study of Public Domain, agrees that controls are needed but not to the extent allowed under 
DMCA. He argues that snippets of information have always been available to be used for new 
creations, and he doesn’t agree that tighter copyright controls on digital content will have the 
effect of encouraging more innovation (Boyle, 2003). Author Jessica Litman writes in the 2006 
edition of her book, titled Digital Copyright, that the prepayment system for digital content 
encouraged by DMCA may result in consumers having to buy access to content that they had 
already paid to use. Litman is among those writers asserting that copyright law isn’t up to the 
task of dealing with digital content since it was designed around print uses. All of these issues 
surrounding copyright are important to the field of technical communicators as writers and as 
educators. 
Effect on technical writers 
 
These copyright changes and the confusion that surround them as well as the impact of 
recent or future court decisions mean that technical writers need to keep abreast of the latest 
developments and findings in order to steer clear of infringing uses.  It’s important to understand 
these laws in order to avoid infringement penalties, knowing when permission should be 
requested before posting website content. Care also should be taken to determine whether or not 
that content contains copyrighted information that was used without permission (Juillet, 2004). 
Issues that pertain to technical communicators on the domestic front include questions about 
when it’s considered fair use to access text and images and when permission should be sought.  
24 
 
Often, technical writers are not well-schooled about the rules for navigating web content 
so that they can successfully skirt infringement (Rife, 2010). In a survey of digital writers—
communication students in university writing programs and their instructors—Rife found there 
was a tendency to make decisions based on conscience, not the law. One way of gauging whether 
copyright applies is to consider whether it meets the test of originality, and this test applies on 
the international front as well (Rife, 2011, p. 85). Referencing international law, Rife said there 
needs to be an understanding among technical communicators of the necessity of seeking legal 
advice when appropriate. She advises technical communicators on the importance of their 
becoming knowledgeable about intellectual property law, which will also demonstrate their value 
as employees who possess crucial knowledge. However, this same advice would be equally 
applicable to domestic copyright law.  
On the international front, technical writers conducting research need to keep abreast of 
legal and regulatory issues pertaining to the area where they are obtaining data or the websites 
they are accessing (McKee & Porter, 2010). Herrington (1998a) points to another concern among 
technical writers beyond acquiring knowledge of copyright law for international purposes. She 
has noted that there’s a sense of unease among writers that fair use won’t be recognized and 
understood, resulting in repercussions such as legal challenges made against writers, including 
technical communicators, for what are in actuality allowable uses of copyrighted material.  
Herrington (2010b) has noted that fair use is an American creation, although there are 
some versions or approaches to it in use internationally. She argues that treaties signed by the 
United States have diminished fair use and technical communicators should be aware of the 
potential impacts. These treaties emphasize trade and protection for intellectual property and due 
to negotiations, they deemphasize the value Americans place on public access and fair use.  She 
25 
 
urges technical communicators to voice support for fair use within the international community. 
She states that “Technical communicators working internationally without a fair use base might 
find their creativity restricted or, worse, their speech potential curtailed” (p. 322).  
Potentially chilling effect 
There’s a perception among technical communication and English scholars that a chilling 
effect is hovering about technical writers who have become wary of using content or publishing 
to the web in the current legal environment; however, Rife (2010) found that this might not occur 
as often as expected. Chilled speech refers to decisions made not to use content or not to use it 
fully out of concerns about infringement or possible objections. In Rife’s survey, only a small 
number of study participants reported they had been asked to removed something from the Web 
due to alleged infringement or that they had voluntarily taken something down without a request 
due to concerns about infringement. However, nearly half of the study subjects reported not 
posting something out of fear of infringement (p. 54). Other authors express more concern about 
the chilling effect (Herrington, 1998b; Porter, 2005). Their view is that technical writers may be 
overly concerned about using material in the current copyright climate. They trace this chilled 
speech to the arrival of digital content, followed by the passage of DMCA, and then to the 
government policies and court decisions that have occurred in the wake of DMCA (Herrington, 
1998b; Porter, 2005).  
Questions about hyperlinking also prevail among technical communicators and others 
(Porter, 2005). A hyperlink is an electronic link within a computer document that when clicked 
upon takes the user to another place in that document or another document or webpage. At times, 
it may be difficult for a technical writer to accurately judge if an action such as hyperlinking is 
26 
 
legal or not (Hoffman, 2005). Guidance for technical communicators on linking and other 
activities is provided in the “Educating technical communicators” chapter. 
The remainder of this thesis focuses on domestic issues but will briefly discuss 
international impacts on technical writers conducting research to present a balanced picture. A 
discussion and analysis of the issues facing technical communicators within the framework of 
fair use and public domain have been presented in this literature review against a backdrop of 
federal statutes, treaties, and court decisions. The issues surrounding fair use, particularly as it 
pertains to educators and technical communicators, and the public domain will be addressed in 
more detail within the applicable chapters.
Chapter Three 
 
 
Perspectives on the Public Domain 
The public’s eventual access to published copyrighted material has long been assured 
through the public domain, a term that refers to the free availability of material after the 
copyright either expires or due to other reasons. The U.S. Copyright Office website refers to 
reasons that are not attributable to copyright expiration as follows:  
Examples of what might have caused the work to be in the public domain in the United 
States include lack of proper notice, failure to renew, failure to comply with 
manufacturing requirements, being a sound recording fixed prior to U.S. protection, and 
lack of national eligibility, that is, the source nation and the United States did not then 
have a treaty relationship (“Works in the public domain”, n.d.).  
However, with copyright term expansions created by Congress with its passage of the 
Sonny Bono law, as well as through changes mandated by American’s need to adhere to 
international agreements and treaties, the time frame for the entry of works into the realm of the 
public domain has become increasingly lengthy, prompting some challenges based, in part, upon 
arguments that these longer terms violated the “limited monopoly” time frame the framers meant 
to assign copyrights. 
Jassin, who cowrote The Copyright Permission and Libel Handbook, notes that if not for 
the Sonny Bono law, works published in 1923 would have entered the public domain in 1999, 
not 2019. Furthermore, in 1992, Congress passed a law allowing renewal to take place by default 
for any works which were published between 1964 and 1978 (Jassin, n.d.). 
28 
 
Among the most vocal critics of this expansion are attorneys who are also academics like 
Herrington and those who are associated with Duke University’s Center for the Study of the 
Public Domain like Jenkins. In Jenkins’ 2013 article, the attorney discusses the dearth of 
American works entering the public domain due to longer copyright terms. She offers the 
following example of the impact of the expansion of terms by describing works that would have 
become part of the public domain in 2014 if not for these extensions, as follows: 
[Previously] Under that relatively recent term, works published in 1957 would enter the 
public domain on January 1, 2014. These include books ranging from Jack Kerouac’s On 
the Road to Ayn Rand’s Atlas Shrugged to Dr. Seuss’s The Cat in the Hat.  . . . Under 
current law, they will remain under copyright until 2053. And famous creations like these 
are only the beginning. Most works from 1957 are out of circulation—a Congressional 
Research Service study suggested that only 2 percent of works between 55 and 75 years 
continue to retain commercial value (Jenkins, 2014, p. 4). 
The United States reinstated public domain for some works first published in other 
countries due to its adherence to the Uruguay Round Agreements Act and the Berne Convention. 
Those works had lost copyright protection under the copyright length of terms in the United 
States, but in their country of origin, their terms had not expired. The U.S. Copyright Office 
website described the process: 
In 1996, copyright was automatically restored in certain foreign works that were then in 
the public domain in the United States but were protected by copyright or neighboring 
rights in the source country. Owners of a restored work were directed to notify reliance 
parties if the owner of the rights planned to enforce the rights. One means of notification 
29 
 
was filing with the Copyright Office a Notice of Intent to Enforce (NIE) a Restored 
Copyright (“Notices of Restored Copyrights,” n.d., para. 1).   
Decided legal challenges 
Lawrence Golan unsuccessfully challenged this action to reestablish copyright protection 
for those works in the case, Golan v. Ashcroft, decided by the U.S. Supreme Court in 2012. 
Golan argued that the application of the Uruguay Round Agreements Act was unconstitutional 
because he alleged that Congress had exceeded its copyright authority by affixing copyrights 
upon works that were already in the public domain. The Uruguay Round Agreements Act 
allowed the United States to reinstate copyright to foreign works. It also did not allow any action 
to be taken for previous use of those works up until one year after the enactment of the Act. 
Golan argued that the reapplication of copyright protection violated the First Amendment free 
speech rights of those who had reproduced those works in an action filed against the U.S. 
Attorney General. The Court decided that the Act was constitutional. In its findings, the Court 
also determined that the United States was within its rights to take this action since it had an 
important interest in complying with international treaties (Golan v. Ashcroft, 2012). The Berne 
Convention also was a consideration in the restoration of copyright. As revised in Stockholm in 
1967, countries belonging to the Berne Union agreed to treat the works of other members as they 
would treat their own works. However, once a work has fallen into the public domain of the 
country where it originated, no country would be allowed to reinstate its copyright Golan v. 
Ashcroft, 2012). Jenkins writes that the Court’s decision allowed Congress to: 
. . . remove works from the public domain, even though citizens—including orchestra 
conductors, educators, librarians, and film archivists—were already legally using them. 
According to the majority opinion, while copyright owners had legally protected rights 
30 
 
during the copyright term, the public had no First Amendment rights to use material in 
the public domain (2013, p. 3). 
 In the Court’s dissenting opinion, Jenkins notes that justices in the minority considered 
the taking of material from the public domain an abridgement of a “preexisting freedom to 
speak” (p. 3). Jenkins states that, “This impoverishment of the public domain stands in stark 
contrast to the original purpose and history of our copyright laws” (p. 3).  
She also disagrees with the Court’s decision in Eldred, joining Herrington in her 
condemnation of the U.S. Supreme Court’s decision that the 1998 Sonny Bono law did not 
conflict with the Constitution’s specification that copyright last for “limited Times.”  
However, Herrington argues that despite this, there may be one possible positive outcome 
from Eldred, which is the Court’s decision to constitutionalize fair use (See “Perspectives on fair 
use chapter), she acknowledges that by upholding the extension of copyright term, the Court 
inflicted damage upon the public domain (Herrington, 2010a). She writes, “This case was quite a 
blow against those who want greater accessibility to copyrighted works as a means to combat the 
ever-extended product protection that developed in recent legislation” (2010a, p. 51). The impact 
upon users of others’ works, including technical communicators like Herrington, is addressed in 
this statement: 
As a creator whose interest is in using other work from which to expand or develop your 
own, your access is now severely limited; those who wish to use film clips, photos of 
artwork or other visual representations, or music clips, among other works that were 
created by an individual after 1923, are prohibited from doing so unless their uses is 
allowed by the fair use exception . . . (Herrington, 2003, p. 96). 
  
31 
 
Pending legal challenges 
 In a case filed in 2013 in the U.S. District Court, Central District of California, the 
plaintiffs, Good Morning to You Productions Corp., filed a class action suit against 
Warner/Chappell Music, Inc., alleging that the song “Happy Birthday to You” lies within the 
public domain and the publishers have wrongfully been charging for its use. The plaintiffs are 
documentary filmmakers who want to film a documentary about the song and who argue they 
should not have to pay fees to use the song. They argue in Good Morning to You Productions 
Corp. v. Warner/Chappell Music, Inc. that the melody is more than 120 years old and that there 
is evidence going back to 1893 indicating that if there was a valid copyright to the song, it 
expired in 1921. The suit asks that licensing fees that have been paid for its use by the 
respondents be returned.  
 According to the lawsuit, no court decision has ever been made regarding the validity of 
any copyright applications pertaining to the song. This is part of the basis for the assertions that 
the work resides within the public domain. There has been no recent activity in the case. As this 
case shows, the courts are being asked to decide whether or not works exist in the public domain. 
As potential users of public domain content, technical communicators and others need to be 
aware of these issues so that they don’t pay fees for information that is free as part of the public 
domain.  
Guidelines for navigating the public domain 
 
 Mazzone (2011) uses the term “copyfraud” to refer to entities which purposely affix a 
copyright notice to a public domain work. He states that while Congress has made clear the 
importance of honoring copyright, it often has been left to individual copyright owners to 
truthfully designate when a work enters the public domain (2011, p.6). He argues that while the 
32 
 
penalties for copyright violation are clear, there are no clear civil penalties for falsely alleging 
copyright. The law does allow for criminalization of this activity under Section 506e of the 
Copyright Act of 1976, but he states that this punishment by a fine of no more than $2,500 is 
rarely enforced (p. 7). He asserts the prevalence of copyfraud as follows: 
Browse any bookstore, buy a poster or a greeting card, open up sheet music for choir or 
orchestra practice, or flip through a high school history text: copyfraud is everywhere. 
Despite the fact that copyrights are limited by time and original authorship, modern 
publishers routinely affix copyright notices to reprints of historical works in which 
copyright has expired. … (p. 9). 
It’s not only the public domain that’s at risk in today’s copyright climate, according to 
critics. They say that fair use is also under attack due to the DMCA. 
Chapter Four 
 
 
Perspectives on fair use  
 In addition to the public domain, technical communicators and others need to keep 
abreast of changes to copyright law that impact fair use. Technical communicators and English 
faculty in academia, are often critical of efforts to eliminate access without prior permission, an 
activity which they say impedes upon the proper practice of fair use, which is predicated upon 
use without permission. According to the U.S. Copyright Office website, fair use are legal uses 
of copyrighted material where “reproduction of a particular work may be considered fair, such as 
criticism, comment, and news reporting” (“Fair Use,” June 2012). 
Fair use strengthens the American citizenry by providing the public with access to 
protected intellectual material for the betterment of society and the fortification of democracy. 
This access without permission encompasses such legally allowable purposes as using excerpts 
for news reporting, or for the purpose of writing critical reviews or commentary. It also allows 
for parody geared toward criticism or protest. Herrington (1998a) has argued that many 
Americans aren’t familiar with the concept of fair use and that they also fail to recognize its 
correlation to free speech. She has stated it this way:  
Where the First Amendment assures that we have a right to voice our ideas, assert 
conflicting views from which new thought is derived, and criticize thought and action of 
powerful forces in society, fair use provides a means to access the information upon 
which our opinions are based. Without the fair use exception to copyright, free speech 
34 
 
would be, at best, inhibited, and in some cases, eliminated altogether” (Herrington, 
1998a, p. 125). 
She has argued that knowledge of this relationship is important to educators, including 
technical communicators, who rely upon fair use to access information for teaching (Herrington, 
1998a). The fair use guidelines for educators are provided in the “Educating technical 
communicators” chapter. In addition, among technical communicators, the fair use of others’ 
intellectual creations can help spark the creation of something else, similar to “exchanging ideas” 
(Herrington, 2010b, p. 321). 
However, fair use has been affected by the different views on copyright that began 
diverging with the development of the Internet (DeVoss & Porter, 2006). A gulf has grown 
between those who perceive intellectual content, especially digital, as having a property right, the 
protection of which is paramount, and those who argue that a rise in constraints pertaining to its 
use wrongfully undermines fair use, where the public’s right of access is paramount.  Litman 
(2006) believes that the public’s view of copyright should govern, and she calls for educating 
people on their rights to make fair use of material. Advocates for the protection of fair use 
include technical communicators, librarians, public interest groups and small businesses, who 
favor easier distribution and more open access of content. On the other side of the issue are 
major media companies, including Disney, and the Motion Picture Association of America 
(MPAA). The viewpoint of Disney and the MPAA is described by critics DeVoss & Porter 
(2006, p. 190) as follows: 
The proponents of strict copyright controls favor a view of information as a tangible 
product; they recognize (rightly) that the technological capability of the individual 
35 
 
networked computer is an immense threat to their proprietary control of audio, video, and 
other forms of digital information. They are working hard to close what they see as 
copyright loopholes (such as the Fair Use provision of copyright law) that allow for easy 
distribution of digital text.  . . . But the copyright changes they are advocating will affect 
print distribution as well as audio and video filesharing; these changes will limit the 
ability of students and teachers to access information for research; and they will stifle 
criticism, especially criticism of corporate behavior, consumer culture, and economic 
policy (citing Benkler, 1999; “Copyright, Plagiarism,” 1998; Gurak & Johnson-Eilola, 
1998; Heins, 2002; Kranich, 2004; Mann, Barlow, Stefik, & Lessig, 1998; Schiller, 
1989). 
Herrington argues that the impact of technology has made it more important to safeguard 
fair use, which provides access to information that can spark or influence the “diverse expression 
of ideas” (1998a, p. 135). Digital materials in themselves have the inherent ability to influence 
opinion, Herrington adds (p. 136). While this thesis respects the rights of copyholders, it also 
recognizes is the value of access to the latest ideas and information for technical communicators 
in the workplace or as educators in the classroom. Otherwise, the information disseminated may 
be dated, to the detriment of readers of newly created technical material or to the students being 
taught in the classroom. Some suggest that allowing initial access, but limiting the ability to copy 
material unless the copying is tied to noncommercial purposes within the bounds of fair use, is 
one way that both sides of the copyright equation could be served in terms of Internet writings. 
In fact, the law allows limited copying for fair use purposes. However, this idea would not be 
applicable to all instances, particularly with software access.  
36 
 
 Litman (2006) states that the DMCA was written to favor the copyright holder, not the 
public. As a result, the public’s right to access material has been shortchanged. The reason 
behind public access is the promotion of knowledge and the creation of new works. When the 
law is no longer balanced, giving copyright holders an excessive amount of control over their 
works, public access is sacrificed. It is the opinion of this writer and many of the authors relied 
upon for this thesis that copyright law should be reexamined by Congress due to the complexities 
of digital content and copyright. Alternatives and solutions should be sought rather than the 
current dependence on the DMCA and DRM devices which emphasize copyholder rights, 
creating an imbalance and a lack of attention to the public’s rights. This situation has developed 
since content is no longer primarily in print form. Creative Commons, which gives copyholders 
control but makes it easier for users to access material by streamlining the process for all parties, 
is one such alternative. Creative Commons allows users to understand immediately what uses are 
allowed and what uses aren’t allowed since the creator includes this information on the licensing 
agreement. However, no alternative alone can solve this imbalance. It is Congress that has the 
power and the responsibility to undertake a more judicious and fair-minded examination of 
competing copyright interests. 
Reasons behind corporate concerns 
 
The ease of downloading and sharing digital material has led corporations like Disney 
and Microsoft to minimize the historical importance of fair use by choosing to make digital 
content unavailable due to their fears about the potential for copyright violation (Herrington, 
1998b, p. 3) Herrington argues that technical communicators and other advocates for fair use 
should work to educate everyone about its importance. Herrington states that most elected 
officials are lawyers who think more in terms of individual rights than policy rights, resulting in 
37 
 
a lack of attention to the public’s right to fair use of content. The 1976 Copyright Act makes it 
clear that fair use is important to public policy. As stated in the federal statute, 17 U. S. C. § 107 
(1982), fair use is not an infringement of copyright, and may rightfully take the form of “… 
criticism, comment, news reporting, teaching (including multiple copies for classroom use), 
scholarship, or research … .” Such activities may be essential to free speech and the protection of 
the First Amendment (Herrington, 1998b). She describes the relationship between fair use and 
free speech as follows: 
The basis for the assertion of conflict lies in the following reasoning: The First 
Amendment’s free speech protections ensure the free flow of information, but the 
copyright clause provides a limited yet exclusive statutory monopoly to authors that 
allows them to control access to information. A copyright can conflict with the 
Constitution’s protections of free speech if the copyright is used to inhibit the free flow of 
information (Herrington, 1998a, p. 3).  
For these reasons, actions taken to undermine fair use should not be ignored. Instead, 
Herrington advocates for support for information access, digital or otherwise. She argues that if 
the public accepts that digital products and their ideas can’t be accessed, it could harm efforts to 
teach in electronic forums, comment critically about Web content and report on news that was 
generated by a digital source (Herrington, 1998b, p. 3). Herrington also states that the importance 
of fair use has intensified with the influence of technology, making access more crucial for the 
the support of democracy (Herrington, 1998a).  
  
38 
 
Digital Millennium Copyright Act of 1998 (DMCA) 
 
A U.S. Copyright Office Summary of the Act (“Notices of Restored Copyrights,” n.d.) 
describes DMCA as legislation signed by President Clinton which puts into effect two 1996 
World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and the 
WIPO Performances and Phonograms Treaty.  
One technical amendment requires member countries like the United States to protect 
works from other member countries as they would domestic works. The second technical 
amendment requires member countries to honor the copyright terms of the originating country, 
meaning that works will not be released into the U.S. public domain until their term had expired 
where the work was first published. The implementation of this law resulted in some foreign 
works that had reached public domain status in the United States being removed from the public 
domain and placed back under copyright protection. A similar guideline was instituted earlier 
with the Berne Convention and the Trade-Related Aspects of Intellectual Property Rights 
(TRIPS) agreement. It was implemented with the Uruguay Round Agreements Act of 1994, 
resulting in a new section to the Copyright Act of 1976. It also exempts most foreign works from 
the U.S. requirement that a copyright must be registered with the U.S. Copyright Office before a 
lawsuit for copyright violation can be filed. This exemption was made to correspond with the 
previous Berne Convention treaty.   
Under DMCA, member countries governed by this Act are required to protect works 
from unauthorized access and provide legal remedies for violations.  The DMCA forbids the use 
or sharing of software that can either decipher encryption or antipiracy codes to allow 
unauthorized access. The report further states that the fair use doctrine is not an available 
defense for copyright violation via unauthorized access. However, Section 1201 (1998) provides 
39 
 
for fair use by not prohibiting “the act of circumventing a technological measure that prevents 
copying” (“The Digital Millennium Copyright Act of 1998, December 1998, p. 4). However, the 
U.S. Copyright Office report also states (p. 4): “By contrast, since the fair use doctrine is not a 
defense to the act of gaining unauthorized access to a work, the act of circumventing a 
technological measure in order to gain access is prohibited.” This appears to suggest that one can 
access information without permission for copying, if the technological device that is 
circumvented is only for the prevention of copying. If the device prevents access, fair use is not a 
defense.  In this manner, the law seeks to keep fair use viable within the constraints of DRM 
devices.  So, the fair use doctrine can coexist with DRM devices in terms of allowing copying by 
any means. This is predicated on the legal understanding that fair use doesn’t require permission. 
If the copying conforms with the doctrine of fair use then it cannot be found to infringe upon 
copyright.  
 According to Anderson (2001), Congress, recognizing that blanket restrictions on 
circumvention in the Act could deter fair use, asked the Librarian of Congress and the Register 
of Copyright to determine which classes of works should be exempt for the circumvention 
constraints. As a result, two exceptions were made (p. 113): compilations of websites blocked by 
filtering software applications, and literary works, including computer programs and databases, 
that are protected by malfunctioning, damaged, or obsolete access control mechanisms.” 
Librarians were once again in a position that limited their fair use access, including their ability 
to backup software copies and make archival copies (p. 113).  
 Anderson (2001) states that since copyright law, including DMCA, was meant to be 
broad, allowing for case-by-case interpretation, questions about the fair use of digital works will 
continue to be decided in the Courts. These issues need to be addressed since he says, “. . . 
40 
 
copyright law is too important to rush judgment, especially since user rights are being 
diminished.  . . . Public good is a process advanced by policies and laws that provide appropriate 
incentive to authors and creators while at the same time ensuring appropriate access to the 
information” (p. 112). 
 What has been clearly forbidden is described in the following section of the U.S. 
Copyright Office Summary (“The Digital Millennium Copyright Act of 1998,” December 1998, 
p. 5). Section 1201 of the Act (1998) proscribes devices or services that fall within any one of the 
following three categories: 
? they are primarily designed or produced to circumvent.  
? They have only limited commercially significant purpose or use other than to circumvent; 
or 
? They are marketed for use in circumventing. 
 
The Act also carves out exceptions for “law enforcement, intelligence and other 
government activities.” And it names other groups as exceptions, including nonprofit libraries, 
archives and educational institutions, all of which may circumvent DRM devices to determine 
whether or not they want to seek authorized access. Reverse engineering also permits 
circumvention. In addition, encryption research is allowed if it is done to identify weaknesses 
within the protection devices. Security testing is permitted to use circumvention methods as long 
as the proper authorization is obtained beforehand. Circumvention also can be used to protect 
minors from viewing Internet material. And it allows circumvention if the technology has the 
ability to collect information about the online activities of a person.  
  
41 
 
Treaties encourage DMCA  
 
Herrington states that demand for the DMCA arose due to treaties signed by the United 
States. She argues that the American tradition of fair use began to lose ground earlier with the 
Berne Convention and the Trade Related Aspects of Intellectual Property Rights (TRIPPS) 
agreement. Treaty negotiations require compromise and these compromises represent an erosion 
of the strength of fair use. Herrington asserts that negotiations to accommodate all interests 
means that the U.S. doctrine of fair use no longer carries the weight that it once did (2010b, p. 
322). The emphasis has become more about meeting trade goals instead of about supporting 
democratic ideals, and this has adversely impacted the Constitution’s view of intellectual 
property and the fair use doctrine (p. 322). Herrington states that the Berne Convention and 
TRIPPS has been the subject of criticism by U.S. scholars due to their lack of support for fair use 
and their emphasis on protecting trade and intellectual property, not for providing public access 
(p. 322). 
The impact of DRMs 
 
Corporations favor the use of DRM (Digital Rights Management) devices to curtail the 
computer’s ability to make perfect copies and share files. However, since these devices are 
designed to circumvent access with permission, just as licenses prevent access without payment 
or the agreement to terms, critics say that all of these corporate strategies interfere with the 
operation of fair use, which is predicated on access without permission. Digital content users 
who disdain these circumscriptions are considered “bad users” since they “produce parody web 
sites … hyperlink without permission ... [and] distribute and download content without paying 
for it” (DeVoss & Porter, 2006, pp. 190-191).  
42 
 
Academics like DeVoss & Porter (2006) equate this grab of “digital territory” to a 
corporate takeover, where the Wild West of the Internet is tamed to protect corporate profits by 
preventing the unauthorized distribution of content (p. 191). Such activities advance corporations 
desired “historical destiny” (p. 191). In DeVoss & Porter’s view, those who refuse to use digital 
content passively, and with permission only, are seen by the corporate world as “These 
cyberradicals—we might call them ‘digital content producers,’ perhaps even ‘writers’—[who] 
see the Internet as a free space to be ‘surfed’ by all for purposes of enjoyment, recreation, 
political discussion, and education” (p. 192). This view is at odds with the views of technical 
communicators, librarians, educators, and small business owners who generally support fair use 
and a vision of the Internet as a “public commons,” where the public can share information and 
have input into policymaking (p. 192). There are those in academia who are advocating for 
technology that allows increased public participation, for laws that uphold the public domain, 
including the fair use provision, free speech and privacy, according to DeVoss & Porter (p. 192) 
(citing Pamela Samuelson, 1998a, 1998b; Lawrence Lessig, 2001, 2002, 2004; John Perry 
Barlow, 1994; Howard Besser, 1995, 2001; Richard Sclove, 1995; and James Boyle, n.d.). 
Lessig has argued that certain textual fragments should be incorporated within the public 
domain and available for reuse by the public (DeVoss & Porter, 2006, pp. 192-193). Allowing 
this would encourage creativity. According to Lessig, Mickey Mouse wasn’t a new creation but a 
revamped idea from Buster Keaton, illustrating the then-common type of transformational 
process that Disney now seeks to quash. Lessig also argues that Disney mined the fairy tales of 
the Brothers Grimm for its own use, but now seeks to prevent others from such endeavors. 
Historically, fair use has relied upon previous material for the creation of new works, a type of 
borrowing that pre-Internet could not be prevented.  
43 
 
Other constricting factors 
 
Porter in a chapter of the edited 2005 book titled, Technical Communication and the 
World Wide Web, criticizes the post-911 political climate and DMCA for their constricting 
impact on the rhetorical obligation to serve the needs of readers and the public at large (Porter, 
2005, p. 243). These chilling effects impede the flow of digital content, discourage fair use, and 
hamper free speech.  In his discussion of the DMCA, Porter refers to the practice of using DRM 
devices to stop the creation of parody web sites used for venting criticism. 
He calls upon technical communicators in the classroom to teach future technical 
communicators to question laws and policies that restrict their role as advocates for the public. 
He states that current ethical practices represent corporate interests and the needs of the clients 
and employers of technical communicators with less attention paid to the public’s interests (p. 
245).  Porter argues that it is crucial for technical communicators to act in the best interests of the 
public regarding their use of information, with clients and employers a secondary concern (p. 
254). These ethical considerations are increasingly important in a time of increased secrecy. 
Post-9/11, government restrictions on technical information resulted in the removal of 
information on infrastructure and research, and this was done without legislation. For example, 
the locations of nuclear power plants and plans designed to address chemical hazard risks were 
no longer available to the public. While Porter agrees that security measures were necessary and 
some of this material was deservedly mandated as classified, he said these measures have gone 
too far, discouraging the public from accessing information they have a right to view. Some of 
the removed material included historical maps. Other removed material had been placed on the 
Internet by government bodies to inform the public of ways to respond to disasters. From the 
technical communicators’ viewpoint, some of this material could clearly be necessary for the 
44 
 
production of instructions, manuals, and scientific materials. A Freedom of Information Act 
request now may be required to have access, and this can cause significant delays in receiving 
needed material. An informed public is crucial to the operation of a democracy and unwarranted 
actions to prevent access to this information has consequences for the public at large, in addition 
to potentially degrading the output of technical communicators. As Porter and others assert, 
information is increasingly viewed as property, a departure from its former treatment as a shared 
resource with time-limited rights for creators before it was accessible for others to use. Access to 
fair use of material is crucial for technical communicators.  
Navigating fair use 
 
Herrington argues in her 2003 book titled, A Legal Primer for the Digital Age, that when 
the courts determine whether or not fair use is a viable defense to copyright infringement in 
regards to commercial uses, they “begin with the presumption of unfairness” (p. 108). She uses 
the Sony v. Universal Studios (1984) case as an example of this. Courts evaluate claims of 
copyright violation according to the statutory four-pronged test for fair use codified in The 
Copyright Act of 1976. (This legal excerpt is included in the Introduction chapter under Legal 
definitions and statutes, and in summary, states that factors for consideration include the purpose 
and character of the use, the nature of the work, the amount and substance of the portion used, 
and the effect on the market or value of the use of the copyrighted work.)  Herrington points to 
the fair use section of The Copyright Act of 1976 as evidence of the esteem that it was meant to 
engender, writing:  
The fair use clause  . . . ensures that you and other citizens have access to intellectual 
information to enable you to maintain free speech rights and to participate in the 
development of knowledge that shapes what the country is and what it will be in the 
45 
 
future. . . . Fair use is intended to make information available to ensure an educated, free 
society. It allows intellectual products to be copied in order to support education, for 
purposes of criticism, news reporting, quotation, critical commentary, and parody (2003, 
p. 107). 
She adds that the ability to make a “critical comment” is at the root of free speech (p. 
108). While criticism, including parody, can impact the profitability of a copyrighted work, free 
speech trumps this consideration when fair use is at issue, she argues (p. 109). When fair use is 
curtailed, Herrington states, so is free speech. “Your personal use and free speech rights protect 
your ability to use other work to comment on and criticize cultural issues in our society” (p. 
107). 
Possible strengthening of fair use 
 
In an article discussing the U.S. Supreme Court’s 2003 decision in the case, Eldred v. 
Ashcroft, Herrington argues that there was a potentially positive outcome to the U.S. Supreme 
Court’s otherwise disappointing decision to uphold Congress’ right to extend copyright terms 
(Herrington, 2010a). She states there could be a long-term benefit rooted in the Court’s 
acknowledgement of the importance to fair use shown by its giving Constitutional weight to fair 
use in its decision. Eldred’s unsuccessful challenge to the longer protection of Sonny Bono 
Copyright Extension Act was based upon the argument that it was unconstitutional for Congress 
to extend the copyright term. Herrington postulates that the argument was unsound since 
Congress clearly was given the authority to make decisions about intellectual property in the 
Constitution. The Court also found that although the new term was longer, it still was limited, 
and so was not unconstitutional. In Eldred, the creator of a web-based library consisting of works 
in the public domain objected to the extension of copyright terms since it meant that works 
46 
 
published after 1923 would not be public domain material until 2019. In an act that Herrington 
describes as “civil disobedience,” Eldred included a Robert Frost poem in his library that would 
have been allowed under the earlier copyright term. When issue was taken, Eldred took his case 
to the courts, but lost. Herrington suggests that a better argument that could have prevailed 
would have centered on whether or not the longer copyright term violated fair use (2010a). This 
case illustrates the ongoing challenges to copyright law in the Courts.  
Google wins fair use battle 
In 2005, Google was challenged in court due to one of its two digital books projects in 
the case, The Authors Guild, Inc. v. Google Inc. (2013). The U.S. District Court in the Southern 
District of New York dismissed the lawsuit in 2013 after granting Google’s motion for summary 
judgment. The program at issue is called the “Library Project,” for which Google, with 
permission, scanned books from the collections of research libraries. Google did not seek 
permission from the copyright holders. More than 90 percent of the books were nonfiction. The 
books included in print and out-of-print books, with most of them in the latter category. More 
than 20 million books were scanned. As part of their agreement with the research libraries, the 
libraries received free digital copies from Google of their own books only. Some of the libraries 
only provided works in the public domain while others provided books still in print.  
Users of the system did not see the full text of the books although the full texts were 
digitized. With the aid of a search engine, they received a list of the books where their keywords 
appeared. They could click on a link that provided information about that book and links to 
sellers. Books appeared in a “snippet view,” showing a limited excerpt, and each search could 
produce just three results. In the Court’s decision in The Author’s Guild, it found that the Library 
Project made it possible for “readers and researchers to find books.” It found that Google’s use 
47 
 
of the works was “highly transformative” (p. 19). It also determined that Google did not 
“supersede or supplant books because it is not a tool to be used to read books. Instead it ‘adds 
value to the original’ and allows for ‘the creation of new information, new aesthetics, new 
insights and understandings’ ” (p. 21). 
Further, the court found there was no copyright violation because the books came from 
libraries which had purchased them, and which were acting within the bounds of fair use.  
Google’s use also fell within fair use since these snippets were not for sale and no 
advertisements were displayed. No financial damage was incurred by the copyright holders. 
Also, only a limited amount of text was displayed from the books, within the guidelines of fair 
use. Further, the Court found that Google’s actions not only adhered to fair use, its Library 
Project benefited the public. This case is the exception to the recent trend to limit fair use, 
particularly of digital content, through the use of DRM devices. In the view of the sources for 
this thesis, fair use is necessary for the promotion of free speech and for the encouragement of 
knowledge. The benefit of knowledge view was shared by the Court in its opinion, referring to 
The Library Project, as follows:  
It advances the progress of the arts and sciences, while maintaining respectful 
consideration for the rights of authors and other creative individuals, and without 
adversely impacting the rights of copyright holders. It has become an invaluable research 
tool that permits students, teachers, librarians, and others to more efficiently identify and 
locate books. It has given scholars the ability, for the first time, to conduct full-text 
searches of tens of millions of books. It preserves books, in particular out-of-print and old 
books that have been forgotten in the bowels of libraries, and it gives them new life. It 
facilitates access to books for the print-disabled and remote or underserved populations. 
48 
 
It generates new audiences and creates new sources of income for authors and publishers. 
Indeed, all society benefits (The Authors Guild, Inc. v. Google Inc., 2013, p. 26).  
Writing prior to the Court’s decision in Google’s favor, (Netanel, 2008) praised Google’s 
effort and criticized those publishers who had objected, considering them to offer an example of 
how “. . . today’s proprietary copyright threatens to stand as an obstacle to the Internet’s 
realization of our First Amendment ideals.  . . . At its core, copyright shares our First 
Amendment commitment both to increasing the store of knowledge and to making it widely 
available for learning, inspiration, enjoyment, and further expression” (p. 28). 
The Court’s decision in The Authors Guild, Inc. was in keeping with Netanel’s support 
for “. . . a renewed weight in fair use analysis to the defendant’s transformative expression and 
purpose” (2008, p. 191). 
A hesitancy to exercise fair use  
 
Mazzone (2011) writes that the current environment makes people unduly hesitant to 
make fair use of material. University professors may be concerned about legal actions even when 
their use is for educational purposes. The court’s definition of fair use, which has been expanded 
upon for educators, offers detailed guidelines but these remain somewhat general and open to 
interpretation. As Mazzone states, companies may choose to exploit the vagueness of the 
definition of allowable fair use by wrongfully objecting to permissible fair use. He is especially 
censorious of educational nonprofits that fail to explain fair use or reference it when discussing 
the copyright law that governs the use of its material.   
49 
 
Chilled speech 
 
Academics and technical writers disagree on the extent of chilled speech that exists 
among technical communicators attributable to changes to copyright law. The DMCA’s passage 
led to the pervasiveness of DMCs that deny access to digital material unless payment is made to 
the copyright holder or permission is granted. Critics contend that preventing access in this 
manner prevents fair use of the material. Other impediments include barriers to the public 
domain. Situations have arisen where publishers and others enforce unwarranted conditions or 
impose improper demands for material that is in actuality free to use since it no longer qualifies 
for copyright protections. Researchers and technical communicators who have written on the 
topic of chilled speech, advocate for education about copyright law to assist technical 
communicators in navigating copyright issues so that they do not infringe upon copyrights but 
also are not subjected to unnecessary restrictions or fees for public domain material. They also 
would understand their right to use material under the guidelines of fair use. Chilled speech also 
occurs when professional writers in the digital realm are unsure about copyright law. Rife’s 2010 
study found digital writers who chose not to express themselves as they wished out of concerns 
about copyright liability. Becoming knowledgeable about copyright law could embolden 
technical communicators so that they can confidently follow the law, and understand when the 
information they are being given is false and meant to improperly limit or prevent their use of 
materials. 
Chapter Five 
 
 
Educating technical communicators 
 Technical communicators and other users of digital content need to understand the issues 
that could arise when they use material on the Internet either for fair use purposes or as a way of 
finding the most current information or relevant hyperlinks for their work. Rules for use have 
developed in some instances, but in other cases, court rulings are offering the most guidance. In 
some cases, there may be available defenses to allegations of copyright infringement. Nonprofits 
and educators may find that they have more access under fair use then is available for users who 
are creating works that are commercial or for profit. The relevant laws need to be understood and 
attention needs to be paid to the outcome of recent and pending lawsuits as these court decisions 
have an impact on technical communicators as writers and editors, as well as upon librarians, and 
small businesses. 
Educational fair use 
 
 Technical communication educators and those writing material for nonprofits have less 
reason for concern about using copyrighted material then those in the private sectors, who must 
pay fees, if applicable, or ask permission to use material for commercial or for-profit purposes. 
Noncommercial uses may offer fair use protection, and the guidelines may not be as inflexible as 
some educators might think. 
Enghagen (2005), a university professor and attorney, states that since the fair use 
guidelines only provide guidance, it also could be found that educators exceeding the 
51 
 
recommendations were still acting within the bounds of permissible fair use. These guidelines 
can help educators make decisions with relative certainty, however. Moreover, Enghagen states, 
a good faith belief that the use was allowable, along with a showing that the guidelines were 
relied upon, can provide legal protection to nonprofit libraries, archives, educational institutions 
and the employers of the user (p. 19). The educational agreements for copying copyrighted books 
and periodicals provide the minimum not the maximum allowable fair use.  
Section 107 of H.R. 2223 (1998), provides these guidelines, useful to all educators at all 
levels, and in this case, technical communicators teaching in a college setting. These guidelines, 
reproduced below, took effect in 1976 and should be familiar to all educators since they are 
crucial for responsible fair use activity.  
I. Single Copying for Teachers 
 
A single copy may be made of any of the following by or for a teacher at his or her 
individual request for his or her scholarly research or use in teaching or preparation to 
teach a class: 
A. A chapter from a book; 
B. An article from a periodical or newspaper; 
C. A short story, short essay or short poem, whether or not from a collective work; 
D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or 
newspaper. 
 
II. Multiple Copies for Classroom Use 
 
Multiple copies (not to exceed in any event more than one copy per pupil in a course) 
may be made by or for the teacher giving the course for classroom use or discussion; 
provided that: 
A. The copying meets the tests of brevity and spontaneity as defined below; and  
B. Meets the cumulative effect test as defined below; and 
C. Each copy includes a notice of copyright. 
 
Definitions: 
Brevity 
(i) Poetry: (a) A complete poem if less than 250 words and if printed on not more 
than two pages or, (b) from a longer poem, an excerpt of not more than 250 
words. 
52 
 
(ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) 
an excerpt from any prose work of not more than 1,000 words or 10 % of the 
work, whichever is less, but in any event a minimum of 500 words. 
[Each of the numerical limits stated in “I” or “ii” above may be expanded to 
permit the completion of an unfinished line of a poem or of an unfinished prose 
paragraph.] 
(iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or 
per periodical issue. 
(iv) “Special” works: Certain works in poetry, prose or in “poetic prose” which often 
combine language with illustrations and which are intended sometimes for 
children and at other times for a more general audience fall short of 2,500 words 
in their entirety; however, an excerpt comprising not more than two of the 
published pages of such special work and containing not more than 10 % of the 
words found in the text thereof, may be reproduced. 
 
Spontaneity 
(i) The copying is at the instance and inspiration of the individual teacher, and 
(ii) The inspiration and decision to use the work and moment of its use for maximum 
teaching effectiveness are so close in time that it would be unreasonable to expect 
a timely reply to a request for permission. 
 
Cumulative Effect 
(i) The copying of the material is for only one course in the school in which the 
copies are made. 
(ii) Not more than one short poem, article, story, essay or two excerpts may be copied 
from the same author, not more than three from the same collective work or 
periodical volume during one class term. 
(iii) There shall not be more than nine instances of such multiple copying for one 
course during one class term. 
[The limitations stated in “ii” and “iii” above shall not apply to current news 
periodicals and newspapers and current news sections of other periodicals.] 
 
III. Prohibitions as to I and II Above 
 
Notwithstanding any of the above, the following shall be prohibited: 
A. Copying shall not be used to create or to replace or substitute for anthologies, 
compilations or collective works. Such replacement or substitution may occur 
whether copies of various works or excerpts therefrom are accumulated or 
reproduced and used separately. 
B. There shall be no copying of or from works intended to be “consumable” in 
the course of study or teaching. These include workbooks, exercises, 
standardized tests and test booklets and answer sheets and like consumable 
material. 
C. Copying shall not: 
a. substitute for the purchase of books, publishers’ reprints or periodicals; 
b. be directed by a higher authority;  
53 
 
c. be repeated with respect to the same item by the same teacher from term to 
term. 
D. No charge shall be made to the student beyond the actual cost of 
photocopying. 
 
In 1996, fair use guidelines for educational use of multimedia were developed and 
subsequently adopted to the Council on Fair Use (CONFU) (Enghagen, 2005). These multimedia 
guidelines are applicable to educational multimedia projects at nonprofit educational institutions, 
which combine students’ or educators’ original material with copyrighted material (p. 33). These 
guidelines state, in part, that educators may use others’ materials for teaching for up to two years 
before permission must be sought from the copyright holder. Educators and students are required 
to include a notice that the works were prepared under fair use and so are “restricted from further 
use” (p. 42). There are also “portion limitations,” allowing up to 10 percent of the works to be 
used or another measurement can be used depending upon the media. For example, along with 
the up to 10 percent guideline, it states text can contain up to 1,000 words, whichever criteria is 
less; for music, lyrics, and music videos, it could be no more than 30 seconds; for illustrations 
and photographs, it could be no more than 15 images, and for numerical data sets, no more than 
2,500 fields or cell entries. In addition, there are copying restrictions of no more than two copies, 
only one of which can be placed on reserve (pp. 38-39). 
Enghagen includes the CONFU’s guidelines for distance learning and digital images and 
software in the fourth edition of her 2005 book titled, Fair Use for Educators. This book is a 
valuable resource for educators, and also for students who wish to incorporate limited amounts 
of copyrighted materials into their creations for coursework. 
Enghagen also edited the 1997 book titled, Technology and Higher Education, which 
includes a chapter where she discusses these guidelines, including a Court decision where 
copying for educational purposes was done for profit, stepping outside the bounds of fair use 
54 
 
protection. An important legal decision in 1991 made clear that photocopying copyrighted 
material for course packets for profit as was done by Kinko’s violated copyright law since fair 
use does not apply to commercial uses. Since Kinko’s profited from selling these course packets, 
which were comprised of articles and book excerpts, while neglecting to seek permission or pay 
royalties, it was found to have violated copyright law in a case brought by publishers, Basic 
Books, Inc. v. Kinko’s Graphics Corp., 1991.   
Technical communicators whether in the workplace or as academics should be 
knowledgeable about court decisions and keep current on the latest legal decisions in order to 
avoid allegations of copyright infringement. They need a grounding in copyright law in order to 
perform effectively in the workplace or the classroom.  
Other issues affecting technical communicators  
 
For technical writers or creators who developed material on their own without knowledge 
or access to a similar work that has intellectual property protection, there are legal defenses 
available to them if an allegation of infringement is made (Herrington, 2003, pp. 104-105). These 
defenses include reverse engineering, merger, and the clean room defense. With reverse 
engineering, the creator shows that the content was reproduced through a different means. This is 
a defense often used by software developers who seek to show that expression and idea merged 
through reverse engineering. The clean room defense is used to show that the alleged infringer’s 
work was developed in isolation and without knowledge of the protected material.  
Other issues that could impact technical communicators are not as easily understood. 
Court cases could change the rules of legal use. Often, the rules change depending on what kind 
55 
 
of link is used or upon its intended purpose. Hyperlinking is one area that may be misunderstood 
by technical communicators.  
Linking and deep linking 
 
The World Intellectual Property Law Organization (WIPO) in its website report titled 
“The Impact of the Internet on Intellectual Property Law,” states that using hyperlinks to allow 
readers to click and be connected via the link to the home page of another website are not 
normally problematic as long as it’s a simple link that operates like a footnote to reference that 
other site. The reader is instantly aware that they have traveled to another website when they are 
linked to the home page. Simple hyperlinks are usually allowed “ . . . either because the website 
owner has given an implied license to link by posting his material on the Web, or by 
characterizing such linking as fair use (WIPO, n.d., p. 9). However, objections may be raised 
under copyright law to deep linking, which establishes links to the interior pages of another 
website, avoiding the home page, along with any home page advertisements, and possibly 
obscuring the true creator of that content. The WIPO report states:  
The use of deep-links to retrieve pages from the targeted site’s database may, in some 
jurisdictions, amount to an infringement of rights in the database that contains the 
secondary information.  . . . In the United States, where no sui generis [Latin for of one’s 
own kind] database law currently exists, copyright owners have found protection against 
deep-linking by relying upon laws related to copyright, trespass, breach of contract, and 
common law appropriation (WIPO, n.d., p. 9).  
The issues surrounding hyperlinks are important to technical communicators, and it is 
important that they understand the allowed uses and the uses that could create problems.  
56 
 
Guidelines for deep linking  
 
As Porter notes, technical communicators who produce web pages may find it useful to 
include hyperlinks to related information. They also may create information that compares 
products or services, sometimes negatively, as with software reviews, and as a result, companies 
may oppose the use of deep links to their technical data (Porter, 2005, p. 250). Porter references 
a cease-and-desist letter sent to Google requiring them to remove links to a company’s machine 
tool information. Porter also discusses how some companies, including General Electric, require 
permission before a link to web page can be used, and forbid linking to interior pages, requiring 
the link to be to the home page. He offers an example that could become commonplace for 
technical communicators, the specter of so many restrictions that necessary sources of reliable 
medical information, including the American Cancer Society, can’t be included as links despite 
their importance to readers seeking more in-depth information. 
Using hyperlinks was once considered a type of citation, indicating the source of the 
content. This type of simple linking is still normally allowed, according to the WIPO report 
(n.d.). Porter purports that this view toward the use of linking is based upon an atmosphere that 
encourages the exchange of knowledge.  However, in the technological sense, Porter says that a 
hyperlink requires downloading, which also can be perceived as creating a copy, and this process 
runs counter to the emerging view of digital information as property. However, in WIPO’s view, 
this download via a simple hyperlink or “in-line” link usually isn’t problematic, but it could raise 
issues because these links “do not require a copy to be made of the linked material, but may 
violate the author’s right to display or communicate their work to the public” (WIPO, n.d., p. 9). 
Still, in Porter’s view, hyperlinking, in general, has mistakenly become an issue. He 
argues that corporate or business rules that require users to always request permission before 
57 
 
hyperlinking feed into corporate policies which promote control of information.  He points to 
websites that carry notices prohibiting linking without prior permission. This type of control 
serves to prevent fair use of the linked material. Porter (2005) names others whom consider these 
controls to have long-range consequences on the ability of technical communicators to practice 
fair use of copyrighted material since such permission requirements effectively act as a 
“corporate takeover of electronic writing” (as cited in Porter, 1999; see also Lessig, 2001; 
Samuelson, 1996, 1998; Schiller, 1989). 
The copyright issues surrounding hyperlinking have been heard in the courts. Herrington 
states that the first two legal cases revolving around the issue of deep links were settled out of 
court; however, a California court’s decision in Ticketmaster Corp., et al. v. Tickets Com, Inc. 
(2000) indicated that deep links weren’t a violation of copyright (Herrington, 2003). In this case, 
a company deep linked calendar-type data of events from another website and then sold tickets 
itself for those events. According to the WIPO report on the impact of the Internet (n.d.), the 
Court decided that no violation of copyright existed in Ticketmaster Corp. since neither the web 
address nor the uniform resource locator (URL) were considered protected material. Other court 
cases have not addressed this issue directly. This is an area that could be affected by future court 
decisions. 
One of the reasons there has been opposition to the practice of deep linking is the 
resultant loss of website visits to the homepage of the linked site, where visits are tracked to 
encourage advertising (Herrington, 2003: Hoffmann, 2005). Since other legal cases arising from 
this same issue have been settled out of court, there are no other judicial decisions to use as  
precedents. Herrington expects this issue to arise again in the courts. 
  
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Web uses  
 
Hoffmann (2005) provides an overview of the law as it applies to using information 
downloaded or viewed on the Web. Gray areas exist regarding the legalities of browsing since 
temporary files are created in RAM or on a computer hard drive. The law is clearer, however, 
when Web files are downloaded or printed since this does infringe upon copyright if permission 
has not been granted (p. 73). Unless there is a usage policy or license, it may be difficult to 
determine if it is legal to download or print a file. If a technical communicator wants to use 
something that has been downloaded, permission should be requested. If the purpose is to share 
that information, then the URL should be sent instead of the file.   
In the area of education, Enghagen (2005) states that the law that governs different uses 
are the applicable agreements hammered out by various organizations for books and periodicals, 
music, off-air recording of broadcasts, multimedia, distance learning, digital images, and 
software (p. 6). She states that instructors and students need to be educated on allowable uses so 
that they don’t violate copyright laws. She also discusses the application of copyright law to 
distance learning, governed by the 2002 implementation of the Technology, Education, and 
Copyright Act (TEACH Act), which states that “accredited, nonprofit educational institutions” 
may use copyright-protected works in distance learning classes under certain conditions without 
requesting permission or paying for this use. Among the requirements is that the material only be 
accessible to registered students, which requires a password-protected system, and which limits 
the time these works are stored (Enghagen, 2005, p. 83) TEACH expanded the works that could 
be used for distance education to encompass sound recordings and many dramatic works and 
nondramatic works in their entirety with the exception of operas, music videos and musicals. 
59 
 
Other performances such as dramatic and audiovisual works can be transmitted as long as only 
portions of them are used (p. 83).  
Using digital images 
 
If images and graphics appear on a webpage, it should be assumed that these are 
copyrighted. No formal notice is required before copyright applies. For this reason, as a 
precaution, permission should be sought before downloading graphics from a webpage for any 
commercial use (Hoffmann, 2005). The payment of a fee or the purchase of a license could be a 
requirement of the copyright holder before that image or graphic can be legally used. 
Downloading it for use or copying it could constitute copyright infringement. However, there 
could be exceptions depending upon the reason for its intended use. A nonprofit entity that uses a 
logo it has downloaded for a not-for–profit purpose—not for a fund-raising or a commercial 
purpose—might be able to use the image or graphic lawfully under fair use. Meanwhile, a 
technical communication instructor creating a website in class also would likely fall within the 
purview of fair use since it would be used for an educational purpose.  
According to The Conference on Fair Use: Fair Use Guidelines for Educational 
Multimedia (1996), educators and students can use and display images for educational purposes 
that are noncommercial under fair use. However, Hoffmann (2005) notes that these guidelines 
are not intended as a replacement of other “preexisting education fair use guidelines that deal 
with the Copyright Act of 1976” (p. 234). This permitted use also applies to spontaneous uses, 
which were unplanned, with the caveat that permission must be sought for subsequent uses. 
Copyright notices that credit the sources should be used. Educational uses do not include the 
right to reproduce material or images in publications, including scholarly ones. If alterations are 
made for “criticism, comment, teaching, scholarship, and research,” then these changes should 
60 
 
be noted and described (p. 219). Enghagen (2005) also notes that these are guidelines, not laws, 
and use that exceeds the stated parameters may still be legal (p. 19). It is the Courts that can 
determine whether fair use has taken place. 
If a technical communicator is not planning on using a graphic for either a nonprofit 
purpose or for an educational purpose, then permission must be requested. Another legal concern 
arises from the fact that a permitted use of an image or graphic may allow only limited uses. For 
example, it could be limited to use for printed copies. If it is reproduced on a webpage without 
permission, it could be a violation of the copyright holder’s right to use it exclusively for public 
performance and display (Hoffmann, 2005, p. 88). Care also should be taken when reusing or 
copying material from a webpage since that webpage may contain copyrighted material 
belonging to another entity that was initially used without permission, as well as material that 
exists with the public domain and is accessible to anyone (p. 219). 
Domestic law 
A need for training and education 
 
Many researchers argue that technical communicators should have a working knowledge 
of copyright law—domestic and international—in order to do their jobs effectively and so that 
they can judge when legal advice needs to be sought. Another reason for educating them in this 
area is to ensure that they act responsibly and put the needs of the public first.  
In a survey of educational-context writers—instructors and students—including students 
with work experience in this area, Rife (2010) identified a lack of knowledge about copyright 
among these digital writers. Her study focused on digital writers, defined as educational-context 
professional writers of web content, who use the Internet for composing content, often as 
technical communicators. She notes that current copyright law, which affixes copyright 
61 
 
protection to anything original in a “fixed,” or “tangible” format, applies equally to web-
published content (p. 46). Participants in Rife’s study demonstrated confusion in survey 
questions when it came to applying copyright to protect their own works and also when it came 
to accessing and making use of others’ work without violating copyright.  Study results indicate 
that professional writers lack a clear understanding of the meaning of fair use, with nearly half of 
them incorrectly associating it with attribution, the crediting of a source. They also exhibited a 
lack of understanding about government documents, failing to realize that most such documents 
carry no copyright and are automatically included in the public domain. Study subjects were 
more aware of the protection afforded derivative works, realizing that the copyright holder has 
the sole privilege of creating derivative works. Since nearly half of the study participants agreed 
that it was important for them to be well-versed in matters of copyright law and a majority 
demonstrated a lack of understanding of basic issues, Rife (2010) asserts that professional 
training opportunities should be offered, particularly in the field of technical communication 
where there may be a lack of formal training in an educational setting (p. 62). In addition to the 
survey, Rife’s study included seven supplemental interviews with graduate students or recent 
graduates employed as web writers or managers of web spaces. Her findings appear to confirm 
an interest among study participants in learning more about copyright. She writes: 
Interviews show digital writers want to learn and engage with all the various laws that 
impact professional writing, such as privacy law, defamation, law, and contract law. 
Teaching copyright might be folded into a core course or a professional development 
seminar where the laws of public writing in general are taught (Rife, 2010, p. 62). 
Success as a technical communicator not only requires a grounding in domestic copyright 
law but also a grasp of international law, according to Rife (2011). Digital writings often are 
62 
 
shaped with an eye toward international law due to their ability to circulate in cyberspace (Rife, 
p. 79). According to Hoffmann (2005), knowledge of domestic law is crucial for technical 
communicators, but an overview of international law also is valuable. Hoffmann notes that 
whether or not the material is designated for an international audience, its international aspect is 
a factor since anything that’s put on the Internet becomes “immediately international in scope” 
(p. 9). In general terms, Hoffmann provides guidance for using content lawfully. Hoffmann also 
describes the types of copyright infringement that can occur: direct and indirect infringement, 
contributory infringement and vicarious infringement. A technical communicator could directly 
infringe upon copyright on his/her own by distributing copies of copyrighted material outside the 
bounds of fair use, or could contribute to infringement by aiding someone else’s infringing 
activity indirectly. Anyone who aids or causes an infringement has engaged in contributory 
infringement. The infringement is vicarious if a person fails to prevent an infringement about 
which he or she has a financial interest. 
Guideposts for technical communicators 
Copyright 
Technical communicators may be unaware that the absence of a copyright notice doesn’t 
signal that the material can be legally used. U.S. law does not require that websites or web pages 
contain a notice of copyright or a copyright symbol even when copyright protection is in place 
(Hoffmann, 2005). As a result, technical communicators may mistakenly assume they have 
skirted the issue if they want to use material on a website that doesn’t announce its copyright 
protection. In actuality, U.S. copyright is automatically triggered immediately after the posting of 
Web materials that are “fixed” and “original” (Rife, 2010, p. 46). Copyright automatically 
applies when images are “fixed,” in a “tangible medium of expression” that is “sufficiently 
63 
 
permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a 
period of more than transitory duration,” and is also “an original work of authorship,” according 
to the definitions of the Copyright Act of 1976. 
Copyright may be automatic under certain circumstances, but registered copyright is not, 
and it is registered copyright that allows the holder to collect monetary damages for copyright 
infringement and attorney’s fees.  When a work is registered, it becomes part of the public record 
and creates a certificate of registration. If registration takes place within five years of publication, 
in a court of law the copyright is considered prima facie [on the face of it] evidence (“Copyright 
in General,” n.d.). In addition to understanding applicable domestic law pertaining to copyright, 
technical communicators need to have a basic knowledge of international law when they use the 
Internet to conduct research. 
Perspectives on international copyright law for researchers 
Technical communicators as researchers 
 
On the international front, technical communicators who may view other websites for 
ideas or for guidance on tackling a new project or who intend to download material for research 
purposes need to have some understanding of international law if they are accessing material 
from other countries using the Internet.  An in-depth discussion of international law is outside the 
scope of this thesis; however, an overview of the issues that affect technical communicators 
engaging in international research is provided here. 
McKee & Porter (2010) developed a copyright model listing the issues that international 
researchers should consider. This heuristic addresses the identification of the material, its 
intended use, possible infringements, and legal and ethical matters. They state:  
64 
 
An important aspect of this heuristic is gathering information and perspectives. In this 
endeavor, technical communicators would be wise to talk through these issues with 
colleagues (especially legal advisors, if the company employs a legal team; with fellow 
technical communicators (in national and international venues); and with the 
persons/corporations whose communications are being studied” (McKee & Porter, 2010, 
p. 295).  
McKee and Porter (2010) further counsel researchers to be aware of several factors, 
including laws and regulations, cultural differences, the possibility of dangerous situations or 
other insurmountable barriers to research, the diversity of the expected audience, and the fact that 
laws and cultural customs are continually adapting and undergoing changes (p. 296).  
Many countries rely upon the “moral rights” afforded the work’s creator to determine if 
an infringement has occurred. The term “moral rights” applies to the rights of the creator to 
control the work and be credited for its production. The economic rights belong to the copyright 
holder, who may not be the creator (McKee & Porter, 2010, p. 293).  McKee & Porter (2010, p. 
291) write that in France, the “right of integrity” recognizes a personal relationship between the 
creator and the work that allows for action whenever an alteration of the work could affect the 
standing or reputation of the creator (as cited in Suhl, 2002). The term of copyright also varies 
McKee & Porter (2010, p. 291) state, with France granting it in perpetuity in comparison to other 
European countries which deem moral rights to expire alongside expiring economic rights (as 
cited in Gnädig et al., 2003).  
Traditionally, European laws have given more rights to the copyright holder than the 
U.S., but this is changing as the European Union works to standardize its law, leaning more 
toward corporate rather than individual ownership (McKee & Porter, 2010).  
65 
 
The WIPO website contains the text for the revision to the Berne Convention for the 
Protection of Literary and Artistic Works’, which, in part, addresses the international fair use of 
quotations, as follows: 
It shall be permissible to make quotations from a work which has already been lawfully 
made available to the public, provided that their making is compatible with fair practice, 
and their extent does not exceed that justified by the purpose, including quotations from 
newspaper articles and periodicals in the form of press summaries (Berne Convention, 
Article 10, 1886, 1896, 1908, 1914, 1928, 1948, 1967, 1971, 1979). 
The concept of fair use is a U.S. creation. Other countries address these same issues 
differently. In Sweden, the DMCs used in the U.S. to circumvent access are considered 
oppressive since Swedes lean more towards supporting common access, where people may walk 
on privately owned land if they do not cause harm, and this transfers to a cultural acceptance for 
using intellectual property for print and digital works (McKee & Porter, 2010, p. 291-292).  
McKee & Porter (2010) recommend avoiding violations by following these guidelines 
when copying material for research: consider the applicability of more than one law to research 
activities and whether regional laws apply, not just the country’s law, and also the copyright laws 
of those countries where the work will be purposely distributed (as cited in Gnädig, Knorpp, 
Grosse Ruse, and Giannakoulis, 2003). For example, when copying material, researchers are 
governed by the copyright law of the country where the copying occurs, but when distributing 
that copied material, the copyright laws of the targeted countries need to be considered. 
Technical communicators engaging in research outside of the United States need to be aware of 
regional and local laws as well as differing cultural attitudes towards privacy. (McKee & Porter, 
2010).  
66 
 
Another concern is monitoring and screening of Internet content or surveillance by some 
governments. Protection of study subjects and guidelines regarding their treatment vary across 
countries and cultures. Internet research is further complicated by the absence of a legal 
framework that can serve as a guide. For these reasons, McKee & Porter (2010) assert that 
researchers need to develop some criteria while conducting research.  Otherwise, technical 
communication researchers “who collect, copy, or quote others’ communications without 
consent”—could be perceived as violating an individual’s human right to privacy,” state McKee 
& Porter (p. 286). Criteria could be derived based upon the responsibilities to the public outlined 
in the Code of Ethics of the Association of Teachers of Technical Writing, pertaining to 
confidentiality, informed consent and privacy (p. 286).  
In the area of human rights and research, guidance is provided by the United Nations 
General 1948 document arising in the aftermath of World War II and Nazi Germany atrocities, 
The Universal Declaration of Human Rights. McKee & Porter (2010) assert that researchers 
should be familiar with this document and aware that some people could interpret the privacy 
protection in Article 12 as applicable to collecting material or quotes using Internet 
communications without their consent (p. 286).  
No one shall be subjected to arbitrary interference with his privacy, family, home or 
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to 
the protection of the law against such interference or attacks. (United Nations General 
Assembly, 1948) 
Other considerations also need to be understood when working in an international 
environment. Rife (2011) notes that originality is required for a work to qualify for copyright 
protection in most of the countries which are governed by Berne Convention and TRIPPS. 
67 
 
However, different countries offer various explanations of originality. Rife states that technical 
communicators need to be familiar with these diverse international standards when trying to 
determine whether a work they wish to use for some purpose has copyright protection.   
Chapter Six 
 
 
Conclusion  
Technical communicators, whether they are engaged in the workplace or in academia, 
need to be well-versed in copyright issues, particularly domestic ones, which impact their work 
and their teaching.  
Expansions to copyright terms have placed new limits upon access, allowing works to 
remain under copyright protection for decades longer than before. In addition, the DMCA has 
hampered access to digital content by making it illegal to circumvent DRM devices or provide 
devices for others to do so. However, the law does allow for the copying of digital materials if 
access is available under the applicable provisions of fair use. Fair use is a defense against 
allegations of infringement. A technical communicator may want to use material in the 
classroom or for research. For these activities, fair use would apply. Use of copyrighted 
materials for commercial purposes, however, is prohibited without permission whether it’s 
digital content or print.  
Critics of these changes to copyright consider the longer term and the DMCA as leading 
to a deterioration of the public domain and a decimation of fair use of most digital content. 
Meanwhile, supporters say that these developments are necessary to ensure that the United States 
is honoring its international agreements pertaining to copyright, safeguarding the rights of 
copyright holders, and fostering trade among countries.  
Technical communicators are among the interested parties in this debate since they are 
affected in the workplace and the classroom. As writers, they may be losing access to material 
69 
 
that they require since it takes much longer to reach public domain status, forcing them to rely 
upon less current material. At other times, they may be denied access to the latest up-to-date 
information that they need to create meaningful work due to DMR devices. This could mean 
denial of access to the latest reported research or the inability to link to a website that contains 
important related information for a health article or a review of a technical product or software.  
Other authors in the field voice concern that a lack of access for fair use purposes may 
hinder the public’s right to access information for free speech purposes. Some technical 
communicators are concerned that these restrictions are creating a chilling effect where writers 
are so wary of using material that they will not use it even though it is legally available or it 
clearly resides within the public domain.  
In academia, some technical communicators argue that there is a need for educating 
people working in this area so that they do not violate copyright and also do not pay license fees 
when they are not warranted. A general understanding of domestic law and some knowledge of 
international law also is crucial for technical communicators due to the global nature of 
information today and the prevalence of the Internet. However, these authors also caution that 
legal advice should the sought for specific situations.  
Some authors call for a heightened involvement in copyright issues and advocacy to 
protect fair use and the eroding public domain among technical communicators, librarians, 
lawyers, and other interested parties. Educating technical communicators and the public is one 
way to encourage advocacy. These copyright issues are important, and guarding the right to 
access information has implications for everyone. These implications could have far-reaching 
effects on the public and technical communicators and others. The shutting away of information 
and knowledge from the public view can hamper the acquisition of knowledge. 
70 
 
Implications 
 The balance of copyright that historically allowed copyright holders to benefit from their 
creations for a limited time before those creations became freely available for public use has 
been tipped in the favor of copyright holders and creators. One of the contributing factors is the 
expansion of copyright terms in the United States, culminating with the Sonny Bono Copyright 
Extension Act of 1998.  
Copyright terms now have become so lengthy that works will take decades to become 
available in the public domain. When Congress increased the term of copyright with the Act, it 
didn’t just add two decades to the term for new works, it made it retroactive for works still under 
copyright. These longer terms mean that works produced in 1923 will not enter the public 
domain until 2019.  
The public domain also is suffering from the effects of The Copyright Act of 1976, which 
eliminated the requirement that copyrights be registered. Instead, any original work that is 
“fixed” and “tangible” automatically receives copyright protection. This automatic copyright 
also doesn’t require renewals. This means that works that once would have become part of the 
public domain when their copyright wasn’t renewed now retain copyright without any action 
being taken. So, it is taking two more decades for works to fall within the bounds of the public 
domain and fewer works are eligible for the public domain since a failure to renew doesn’t 
trigger the loss of copyright protection. International treaties also have had an impact. Works 
with an expired American copyright now retain copyright protection if they still have copyright 
protection in the country where they were originally published.  
71 
 
This depletion of the public domain means that technical communicators and others 
cannot make free use of many works that once would have been available. Instead, permission 
must be sought and fees paid for their use. Ultimately, this means that technical communicators 
have less material at their disposal unless they are able to pay the requested fees. 
In addition to these public domain issues, technical communicators and others are finding 
their ability to exercise their right of fair use hampered by the DMCA and the use of DRM 
devices that prevent unauthorized access. This may be the larger concern since without payment 
many works that represent the most up-to-date information may be inaccessible. Technical 
communicators in various fields may need to find the most recent health and medical information 
or technical content about products in order to write the most accurate information possible. It 
can be cost prohibitive to pay to view a variety of content when only a fraction of that content is 
actually needed. Without access to that digital information, however, it’s impossible to know 
what content needs to be purchased or licensed for use in a work product. In other cases, 
technical communicators may need to review software or provide critical commentary on a 
product. Without access to the necessary technical information, they are prevented from writing 
reviews, which may contain criticism.  
Prior to the prevalence of digital content and the passage of the DMCA in 1998 and the 
resulting use of DRM devices, users of content were able to access content and possibly use 
portions under the provisions of fair use or decide to pay for the right to use the material under 
some sort of agreement. Fair use has historically taken place without permission. That’s one of 
the tenets of fair use. In today’s restrictive climate that is no longer the case. Access is often 
prevented by technological means and it’s illegal to circumvent these controls. This lack of 
access also has repercussions for the rights of citizens to view information and exercise their free 
72 
 
speech rights about that information. If it can’t be seen, then the public cannot comment or 
criticize. The public is being denied access to information that could be valuable, even necessary. 
 The longer term of copyright and the control over digital content together are stemming 
the flow of information and knowledge. These copyright issues are important to all, but are not 
well understood by most people. Technical communicators as writers and educators, along with 
librarians and others, need to be educated about these issues, not just so they can navigate 
copyright issues effectively, but also so they can advocate for the identification of ways that 
information can become more available and less controlled. It is widely agreed that Congress 
needs to reconsider existing copyright law. There should be more of a focus on the public’s 
needs for information and knowledge, while also honoring the copyright holder or creator’s 
rights.  
  
73 
 
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