The National Information Infrastructure and Copyright Law

The White Paper, Pamela Samuelson, and Proposed Revisions

Dante G. DiTommaso
Matthew H. Fleming
Jonathan B. Lurie
Thomas H. Morgan

SPP744 Final Project
25 April 1996


ABSTRACT

The National Information Infrastructure (NII) poses significant threats to owners of intellectual property, who are protected under the aegis of copyright law. Through the NII, the reproduction and worldwide dissemination of many forms of intellectual property has become virtually effortless. Consequently, copyright law must be amended, if only through minor changes, to allow for the technological innovations afforded by the NII. The Information Infrastructure Task Force Working Group (IITF), established by the Clinton Administration and charged with recommending revisions to current copyright law, released proposed amendments in its July 1994 IITF White Paper. In the following analysis, we examine the role of copyright law and the economics of copyrights. Furthermore, we review the criticisms of the White Paper by one of its most vocal critics, Pamela Samuelson. We subsequently propose a series of revisions for the White Paper itself. We find that the IITF Working Group fails to recognize the potential for technological solutions to the dilemma of copyright protection in the information age.

INTRODUCTION

Extending copyright law to regulate Internet activity is anathema to the very culture that launched its development. Originally, researchers were eager for a means of rapid and efficient exchange of information and ideas. The initial public users were primarily computer enthusiasts attracted by the free-for-all forum of the internet (i.e., unrestricted and virtually cost-free expression and communication with colleagues, peers, and unknown users); popularization now threatens this culture. The unprecedented growth of the Internet, and in particular the World Wide Web, has introduced new and potentially damaging threats to intellectual property: with the NII, anyone with access to a personal computer and a modem may reproduce and distribute any copyrighted material that can be digitally represented.

Previously, copyright legislation and court decisions were mostly the concern of corporations and organizations with resources invested in reproduction and distribution processes (e.g., publishers of print, images, and video and audio recordings). Copyright law traditionally established a balance between the rights of authors and publishers of intellectual property, and the rights of the public to access and use such property. Legislation was designed to provide public access to intellectual property while protecting the market for these goods.

Increasingly, the NII provides all users with the opportunity to reproduce and distribute intellectual property at a marginal cost of zero (essentially). The NII, by facilitating reproduction and distribution, introduces new threats to the market for intellectual goods. The stated objective of the IITF White Paper recommendations is "to accommodate and adapt the law to technological change so that the intended balance is maintained and the Constitutional purpose is served" ( WP, p. 212). Broad and historical support exists for the needs both to protect intellectual property and to maintain the balance between business and public interest. However, as white paper critic Pamela Samuelson, Professor of Law at the University of Pittsburgh, states, "the issue of what is proper copyright policy in the coming age of digital networked environments is a subject on which reasonable people can disagree" (Samuelson (2), p. 10).

The White Paper primarily recommends definitional changes in legislation to recognize digital transmission as a mechanism for distribution and publication. Critics of the White Paper warn that these changes will rob users of exactly the benefits and rights that have drawn them to the Internet in the first place. Pamela Samuelson has positioned herself as a proponent of users' rights, disseminating her criticisms of the White Paper across the Internet. She has reached and influenced a tremendous number of users with her overwhelmingly unjustified interpretation of the White Paper. Great need exists for public debate of the issue. However, a greater need exists for rational and critical debate unclouded by cynicism. For this reason, we respond to salient criticisms of Pamela Samuelson. We hope to distinguish shortcomings of the White Paper from histrionics.

COPYRIGHT LAW

To effectively evaluate the White Paper and its criticisms, it is essential to have at least a cursory understanding of current copyright law. Copyright law in the United States is established by the Copyright Act of 1976 (17 U.S.C. 101 - 810). International copyright standards are delineated by the Berne Convention for the Protection of Literary and Artistic Works and the Universal Copyright Convention. Such standards, however, are by no means worldwide, and many countries offer no copyright protection (Library of Congress, Copyright Office, Copyright Basics, p. 10). This, of course, is of particular importance to the NII (and GII), given its global implications.

The over-riding intent of copyright law is to protect the authors of original works. Original works include literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion picture and other audiovisual works; sound recordings; architectural works; and software (17 U.S.C. 102). Copyright is granted to any work that has been fixed in a tangible form, with or without the attachment of the traditional copyright symbol. Any document written on a computer, for example, is copyrighted as soon as it is saved. By this definition, nearly everything encountered on the NII is copyright protected, including e-mail. Copyright law does not protect material that has not been fixed in a tangible form (e.g., ideas, facts, titles, names, short phrases, or blank forms; see P.J. Benedict O'Mahoney, Copyright Fundamentals, p. 3).

The following rights are granted to the copyright owner:

  1. the right to reproduce the work in copies;
  2. the right to produce derivative works based on the copyrighted work;
  3. the right to distribute copies of the work;
  4. the right to perform the copyrighted work publicly;
  5. the right to display the copyrighted work publicly;
  6. the right of the author to claim authorship of the work and to prevent the use of his or her name as the author of a work he or she did not create
  7. the right of an author to prevent the use of his or her name as the author of a distorted version of the work, to prevent intentional distortion of the work, and to prevent destruction of the work. (17 U.S.C 106, 106A).
Only the owner of the copyright holds these rights; violation of these rights by nonowners is illegal. For example, and perhaps most important to our discussion of the NII, it is illegal to reproduce copyrighted material absent permission from the owner of the copyright, with the exception of "fair use" (see below). Copyright ownership is granted to the author of the work, unless the author has been hired by an outside agent, in which case ownership is granted to the agent (as is the case, for example, when journalists are retained by Reuters, Associated Press International).

"Fair use" grants intellectual property consumers some latitude under what might otherwise be a prohibitively narrow letter of the law. The use of a copyrighted work is determined fair (or unfair) based on four factors: (1) the purpose and character of the use (in particular, distinguishing between commercial and non-profit use); (2) the nature of the copyrighted work (e.g., fiction versus non-fiction); (3) substantiality of the section used; and the most significant factor (4) the effect of the use upon the market value of the copyrighted work (17 U.S.C 107). The fair use clause, for example, allows professors to copy materials for the classroom and allows scholars to quote passages in scholarly works without obtaining permission from the owner of the copyright. What is and is not fair use is interpreted by the courts, and, as such, is decided on a case-by-case basis.

First-sale rights limit the copyright owner's control of the distribution of a particular copy of a work to the first sale of that copy. Thus, once a copy is purchased, the owner is allowed to lend, lease or sell that particular copy without infringing on the copyright owner's rights (note 1). The first-sale doctrine limits a copyright owner's exclusive rights of distribution beyond the first sale, but does not limit the owner's exclusive right of reproduction. Traditionally, first-sale rights have referred to the transference of a physical object (e.g., book, magazine); but the design of the NII (WWW) precludes physical transference. Rather, a copy of the material in question is made and digitally transferred (i.e., web site postings), in violation of existing copyright law.

The life of the copyright depends on whether or not it was created or published before or after the enactment of the Copyright Act of 1976. Generally, a copyright stands for sometime between 75 years from the date of publication to 50 years from the death of the author. Copyrighted materials enter the public domain upon expiration of the copyright. Material in the public domain is not subject to copyright protection, and may be reproduced without permission. Government publications exist in the public domain.

THE ECONOMICS OF COPYRIGHT PROTECTION

This section discusses the economic motivations for copyright protection and the effect of the development of the NII on pricing and allocation. The NII provides a new vehicle for the dissemination of information, and by its very design allows for widespread copyright violation.

The purpose of copyright protection is to provide incentives for innovation and research for product improvement. A copyright allows a firm to exhibit monopoly power and charge a price above marginal cost. While some of this profit is transferred to owners' equity, a (presumably) substantial amount of it gets reinvested back into innovation in order to continue the development of new and original products. Implicit in this cycle, however, is the tradeoff between product innovation and the loss of consumer surplus due to monopolistic pricing. Copyrights have been able to provide a balance between the two. Copyrights rarely enable the fleecing of a good because other original works can cite the copyrighted information. Unlike patents, there is no power to exclude other independent productions. (Dam, Kenneth, "Some Economic Considerations in the Intellectual Property Protection of Software," The Journal of Legal Studies XXIV:2, 6/95, pp. 321-377)

Copyright protection is problematic in an international market. Firms that market goods internationally find that they can lose a market to competition in countries where copyright law is not upheld. For example, imagine that there is no copyright protection in Mexico. US drug manufacturers contend that they cannot break into the Mexican market with a new good because it gets replicated by domestic drug manufacturers within weeks. Mexico cannot provide monopoly rents to domestic manufacturers so it is dependent upon the innovation of US drug manufacturing firms. This innovation in turn depends on monopoly power, which is lost in part due to Mexico's refusal to respect copyrights. Moreover, because of the price discrepancy, there is an incentive for US consumers to purchase drugs in Mexico which subtracts more from producer surplus necessary for research allowance. As more and more goods are being marketed internationally, trading countries must assent to copyright standards if society continues to depend upon legal methods to protect intellectual property.

Authors and artists must be compensated in some form for their intellectual property. Otherwise, the only incentive to produce a good is personal satisfaction and even that may be compromised if the product is replicated and altered. Some argue that fame is enough of an incentive for intellectual property. That is, an academic who constructs an original theory or a musician who writes a popular song would be compensated indirectly through their increased status with speaking honoraria, consultation fees, or public appearances. However, still others argue that copyrights are barriers to derivative works which depend upon previously constructed song chords or theories. We discuss the need for "fair use" exceptions elsewhere in this paper. Regardless of remuneration, authors should be assured that their works will resist decay or distortion.

Costs of Copyright

The production cost of intellectual property has two components: the creation and solicitation of the work and the distribution of the work. The first component, often referred to as the "cost of expression," (Landes and Posner, An Economic analysis of copyright Law, Journal of Legal Studies v 18, n 2) represents the fixed costs of production. It consists of the author's time and effort and the cost of editing the work and converting it from manuscript or original recording to type or tape. The second component, the distribution of the work, represents the variable cost of production. It increases with the number of copies made. More copies need more paper, print, tape, and other materials for replication. With the onset of digital publication, these variable costs are close to zero. Anyone can create a perfect replication of an original work. The operative words here that frighten copyright holders are "anyone" and "perfect."

In a world without the Internet, practical barriers exist to copying original works. First of all, a copy may be of inferior quality. This suggests that the replication may contain mistakes or omit important information and therefore be an imperfect substitute. Secondly, copying takes time and is a cost that poachers must be willing to bear. With the popularization of the Internet, both of these considerations become negligible. A copy can be transferred from remote server to local disk in a matter of seconds. As far as content, the copy is identical to the original. While this effectively reduces reproduction costs to zero for copyright holders, it also reduces replication costs for copyright violators.

It is important to consider the effects of pricing informational goods. Whereas marginal costs of producing informational goods are reduced to nearly zero, the price in a competitive market should reflect only what is necessary to cover fixed costs (such as editing/conversion costs and storage space) and the cost of the raw information (the value of the author's creativity). Presumably, revenues first cover the fixed costs, so that editors or publishers can procure new projects. Any and all other revenues reward the copyright holder. In absence of a copyright, the price of the work may be bid down to a price covering only the fixed costs. This means that the work would most likely not be produced because the author and publisher are unable to recover their investments of time, effort and negotiation (Landes and Posner). The copyright assures that as long as there is some future demand for copies, the copyright holder continues to derive revenue until copies are valued at zero.

CRITICISMS OF THE WHITE PAPER

The amendment of existing copyright law to provide for the innovation s of the NII must be guided by input from all sectors of the intellectual property economy (e.g., legislators, economists, authors, and NII developers). Due to the need for public debate on the general issue, a call for public comment accompanied the release of the White Paper. The public comment stage is crucial to the extent that it allows an exchange and development of pertinent and innovative policy ideas, while also providing a check on the government's power to impose convoluted regulations on an unwary public. The latter point is particularly salient since room for skepticism exists regarding the importance of public interest to the Information Infrastructure Task Force (IITF) Working Group, which produced the report. First, the chairman of the Working Group is Bruce Lehman, a former copyright industry lobbyist. Pamela Samuelson points out that "many influential members of Congress know and trust Lehman, who was a Congressional staffer before he became a copyright lobbyist." ( Samuelson (1), p. 2) She warns that Congress members will defer to the recommendations of a trusted colleague rather than individually trudging through the "250-page, jargon-ridden white paper". ( Samuelson (1), p. 2) Samuelson further suggests that Congress is biased in favor of the publishing industries that contribute tens of billions of dollars to the US balance of trade. These concerns do present a basis for skepticism and further support the public comment process on the white paper recommendations. Rational and objective analyses can contribute constructive and essential perspectives to the debate.

Pamela Samuelson has positioned herself as a spokesperson for the public interest. Her goal is to "translate the Report and its recommendations into plain English..." ( Samuelson (2), p. 2) so that the public is able to make an informed judgment about whether the recommendations of the Task Force adequately address the public interest. However, the validity of her analysis is compromised by her determination to convince otherwise uninformed readers of her extreme interpretation. What Samuelson offers, as a plain English translation, is overwhelmingly her own unfounded interpretation rather than a responsible critical analysis of Task Force recommendations. Through current technology (i.e., NII), Samuelson reaches an unprecedented number of people with her articles. The subject of the debate, the NII, is precisely the instrument that permits her to disseminate her work under the guise of rational and expert analysis. As a result, a response is warranted.

Samuelson presents four primary criticisms of the White Paper: the Working Group's recommendations would (1) give copyright owners control over every use of copyrighted work in digital form, making browsing an infringement under copyright law; (2) "give copyright owners control over every transmission of works in digital form by amending the copyright statute so that digital transmissions will be regarded as distributions of copies to the public" ( Samuelson (1) p. 2); (3) eliminate fair-use rights; (4) eliminate first-sale rights. Samuelson's inflammatory criticisms of the White Paper do not provide the public with information needed to make an informed decision, but merely obscures the issues with reactionary rhetoric in place of the specious legalistic terminology that she set out to combat.

Browsing as Infringement of Rights

First, Samuelson warns that "the White Paper simply pretends that under existing law, browsing is an infringement...." ( Samuelson (1) p. 3) In fact, the White Paper acknowledges that digital transmission is a complicated process that is not unambiguously covered by current regulation. Digital transmission may combine both processes of distribution and reproduction. Unlike the print, or the audio and video publishing worlds, or the television and radio broadcasting worlds, distribution and reproduction are not disjointed processes; to transmit a digital work over the NII, the work must be copied to the random access memory of the receiving computer. The White Paper also acknowledges that depending on the circumstances of the transmission, "any exercise of one of the exclusive rights may be fair use -- including the reproduction and distribution of copies by transmission." ( WP, p. 216) Samuelson incorrectly interprets the White Paper discussion. The Working Group does not intend to make browsing an infringement of the exclusive rights of copyright owners. The group does, however, realize that certain digital transmissions are more complex than previous means of transmission, and therefore require distinction in pertinent legislation. The unfortunately vague recommendations of the White Paper allow Samuelson the necessary room to construct her extreme interprets. The vagueness of the recommendations is discussed below as a general shortcoming of the White Paper recommendations.

Right of Distribution

Second, Samuelson's accusation that the Working Group regards every digital transmission as distribution of copies to the public is not only incorrect but irresponsible. She reveals her extreme bias by hypothesizing that "Lehman is probably seeking the digital transmission amendments because his pals among the maximalists want to be able to control all performances and display of copyrighted works...." ( Samuelson (1), p. 3) The Working Group is, in fact, quite explicit and rational in its discussion of distribution. The Copyright Act already provides copyright owners with the exclusive right to distribute copies of copyrighted work to the public. The Working Group recommends an amendment to the Act to recognize that copies or phonorecords of works can now be distributed to the public by transmission, "and that such transmissions fall within the exclusive distribution right of the copyright owner" (WP, p. 213). This does not mean, as Samuelson asserts, that sharing a section from an electronic journal with a friend via e-mail will be a criminal act. The White Paper does not recommend giving copyright owners absolute control over every digital transmission of copyrighted works. The White Paper does, in fact, state that "clearly, not all transmissions of copyrighted works will fall within the copyright owner's exclusive distribution right." (WP, p. 215); distribution must be to the public before copyright infringement becomes an issue. And the courts, not Bruce Lehman or the "copyright maximalists" who haunt the delusions of Pamela Samuelson, will rely on case law to interpret what constitutes distribution to the public. The Working Group recommends extending current legislation in light of technical developments that introduced transmission as a potential mechanism of distribution. Without a fundamental change in legislation, the burden of extending copyright law to the NII will fall entirely on the judicial system. The Working Group warns of the risks of trying to regulate a changing and constantly accelerating industry with resource- and time-intensive litigation. Congress should provide guidance; the judicial system should resolve the finer issues based on the facts and circumstances of individual cases.

Fair Use Rights and the NII

Third, Samuelson accuses the Working Group of attempting to eliminate fair-use rights. As with the majority of her criticisms, she does not support this statement with any reference to pertinent sections of the White Paper. An objective and informative summary of the White Paper does not legitimize her concern. The White Paper reviews a four-dimensional statutory framework for considering fair-use practice (see COPYRIGHT LAW above). The White Paper acknowledges that "mere reproduction has faired rather badly in court under the Copyright Act..." (WP, p. 77), but does not suggest legislation to eliminate fair-use rights in the context of the NII. As with clarifying distribution infringement, the "courts will have to engage in the same type of fact-intensive analysis that typifies fair use litigation and frustrates those who seek 'bright lines' clearly separating the lawful from the unlawful." (WP, p. 80) A legitimate criticism of the Working Group's consideration of fair-use rights applied to the NII is the vagueness of the recommended legislation. The Working Group if trying to balance the need for copyright law that is applicable to the NII with the desire for parsimonious legislation that will not require continual amendment in response to rapidly evolving technology. In doing so, the group has, to a large extent, handed the responsibility of clarifying fair-use doctrine to the less-efficient judicial system.

First-sale Rights and the NII

Finally, Samuelson maintains that the Working Group would eliminate first-sale rights for digitally transmitted documents. Samuelson believes the Working Group recommendations declare that "sharing your copy of an electronic work with a friend is illegal because, in order to send that copy to your friend, your computer will have to make a copy of the document..." (Samuelson (1), p. 4) She believes "the White Paper treats electronic forwarding as a violation of both the reproduction and distribution rights of copyright law." (Samuelson (1), p. 2) Such an interpretation is a blatant misrepresentation of the Working Group's discussion of first-sale rights and digital transmission. Digital transmission of a copy, unlike lending a hard copy of a text, graphic or phonorecord, involves both the distribution of that copy and the reproduction of that copy. The Working Group does not propose abolishing an existing right, but does point out that the current first-sale model does not apply to digital transmissions that involve reproduction of a copyrighted work in addition to distribution. (WP, p. 95) Instead, the Working Group recognizes that the digital distribution of reproductions could be lawful under the combined fair-use and first-sale provisions. As outlined above, certain reproductions are legal under the fair use provisions. Subsequent distribution of lawfully made copies would be permitted within the limits of the first-sale doctrine.

RECOMMENDATIONS

Discussion thus far has focused overwhelmingly on the legal nuances of copyright doctrine. But regulating the Internet does not involve purely legal issues. Therefore, government, industries, and users must consider means other than legal declaration to dissuade undesirable use of the technology. The hard-copy mentality of publication and authorship is not valid in the context of the Internet; the world needs a new paradigm. Relationships between authors and publishers are changing fast enough to out-pace any detailed legislation. The government and the Internet need flexible, enduring legislation, while authors and publishers need market protection. Legal recourse is only part of a viable solution that satisfies both sides.

The White Paper is the result of an impressive effort to realign policy makers' thinking about intellectual property in light of advances in information technology. However, the White Paper does not answer some important questions about the rights of authors and the rights of intellectual property users. The list of recommendations in the White Paper needs to be expanded in order to fully cover the way technology can impact intellectual property.

The White Paper needs to be amended in three ways:

  1. The right to World Wide Web browsing needs to be explicitly protected.
  2. On-line services should bear less responsibility for enforcing intellectual property laws.
  3. The rights of authors need to be protected by more than just legal mechanisms.

The Right To World Wide Web Browsing Needs To Be Explicitly Protected.

The World Wide Web has become a popular means for individuals and organizations to communicate with one another and distribute information. Users "browse" the WWW by using search programs to find the URLs of interesting WWW sites and then using software such as Mosaic or Netscape to go to those sites. The WWW seems to be very much a public forum because anyone with the right software can connect to a specific URL unless the WWW site sponsor installed architectures to restrict access, say perhaps only to users who enter a password. But under current copyright law, WWW browsing could be interpreted as an infringement on the rights of WWW site sponsors. Some recent legislation may increase the threat to on-line browsing rights. For example, the Association for Computing Machinery has expressed concern that the Senate Bill 1284 will change copyright law in a way that will interpret on-line browsing as a form of copyright infringement. The concern is complicated by the fact that browsing technology requires that a temporary copy be made into the RAM of the user's computer so that the WWW site in question can be viewed. Under a strict legal interpretation, this act could be defined as intellectual property infringement because the user does not receive permission from the WWW site sponsor first (Samuelson (1), p. 4). Users could then use RAM copies to unlawfully alter or distribute copies of the WWW site sponsor's work. Some courts have upheld the idea that temporary RAM copies of intellectual property are still owned by the author of the work. The MAI v. Peak case is an example. In this case the court ruled that even temporary RAM copies of intellectual property cannot be made without the permission of the author or buying a copy of the work in question.

This interpretation would seem to ignore the matter of intent and use of the WWW, and could serve to disrupt the benefits that the WWW has to offer. First of all, users recognize that the WWW is essentially a public forum. When a site sponsor puts information on the WWW, he or she knows that that information will be available to anyone with a computer and browsing software. If someone wants to limit the distribution of their intellectual property, they should not put it on the WWW unless there is some mechanism to restrict access to a group of approved users. The very act of putting information on the WWW implies that it is available for public access. The WWW should be treated as a public forum, and the federal government should amend current copyright laws to specifically protect browsing rights.

On-line Services Should Bear Less Responsibility for Enforcing Intellectual Property Laws.

One of the major concerns with the advent of digital information distribution and publication is the problem of verification. In the print media world, publishers stand behind the authors of written works. Reputable publishers, presumably, will not print something that they know is factually incorrect. They will not print something by someone they know is using phony credentials. But digital publishing allows individuals to distribute their works without having to be cleared by a publisher first. Someone could post a paper to the WWW that is factually incorrect, and no one can force the author to correct his or her mistakes. The same person could claim to have a PhD in economics when in reality this individual is no more than a lowly Master of Public Policy student. Users who read this paper would not be able to know the difference. Another concern is the potential for plagiarism. Digital documents can be easily altered as well as copied. What would stop people from altering digital documents and putting their own names on them instead?

The White Paper has taken the approach that one way to prevent this problem is to require that on-line service providers monitor the content of their networks to make sure that material printed on them does not violate copyright laws. This policing task may be beyond the capabilities of services like America On-Line. A better alternative may be to allow the development of services which would be solely responsible for archiving and verifying the content of digital works. If there is a demand sufficient enough for individuals to pay to receive digital works, then individuals may pay a premium to receive digital works which have had their content verified. The process would work something like this. An author would contact a service, such as a digital library, and offer to sell a paper to that service. The library contacts some references to verify that the author really is, say, a PhD economist from the University of Michigan, and that this person has some expertise on the topic of the paper which has been submitted. The library then buys the work from the author and archives it on their digital service. An on-line user sees the paper listed on the library's catalog and pays the library to receive a copy. The user can be confident that the paper has some legitimacy because it and the author are backed up by the on-line publisher, the digital library.

The White Paper should recognize that policing the Internet for intellectual property fraud is a potentially huge task. Rather than try to enforce intellectual property laws over the whole system, it may be better to let a system of "Let the buyer beware" develop. On-line services should be required to remove material that they know is suspect, but they should not have to investigate everything that is posted. They should simply be required to warn readers that this material may be inaccurate or fraudulent. Digital publishing services like the library described above could then be developed to provide sources of accurate information. To make sure that digital publishers meet at least some kind of standard for verifying the accuracy of information, they should be overseen by some kind of digital publishing standards body, but this organization would not have be sponsored or regulated by the government. The International Standards Organization is an example of an effective standards organization that is run by private, not public, interests.

The Rights of Authors Need To Be Protected by More Than Just Legal Mechanisms.

The White Paper correctly recognizes that the rights of authors need to be protected under copyright law. However, there are not many, if any, amendments to existing copyright law that would actually prevent abuse of copyright privileges. One of the problems with the White Paper is that it relies too much on legal protections without really discussing the limitations of and alternatives to those protections. Consider the case of the software industry. There are laws on the books that criminalize the act of unlawful duplicating copyrighted software. However, because of the scale on which software pirating has occurred, law enforcement officials have been unable to stop or even make a significant dent in the problem. But although pirating is still a problem for software companies, they have survived because they have managed to find means other than legal ones to protect their property. For example, many software companies now require that users provide a serial number (which can only be obtained by legally purchasing a copy of the product) in order to receive support services. Based on the experiences of the software industry, the best hope for the protection of author's legal rights may actually be outside of the legal framework. New technologies, new services, and careful consideration of how to make intellectual property available on the Internet can all provide ways to protect the rights of authors without infringing upon the rights of users.

Information technology has progressed to the point where once a user has a digital copy of a document, the user can make and distribute a vast number of copies of perfect quality. But there are technologies that could change the level of access that users would have to digital documents. One of these technological protections is encryption technology. There are different kinds of encryption programs, but they all serve the same basic purpose: they allow an author to put a digital work into a form that cannot be read by others. Anyone who wants to read the work will have to obtain a "key" from the author. Encryption would not prevent someone from copying a digital work, but the work will be copied in the encrypted form so that it still cannot be read. The user would still have to obtain a key from the author. Encryption is not entirely foolproof: for example, a determined individual could go through proper channels to receive a key to read an encrypted work. This person could then make a hard copy of the work once it is unencrypted, perhaps through a printscreen function, and then type the hard copy into digital form and then distribute it. However, encryption would make unlawful distribution more difficult.

Encryption can clearly play a beneficial role in protecting intellectual property. However, there are dangers to the development and distribution of encryption technology. Criminals can use encryption programs to communicate over the Internet in a form that is protected from monitoring by law enforcement officials. Enemies of the United States could use encryption technology to foil the efforts of American intelligence agencies to monitor threats to American interests. A number of encryption programs have already been developed and many have been distributed over the Internet. To counter the problem of encryption technology falling into the wrong hands, the Clinton Administration has proposed something called the Clipper Chip. This proposal calls for installing devices in communications equipment to standardize encryption technologies so that individuals could still use encryption to protect their works, however, if law enforcement officials were to have a compelling need to examine your works, they could decrypt them. This system would work not unlike the case of telephones and wiretapping. Law enforcement officials can tap your phone because they have the technical capability to do it, but legally they can only if they receive permission from the courts first. As a result of the problems that encryption technology can pose, the federal government should regulate the development of encryption technology to fit with the requirements of the Clipper Chip proposal.

There are other technologies which can protect digital works from unauthorized distribution. One product which is under development is a technology that would allow copies of a digital work to be made, but the copies would degrade after they are read or after a specified time period had elapsed. Another possible protective device would be some kind of protective "wrap" which would not prevent the digital document from being copied but would prevent someone from trying to alter its digital code. However, these technological solutions may not turn out to be perfect. Technological protections for digital documents may just encourage individuals to develop new ways to break those protections. The software industry tried to stop unlawful distribution of its products by adding copy protections to them. But software pirates just developed programs which could defeat those protections. Technological protections for digital documents might not turn out to be much more effective than their equivalents in the software world. On the other hand, no kind of protection could probably be 100% effective at preventing unlawful distribution by very determined individuals, so perhaps it would be enough for technological protections to make distribution more difficult, which could deter at least some part of the problem.

Another means of protecting intellectual property is to rethink how to present digital works over the Internet. Authors could experiment with ways to make copying digital documents more difficult. One means of doing so is to embed hypertext links in the body of a digital work. An author could take full advantage of WWW technology by incorporating links to other documents so that an individual could not get the full benefit of reading the document without also reading the linked documents. This step would make it more difficult to produce digital or hard copies of the work in question. Another means of dealing with the unlawful distribution of intellectual property is for authors to simply be more careful about what material they decide to make available in digital form. Rather than using the WWW as a way to distribute information goods, authors could use the WWW as an advertising forum. They could set up Websites in which authors introduce themselves or the organization they represent and talk about what they do and the type of information and services that they provide. They could even put abstracts of papers and reports into digital form to give users a better picture of the kind of work the author produces. Interested parties could then contact the author to get more information or place orders. A number of companies have already taken this step, even book publishers ("Le Grande Secret in France"). Publishers have expressed strong fears that digital distribution is a major threat to their existence, and now without at least a little justification. Illegal digital versions of copyrighted books have been found on the WWW. However, many publishers have established web sites to advertise current and future releases with chapter excerpts. This strategy allows authors and publishers to take advantage of digital technology without infringing the rights of users.

Finally, authors can look to the technology of the Internet to provide new services for which they can obtain rents. For example, some of the on-line services have begun to offer on-line chats with celebrities. The service advertises that the personality in question will be on-line at a certain site at a certain time, and individuals pay for the privilege of being able to log on and communicate directly with Evil Kenevil or the actor who played Lurch on The Addams Family. Authors could try to set up similar deals with on-line services in which they would discuss and answer questions about works that they've written. In such a case, it might be beneficial not bothering to try to enforce an author's copyright privileges. The author would actually want the work to be distributed to as many readers as possible in order to attract more people to an interactive session so that they could get a bigger cut of revenue from the on-line service.

CONCLUSION

The White Paper has left some important questions unanswered. It fails to address the differences between hard copy and digital publishing. It does not specifically protect browsing as a right instead of merely a privilege. By focusing only on legal recourses, it overlooks the effectiveness of market solutions. While legal protections are important to define rights of authors, they tend to be outpaced by technology. Internet users must find new intermediaries as sources of information. Digital libraries and archives can become sources of authenticated intellectual property. Original expression should be protected but it should also be made available to as many readers as possible. The White Paper needs to arrive at some compromise between these two parties. This balance makes up the crux of the concept of copyright, as Sandra Day O'Connor argues (as quoted in Intellectual Property: An Association of Research Libraries Statement of Principles :

"The primary objective of copyright is not to reward the labour of authors, but [t]o promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art."





note 1
Owners of copyrights in computer programs and sound recordings have the right to control post-first-sale rentals of copies of their works; owners of copyrights in other works do not. See
white paper discussion of multimedia works, pp. 41-45.
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