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Your Copyright
Future is Being Determined Now
or: Public Interest?
What Public Interest?
a paper presented at the Town
Meeting on Copyright and Fair Use
offered at the annual meeting of the College Art Association,
Toronto, Canada, February 1998
Toronto
Town Meeting Program | Author's Biography
Notes | Robert
Baron's Home Page
Introduction
Ever since the Clinton Administration's 1993 "Agenda
for Action" established the National Information Infrastructure,
what to do about copyrighted material that is to be digitized and
made available in the digital environment has been one of the
most contentious issues with which it has had to deal. Extremely
puzzling is the fact that the "Agenda for Action" made
no mention of the place and contribution of the arts and
humanities.
This is not a "special interest"
issue, of interest to just a few; increasingly, we are all
becoming creators and owners and users of digital
material, so this issue affects us all.
After several false starts, now, five years
beyond the "Agenda for Action," Congress has before it
two competing sets of proposed legislation for revising U.S.
Copyright Law to take account of the digital conundrum. These two
sets of bills reflect two distinct visions of the future, and the
time is ripe for us all to choose. Which side are you on?
Unfortunately, as far as I see it, we are
becoming immersed in yet another phase of the Culture Wars. And
just as the Culture War that erupted in Congress over the funding
of the NEA was about values--core values about what we believed
are, at root, fundamental to the way we conceive of our public,
social and intellectual life--so the copyright status of digital
media, too, is a war about values, values of a classic American
kind that resurfaces throughout our history: culture versus
commerce, private gain versus public interest.
This conflict of competing forces was what
copyright law was invented to hold in balance: it rewards
creators, but also safeguards the public interest, all the while
fostering national creativity and productivity. It does this by
enabling the public to use fairly new materials to create even
newer works.
What I want to do here is talk about how the
current conflict has developed and what our choices are today.
This will involve mentioning three competing concepts to
copyright law, what one lawyer, Peter Jaszi, has called
"quasi-copyright" (new database protections);
"para-copyright" (encryption technology negating fair
use); and "super-copyright" (contract law pre-empting
federal copyright). [For an introduction to Copyright and Fair
Use, see NINCH's "Fair Use Education" webpage.]
Copyright To Date
So let's start with the first major revision of
copyright law since 1909, which was the Copyright Act of 1976. This
law was undertaken principally to address the impact of the new
technologies of photocopying and video recording, but it was also
significant for codifying (for the first time) the first sale and
fair use doctrines (with its famous four-factor test for fair
use), and for adding Section 108 that allows libraries to
photocopy without permission for purposes of scholarship,
preservation, and interlibrary loan.
In 1993, the Clinton Administration's
Information Infrastructure Task Force (IITF) set up a Working
Group on Intellectual Property Rights to explore the copyright
implications of the next generation of new technology--digital
networking. Their report led fairly seamlessly to the
Administration's 1995 White Paper, and then to the proposed 1995 NII Copyright Protection Act.
Here was added a new "transmission right," and it also
expressed great concern about achieving perfect electronic
protection systems, but had nothing to say on Fair Use, First
Sale, Distance Education or Liability issues--all concerns for
the education and scholarly communities.
But the IITF did establish the
non-Congressional, non-legislative Conference on Fair Use--the
open-to-all forum for the owners and users of copyright material
intended to see if they could craft detailed guidelines to Fair
Use in the digital environment. CONFU worked on a limited number
of areas, some of which were abandoned early on, with only three
working groups surviving to the so-called Final Meeting in May
1997. These were the working groups on Digital Images, Multimedia
and Distance Education. This final meeting produced no consensus
and no majority agreement. The December 1997 meeting of the
Steering Committee decided that there really was no life in any
of the Working Groups. So essentially CONFU is dead. [See NINCH News Brief on this
meeting]
So back to the Administration's 1995 proposed
legislation: This failed to pass for a variety of reasons, but to
the distress of many, it was essentially re-presented as the
template for a new international copyright treaty being
considered at the end of 1996 by the World Intellectual Property
Organization (WIPO). However, the next surprise was that due to
tremendous work by an alliance of U.S. and European education and
library groups with many Third-World countries, the WIPO Treaty
turned out quite differently than the US Administration imagined,
most notably in its strong re-affirmation of the public purpose
and public interest of copyright, and the quintessential
importance given to the limitations and exemptions to copyright:
something the US Copyright Industry didn't want to hear.
As a result, the Government's 1997 WIPO
Implementation Legislation (H.R. 2281 and S. 1121) turned out to
be very close to the original 1995 proposal and, many would say,
because it left out so much, it is in fact not in keeping with
the spirit of WIPO. Its most significant characteristic is that
it aims to strengthen the rights of owners. And it is no
surprise, therefore, that it has the massive support of Hollywood
and commercial publishers. [See commentary
on this bill by the Digital Future
Coalition.]
New Variations on Copyright
Apart from not saying anything about fair use,
the Administration's bills illustrate and ally themselves with
these other visions of copyright I mentioned before--so let's
talk about them. First they include what Peter Jaszi has called
"para-copyright": the desire to leap over copyright law
by relying on the protection of encrypting technology. If
copyright is just about protection, let's lock material up and
forget about exemptions. These bills typically
"over-protect" by criminalizing a whole class of
technology--de-encrypting devices, which would enable a user
engaged in legitimate fair use to unlock and use material--rather
than criminalize illegal behavior. This effort goes against the
language and thrust of the WIPO Treaty, which also supported
criminalizing behavior rather than devices.
Next is "super-copyright": the
attempt to abrogate and pre-empt copyright through contract law.
The implementation of "super copyright" is taking place
through the re-negotiation of the Uniform Commercial Code that
controls state contract law. One proposal is to allow
"shrink-wrap" or "click-through" licenses and
contracts to abrogate or pre-empt rights and provisions
guaranteed by federal law. This is something the WIPO Treaties
again don't mention. [1]
Third in this triumvirate of new protections
sought is "quasi-copyright": a new attempt to give
added protection to what are very loosely being called
"databases"--collections and compilations of data that
do not have sufficient originality or creativity behind them to
qualify for copyright protection. This is currently manifested in
the "Collections of Information Antipiracy Act" which
was responding to among other things the 1991 Feist decision
which held that the White Pages are not copyrightable. [2]
Characteristic of many copyright bills, the
database protection provision starts in the right place but goes
overboard. It is designed as a commercial
"misappropriation" bill to help police the unfair
commercial exploitation (or piracy) of
"sweat-of-the-brow" productions. However it
overprotects and dangerously threatens the public domain and
intrudes into the educational arena.
An Alternative
Congress is now able to consider an alternative
to these over-protective WIPO Implementation bills: a
comprehensive and balanced Senate bill introduced last September
by Sen. John Ashcroft and a companion House bill introduced in
November by Representatives Rick Boucher (D-VA) and Tom Campbell
(R-CA). Both address the issues of privacy, fair use and
liability. Campbell-Boucher also addresses first sale and the
issue of the relation of state contract legislation to Federal
Law. (It clearly indicates that negotiated contracts cannot
pre-empt one's privileges, such as Fair Use, guaranteed by
Federal law).
These two bills are currently the focus of a
major campaign organized by the Digital Future Coalition. A useful side-by
side comparison of the Boucher-Campbell
Bill (H. R. 3048) with the Administration's H. R. 2281 bill is
available on the DFC website. This campaign is clearly about
which version--which vision--of control and access to copyright
material will be dominant in the future.
The commercial owners are currently saying:
"Imagine a world of Internet pirates,
in which nothing is safe on the Net from stealing and from
illicit commercial exploitation."
To which I would say:
"Imagine a world in which all new and
copyright digital content is locked up behind strong,
encrypted, digital bars, opened up only for a pay-per-view
charge--no matter who you are and what you want to use the
material for."
They say:
"Imagine a world where kids learn to
steal on the Internet: 'are kids learning that stealing is
wrong?'"
I say:
"Imagine a world in which the concept
of public interest, even of a vibrant public domain is
alien--as everything is pegged down with no concept of a
'public right of way.'"
Next Steps
So how do we move forward? I would suggest
there are two fronts: advocacy and education.
On the advocacy front, we each should look at
the Ashcroft and Boucher bills, compare them with what the
Administration is offering, and give our support to whichever is
more consistent with our future needs. Both the Digital Future
Coalition and the College Art Association are encouraging
individuals to write to House members to convince them
individually to sponsor the Boucher-Campbell bill. Visit www.dfc.org for more information; contact Katie
Hollander at CAA or Chris
Sundt at VRA for advice about what to
say and who to say it to.
On the education front, NINCH is working along
several lines.
First, recognizing the collapse of CONFU and
the lines being drawn over copyright, we are encouraging the
active development of campus and institutional policies and
principles on the use and management of copyright material. These
should declare our rights and responsibilities under existing law
and should pro-actively affirm fair use and other copyright
exemptions.
NINCH, at its November
Copyright
Meeting agreed to organize a web-space
where the community can see what we are doing in creating
policies and principles. The National Humanities Alliance's "Basic Principles for Managing Intellectual Property in
the Digital Environment" is a very good place for us all to start.
University-wide policies include those of the University of California System
(on which the NHA Principles were based); The University of Texas System
and the University of Indiana .
Secondly, we are encouraging others to develop
copyright and fair use educational programs (see for example
Indiana University's innovative "Online Copyright Tutorial," the
University of Texas' "Copyright Crash Course" presented by Georgia Harper
and the University System of Georgia's "Regents Guide to Understanding Copyright and Educational
Fair Use." NINCH is also beginning to plan for a new series of
these town meetings.
This issue is fundamental for all of us in this
community. As Professor Stan Katz, former president of the
American Council of Learned Societies has put it, if, in our
campaign for usefully networking cultural heritage resources, we
lose this battle over access to copyright material, we might as
well pack our bags and go home.
1. For information on this development see the
webpage for a conference on "Intellectual
Property and Contract Law in the Information Age," University
of California, Berkeley, April 23-15, 1998. Go to text
2. See Testimony by James Neal,
President of the Association of Research Libraries, against this
bill presented to the Subcommittee on Courts and Intellectual
Property of the Judiciary Committee on October 23, 1997. Go to text
Toronto
Town Meeting Program | Author's Biography
Notes | Robert
Baron's Home Page
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