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Copyright, Fair Use, and the National Information Infrastructure

``` [Bruce Lehman is the guy who is responsible for the Clinton administration's extremist "White Paper" about intellectual property protection on the NII. This speech shows some of his thinking, including some heavy stereotyping of the White Paper's critics. Recommended reading for everyone who doesn't want to see "fair use" and other such principles shrink to meaninglessness.]

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COPYRIGHT, FAIR USE, AND THE NATIONAL INFORMATION INFRASTRUCTURE By Hon. Bruce A. Lehman Assistant Secretary of Commerce and Commissioner of Patents and Copyrights 2/23/96 at George Mason University

Thank you for the opportunity to be here with you today. It is certainly a pleasure to be at George Mason University with educators who are harnessing the latest technology to better educate tomorrow's leaders.

Before I begin my discussion on copyright, fair use, and the NII, I would like to review two things: the history of fair use as a concept in copyright law and the creation of the NII.

Prior to the 1976 Copyright Act, the law of fair use was not a statutory doctrine, but was established through more than a 190-year history of judicial decisions interpreting the copyright law. The concept of fair use arose out of tensions between copyright law and the First Amendment, with courts attempting to balance the exclusive rights of copyright owners with the rights of scholars, critics, and others to speak and write freely.

During most of our nation's history, technology has been relatively crude, and attempts to copy and distribute a protected work with significant economic gain, would have required a substantial expenditure of both time and resources by a would-be infringer. Indeed, to make piracy profitable, one would literally have had to set up a printing operation and run off many copies of a protected work.

Over time, though, as technology improved, copying became easier, and the concept of fair use expanded beyond its First Amendment origins. While some advances in technology affected fair use, it was really only the advent and prevalence of photocopying reproduction, together with the advent of widespread videocassette taping in the last generation that expanded dramatically our current thinking on fair use.

Since photocopying becomes convenient, inexpensive and widespread, educators came to view the production of teaching materials as routine. Publishers, though, had a very different perspective --- they viewed widespread photocopying as lost sales. Indeed, during the discussions leading to passage of the 1976 Copyright Act, fair use was viewed as a sufficiently important limitation on authors' exclusive rights to warrant its inclusion in the proposed statute explicitly, where it now appears in Sections 107 and 108.

As technology has continued to evolve and facilitate our abilities to reproduce and distribute copyrighted works, the digital age has caused us once again to reconsider our need to balance the protection of author's rights with the fair use of protected works. Given the emergence of the NII, and the reality of an interactive publishing and information services system, the Clinton Administration established the Information Infrastructure Task Force to consider laws and policies surrounding the growth of the NII and to recommend legislative and regulatory changes where necessary to ensure optimal use of the NII.

A phenomenon common to all the committees and working groups involved in the NII was the recognition --- early on in our work --- that we could not truly speak in terms of a "national" information infrastructure. The very nature of the technology meant that we were really involved in an emerging "global" information infrastructure. Thus, nearly all the efforts of the Task Force have been expanded to take account of the global implications, with Vice President Gore and Secretary of Commerce Brown providing world-wide leadership in international summits and other fora, including leading ministers of G-7 nations, in a discussion of the issues. The final communique of the last G-7 meeting contained a pledge to provide for protection of content flowing through the GII and commits the nations involved to work through the World Intellectual Property Organization, the specialized UN agency for intellectual property in Geneva, to secure effective global protection for information products marketed in international electronic commerce.

Generally speaking, the NII can be divided into two parts: the physical infrastructure itself --- the computers, optical fiber cables, satellites, and networks that comprise the information superhighway system --- and the content which flows through that system. While the physical portion has grown tremendously over the past few years, the content portion remains somewhat limited to public materials and private communications, but not, as yet, fully commercialized despite the growth of the World Wide Web and the increasingly common use of home pages.

This should not be surprising. Until the producers and owners of commercial products believe they can adequately protect and control the dissemination of their works via the NII, they will not make their works available except in the most limited of ways.

Two weeks ago, WIPO held meetings to discuss the ongoing efforts to draft a Protocol to the Berne Convention and a New Instrument on Neighboring Rights to address and solve the problems posed by international cyberspace. While the vast majority of representatives present felt that existing national copyright laws provided an adequate basis for protecting works being exploited in the electronic marketplace, there was an explicit recognition by some governments that existing laws might have to be amended to deal with issues such as the fact that - -- in some countries --- "communication to the public" of a literary work is protected only by a right to remuneration, not the same exclusive right associated with the distribution of physical copies.

This simple issue could be of central importance to educational institutions and research companies if it is not dealt with adequately. Against the backdrop of a general recognition that the differing national information systems will be linked together when a book periodical, or database is uploaded from one country and downloaded, distributed and copied in another, many questions naturally arise.

When does infringement occur? Who will have a cause of action to sue? What national law will apply? And what will be the role of national treatment? These are only a few of the major questions facing us and to which we will be addressing ourselves over the next year.

In addition to attempting to resolve international issues before they become trade disputes, the Administration has been working on other fronts to resolve problems before they become impediments to electronic commerce. One example is the effort to bring publishers, libraries, and educators together under the Conference on Fair Use to redefine the meaning of fair use in cyberspace by mutual discussion and agreement rather than by confusing and costly litigation. Another example is the initiative by the Commerce Department and the Department of Education to encourage the private sector in its desire to create a national campaign to promote greater copyright awareness, particularly in libraries, schools, universities, and through on-line service providers. Secretary Brown has said: "... not all activities in the NII are legal just because they are technologically possible. Users must become familiar with the 'civics' of the information superhighway --- that is the responsibilities associated with accessing and using works via the NII. These include obeying the copyright 'rules of the road' and the obligation not to infringe the rights of product owners."

The great irony of the NII is that it is at the same time simplifying our lives and complicating them. It has been variously described as the greatest technological invention since the printing press, a monumental threat to personal privacy, a panoply of staggering possibilities, and as electronic anarchy.

The good news is that the NII allows for quick, efficient, and technically perfect reproduction and distribution of copyrighted works worldwide. The bad news is that the NII allows for quick, efficient, and technically perfect reproduction and distribution of copyrighted works worldwide. You can see the obvious dilemma both content providers and those who wish to avail themselves of such works face.

As one of the major risks associated with the NII is the ability to efficiently and quickly reproduce and distribute unauthorized copies of copyrighted works without obtaining permission, digital technology, coupled with the highly networked nature of the NII, presents a significant risk that unauthorized reproductions of a work will replace the consumer market for legitimate copies.

Unless this risk is substantially reduced, the NII will never realize its full commercial potential, resulting in the possible stagnation of our information and entertainment industries, not their expansion. Yet, despite a general consensus that copyright law must adapt to the new reality of a digital environment, the currently proposed revisions to the Copyright Act are regarded as radical by some, devious by others.

I know that different people view the cyberworld being created around them differently. Some wax eloquent about the unlimited nature of the Internet, others are too panophobic to buy a fax machine. Clearly, then, I do not expect universal acclaim for the recommendations contained in the White Paper. Reasonable minds can differ as to the best way to protect intellectual property in the NII, and healthy debate is both warranted and welcome, but most can agree that driving on the information superhighway requires some rules of the road.

Yet there are those who call for a cyberspace of no rules, no laws, except the "netiquette" which some have convinced themselves will suffice to regulate the largest and most complex information delivery system ever created. These same individuals seem to believe cyberspace is some otherworldly outland, simultaneously ungovernable and not to be governed by the laws that apply to everyone else. A virtual Dodge City, run by electronic vigilantes. And they take umbrage when the law- abiding citizens want to bring in a federal marshal to enforce the law and keep the peace.

There are also those who have concluded that the White Paper and other efforts by he Administration to address issues concerning development of the NII are indications of some grand conspiracy afoot. They envision a dark and devious conspiracy by entertainment moguls, publishing poohbahs, telecommunication czars, and unscrupulous politicians --- scheming to eliminate fair use and extinguish free speech in cyberspace. To these alarmists, a New York Hollywood Silicon Valley axis has infiltrated government, is promoting free market capitalism, and stays awake nights plotting the takeover of the Western world, at least as to everything we read, watch, listen to, and enjoy.

While this has the makings of a Tom Clancy novel, nothing could be farther from reality. There is no grand plan to rob Americans of anything. On the contrary, this Administration is firmly committed to its stated position in the White Paper that fair use does, and should continue to, exist in a digital environment.

Nothing in he White Paper calls for revamping Section 107 of the Copyright Act. In fact, it is emphatically stated that the existence of systems for the supply of licensing copies of works by electronic means does not negate fair use nor the privileges conferred on libraries in Section 108, nor do they limit inter-library loan borrowing permitted under existing voluntarily negotiated guidelines.

Indeed, the White Paper, and legislation implementing its recommendations now before Congress would expand fair use in certain circumstances, not eliminate it. And the proposed legislation is fully consistent with the power provided to Congress by the Founders 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." This was an obvious, uncontroversial inclusion in the Constitution, with no recorded dissent among the framers.

As Madison wrote in The Federalist Papers, "The utility of this power will scarcely be questioned." Even in a digital age unforeseen by Jefferson, Madison, and Monroe (although I personally believe that Benjamin Franklin may have had an inkling of what was to come), this particular contribution by James Madison and Charles Pinckney was essential in setting us apart from other nations in our commitment to the protection of intellectual property. And in giving government the power to grant authors and inventors exclusive rights, it was generally accepted that the individuals involved would receive economic reward, and the public would receive the benefit and enjoyment of scientific advances, invention, literature, music, and other creative works that might not otherwise have been created or disseminated.

It has been observed that laws protecting creativity are the green-tinted windows of a hothouse, allowing flowers to grow and bloom in the face of adverse conditions. Or as the Supreme Court has noted, by establishing a marketable right to the use of one's expression, the protection of intellectual property "supplies the economic incentive to create and disseminate ideas."

The doctrine of fair use is an important limitation on the exclusive rights of copyright owners, but it can only be implemented effectively if the parties who have the most at stake agree on its scope and application. The work of the Conference on Fair Use, and the efforts of the Consortium of College and University Media Centers, are two major steps toward the development of workable fair use guidelines by those who are, at once, the most knowledgeable and the most interested in the area of fair use of intellectual property.

We are optimistic that the efforts currently underway to establish voluntary guidelines to which all interested parties --- be they authors, publishers, libraries, or educators --- can adhere, will result in guidelines which this Administration and Congress can accept as the well-considered consensus of the intellectual property, academic, and library community.

Much as the high seas forced our sea-faring ancestors to adopt rules of navigation, laws against piracy, and maritime and admiralty conventions to govern commerce and liability, so, too, does cyberspace challenge us now to adapt our laws to meet the uncharted waters of protection and transfer of content. As Vice President Gore has observed, protection of intellectual property internationally is "absolutely essential" to the success of the NII.

I would be the first to concede that technological progress is not always a good thing. Technology often frightens us, and sometimes, rightfully so, because it not only represents change, it is change. And one does not have to subscribe to the philosophy of the Unabomber to question the assumption that because you can do something, you should do it.

This fascination with, and repulsion by, technological progress pervades our popular culture. Whether on film or in literature, the present and future can be a technologically scary and often depressing place to live. Whether it is the Machine as oppressor in Metropolis or technology as a pervasive invader of our personal privacy in 1984 and The Net, whether it is the technologically adept state taking away one's individuality in Brazil, or a society as in Fahrenheit 451, addicted to interactive soap operates and employing firemen to burn books, whether it is the all-too-plausible genetic engineering of A Brave New World or Jurassic Park, or the thought conditioning in A Clockwork Orange, works as diverse as Frankenstein, 12 Monkeys, The Stand, and The Fly, are probably to thank for a general queasiness at the thought of scientific experimentation with everything from electricity and DNA, to viruses and atoms, not to mention anything preceded by the work "biochemical".

The NII will, hopefully, represent a brighter future. It has a potential to provide us access to rich cultural resources around the world, transforming and expanding the scope and reach of the arts, sciences, and humanities, providing opportunities for the development of new markets for cultural, educational and scientific products, and put at our finger tips vast educational resources. It can broaden our cultural experiences through diversity of content, and increase our understanding of our world's societies and concerns. In sum, nothing is beyond attaining in the new digital realm.

As our society, and the world at large, evolves into one dominated by intellectual property, from exports and jobs, to careers and entertainment, one of the more exciting challenges of the future will be that of teaching students who are often more technologically adept than their instructors. And whether in interactive telecourses, virtual classrooms and labs, or through computer-led instruction, distance learning, or research and studying in libraries with satellite links, the fair use of protected materials will continue to be an important component of learning in the 21st century. ```

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