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NII copyright policy
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Date: Tue, 4 Oct 1994 15:17:19 -0700
From: Jim Warren
Heads up! The knowledge monopolists are at it again.
It appears that the administration, to avoid controversy among "important" people, is about to give away much of the benefit and value of the net and of public access to information to intellectual-property monopolists and their big-bucks Washington lobbyists.
The full text of this critique is more than 37-kilobytes, so I am forwarding only the introduction, section leads and the conclusion. --jim
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Tue Sep 27 18:13:52 1994 Pamela Samuelson's Critique of the NII Intellectual Property Green Paper Distributed with permission to interesting-people@eff.org .
Legally Speaking: The NII Intellectual Property Report by Pamela Samuelson
(to be published in the December 1994 issue of Communications of the ACM)
In July 1994 the Clinton Administration's Working Group on Intellectual Property Rights issued a Preliminary Draft Report on Intellectual Property and the National Information Infrastructure [1]. This column reflects the principal comments I made about the Draft Report in response to a call for public comments on it.
If the National Information Infrastructure (NII) is to achieve its potential as a channel for distribution of a wide range of creative works, says the Report, authors and publishers of those works will need reasonable assurance that their intellectual property rights will be respected. Digital networked environments pose particularly severe challenges for owners of intellectual property rights because digital networks make it so simple for members of the public to make multiple copies of those works and distribute them to whomever they choose at virtually no cost. Left unregulated, this activity would undermine the incentives of authors and publishers to invest in the creation and distribution of creative works, for the first distribution of a digital copy to the public would enable those who receive it to set themselves up as alternative publishers of the work, able to undercut the first publisher's price because they need not recoup any development costs. On this point, the drafters of the Report and I are in agreement.
Where we principally disagree is about the wisdom of making certain changes to copyright law and about the Report's characterization of these proposed changes as "minor clarifications and changes necessary to modernize copyright law for digital networked environments. The Report recommends: (1) making digital transmission of a copy of a copyrighted work an act of copyright infringement; (2) abolishing the "first sale" rule for works distributed by digital transmission (this rule generally permits owners of copies of copyrighted works to redistribute their copies without the copyright owner's permission); and (3) making it an infringement of copyright to construct or distribute any device intended to circumvent copy-protection systems by which owners of the copyright might attempt to protect their work.
As the remainder of the column will demonstrate, the Report misrepresents the current state of copyright law in several important respects. In particular, it overstates the extent to which current law favors publisher interests. It downplays the extent to which the changes it recommends would, in fact, bring about a radical realignment in the historical balance between publisher interests and the public interest in access to information products, pushing the law in a direction that would favor publisher interests to the detriment of the public interest. It would abolish longstanding rights that the public has enjoyed to make use of copyrighted works, rights that have been consistently upheld in courts and in the copyright statute. The Report is full of legalistic terminology that makes it difficult for members of the public to read and comprehend. As a consequence, it doesn't provide an adequate basis from which the public, including the technical community who reads Communications, can make an informed judgment about whether the public should accept this revised copyright law. The remainder of this column will translate the Report and its recommendations into plain English so that readers can understand what is at stake and why I question whether the Report's recommendations would be in the public interest.
To put the point plainly, let me say that not since the King of England in the 16th century gave a group of printers exclusive rights to print books in exchange for the printers' agreement not to print heretical or seditious material has a government copyright policy been so skewed in favor of publisher interests and so detrimental to the public interest.
AN EXCLUSIVE RIGHT TO BROWSE?
Until the NII Report came out in July, no one had ever thought to declare that merely browsing a copy of a copyrighted work could be regarded as an act of copyright infringement. ...
AN EXCLUSIVE RIGHT OF DIGITAL TRANSMISSION?
The Report is more express in its endorsement of another expansion of the exclusive rights of copyright. It would give copyright owners an exclusive right to control digital transmissions of their works. ...
ABOLISHING THE FIRST SALE RULE?
The "first sale" rule allows members of the public who have purchased a copy of a copyrighted work to sell it, give it away, lend it, or even rent the copy to other people. (In the United States, only sound recordings and software cannot be rented; in some countries, no works can be rented without permission from the copyright owner.) The first sale rule grew out of judicial decisions holding that Congress had not granted copyright owners monopoly power over all distributions of their works, but only a right to control the first sale of the work to the public. ...
ABOLITION OF FAIR USE?
U.S. law, like that of some other countries, regards some copying from copyrighted works as "fair" and noninfringing of copyright. Under the fair use doctrine, the author of a book on the assassination of President Kennedy, for example, did not infringe copyright when he reproduced several frames from Zapruder's movie of this tragic event in order to illustrate his theory about the assassination.
It would be inaccurate to say that the NII Report recommends abolishing fair use law. And yet, it takes such a narrow view of existing fair use law and predicts such a dim future for fair use law when works are distributed via the NII that the Report might as well recommend its abolition. ...
OUTLAWING DEVICES TO DEFEAT ANTI-COPYING SYSTEMS?
The NII Report foresees the potential for broad use of technological strategies to protect copyrighted works in digital networked environments. Copyright owners, for example, may distribute products in encrypted form so that, despite a distribution over the net, the work could not be enjoyed by one who had not paid the price for it. The Report recognizes that technological protections may not be entirely secure: what one technology can do, another technology can often undo. Thus, technological protection of copyrighted works may prove useless unless there is a ban on the manufacture and distribution of devices or services aimed at overcoming technological means of protecting copyrighted works.
To remedy this problem, the Report recommends enactment of the following provision: "No person shall import, manufacture, or distribute any device, product, or component incorporated into a device or product, or offer any service, the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent, without authority of the copyright owner or the law, any process, treatment, mechanism or system which prevents or inhibits the exercise of any of the exclusive rights [of copyright]."
The Report further recommends making manufacture or sale of such devices or services into an act of copyright infringement. ...
BUILDING ON THE STRENGTHS OF THE EXISTING NII
A curious omission from the NII Report is any discussion of the extent to which existing digital networks, such as the Internet, have furthered the constitutional purposes of copyright. The drafters of the Report seem to view the existing digital networks as empty pipelines awaiting content that publishers today are afraid of putting there because copyright law today doesn't give them enough control over their works. The drafters also act as though the principal norm of the net is "to require copyright owners to check their copyrights at the door" when they enter the digital domain. ...
CONCLUSION
The problem with which the NII Report contends is a deep and important one. Members of the general public believe that copying of copyrighted material for private noncommercial purposes, whether it be a photocopy of an article or an audio tape of a compact disk recording of one's favorite artist, is not unlawful. Historically, private noncommercial copying has rankled publishers but there wasn't much they could do about it, and besides, as long as copying technology was relatively primitive or expensive, private noncommercial copying didn't cut into sales all that much. As reprography technology has improved and gotten cheaper, private noncommercial copying has become of greater concern to publishers.
As the NII Report observes, owners of very valuable copyrights, such as motion picture producers, recording studios, and publishers of books, are unlikely to want to distribute their works via the NII unless they have reasonable assurance that their intellectual property rights will be respected. One can commend the drafters of this Report for tackling a very difficult problem and for offering recommendations that would overcome some of the fears that owners of valuable copyrights have about digital networked environments without approving of the strategy employed to achieve the Report's objectives and without concurring in its judgment about where a proper balance lies between the interests of copyright owners and the public.
I remain unpersuaded that copyright owners really need the dramatic expansion of rights which the NII Report would give them. I believe this proposal would restrict public access to information far out of proportion to the harm likely to result to copyright owners, and that existing law provides plenty of ammunition with which publishers can attack infringers. But I admit 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. If the Report had been explicit about attempting to achieve a radical transformation of copyright law so that each and every use of a copyrighted work is infringing unless authorized by copyright owners, then at least there could have been public debate on the issues.
The most objectionable aspect of the NII Report is, in my view, lies in its effort to avert the hard issues and controversy that a plain statement of its intentions would engender. It is simply not true that the Report recommends only minor clarifications and changes to copyright law, even though the press coverage of the Report dutifully echoed the Report's statements that they were. (Where are the investigative reporters when we really need them?) This column aims to provide readers with enough information about the policy issues raised by this Report so that they can begin the policy debate that is so sorely needed in this area and so that they can contribute their views about a solution that will achieve a fair balance between the public interest and the interest of copyright owners.
SOURCES
[1] Working Group on Intellectual Property Rights, Information Infrastructure Task Force, Green Paper: Intellectual Property And the National Information Infrastructure (Preliminary Draft, July 1994).
[2] Pamela Samuelson, Legally Speaking: Copyright's Fair Use Doctrine and Digital Data, Comm. ACM 37: 21 (Jan. 1994).
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