September 2, 1997

FAIR USE IN THE NEW AGE OF DIGITAL INTELLECTUAL PROPERTY

by Andy Oram
American Reporter Correspondent

CAMBRIDGE, MASS.—When I write my articles, I surf the Web for news to supplement newspapers and magazines. I also exchange my findings freely with colleagues over email. Will these practices survive as more information goes online? Research should become far easier than it was using paper and film. But it could be hindered instead by an ill-thought-out regime of intellectual property law, such as that pushed by the Clinton Administration onto Congress and the World Intellectual Property Organization for several years.

Copyright is certainly harder to protect in digital media. Software manufacturers claim losses in the billions of dollars, which is easy to believe if you think of all the friends you have who obtained their games and spreadsheets under the table. Movie and music studios claim they will suffer the same losses if they move to digital media. As someone who scours used record stores for rare disks, I would love to see all culture available on a worldwide network and would feel it a shame if the fear of lost revenues postponed the new media. But the measures proposed by large copyright holders go to the other extreme.

The worst proposal involves new rights for databases: for the first time in history, facts themselves would be owned and you would have to beg or pay the database owner for reuse. Luckily, this proposal was turned down by WIPO late last year and has not resurfaced since.

A bill being considered by Congress (H.R. 2281/S. 1121), supports manufacturers who add technical measures to prevent copying. For many media, these measures are not yet available, but they’re coming. Their efficacy isn’t that important, anyway, because the law would make it illegal to circumvent them. This provision would prevent people from backing up a valuable disk, making a copy for a colleague, or carrying out other practices that are currently considered fair use. The law also bans devices that are “primarily designed” to make copies of digital works. Since copying is so easy, there’s a risk that courts will apply such bans to lots of legitimate computer-based systems.

I have never heard of small copyright holders (like my company, a publisher of computer books) asking for draconian legislation. Such requests always come from database providers or mass entertainment conglomerates. The difficulty with copyright law is that different media require different kinds of protection: what works for a movie or pop tune does not work for a newspaper or academic journal.

Movies are viewed overwhelmingly for pleasure. If the movie attracts a big audience, the money they are willing to pay covers the costs of production. (We won’t consider underappreciated artists like Renoir and Stroheim.) Moreover, if customers view a film repeatedly or bring a bunch of friends, it’s reasonable to make them pay multiple times or buy a copy. Finally, everybody in the movie from the studio chief down to the stage hands is expecting to make a living from the movie.

The only people who suffer from a regime of pay-per-view are those who analyze large groups of movies for sociological or artistic research; these rare folks can establish rights with a film archive.

Now imagine a technical journal. Timeliness is important enough to some people to support the journal through paid subscriptions (along with sales to libraries). But a critical group of those who access these resources are looking through dozens of different journals for particular items that they can string together with their own research. Furthermore, they need to share articles with those they work with. As libraries move onto the Internet, the kinds of fair use that researchers now enjoy under U.S. copyright law must be preserved.

For researchers, micropayments (for instance, offering five cents for each article downloaded) may be a good solution. However, we don’t know how the technical infrastructure to support micropayments would be built, or how much cost it would add as overhead. Both micropayments and public funding are explored in a proposal called TeleRead by David Rothman. Under TeleRead, the government would put a huge number of books online and would distribute low-cost terminals to those who can’t afford them. Authors would be paid for each view from funds raised by other means.

Whatever the approach, our intellectual property laws have to be flexible. Copyright law already makes distinctions between different types of works (musical, literary, and so on). Corporations providing entertainment can be protected both by laws and by technical innovations (like digital watermarks, which embed a copyright into a work in such a way that it cannot be removed). Information provided for serious use requires different treatment. Probably, it is enough to add careful interpretations to existing laws. We don’t need sweeping new limitations on the rights of users.


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