Few areas have been shaken up by the information revolution juggernaut more than copyright law. The riddle of how existing law must be adapted in the electronic age brings clashing answers from journalists, librarians, publishers and computer industry professionals.
The stakes are high. The Clinton administration, in promoting its initiative to create a National Information Infrastucture, asserts that content is the most important ingredient in the coming information superhighway, and that the project's potential “will not be realized if the content is not protected effectively.”
Digital communications have altered longstanding copyright issues in at least six fundamental ways, notes a report by the congressional Office of Technology Assessment: “Digital works are easily copied, with no loss of quality; they can be transmitted easily to other users or be accessed by multiple users; they can be manipulated and modified easily and changed beyond recognition; works treated very differently under current copyright law are essentially equivalent: text, video or music are all reduced to a series of electronic ”bits“ and stored in the same medium; works are inaccessible to the user without hardware and software tools for retrieval, decoding and navigation; software allows for new kinds of search and linking activities that can produce works that can be experienced in new ways, e.g. interactive media.”
Complicating efforts to enforce copyright protection is the fact that thousands of average citizens for the first time are now accessing published materials through their personal computers. The Associated Press, for example, has begun putting its copyright ownership statement on every news item it transmits. “Up until a few years ago, the only people who would have received those feeds would have been professional journalists who, one presumes, have signed and understand the distribution rights,” notes Larry Magid, a syndicated columnist who writes on electronic issues for the Los Angeles Times. “Now, they're going around into every home and office around the world . . . and people may not understand that it is copyrighted material.”
Novelist and journalist Nicholson Baker recently took to the op-ed pages to announce that the National Writers Union is considering setting up an authors' royalty-sharing fund to challenge commercial services such as The Magazine Index, owned by Ziff Communications, which allows Internet users to order and download copies of magazine articles at $8 each - with no remuneration to the author. “I write for magazines, not (yet anyway) for expensive intermediaries who are interested in using our fax machines or inkjet cartridges as their printing press,” he complained.
The recording industry is also sounding alarms. The day is fast approaching when consumers may enter the Internet and receive “real- time, compact-disk quality sound transmissions that we have no right to control or authorize,” says David Leibowitz, executive vice president and senior counsel to the Recording Industry Association of America. “It could replace record sales, and so it gets to the core of our industry's being.”
Finally, the computer software and service industries are raising their own questions. “The copyright issue has serious impact for the health and safety of the Internet,” says Daniel Weitzner, deputy director of the Center for Democracy and Technology. “If some copyrighted software is pirated over America Online, who is liable? If every single posting to a news group is copyrighted, it will have a chilling effect on conversations. If providers are responsible for checking against copyright infringements, it will bring the Net to its knees.”
Though constitutional traditions protecting the original expression of ideas are not threatened by the digital tidal wave, decades of case law may be, according to Michael Roberts, vice president for networking at Educom, a consortium of colleges and universities offering information-science programs. “On the Internet, what is expression? What if a file momentarily resided in my PC - did I copy it? What can you do when copy is transported instantly in an international world?” He says that earlier understandings about the rights of college professors to photocopy articles for students, for example, has been rendered “passe” by the arrival of the World Wide Web, where a professor can simply instruct a class of 60 to click onto a home page.
But if technology raises new problems, it may also offer new solutions. Roberts points out that the ability of computers to perform rapid-fire accounting tasks may offer publishers new opportunities to collect piecemeal fees for every electronic transaction involving a copyrighted work.
In a June report on copyright in the electronic age, the Association of American Publishers announced that it will help develop “uniform file identifiers,” or labels that all distributors would agree to permanently attach to all published electronic files identifying who owns the copyright. Judith Platt, the association's director of communications and public affairs, stresses that “the technological fixes are in many ways the easiest,” but the overall solution to the copyright problem is likely to have several components - including new business models such as charging usage or licensing fees.
The publishers remain concerned about the risks of copyright violations encouraged by electronic scanners, or machines that can read printed text and convert it into digital signals that can be readily transmitted and even reformatted into seemingly fresh articles. In a 1994 position paper, the publishers also took a jab at the library profession by warning that “use of terms such as 'resource sharing,' 'collaborative research' and 'electronic reserve rooms' are misnomers. We are talking about electronically facilitated activities which in the absence of permission are often infringements.”
Librarians, for their part, defend the special status for fair use of materials accorded to nonprofit groups and certain others in the 1976 Copyright Act. That law said that “copyright protection is available for original works of authorship 'fixed in any tangible means of expression, now known or later developed,' ” notes University of North Carolina law Professor Laura N. Gasaway, arguing that the law's 20-year-old language can accommodate today's electronics.
The act's provisions on fair use “struck a delicate balance between rights of users and proprietors that gives key exemptions to education and library users,” says Carol Henderson, executive director of the Washington office of the American Library Association. “If we were to switch to a total pay-per-use system, it would have a detrimental effect on scholarship, research, criticism, newspaper reporting and learning.”
Librarians can comply with copyright law and still provide the public with an electronic service not available commercially, writes Yale University Library Director Scott Bennett. The key is to “use materials the library has purchased, to respond efficiently to uncoordinated individual requests for copies [as opposed to systematic requests for multiple copies for groups] and to transfer the copies made wholly to the reader, retaining nothing at the library and making no profit on the transaction.”
Libraries are still struggling with the issue, adds George M. Needham, executive director of the Public Library Association. “If I lease the Encyclopaedia Britannica on-line, do I get it for the Park Ridge, Ill., library, for the whole Midwest region or the whole country?” he asks. “The Internet removes geographical barriers to the use of information.”
Needham says there is talk of paying the publishers licensing fees, perhaps indexing them by monthly or annual use, or of confining access to databases to those who can dial in the number of a valid library card from the locality that paid for the database. “But the only way it has been resolved so far is that companies are withholding their products,” he says. Britannica, for example, is experimenting with leasing its product on-line to universities, but not to public libraries.
In the anarchic world of the Internet, law-abiding users can consult several sites for guidance on the copyright debate, among them Lexis, Nexis, WestLaw and Dialogue Information Services.
The recording industry, meanwhile, is pursuing legislation introduced by Sens. Orrin G. Hatch, R-Utah, and Dianne Feinstein, D- Calif., that for the first time would give recording artists and record companies a fee whenever their material is performed in a broadcast or in a live milieu. Currently only composers and lyricists are compensated through their membership in the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music Inc. (BMI).
Similarly, since 1988 a group of publishing industry officials based in Danvers, Mass., called the Copyright Clearance Center has been conducting pilot projects in electronic publishing that compensate copyright owners by collecting annual license fees from information providers. A fee-per-use system is being explored by the Reston, Va.-based Corporation for National Research Initiatives.
The Clinton administration's task force, led by Assistant Secretary of Commerce Bruce A. Lehman, meanwhile, is expected this summer to release a working paper on intellectual property in the electronic era. Given the difficulties in enforcing any regulations on the infohighway, it may offer partial solutions that copyright owners may simply learn to live with.
Roberts recalls that Educom, responding to complaints about piracy from computer software manufacturers, once tried to set up ground rules for universities to use in duplicating software, reminding them that respect for intellectual property is at the core of scholarly work. “They responded with the frontier mentality,” he says. “They asked, 'Why should an association of colleges and universities tell us what to do?' ” Litigation, meanwhile, is part of the equation. Playboy Enterprises has taken Internet users to court for uploading Playboy photographs without permission.
In the end, as the Office of Technology Assessment notes, “It is possible that, as in the case of the photocopying of books or home taping of musical recordings, a viable market will persist despite the presence of unauthorized copies.”