Just what is wrong with current copyright law? Why do you feel current
law is not up to the task of managing intellectual property rights in
the digital age?
Someday this period will be thought of as a Renaissance, one of the
times that technology and imagination have intersected to redefine the
way a culture creates and represents knowledge. Entirely new forms of
information are being invented using digital technologies: new art forms
are emerging--like animation and computer music--new forms of scientific
visualization, and new sorts of cybernetic social spaces. I am concerned
that copyright law will impede the very process of technological and
educational innovation, which is the social purpose of copyright as
defined in the Constitution: to "promote the progress of science and the
useful arts."
To manage intellectual property rights in a networked information
environment we need to answer three intertwined questions: How should
private property rights be managed? What public rights to information
access should be protected? and How do we protect technological
innovation when it comes in conflict with powerful political and
economic interests? These are broad questions of social policy about
issues that perhaps haven't been seriously debated since the
constitutional convention. Copyright policy has become the context for
rethinking fundamental concepts like property, free speech, and equity
in an information society; my question is whether copyright law, which
is designed to protect existing private property, is too narrow and
technical a context for such a social policy debate.
Today's debate is not about the need for intellectual property law; it's
about whether the traditional copyright mechanisms can be stretched to
include the network, or whether technological innovation should be
limited to protect copyright, or whether we need to invent new
intellectual property mechanisms and cultures. In my view, the idea of a
"right to copy" is the product of mechanical technology--it creates and
regulates wealth by controlling the production and distri-bution of
printed commodities.
But networked information does not take a material form that can be
easily regulated, and by definition every chip makes millions of copies
every second. Thus I am not convinced that "copyright" law scales to a
global, networked information society; for example, the limits of
copyright are obvious in the use of patents to protect intellectual
property.
The Commerce Department calls the network an information highway, using
an industrial metaphor suggesting that the government envisions the
network as a transportation system for private property. The security of
private property on the information highway might be protected by
surveillance technologies, but that could bring the historical process
of technical and social innovation to a sudden stop, and it doesn't
address related values, such as free speech and the public good.
Conceiving our information policy in terms of commerce also is a
misunderstanding of the nature of the network: this is a global medium,
not a national one, and our information policy must be global as well.
Copyright has become the focus because the first significant commercial
use of the network may be the distri-bution of digitized versions of
printed texts. This is important if the information highway lowers
storage and transportation costs for publishers and provides increased
access to information and education for people located anywhere in the
world. But more efficient transportation of printed texts is not more
important than the revolutionary uses of the network, such as multimedia
or new kinds of digital texts which cannot be duplicated in print, or
the use of interactive communication for distance learning or
collaborative teaching and learning.
Let me give a specific example of my concern. The Department of Commerce
Green Paper called "Intellectual Property and the National Information
Infrastructure" has proposed a new right within copyright, called
transmission. Transmission in a communication environment is to be the
analog of copying in a print environment. The definition is, "To
'transmit' a reproduction is to distribute it by any device or process
whereby a copy or phonorecord of the work is fixed beyond the place from
which it was sent" (p. 122). But transmission might define all network
communications as copying and thus subject to copyright law.
This new right makes sense if the problem we are trying to solve is the
protection of copyrighted printed texts, but it threatens the
development of new forms of communication that may be much more
important and innovative in the long run. Such a right may come in
conflict with some of the most important and innovative characteristics
of purely digital works which are, for example, interactive, or
communicative, or collaborative. In extending the industrial concept of
copying to digital environments, the transmission right may inhibit the
development of uniquely digital communications.
In allowing for fair use of copyrighted material--for reporting news,
conducting research, and teaching--without need to obtain the copyright
holder's permission, the U.S. Copyright Law says that fair use is
determined in a particular case by considering (1) the purpose and
character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes; (2) the nature of the
copyrighted work; (3) the amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and (4) the effect of
the use upon the potential market for or value of the copyrighted work.
Why is it so difficult to apply those principles to, say, a multimedia
presentation transmitted over a network?
Fair use can be applied to network multimedia communication in
principle, but the practical problem of enforcement raises the question
whether fair use is an adequate mechanism to protect networked
intellectual property.
Net culture--if that isn't an oxymoron--has become hostile to the
concept of intellectual property, for an interesting sociological
reason. The network was developed as a medium for research collaboration
among a relatively homogeneous group of scientists and engineers.
According to MERIT statistics, almost two-thirds of recent NSFNET use
has been for information management and exchange. The use of that
information was subsidized; much of it had been created by the users,
and they treated it as if it were part of the public domain. Although
the Internet has become sociologically diverse, it still reflects the
academic view that knowledge is properly governed by a gift culture in
which each of us gives away what we know for free, and takes what we
need for free. Few academics realize how deeply subsidized this gift
culture is and how much it relies upon a symbiotic relationship with
commercial publishing.
Fair use is an operational solution to manage the tension between the
academic gift culture, which creates new knowledge, and commercial
publishing. It requires a culture of compliance, the willingness to
conform to the ethical requirements of fair use and to recognize a moral
responsibility to make it work in a way that does not damage the
economic interests of the publishers. But only librarians have
recognized that the right to fair use implies a responsibility. Point
Five of the Association of Research Libraries statement on Intellectual
Property says, "Librarians and educators have an obligation to educate
information users about their rights and responsibilities under
intellectual property law." What about the responsibility of the
faculty, of deans and provosts, of presidents?
How can such an ethos develop on the network? Librarians post signs,
teach workshops on fair use, and educate people one-on-one; who will do
this within the global cyberspace? Either we must create a network
culture that understands fair use and includes a sense of responsibility
for compliance, or fair use on the network will be denied and we will be
forced into the realm of negotiating licenses and fees. Alternatively,
technology is capable of placing all networked communication under
surveillance, which raises fundamental questions of free speech.
It is conceivable that licensing might be a better solution. Whereas the
print model of the use of information is individualistic--the individual
reader alone with the book--in the real world and on the network,
information is often used by communities. In a certain sense communities
are defined by the information they share, the way they learn together,
and the information they create. We need to ask whether our model of
intellectual property reflects the sociological reality of the network,
of education, and of the way people work in the real world. Perhaps we
need to be inventing a legal and ethical framework that acknowledges
sociological reality, rather than trying to change the social dynamics
of groups to fit a system of law designed for the libraries of the print
world.
Suppose I'm a professional photographer and I publish a book of
photographs. Obviously, digital technologies make it easier for others
to reproduce and distribute my photographs, but how do they in any way
change my rights to my work or the public's right to fair use for the
purposes specified above?
I don't think digital technologies should change your intellectual
property rights in any way. The question is whether technology might
generate a new concept of copyright that better serves both your
interests and the public good.
Photography is a good example of the limited success of copyright in
promoting a multimedia marketplace. Although photographs are a
powerfully expressive medium for the representation of knowledge, it is
very difficult for the average person to gain legal permission to
reuse a photographic image. This is, of course, one of the primary
barriers to the development of multimedia teaching and learning
software. So perhaps the copyright mechanism has failed in the area of
photographic images in terms of one of the constitutional purposes of
copyright: to provide for the distribution of knowledge.
The problem of legal multimedia images must be solved, probably not
through fair-use mechanisms, because network access to multimedia is
surely a form of republication, but through a digital system for access
to images and permission to use them, probably through licenses and a
fee. Multimedia probably implies a license mechanism, not fair use,
because its purpose is communication, rather than personal consumption.
We in education must be aware that sometimes our long-term interest is
best served by helping publishers establish new commercial markets.
And if multimedia will change publishing, it will change education as
well. Printed texts have by far the greatest prestige in educational
settings, but we all know that digital images and information saturate
every aspect of everyday life, through television and advertising. Our
educational concepts of information focus almost exclusively on printed
academic texts, but digital media will explode the way we think about
recorded knowledge and such media's role in teaching and learning.
Does the collaborative nature of much software development require a
change in our understanding of intellectual property? How so?
The idea of intellectual property is really a useful and necessary
fiction, but literally a contradiction in terms. Ideas are not property
at all; they are created as part of the process of human communication.
Only concrete representations of ideas can be treated as property; ideas
themselves cannot. This is an important distinction because since we are
a social species, almost all ideas are created by groups in the process
of cooperation and work. Software is just one example of this. But with
the print revolution, the expression of ideas took the form of a printed
commodity for the first time, something that could be owned and sold in
a mass market. And this is very important: it has been suggested that
trade in books was the first truly capitalist international market, and
certainly such trade was the material foundation for science and
democratic society.
The system of scholarly communication is based on a delicate symbiosis
of interest between higher education (the creators of knowledge) and
scholarly publishers. I wrote an article called "The Fraternal Bond as a
Joking Relation," which was based on some ethnographic research I did to
learn how men use dirty jokes as a way of dominating women. To get the
paper published I was forced to give away the copyright to the publisher
for free; however, I benefited from the exchange in nonmaterial ways,
such as promotion and reputation. Since then the paper has been
republished half a dozen times and I've received no revenue at all,
while the price of information has skyrocketed.
The Association of American Universities Research Libraries Project
report argues that academic producers and consumers of intellectual
property are not being well served by commercial publishers. The system
of scholarly communication was created at the turn of the century for
print, through the establishment of nonprofit university presses and
disciplinary society journals. But today, commercial scholarly
publishers have nearly created information monopolies, driving up the
price of scientific, technology, and medical journals to the point that
the future existence of research library collections is in question.
Should colleges and universities use the network to create their own
nonprofit publishing system for the distribution of scholarly
information? All of this reminds us that information exists within
markets, and the boundaries of the marketplace can be redefined by
contract without changing copyright law at all.
Are these really new problems though? Writers, directors, and actors
have been collaborating on plays and movies for a long time. What makes
electronic collaboration different?
There are similarities and differences. The creative process always
builds upon collaboration among groups of people sharing what they know
in a gift culture. Gift exchanges are made to sustain the quality of the
relationships between people, not for profit.
But who owns the finished work? In the case of a book or film there is a
commodity, a thing, which can be bought or sold. Electronic
collaboration is a bit more like a performing art--much of the value of
collaboration is in the doing of it. And equally important, it is
possible to make your work directly available to everyone around the
globe without the intervention of a publisher. As McLuhan suggested,
there are similarities between an oral culture and this age of
postmechanical reproduction. Digital works are works of communication,
not industrial commodities. If we begin by defining the network as a
communication medium, not as a highway for transportation, I think we
are closer to reality.
In the short run, we need to make the legal and ethical maxims developed
for print stretch as far as we can to help make this transition. But in
the long run, technology will change the form of our institutions and
thus the context within which copyright was designed to work, so we need
to address the long-term need to reinvent both copyright and our
institutions. I think this process of institutional change is obvious to
all of us who manage computing centers and libraries.
Unfortunately, much of the thinking about the national information
infrastructure [NII] and the future of copyright is dominated by
organizations that have not yet been changed by information technology:
the government, publishers, and technology companies used to working
within communication environments regulated by government. But the
network was developed by the people who create and consume knowledge,
and it has grown into a global communications system without central
points of authority or control. The net is democratic in a radical sense
because it is a personal medium for the creation and communication of
ideas on a global scale. I'm concerned that national information
infrastructure policy may end up serving short-term private interests
better than our long-term global needs.
Would you expand the concept of fair use, redefine it, or replace it?
The concept of fair use establishes a balance between the right of the
property holder and the public interest by allowing copyrighted print
materials to be used to advance knowledge through education and
research. It is a kind of seed corn strategy.
The Association of Research Libraries' position on intellectual property
is a powerful restatement of this principle, and argues that it should
be extended to networked environments. And the Green Paper on
intellectual property and the NII makes a strong case in favor of
extending fair use to networked environments.
But it isn't entirely clear to me that is possible. First, it isn't
clear that network culture will respect and enforce the responsibilities
of fair use. Second, it isn't clear to me that networked information can
be regulated the way print commodities are. What, for example, is the
unit of knowledge in a digital networked environment? And where does
knowledge reside? Third, it is possible that the public good is better
served by development of robust markets in digital information in order
to raise sufficient capital to solve the problem of quality control,
price, and distribution. However, the process that produced the idea of
fair use may be as important as the concept itself. The CONTU
[Commission on New Technological Uses of Copyrighted Works] process
included a great deal of discussion and negotiation between librarians
and publishers.
Higher education must commit itself to more serious participation in the
process of dialogue and negotiation with other players in the national
policy discussion of the NII. I'm told that higher education is not
taken very seriously in information policy debates because we don't
speak with one coherent voice. But no institution has a higher stake
than higher education, for this is a debate about the future of the
legal and technological contexts within which knowledge is created and
consumed.
Peter Lyman is chair of Educom's Committee on Copyright and Fair Use.
The other members are Brian L. Hawkins, Patricia Battin, Michael M.
Roberts, and Robert C. Heterick, Jr.
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