Statement of
Bruce A. Lehman
Assistant Secretary of Commerce and
Commissioner of Patents and Trademarks
on
S. 1284 and H.R. 2441
before the
Subcommittee on Courts and Intellectual Property
Committee on the Judiciary
United States House of Representatives
and the
Committee on the Judiciary
United States Senate
November 15, 1995
Chairman Hatch, Chairman Moorhead, and Members of the
Committee and Subcommittee:
I am pleased to appear before you today to testify on two
bills that will adapt the copyright law to the digital, networked
environment of the National Information Infrastructure.
Background on the Administration's Position
In February 1993, President Clinton formed the Information
Infrastructure Task Force (IITF) to articulate and implement the
Administration's vision for the National Information
Infrastructure (NII). The Working Group on Intellectual Property
Rights, which I chair, was established within the IITF to examine
the intellectual property implications of the NII and make
recommendations on any appropriate changes to U.S. intellectual
property law and policy. Over the last two years, the Working
Group examined and analyzed each of the major areas of
intellectual property law, focusing primarily on copyright law
and its application and effectiveness in the context of the NII.
The Working Group held its first public hearing in November
1993, at which 30 witnesses testified. The Working Group also
solicited written comments and received some 70 statements during
a public comment period which closed on December 10, 1993.
Following its review of the public comments and analysis of the
issues, the Working Group released a preliminary draft of its
report ("Green Paper") on July 7, 1994. The Working Group issued
the report in preliminary draft form to ensure broad
dissemination and ample opportunity for public comment prior to
making final recommendations. Thousands of copies of the Green
Paper were distributed in paper form as well as electronically
via the IITF Bulletin Board.
Following the release of the Green Paper, the Working Group
heard testimony from the public in four days of hearings in
Chicago, Los Angeles and Washington, D.C., in September 1994. In
addition, more than 1,500 pages of written comments on the Green
Paper and reply comments were filed, in paper form and through
the Internet, by more than 150 individuals and organizations --
representing more than 425,000 members of the public -- during
the comment period, which extended over four months.
The comment process afforded interested parties numerous
opportunities to submit their views on the intellectual property
implications of the development and use of the NII and on the
Working Group's Green Paper, including its preliminary findings
and recommendations. We were pleased that the open process
instituted by the Working Group resulted in a well-developed,
voluminous record indicating the views of a wide variety of
interested parties, including various electronic industries,
service providers, the academic, research, library and legal
communities, and individual creators, copyright owners and users,
as well as the computer software, motion picture, music,
broadcasting, publishing and other information and entertainment
industries.
The result was the White Paper, released on September 5,
1995, of which more than 5,000 "paper" copies have already been
distributed (in addition to its electronic availability on the
IITF bulletin board and the Patent and Trademark Office's World
Wide Web site). The White Paper, officially entitled
Intellectual Property and the National Information
Infrastructure: The Report of the Working Group on Intellectual
Property Rights discusses and addresses the special
intellectual property concerns and issues raised by the
development and use of the NII.
The White Paper does not provide all of the answers. It may
not even present all of the questions, and there is a simple
reason for this. There is much that we do not -- and cannot --
now know about how the NII will develop. Technology is advancing
at such an incredible pace that issues will certainly continue to
arise in the future, perhaps demanding more comprehensive
legislation. At the same time, there is also much that we do
know, and the fact that future developments will raise additional
issues not currently ripe should not deter us from addressing
those that are. We are therefore extremely pleased that Chairman
Hatch and Senator Leahy have introduced S. 1284 in the Senate and
that Chairman Moorhead and Representatives Schroeder and Coble
have introduced H.R. 2441 in the House, bills which are the same,
in all substantive respects, as the Working Group's
recommendations in the White Paper.
Intellectual property is a subtle and esoteric area of the
law that evolves in response to technological change. Advances
in technology particularly affect the operation and effectiveness
of copyright law. Changes in technology generate new industries
and new methods for reproduction and dissemination of works of
authorship, which may present new opportunities for authors, but
also create additional challenges. Copyright law has had to
respond to those challenges, from Gutenberg's moveable type
printing press to digital audio recorders and everything in
between -- photocopiers, radio, television, videocassette
recorders, cable television and satellites.
Uses of computer technology -- such as digitization -- and
communications technology -- such as fiber optic cable -- have
had an enormous impact on the creation, reproduction and
dissemination of copyrighted works. The merger of computer and
communications technology into an integrated information
technology has made possible the development of the NII which
will generate both unprecedented challenges and important
opportunities for the copyright marketplace.
The NII affords the promise of:
* a greater amount and variety of information and
entertainment resources, delivered quickly and economically from
and to virtually anywhere in the world in the blink of an eye;
* access to rich cultural resources around the world,
transforming and expanding the scope and reach of the arts and
humanities and broadening our cultural experiences through
diversity of content;
* support for our education and library systems;
* enhanced competitiveness for U.S. business and the promotion
of job creation, economic growth, and well-being for Americans;
* new job opportunities in the creation, processing,
organizing, packaging and dissemination of information, education
and entertainment products;
* technology, trade and business opportunities for new
products and new markets for U.S. industries; and
* a wider variety and greater number of choices for consumers
of books, movies, music, computer programs and other copyrighted
works; increased competition and reduced prices.
The availability of these benefits is by no means assured,
however. Creators, publishers and distributors of works will be
wary of the electronic marketplace unless the law provides them
the tools to protect their property against unauthorized use.
Thus, the full potential of the NII will not be realized if the
education, information and entertainment products protected by
intellectual property laws are not protected effectively when
disseminated via the NII. Creators and other owners of
intellectual property rights will not be willing to put their
interests at risk if appropriate systems -- both in the U.S. and
internationally -- are not in place to permit them to set and
enforce the terms and conditions under which their works are made
available in the NII environment. Likewise, the public will not
use the services available on the NII and generate the market
necessary for its success unless a wide variety of works are
available under equitable and reasonable terms and conditions,
and the integrity of those works is assured. All the computers,
telephones, fax machines, scanners, cameras, keyboards,
televisions, monitors, printers, switches, routers, wires,
cables, networks and satellites in the world will not create a
successful NII, if there is no content. What will drive the NII
is the content moving through it.
Ensuring consumer access to and enjoyment of both
copyrighted works and new technologies is an attainable goal, and
recent experience has confirmed this. For example, the
introduction of digital audio tape recorders recently posed
significant problems for copyright owners. Congress responded to
the increased threat of rampant unauthorized use with legislation
that incorporated both technological and legal measures to
protect the interests of both consumers and copyright owners.
Congress responded more recently to the impact of digital
subscription services on the recording industry by passing
performance rights legislation, which was signed by the President
this month.
Advances in digital technology and the rapid development of
electronic networks and other communications technologies raise
the stakes considerably. Any two-dimensional work can readily be
"digitized" --- i.e., translated into a digital code (usually a
series of zeros and ones). The work can then be stored and used
in that digital form. This dramatically increases: the ease and
speed with which a work can be reproduced; the quality of the
copies (both the first and the hundredth "generation" are
virtually identical); the ability to manipulate and change the
work; and the speed with which copies (authorized and
unauthorized) can be "delivered" to the public. Works also can
be combined easily with other works into a single medium, such as
a CD-ROM, which contributes to a blurring of the lines that
typically divide types of works and the rights and limitations
applicable thereto.
The establishment of high-speed, high-capacity electronic
information systems makes it possible for one individual, with a
few key strokes, to deliver perfect copies of digitized works to
scores of other individuals -- or to upload a copy to a bulletin
board or other service where thousands of individuals can
download it or print unlimited "hard" copies. The emergence of
integrated information technology is dramatically changing, and
will continue to change, how people and businesses deal in and
with information and entertainment products and services, and how
works are created, reproduced, distributed, adapted, displayed,
performed, owned, licensed, managed, presented, organized, sold,
accessed, used and stored. This leads, understandably, to a call
for adaptation of -- or change in -- the law.
An effective intellectual property regime must (1) ensure
that users have access to the broadest feasible variety of works
by (2) recognizing the legitimate rights and commercial
expectations of persons and entities whose works are used in the
NII environment.
It is difficult for intellectual property laws to keep pace
with technology. When technological advances cause ambiguity in
the law, courts look to the law's underlying purposes to resolve
that ambiguity. However, when technology gets too far ahead of
the law, and it becomes difficult and awkward to adapt the
specific statutory provisions to comport with the law's
principles, it is time for reevaluation and change. As the House
of Representatives noted in 1990 in its report accompanying
legislation granting copyright owners of computer software an
exclusive rental right, "[e]ven though the 1976 Copyright Act was
carefully drafted to be flexible enough to be applied to future
innovations, technology has a habit of outstripping even the most
flexible statutes."
We are once again faced with significant changes in
technology that require reevaluation and change in the law.
Technology has altered the balance of the Copyright Act -- in
some instances, in favor of copyright owners and in others, in
favor of users. The law should be adapted to accommodate and
adapt the law to technological change so that the intended
balance is maintained and the Constitutional purpose is served.
The Administration believes that, with the amendments proposed in
H.R. 2441 and S. 1284, the Copyright Act will provide the
necessary balance of protection of rights -- and limitations on
those rights -- to promote the progress of science and the useful
arts. Existing copyright law needs the fine-tuning that
technological advances necessitate and that those bills provide,
in order to maintain the balance of the law.
Discussion of the Provisions of the Bills
1. The Transmission of Copies and Phonorecords
A. Distribution
The Copyright Act gives a copyright owner the exclusive
right "to distribute copies or phonorecords of the copyrighted
work" to the public. It is not clear under the current law that
a transmission can constitute a distribution of copies or
phonorecords of a work. Yet, in the world of high-speed,
communications systems, it is possible to transmit a copy of a
work from one location to another. This may be the case, for
instance, when a computer program is transmitted from one
computer to ten other computers. When the transmission is
complete, the original copy typically remains in the transmitting
computer and a copy resides in the memory of, or in storage
devices associated with, each of the other computers. The
transmission results essentially in the distribution of ten
copies of the work. However, the extent of the distribution
right under the present law may be somewhat uncertain and subject
to challenge. Therefore, the Administration supports the
amendment in S. 1284 and H.R. 2441 which would expressly
recognize that copies or phonorecords of works can be distributed
to the public by transmission, and that such transmissions fall
within the exclusive distribution right of the copyright owner.
The proposed amendment does not create a new right. It is
an express recognition that, as a result of technological
developments, the distribution right can be exercised by means of
transmission -- just as the reproduction, public performance and
public display rights may be.
It is argued by some that the existing right of distribution
encompasses transmissions of copies and that no amendment is
necessary. Indeed, the distribution right, as set forth in
Section 106(3) of the Copyright Act, can be interpreted -- and,
in at least one case has been held -- to include transmissions
that distribute copies of works to, for example, the memories of
computers. Transmission, it is argued, is logically and legally
a means of distribution. The Administration has no argument with
such an interpretation; it properly conforms to the intent of the
distribution right and is correct from both a practical and legal
standpoint.
Some, however, are of the view that the current language of
the Act does not encompass distribution by transmission. They
argue that the proposed amendment expands the copyright owner's
rights without a concomitant expansion of the limitations on
those rights. However, since transmissions of copies already
clearly implicate the reproduction right, it is misleading to
suggest that the proposed amendment of the distribution right
would expand the copyright owner's rights into an arena
previously unprotected. Even if the premise is correct (that the
amendment expands the distribution right), the conclusion that
the limitations of that right are not similarly expanded is
invalid. The limitations on the right -- which place certain
distributions to the public outside the scope of the copyright
owner's right -- would necessarily expand to also place similar
distributions by means of transmission outside the scope of the
right.
There is no reason to treat works that are distributed in
copies to the public by means of transmission differently than
works distributed in copies to the public by other, more
conventional means. Copies distributed via transmission are as
tangible as any distributed over the counter or through the mail.
Through each method of distribution, the consumer receives a
tangible copy of the work.
When the public performance right was initially granted, it
was thought to encompass only "live," in-person performances.
When it became clear that copyrighted works could be publicly
performed by other means -- i.e., broadcast and, later, cable
transmissions -- the law was clarified. The same is true today
with respect to the distribution right. Transmission is a means
of distribution of copies, just as it can be a means of
performance. However, the differences of opinion summarized
above underscore the need for clarification and legal certainty.
The costs and risks of litigation to define more clearly the
right -- and the time achieving such clarity would take -- would
discourage and delay use of the NII and serve neither creators
not users of copyrighted works.
B. Related Definitional Amendments
To "Transmit"
Under current technology, a copy of a work may be
transmitted. However, the Copyright Act defines only what it is
to transmit a performance or display of a work. Therefore, the
Administration supports the amendment in S. 1284 and H.R. 2441 to
include in the definition of "transmit" in Section 101 of the
Copyright Act a definition of what it means to transmit a
reproduction of a work.
"Publication"
The legislative history to the Copyright Act makes clear
that "any form of dissemination in which a material object does
not change hands . . . is not a publication no matter how many
people are exposed to the work." Thus, a work that is only
displayed or performed via the NII would not be considered
published, no matter how many people have access to the display
or performance, because a material object -- a copy of the work -
- does not change hands. However, in the case of transmissions
of reproductions, the recipients of the transmissions receive
copies of the work (i.e., copies of the work have been
distributed) -- although they may not have "changed hands" in the
literal sense.
Whether the transmission of copies of works is clearly
within the scope of the distribution right is also a problem with
respect to the act of publication by the transmission of copies.
Indeed, the definition of "publication" incorporates the language
used to describe the distribution right, which S. 1284 and H.R.
2441 would amend. Publication largely turns on whether the work
has been distributed to the public. Thus, if copies of a work
may be distributed to the public by transmission, then a work may
be published by the transmission of copies to the public.
Therefore, consistent with the proposed amendment of the
distribution right, the Administration supports the amendment to
the definition of "publication" in Section 101 of the Copyright
Act that would recognize that a work may be published through the
distribution of copies of the work to the public by transmission.
C. Importation
The Administrations also supports the amendments to the
importation provisions of the Copyright Act to reflect the fact
that, just as copies of copyrighted works can be distributed by
transmission in the United States, they can also be imported into
the United States by transmission. If an infringing literary
work, for instance, were physically shipped into the U.S. in the
form of a paper copy, a CD-ROM disk or even stored on a memory
chip, then it would be an infringing importation if the statutory
conditions existed.
Cross-border transmission of copies of copyrighted works
should be subject to the same restrictions as shipping them by
airmail. Just as the distribution of copies of a copyrighted
work is no less a distribution than the distribution of copies by
mail, the international transmission of copies of copyrighted
works is no less an importation than the importation by airmail.
2. Library Exemptions
The copyright law carefully balances the rights of copyright
owners with the legitimate needs of users. Nowhere is this
balancing more apparent than in the exemptions that are intended
to permit libraries reasonable use of copyrighted works to serve
the legitimate demands of their patrons.
Libraries and those who use them, of course, may make fair
use of any copyrighted works pursuant to the provisions of
Section 107. Section 108, however, provides additional
exemptions specifically for libraries and archives. The
Administration supports the amendments in the bills that would
expand the exemptions in Section 108 so digital copying by
libraries and archives is permitted under certain circumstances.
3. Reproduction for the Visually Impaired
The NII offers real opportunities to many visually impaired
people to participate in learning, communication and discourse to
a greater extent than when only conventional modes of
communication are available. With the aid of software and
computer equipment that is widely available, people now have the
capacity to view text on CD-ROM on screen in a "large-type"
format even if the publisher did not include such a feature, but
the publication and distribution of large-type editions remains
very important. To ensure fair access to all manner of printed
materials, it is necessary to amend the copyright law, and the
Administration supports the amendment for the visually impaired
in the bills. The amendment would provide an exemption for non-
profit organizations to reproduce and distribute to the visually
impaired -- at cost -- Braille, large type, audio or other
editions of previously published literary works in forms intended
to be perceived by the visually impaired, provided that the owner
of the exclusive right to distribute the work in the United
States has not entered the market for such editions during the
first year following first publication of the work.
4. Technological Protection
The ease of infringement and the difficulty of detection and
enforcement will cause copyright owners to look to technology, as
well as the law, for protection of their works. However, it is
clear that technology can be used to defeat any protection that
technology may provide. Legal protection alone will not be
adequate to provide incentive to authors to create and to
disseminate works to the public. Similarly, technological
protection likely will not be effective unless the law also
provides some protection for the technological processes and
systems used to prevent or restrict unauthorized uses of
copyrighted works.
The Administration supports the proposed new Chapter 12,
which would include a provision to prohibit the importation,
manufacture or distribution of any device, product or component
incorporated into a device or product, or the provision of 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
violation of any of the exclusive rights under Section 106. The
provision will not eliminate the risk that protection systems
will be defeated, but it will reduce it.
The proposed prohibition is intended to assist copyright
owners in the protection of their works. It is recognized,
however, that copyright owners may wish to use such systems to
prevent the unauthorized reproduction, for instance, of their
works, but may also wish to allow some users to deactivate the
systems. Furthermore, certain uses of copyrighted works are not
unlawful under the Copyright Act. Therefore, the proposed
legislation prohibits only those devices or products, the primary
purpose or effect of which is to circumvent such systems without
authority. That authority may be granted by the copyright owner
or by limitations on the copyright owner's rights under the
Copyright Act.
Legislation of this type is not unprecedented. The
Copyright Act already protects sound recordings and musical works
by prohibiting the circumvention of any program or circuit that
implements a serial copy management system or similar system
included in digital audio recording devices and digital audio
interface devices. Section 1002 provides:
No person shall import, manufacture, or distribute any
device, or offer or perform any service, the primary purpose
or effect of which is to avoid, bypass, remove, deactivate,
or otherwise circumvent any program or circuit which
implements, in whole or in part, a [serial copy management
system or similar system].
The Communications Act includes a similar provision:
Any person who manufactures, assembles, modifies, imports,
exports, sells, or distributes any electronic, mechanical,
or other device or equipment, knowing or having reason to
know that the device or equipment is primarily of assistance
in the unauthorized decryption of satellite cable
programming, or is intended for any other activity
prohibited by [Section 605(a)] shall be fined not more than
$500,000 for each violation, or imprisoned for not more than
5 years for each violation, or both. For purposes of all
penalties and remedies established for violations of this
paragraph, the prohibited activity established herein as it
applies to each such device shall be deemed a separate
violation.
Precedent for this type of legislation is also found in the
international arena. The NAFTA requires each party to make it a
criminal offense to "manufacture, import, sell, lease or
otherwise make available a device or system that is primarily of
assistance in decoding an encrypted program-carrying satellite
signal without the authorization of the lawful distributor of
such signal . . . ." In 1988, the United Kingdom enacted
legislation prohibiting the manufacture, distribution or sale of
a device designed or adapted to circumvent copy-protection
systems.
5. Copyright Management Information
In the future, the copyright management information
associated with a work -- such as the name of the copyright owner
and the terms and conditions for uses of the work -- may be
critical to the efficient operation and success of the NII.
Copyright management information will serve as a kind of license
plate for a work on the information superhighway, from which a
user may obtain important information about the work. The
accuracy of such information will be crucial to the ability of
consumers to find and make authorized uses of copyrighted works
on the NII. Reliable information will also facilitate efficient
licensing and reduce transaction costs for licensable uses of
copyrighted works (both fee-based and royalty-free).
The public should be protected from false information about
who created the work, who owns rights in it, and what uses may be
authorized by the copyright owner. Therefore, the Administration
supports the amendment to prohibit the provision, distribution or
importation for distribution of copyright management information
known to be false and the unauthorized removal or alteration of
copyright management information. Under the proposed amendment,
copyright management information is defined as the name and other
identifying information of the author of a work, the name and
other identifying information of the copyright owner, terms and
conditions for uses of the work, and such other information as
the Register of Copyrights may prescribe by regulation -- to
provide adequate flexibility in the future.
The amendment prohibits the falsification, alteration or
removal of any copyright management information -- not just that
which is included in or digitally linked to the copyrighted work.
Many users will obtain such information from public registers,
where the integrity of such information will be no less
important. The amendment also contains a knowledge requirement;
therefore, inadvertent falsification, alteration or removal would
not be a violation.
Conclusion
I am pleased to offer the Administration's support for these
bills, and I thank, once again, Chairman Hatch, Chairman
Moorhead, Senator Leahy and Representatives Schroeder and Coble
for introducing these bills, and the Committee and Subcommittee
for allowing me to appear today to urge enactment of them.
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