Last summer in this column we recounted the shootout in Congress
over public rights of way on the great fiber optic information
highway system being constructed all over the country as we write.
Readers who follow telecommunications will recall that the groups
proposing free public access to the broadband fiber highways were
thoroughly routed by the champions of private property. For now at
least, the NII will be built by private enterprise using existing
common carrier rules.
Hardly had the smoke cleared from the rights of way battle
than a new fire broke out. This time, the combatants represent
interests in the contents rather than the conduits of the NII. The
current scene of battle is the Fair Use Conference, a group convened
by Bruce Lehman, Commissioner of the Patent and Trademark Office
and currently the chair of the Information Infrastructure Task
Force's Working Group on Intellectual Property Rights.
A bit of background is necessary to establish some context. The
Founding Fathers started us down two centuries of debate by giving
Congress the power, To promote the progress of science and useful
arts by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries. (U. S.
Constitution, Article I, Section 8.)
In 1976, after deliberating over a number of years at great
length, the Congress passed a revision of the Copyright Act which for
the first time codified the concept of fair use. The relevant language
reads, Notwithstanding [the exclusive rights granted above], the fair
use of a copyrighted work, including such use by reproduction in
copies . . . , for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. (17 U.S.C. 107, as
amended.)
By treating fair use as a largely undefined exception to the
exclusive rights of authors, the 1976 Act placed fair users at risk of
litigation for copyright infringement. However, to aid their defense,
the fair use section goes on to provide four different measures by
which an argument for fair use may be sustained. The problem, of
course, is that this all gets worked out in court, a place where
university presidents and their legal counsel most fervently wish not
to be. As a result, the recent legal history of academic fair use has
been one of greater rather than lesser restrictions on educational and
research uses of copyrighted material.
The rise of the Internet, and of electronic uses of information
generally, has placed new stresses on the already fragile balance
between the rights of copyright owners and the rights of users. Print
publishers find themselves staring into the deeper recesses of the
'Net and wondering if the seeds of their own destruction lie therein.
Movie moguls, surfing the Web, find clips of their material staring
back at them from Home Page after Home Page.
A few years ago, all this might have provided comic relief and
a little extra income for infringement lawyers chasing penniless
nerds. But fifty million Internet users aren't comic relief; they are
the biggest and most affluent new business and consumer market of
the 1990s. Industries based on intellectual property rights now
account for several hundred billion dollars worth of commerce every
year in the United States, and are projected to increase their
proportional share of the total economy substantially in coming
decades.
The current conflict over amendments to the Copyright Act is
actually composed of several subdramas being played out
simultaneously. Authors and information users, who grew up in a
copyright system in which their rights typically were represented by
institutional proxy holders such as publishers and librarians, are
increasingly aware that desktop publishing and a powerful
multimedia network will grant them individual empowerment.
Copyright owners and their corps of legal enforcers, comfortably
ensconced for many years in industry-specific frameworks for the
protection of sound, video, and print intellectual property, are facing
a major upheaval as information begins to flow from servers to
workstations in an integrated digital bit stream. Newly arrived
millionaires from the computer software industry, who neatly
sidestepped fair use with shrink-wrapped licenses to use techniques
for marketing their product, are impatient with what they regard as
a debate over issues that have little or nothing to do with innovation
and progress.
It is hard to say what will come of this marvelous flux of new
and old, of greed and altruism, but the days of fair use as we have
known it in the textbook era are clearly numbered. Content
industries based on analog technology are converging into a
networked digital environment. The proprietors of these businesses
are bringing their commercial practices with them and it is obvious
that the dominant payment mechanism for copyrighted electronic
material, whether video, sound, or print, will be based on a form of
pay-per-view. The sound and video industries already use this as
their primary means of payment and are rapidly adapting it to the
idiosyncrasies of the Internet. The print industry will quickly follow.
The debates leading up to the inclusion of copies for classroom
use in the 1976 Act were shaped by the impact of photocopying
technology, which first became a factor in the '30s. As the network
technology of the '90s destroys the pedagogical value of print copies,
a new foundation for the fair in fair use is needed.
Should we fight for educational fair use, or let it die a quiet
death? Is it an obsolete artifact of a print world in which there was a
gentlemen's agreement that schools could make copies of the single
copy which the library had purchased for use in scholarship or
teaching? When students don't come to the library, but the library
comes to the student over the network, does fair use mean every
member of the academic community gets a free copy on his or her
own PC if the library buys one for its server?
Like many benefits in American society, educational fair use
seems threatened by the slippery slide from opportunity to
entitlement. Do middle class students being taught by professors
earning comfortable middle class incomes have an equitable right to
deny authors and publishers a return on their copyrights under a
claim of fair use? Does education, a substantial public subsidy
already, deserve an additional subsidy from authors and copyright
owners? These are issues the Congress will be wrestling with in the
coming year.
I am indebted to Kenneth Crew's Copyright, Fair Use and the
Challenge for Universities, for background information. Interested
readers should also consult Pamela Samuelson's NII Intellectual
Property article in the December 1994, Communications of the ACM.