Both within academia and beyond, networked information has moved through a
take-off point. As a result, we are living at a time of convergence, but we
are also living in a time of contradiction: without the ability to protect
information on the Infobahn, the very power of the Net is its own worst
enemy. Yet, rather than causing us to think more carefully, rhetorical
posturing and incomplete economic analyses, compounded by the misuse of
metaphors, are clouding the situation. And the situation is hard enough to
handle, since developments are coming toward us at warp speed. For instance:
* As I write this, a notorious cyber-crook has been apprehended by a
crafty cyber-cop. In a screenwriter's dream, a virtual Sherlock Holmes
outwitted the machinations of a cracker Dr. Moriarity. Once again, the
hubris of the malefactor set the stage for his downfall, although the
vast majority of the public really doesn't know what happened.
* Unfortunately, it is clear that security on the Internet is still a
ways off. The academy is in turmoil due to the many incursions through
network firewalls by clever, if less nefarious villains, sending
administrators scrambling for costly protection devices.
* As entering freshmen demand Internet access by the thousands, college
presidents meet in private sessions, admitting to each other their lack
of understanding of the uses and economics of computers and networks,
and trying to glean from the more experienced among them what the
demand is going to be for academic cyber-services.
* Just to make matters more interesting, the World Wide Web is being
hailed by some as the killer application that will make communication
and commerce universally attractive over the National Information
Infrastructure.
How are we to sort through these burgeoning, contradictory
developments? Where is reality? What processes will allow any of
us--college administrators, government officials, publishers--to make
responsible decisions about services, protection, and access?
Clearly, whether it's the Net in its current configuration, or some
wider and more secure version of it, cyber-commerce is in our future.
This can happen, however, if and only if the information on the Net is
relatively secure. For all the Star Trek metaphors, the exchange of
intellectual property is simply another form of commercial activity.
And, like the first commercianti in Renaissance Europe, owners of
intellectual property will not send their data-rich flotillas out on
cybernetic waters without a reasonable expectation that neither
technological weather nor malificent pirates will intercept the cargo
in which they have invested so much.
Cyber-nauts claim the Internet is unstoppable. At one level that may be
true. However, without the probability that information will safely
reach its intended harbor, the Net will return to being simply a locus
for academic discussions whose growing ubiquity and openness will
gradually drain away any likelihood of quality or interest, creating a
warm, shallow sea of intellectual babble.
The debate over the uses and privileges of the Net has been well primed
in the pages of this journal, if (up until now) somewhat on the side of
those who believe everything beyond the continental shelf is fair game.
As the Wall Street Journal commented, copyright is easy to break on the
Internet and hard to enforce. It is, therefore, difficult to understand
why librarians and other academics have become so frantic about fair
use. At this point in time, technologically speaking, the Internet is
almost all fair use. Justice Sandra Day O'Connor's remark, frequently
quoted by librarians: "The primary objective of copyright is not to
reward the labor of authors, but (t)o promote the Progress of Science
and the useful Arts," is historically and logically in error.
Historically, both in Europe and then in the United States (as Susan
Saltrick notes in her piece for this issue), the move to protect
intellectual property reflected the sociological reality that unless
there were real incentives for authors and owners, there would be no
progress of science or (even useless) arts. While some commentators
have called copyright an outmoded artifact of the industrial age, in
fact, copyright is pre-industrial, industrial and post-industrial. It
is epoch-neutral, for it is founded on a more basic truth of human
nature: personal incentive and reward are the great engines of human
endeavor. (For a recent scientific experiment that validates the above
assertion, researchers might survey the relative economic, social and
political success of capitalism as opposed to communism.)
In their efforts to establish their position, librarians are seeking to
claim the metaphorical high ground. For example, they are calling
Commissioner Lehman's Report of the Working Group on Intellectual
Property (the so-called Green Paper) which seeks to find some
protection of property on the feckless Net a "rush to judgment." This
may be an arresting phrase, but it is essentially misleading. At this
point in time, we are at much greater risk that the earthen copyright
dams securing intellectual property will be dissolved by the downpours
of new technologies turning the world of information into a muddy
valueless swamp.
The time has come for a deeper understanding of the issues. It is
instructive to watch the evolution of Peter Lyman's point of view in
his article in the January/February issue of Educom Review. He begins
with assertions such as: "I am concerned that copyright law will impede
the very process of technological and educational innovation," and "I
am not convinced that 'copyright' law scales to a global, networked
information society. " Yet, as the article progresses and his thought
processes evolves, he makes quite different assertions. These include:
"We in education must be aware that sometimes our long-term interest is
best served by helping publishers establish new commercial markets."
"In the short run we need to make the legal and ethical maxims
developed for print stretch as far as we can . . . "
and
"Either we must create a network culture that understands fair use and
includes a sense of responsibility for compliance, or fair use will be
denied and we will be forced into the realm of negotiating licenses and
fees."
Given the incredible power of networks and computers, "fair use" as we
have known it in the slower, more laborious world of print, may be
impossible. And a world of facilitated licenses and fees may be just
the ticket. Part of the communication problem that exists between
academics and publishers is that academics often appear to base their
opinions on an incomplete economic analysis of their situation. It is
important for them to get to the bottom of who is actually paying the
freight that supports their privileged position.
The answer to that question is not the university, but rather parents
and students who work for for-profit companies, for-profit companies
themselves (who as a result of their economic success can afford to
support universities), and, finally, federal and state governments
whose revenues come from the taxes paid by for-profit companies and
employed individuals. In staking out their anti- copyright positions
without a full understanding of this economic structure, faculty do
themselves and their stated positions on these issues a profound
disservice.
A similar problem exists in scholars' notion that turning over
copyright to a reputable publisher's refereed journal results, at best,
in "nonmaterial" benefits of "promotion and reputation." On the
contrary, promotion and reputation are the sine qua non of the quite
material things that faculty are seeking, e.g., higher salaries, more
perks, invitation to conferences in Bellaggio or Hong Kong, larger
speaking and consulting fees, bigger advances for books, etc. It's a
material world.
Side-stepping a rigorous analysis of one's situation can also be
accomplished by analogies to historically unique circumstances. At
those fleeting moments when supply cosmically overwhelmed demand, as it
did for a brief period in the far West when European settlers arrived
and staked their claims (occasionally taking the property of resident
natives as their own), one could have the illusion that "everything is
free." Once the real world catches up, however, the true economic basis
of social intercourse quickly reasserts itself.
No doubt there was a heady, "wild west" spirit in the first years of
the Internet. This spirit also conveniently ignored the reality that
the Net has always entailed costs, which, luckily for those cowboys,
have been born by the federal government. The key to creating a self-
sustaining National Information Infrastructure, therefore, is not to
call for a foolish hippie-dom of unrestricted "fair use." (Since free
love didn't work out at least we can have "free" information.) Instead,
it is necessary to recognize that "fair use" remains, as it has been
historically, the exception and not the rule.
Sustainable fair use is only possible if a variety of conditions
obtain, including that of not destroying the market for the original
property. Until a stable market for cyber-property is established,
until (as Peter Lyman says) there is general "respect for compliance,"
the strident call for "fair use" on the Net (which is technologically
redundant) is simply code for "Steal this book!"
Copyright may not be perfect, but it is the way that has been evolved
over several centuries--before, during and after the industrial
revolution--for owners of intellectual property and those who would use
it, to relate fairly with each other. As the head of the Association of
American Publishers, Nicholas A. Veliotes, put it in a letter to
Commissioner Lehman: while the copyright coat "is getting a little
tight . . . there is no need for a new one . . . but one with a few
alterations."
Part of the problem is that the metaphorical mortar fire directed by
interested parties at federal agencies may end up by inspiring some
over-hasty law-making. Laws can distort markets (see comment above re.
Communism), and ill-advised laws are probably the biggest obstacle to
managing commerce effectively on the information superhighway. What we
need are experientially determined rules of the road, with penalties
imposed for speeding, going through red lights, hitting baby carriages
in cross walks, etc.
Whatever their motivation, Infobahn pilgrims cannot simply help
themselves to the roadside attractions while traveling along the
highway. By the same token, publishers (owners of photographic and
multimedia as well as print property) need to buckle down and realize
that the shape of markets in the past is not necessarily the shape of
markets in the future. The way to create a healthy market is to make it
as quick, easy and fair as possible for potential users to avail
themselves of property. And, publishers have taken important steps in
this regard, as in the case of the emerging market for photocopied
course packets. We are, however, dealing with a moving target of
changing technology and changing demand. Librarians are willing to pay
(through the funds provided by tuition, fees, and other university
sources) for commodities like electricity, computers, Net costs,
high-speed photocopying machines, etc. Paradoxically, they balk at
doing the same for intellectual property, the management of which is
their primary raison d'etre.
There is a productive side to the exchange of rhetoric, namely, an
emerging dialogue among publishers and academicians. Through both
correspondence and in-person conversations, I have had the opportunity
to exchange views with librarians on the edge (occasionally also those
on the leading edge). It is my opinion that if a basic understanding of
the value of healthy markets in promoting "long-term academic
interests" is engendered among key groups on campus, libraries may
again become, as they once were, the true center of the university
community. Assuming it is possible to develop reasonable rules of the
road based on a meeting of the minds with publishers and owners of
intellectual property, academics will be instrumental in creating not
rhetorical stalking horses, but reliable steeds of education and
commerce.
James Lichtenberg is vice president of the higher education division at
the Association of American Publishers.
� 1995 Educom.