Bruce A. Lehman chairs the Working Group on Intellectual Property Rights within the Information Policy Committee on the Information Infrastructure Task Force headed up by Secretary of Commerce Ronald H. Brown. He is the Assistant Secretary of Commerce and Commissioner of Patents and Trademarks.
Educom Review: I'm sure you've heard the currently popular slogan, "Information needs to be free." What do you make of that slogan?
Lehman: I don't know what it means. That information should be free? I'd say: Freely accessible, yes; free of charge, no. Of course, I don't mean all information. Obviously, the vast amount of information that flows through the Internet, for example, is indeed and will always be free of charge. However, commercial information that is sold as a product cannot and will never be free; otherwise, it will not exist. Its whole purpose for being is to be sold.
ER: What do you think has been the most controversial part of the effort of the Working Group that has been taking a fresh look at the Copyright Act?
Lehman: Well, there have been three controversies. One is the issue of whether transmissions through the Internet are public performances or whether they are deliveries of copies-and under what circumstances are they one or the other or both. That has been very controversial mainly because the performing rights societies-ASCAP and BMI-would like everything to be considered a public performance, so that they can collect royalties on it. And then I would say that the question of the scope of fair use is a very controversial issue. The third controversial issue is whether there should be a copyright system in the electronic age at all. And I think it is very clear that there should be.
ER: You think relatively few adjustments to the existing law are needed?
Lehman: That is correct.
ER: Do you feel you have satisfied the critics who say that it is all obsolete?
Lehman: I'll never satisfy all the critics in the country. But I think that we have put together a report that will have great credibility. It will be received very favorably by everybody in Congress.
ER: With regard to the people who think there should be no copyright at all in the new information age: What do you understand them to mean? What do you think is the gist of their argument?
Lehman: Well, one of the problems is that it is very difficult to find what they do mean, because they don't have a very fixed idea about what they would rather have. You hear people say such things as "Well, people should get paid by having seminars about the work they put on the Internet," or "They should get paid by putting out prints and magazines and copies of the material they have on the Internet."
I think that goes in the wrong direction. Magazines are going to be put out of business by the Internet. Seminars will be taking place on the Internet. I think it is an argument that is made by people that basically don't understand copyright very well and don't understand that it is not even remotely an onerous system. They very, very much magnify beyond all comprehension the power of copyright, the onerous nature of copyright. You know, the worst thing that can happen to you under the Copyright Act if you infringe somebody's copyright is that you can be sued for $100,000 and that you can be ordered to stop infringing-and that's only if you are a willful infringer! If you are non-willful, the worst is that you can be sued for $20,000, and it is completely at the discretion of the judge as to whether the plaintiff gets one dime. And if there has been a finding that you have infringed, again the remedy is to stop infringing.
You know, I am the Commissioner of Patents, and so I follow the patent law very closely. By contrast, in the patent arena, we have had in the last few years a couple of judgments of about a million dollars in patent infringement. Now that is something to be worried about. That is something that is onerous. That is something that is very, very powerful.
But the beauty of copyright law is precisely that it is very simple, that the penalties are very modest. Basically it is simply a mechanism to support a commercial system whereby people who want to get paid-let me emphasize that, want to get paid-are able to make a business out of selling the information products that they create. I really want to emphasize that point about not wanting to get paid, because this is not just true of the electronic age-it has always been true. There are vast quantities of works of authorship for which people have no desire to invoke protection under the Copyright Act. A lot of the people who use the slogan "information should be free" assume that simply because one talks about copyright one is suggesting that all kinds of things that are now free ought not to be free anymore-and I think that assumption is enormously mistaken. Most things are and will be free, because people have no interest in asserting their copyright. The only things that will not be free are the things created by people who are doing it precisely because they want to put out a product and want to make money off of it. And the copyright system does a very good job of supporting that, and leaving the rest of the stuff basically in the public domain.
ER: Let's turn to a specific example of copyright protection. If you were to send me a series of letters through the U.S. Post Office, the physical letters would be mine and I could sell them or show other people what you sent me, but I could not go to a publisher and publish those letters to a large group of people. Is that correct?
Lehman: That is correct.
ER: Now, if you sent me a series of e-mail messages over the Internet, does the same rule apply? Am I permitted to forward a copy of that to a single friend or a few friends?
Lehman: Well, the short answer to that-the same as for a letter-is no. But I think there is a more sophisticated answer to that, which involves the fact that a lot of e-mail is more like a bulletin board than like a letter. The pertinent question is: what was the intent of the sender? As a practical matter, a lot of letters are photocopied, and in fact, it's an extremely common business practice to photocopy letters that you get and send them around to scores of people. It happens every day. I suppose that technically, if you are doing that without having gotten permission from somebody, you may be violating the copyright of the author of the letter. But I know of no lawsuits that have ever been brought in that area.
And the same thing is true of e-mail. There is no difference in sending, within a business or a particular community, an interesting letter that you have received to half a dozen colleagues than there is in photocopying a letter. And I think that you will find, as a practical matter, that people will not assert their copyright rights, because that does not fall in the area of commercial use of a work. Now, actually, you used the word published. I think there is an important distinction to be made. You see, where people have gotten themselves into trouble for making copies of letters that have been written in handwriting or typed on the typewriter (and where they may get themselves into trouble making copies of e-mail), is when a famous person has written those letters.
Now suppose you are doing historical research on Bill Gates, let's say, and starting to look at his e-mail, and you want to publish the collected correspondence of Bill Gates. Well, his heirs might have an interest in not seeing those letters circulated to millions of readers without their permission. But that's a lot different from people within Microsoft getting an e-mail message from Bill Gates and distributing copies of it to other people in the company; or people at Educom Review getting an e-mail message from Bill Gates and making it available to other people. In that sense, there is really no difference between e-mail and the print world. It is really a question of intent and scale. Imagine what a problem we would have with speeding laws if people thought there was no flexibility whatsoever in the 55-mph speed limit. We would have a complete mess. The fact is that there are all kinds of laws in this country that set out the framework in which any activity or business occurs, and that are then interpreted and enforced logically and rationally to meet specific circumstances. Well, the same is true of the copyright laws, which are like all kinds of other laws that deal with ordinary life and set forth the rules that we follow generally to have an orderly society; and that give people protection against abuse of their rights by others if that abuse gets out of hand.
ER: You mentioned earlier that "fair use" issues are the focus of one of the three most controversial aspects of current discussions of copyright law. What is the controversy?
Lehman: I think there is a certain degree of paranoia in the world that new technology will be used to restrict fair use. And I suppose to some degree there might be some justification for that fear. Since it will be so much easier to license works electronically than it is in print format (because you can meter given uses of the work in ways that you cannot, for instance, meter photocopies), there are those who worry that low-cost licensed access can be provided that will replace much of the function of fair use. We have really rejected that point, and we're trying to make our position clearer in our final report. There will be as much fair use in the digital age as there has been in photocopying, for example.
ER: Of the various criteria for establishing fair use, is it generally believed that depriving the property's owner of money, if the owner in fact wants money, is the real test?
Lehman: No, that's not the test at all. Obviously, movie companies would like to have had money from the use of private home taping, but they didn't get it. The Supreme Court said that that was fair use. So the test is not whether the copyright owner wants money. The test is in the four fair use factors that are in Section 107 of the Copyright Law. That's "the purpose and character of use." For example, it is very clear that the threshold of fair use is higher in the case of not-for-profit activities than it is in the case of for-profit activities. And the threshold of fair use is higher in the case of private copying for your own personal use as opposed to some kind of institutional copying. One looks at things like the economic impact on the copyright owner-now that's where you get into the money question.
ER: That's what I had in mind.
Lehman: That is a decision the courts make more or less on a case-by-case basis. If a particular practice is going to devastate an industry, by making it really difficult for an economic copyright-based enterprise to function, then there's obviously going to be less fair use. I think the issue really tends to vary a lot with the kind of use. If you've a newsletter that has a readership of 300 people around the world, obviously the economic impact of someone's making ten copies is going to be considerably greater on you than the impact on Time Warner would be if that person were making ten copies of an article in Time magazine. So those are the kinds of things you look at. And they are case-by-case judgments courts have always made and will continue to make. But simply the copyright owner's desire to get money is not the decisive factor.
ER: What have you found to be the most pervasive misunderstanding that people have about copyright?
Lehman: Well, I think it goes to your initial question-the idea that information should be free. I think people tend to think of copyright as being far more onerous than it is. And I don't think they understand its role in the information society. They tend to think of it as some kind of egregious monopoly, but it's not. Copyright is simply a legal means of making possible what a lot of people in America increasingly do for a living, by allowing them to trade what they do in commerce. And I don't think that's understood very well.
There is an economic mechanism that underlies all human activity, and if you didn't have copyright then you would have to have some other kind of economic mechanism, or the first few copies of what is created would have to bear all of the costs of creation of the work. That would obviously mean that they would be very expensive, fewer works would be created, and fewer people would be able to make a living from them. Interestingly, the organizations that are hardly in a position to pay more money are educational organizations, because obviously they would have to pay the greater share of the upfront costs. You'd essentially have to have made-to-order works if you did not have copyright law. A university would basically have to commission the creation of works that it would use. So copyright is simply an economic mechanism that permits an orderly marketplace to develop in products that have no physical, tangible weight.
ER: Let me ask you a very specific question. What protects the author of Forrest Gump from someone writing a book called Forrest Gump? Anything?
Lehman: Nothing.
ER: So I could write Forrest Gump right now, and if people weren't clever enough to see that I am not the author, they would possibly buy it?
Lehman: Well, you could write a book and call it Forrest Gump, give it that title, but you could not write a book that had the same scenes in it, the same story line in it, the same episodes in it that Forrest Gump had in it. Then you would be guilty of copyright infringement.
ER: I couldn't take the idea of telling the story of a somewhat retarded person?
Lehman: Well, you know, obviously in all law there is a gray area, and there is a lot of litigation about precisely those cases where somebody has appeared to reuse certain elements of an existing work. You see that all the time in movies, in literature, in spy novels, in thrillers. Space movies come out and all of a sudden space films are a very important genre. You have Star Wars, you have Star Trek, and so forth. Obviously to the extent that you just have a few basic ideas-you know, a space station orbiting around the earth-that is not a protectable idea, but the closer you come to copying many, many aspects of somebody's story, the more likely you are to be found to have engaged in infringement. There is another important factor that does not exist in patent law but exists in copyright law. One of the things you have to show in copyright is that you actually copied somebody. Independent creation of a work immunizes you from copyright. So if you just happen to think up exactly the same story as someone else, even if it were almost identical, you would not be liable for copyright infringement. Now, we all know that, as a practical matter, the odds of that are pretty limited. But that is one of the reasons that copyright law has worked pretty well over the years-because normally when someone gets sued for copyright infringement for a work of plagiarism, not only does the work look very, very similar, but usually there is evidence that they had access to the work and actually copied it.
ER: Are the penalties for plagiarism higher than the penalties for just misuse?
Lehman: There is no penalty for plagiarism. Plagiarism is not something that exists anywhere in the statutory law or in the case law of this country as far as I know. When I used the word plagiarism I used it quite deliberately, as opposed to copyright infringement, because you can try to plagiarize from somebody's work and you might be able to commit plagiarism but not copyright infringement. Plagiarism tends to be to take somebody else's work and represent it as your own. The only legal recourse you have against plagiarism is when it has reached the point of being copyright infringement.
ER: So if someone took a novel I wrote and published it as his own work, I wouldn't have any more case against him than if he had just merely taken my work and published it under my name and sold a thousand copies.
Lehman: Right. In the European system that's not the case, because a very important part of European penal law is what they call moral rights, which include the right of the author to get credit for what he did. So you might have to pay more in Europe than in the United States.
ER: That's interesting. Recently some management theorists have been trying to get trademarks for management slogans they devised. So that they can go on the talk circuit and use a slogan like "Big is Better" and have protection for that slogan they have created. Is that something you are familiar with?
Lehman: Yes, that's nothing new. But each one of these kinds of intellectual property works slightly differently.
ER: But that's not copyright?
Lehman: No, that would be trademark. You can have a trademark in words or in a name, or in an image, or even in the shape of a package. But the essential test is that the public has to be identifying that particular mark as indicative of the source of the good or services; and the way your slogan usually gets to be a trademark is that you spend a lot of money on advertising, and before you know it most people who hear the slogan tend to think of the product with which it is associated. Let me give you an example. There is a trademark that is in a lot of advertising. I think it is Ford-doesn't Ford Motor Co. have a slogan called "Quality is Job 1"? When I say "Quality is Job 1" you immediately think-because you've been conditioned by all the advertising they've done-of the Ford Motor Co. So that is the kind of thing that might take on trademark status. But you can't just trademark words unless they relate to a specific product. And then the public has to learn to identify those words with the product.
ER: So what does the intellectual property and copyright landscape look like right now?
Lehman: I think the important thing to understand about intellectual property, and particularly copyright, is that there is probably less litigation, fewer legal problems in this area than in most areas of commercial and business law. There is probably less copyright litigation in the entire United States in one year than there is real estate litigation (which is covered by 200-year-old real property law) in the District of Columbia, which has only 600,000 residents. The simple fact is that copyright law really works extremely well.