The Old Regime and the New Order

(apologies to De Tocqueville)

By Robert C. Heterick, Jr.

Sequence: Volume 31, Number 5
Release Date: September/October 1996EndNote

The Constitution prescribes that Congress may make laws to grant exclusive rights to authors and inventors for a limited time to foster progress in science and useful arts.

As a consequence we have a whole body of legislation and case law that makes up an intellectual property regime. A debate rages over how, or whether, to modify the intellectual property regime in the information age.

Clearly, the bulk of this regime was created without knowledge of computers and broadband networks, the Internet, the World Wide Web or any of the other facets of a National Information Infrastructure that many have begun to take for granted. Most of the regime was built to deal with publisher business models that a print-based society developed. Experience with motion pictures, video and sound recording began the exposure of the limitations of building a regime based upon a single technology. The Internet should, by now, have fully exposed those limitations.

Unfortunately, it hasn't as we can witness from the Patent and Trademark Office White Paper, Intellectual Property and the National Information Infrastructure, and the ensuing debate it has fostered. Much of the debate is firmly mired in the past and still focused on print - or on its close kin, the digitization of material originally published in print format.

Some of the debate seems single-mindedly focused on individual technologies such as recording or video. For those who look to the digital technologies to both expand the richness of information available to citizens and to increase its availability by reducing its cost and making it location-independent, such a backward-looking debate surely misses the mark. It sometimes seems as though we are attempting to codify the limitations forced upon us by old technologies.

Nowhere is this more evident than in the debate surrounding the aspects of the intellectual property regime known as Fair Use and the First Sale doctrine. Both concepts are eminently reasonable in a print-only world where less frequently used material is collected in repositories called libraries and made available on a "loan" basis, predicated on the concept that the material is in the form of an artifact (property) and can be owned by someone. In the information age, information need no longer be carried by the artifact and information content is more like a commodity. "Browsing," a first-sale derivative, doesn't make much sense as a general principle or right in the world of the Net.

It is sometimes useful to try to imagine what the world would look like stripped of historical antecedents. For instance, what if 2,500 years ago information had been universally available in inexpensive formats capable of publication by the author. Would we have created libraries? Would a publishing industry have developed to mediate between authors and readers (composers and listeners, etc.)? Perhaps so, but likely in very different guises than we now know them. It is interesting to contemplate that most of the contentious debate over the intellectual property regime is not between authors and readers, but rather between the mediators who have obvious vested interests in the current regime.

The Net has developed both public and private (free and commercial) spaces. Both are likely to grow with the Net and neither is likely to be subsumed by the other. If publisher business models in the commercial space inhibit access to information for scholarly use (the kind of use that is made via our public and research libraries in the print-based world) then, in the long run, new publishing entities will arise to address the needs of authors and readers.

There may well be some need for legislative or legal remedy as we wait for the marketplace to adjust to the information age. That remedy may be as simple as requiring all copyright holders to register with a network source(s) indicating the cost and conditions of use of material to which they hold copyright. It may be as complex as creating a trusted system environment to ensure the integrity of fiscal transactions and intellectual property on the Net. In any case, the technology of the Net is more likely to contain the solution to the problem than additional doses of regulation and legislation. Violation of copyright is, and will continue to be, remediable through civil and criminal law. Value-adders, authors and publishers in our current parlance, have a right to expect compensation for their work and, consistent with the intentions of the Constitution, readers have a right to expect the reasonable availability of material that is granted copyright protection. Without such availability the Constitutional purpose is undone.

Robert C. Heterick, Jr., is president of Educom. [email protected]

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