The Electronic Challenge for Copyright Law Georgia Harper The University of Texas System Office of General Counsel

THE CONSTITUTIONAL FOUNDATION

U.S. copyright law is rooted in the idea that protection for intellectual property is a means to an end, not an end in itself. The end is enrichment of the public domain with ideas, knowledge and learning. This distinguishes U.S. copyright law from the copyright laws of many other countries where copyright is considered to be a relatively unfettered innate human right. Our U.S. Constitution grants only a limited monopoly to insure that the ends are achieved.

A Genteel Beginning

At its inception, U.S. Copyright Act only concerned itself with the protection of printing, reprinting, publishing, and vending, and only for a short period of fourteen years.

Post-World War II Through the 1980's

The photocopy machine and the word processor began to upset the balance between users' and publishers' rights that had held fairly firmly for the prior 150 years.

The 1990's

Networked computer systems and massive electronic information exchange further eroded the delicate balance.

• Copyright owners feared rampant infringement

• Users had no idea what their rights were

• The White Paper, Clinton administration's assessment of what was needed to "fix" the Copyright Act for the electronic environment

  Suggested that without stronger copyright protection, there would be *no* content on the superhighway
  
  

  • But, efforts to control copies in an environment where they are ubiquitous can result in absurdities:
    
    
    • Paul Aiken of Authors' League of America testified that e-users should have to be in the library to use the library's electronic collection
      
      
      • This idea found expression in the changes to Section 108 of the Copyright Act implemented by the Digital Millennium Copyright Act (the "DMCA"), signed into law on October 27, 1998
        
        
        • Libraries may now make digital preservation and archival copies of works that are damaged, deteriorating, lost, stollen, or stored on obsolete media, but they can't provide access to such digital copies except on the premises of the library!
          
          
    • CD-ROMs fail to fully exploit the internet's connectedness
    • Pay-per-view, unless seamless, can eviscerate the power of hypertext linking
      
      
      • The DMCA sets the stage for a surge in the use of technology to limit access to copyright works
        
        
    • Unrealistic restrictions on personal use of data in database license agreements
      
      
      • Proposed new law enforcing shrink-wrap and click-on license agreements may lead to elimination of most of the Copyright Act's protections for users' rights (because owners can change all the rights in a click-on license agreement)
        
        

• Massive explosion of quantity and quality of content on the Internet attests to the growth of a copyright culture that defies NII predictions and copyright owners' claims of the need for near-total control

  • Will that copyright culture survive in the face of new, stronger copyright protections for copyright owners?

2000 and Beyond

Different industries may operate on different models of protection for their intellectual properties.

• Movie, music and software industries are aggressively protective and demand near-total control over their works

  • DMCA provisions show the strong hands of these industries
    
    
    • New Sections 1201, Circumvention of Copyright Protection Systems and 1202, Integrity of Copyright Management Information - make it a crime to circumvent a technological measure protecting access to a work or preventing the exercise of one of the exclusive rights of a copyright owner or to remove or tamper with copyright management information (among other things)
      
      
      • The movie industry deemed these protections critical - it could not put movies online without them. So, look for movies online.
        
        
      • Similarly, the music and software industries see themselves as hugely victimized by rampant online piracy and want these technological "locks" to fight back
        
        
  • Fair use, libraries and educational institutions prevailed in very limited ways
    
    
    • Users get two years to try to show that giving people the right to completely block access to their works will harm fair uses, such as research, scholarly and educational uses of the locked up works
      
      

• Educators and scholars may not feel the need to be so aggressively protective

  • University and College faculty were among the first to aggressively exploit online publishing opportunities - without all the protections that other industries feel they need
    
    

• Electronic Frontier Foundation Board Members

  • John Perry Barlow and the Grateful Dead
  • Esther Dyson, President, EDventure Holdings

THE UNIVERSITY COMMUNITY IN THE
21ST CENTURY E-WORLD

Scholarly communication

Scholars, authors and Universities can choose to share access to the University community's copyright works.

Libraries: the center of the revolution

Will the role of access provider and publisher merge in the digital library?

Classroom instruction

• MDS - Coursepacks

• Electronic reserves

• Distance learning

• Multimedia

• Congress has the last word, within Constitutional limits

  • But, Congress has always punted on the question of fair use
    
    
    • Section 107 codified court decisions
      
      
      • Section 107 is widely acknowledged to provide inadequate guidance to users who must make on-the-spot determinations on a case-by-case basis of whether their uses of others' works are fair
        
        
    • CONFU
    • DMCA

Research

• Texaco - Research copies

• New ways to conduct, report and evaluate research

• Fluid status of "finished" work

• New dynamic between authors, publishers and readers

New Copyright Cultures

• Alternative copyright cultures already exist and new ones are likely to evolve

  • Public funding for creation and free distribution (scholarly community)
  • Advertising funding for creation and free distribution (the broadcast model)
  • Selling what can be controlled, rather than what cannot be controlled (selling service and expertise rather than a digital product such as software)
    
    

• Where control remains the operative paradigm, contract law and technological controls are poised to replace copyright law as mechanisms for allocating rights and responsibilities

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