Transcript The Digital Dilemma: Intellectual Property in the

Copyright Dangers
and the Importance of Fair Use
Electronic Publishing, 10/29/00
Howard Besser
Associate Professor
UCLA School of Education & Information
http://www.gseis.ucla.edu/~howard/
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Copyright Dangers and the
Importance of Fair Useu
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History of Copyright
Erosion of Public Domain
The Digital Dilemma
– unbundling/unraveling
– stakeholders
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My far-out ideas as provocation
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Constitution, Article 1, Section 8
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The Congress shall have power ...to provide
for the ... general welfare of the United
States 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;
Underlining added
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Copyright Background/Origins
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Copyright is a delicate balance btwn users and
creators, but is supposed to be clearly oriented
towards the public goodCopyright is NOT an unlimited Economic Right
Copyright is really a temporary monopoly right
granted to creators in order to fulfill the societal
need to increase creativity
The Copyright monopoly is temporary, then
works become freely available for all purposes
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Delicate balance
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Fair Use is a powerful tool for both
education and social commentary
First Sale is important for social aims
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What has copyright become
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(1/2)
Who actually holds Copyright?
Licensing is replacing copyright in the
digital age
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What has copyright become
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(2/2)
The larger trend -- moving long-standing
common-law or constitutional rights into the
arena of person-to-person business transactions,
where these rights no longer apply
licensing eliminating fair use
– privacy
– international arena
– increasing time before work enters public domain
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Disturbing Legislation
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Duration Lengthening
Fair Use Disappearing
but first we need to understand the public
domain
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The erosion of the public domainu
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What is it?
What threatens it?
Why should we care?
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What’s part of Public Domain?
Still is
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Air
Sunlight
Numbers
God
Ideas & Facts**
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Was
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Water
Land
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Lawyers defining the Public Domain
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"things in the public domain can be appropriated by anyone without liability
for infringement" (Black's, 1996)
“the law’s primary safeguard of the raw material that makes authorship
possible” (Litman, 1989)
“a commons that includes those aspects of copyrighted works which copyright
does not protect"” (Litman, 1990)
the converse of property rights in information where the government prohibits
certain uses or communications of information to all people but the owner; the
public domain “is the range of uses privileged to all” (Benkler, 1999)
“the ultimate source of all new works (because nothing is ever wholly new in
and of itself)” (Karjala, 1998)
“copyright’s raison d’etre is to benefit the public by encouraging the
production and dissemination of new copyrighted works” (Kreiss, 1995)
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A simpler description
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resources freely available for all members
of society to do whatever they want with
them
no permissions or fees required
no tracking of what you read or use
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Importance of Public Domain
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Common Heritage (philosophical)
New Knowledge incorporates Old
(progress)
Derivative Works rely upon pre-existing
Works (creativity)
Social Commentary (free speech)
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What threatens it?u
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Term extension
Returning out-of-copyright works back to
copyright
Mickey Mouse
Licensing
Other forms of Contract Laws
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Time before works enter
public domain
Law
Copyright Duration
1709 British 14 years
pre-1976 US 28 years+28 years renewal
1976 US
1998 US
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75 years (corporate)
life + 50 years (individual)
95 years (corporate)
life + 70 years (individual)
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Lengthier Copyright Means
Date
Term
Published 1923-63
67 years if renewed
Published 1964-77
28+67 years
Created before 1/1/78
Life+70 years or
-12/31/02 if not published
-12/31/47 if published before end of 2002
whichever is greater
Life+70 years (95/120
years corporate)
Created after 1/1/78
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Works that should have already entered the
Public Domain (but didn't)
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F. Scott Fitzgerald: Hot and Cold Blood and Invasion of the
Sanctuary
Zane Grey: Code of the West, Steelhead, Tappan's Burro,The
Vanishing American, and Down into the Desert
Ben Hecht: Fingers at the Window
Rudyard Kipling: Independence and London Stone
P.G. Wodehouse: Jeeves, First Aid for Dora Heart of a Goof, Leave It
to Psmith, Magic Plus Fours, No Wedding Bells for Him,The Return
Of Battling Billson, Rollo Podmarsh Comes To, Ukridge Rounds A
Nasty Corner, and Chester Forgets Himself
Virginia Woolf: Jacob's Room
Film -- Sherlock Jr.
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Works that should have entered the
Public Domain in the next few years
(but won't)
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Irving Berlin: Blue Skies (2002)
Harry Woods: When the Red, Red Robin Comes
Bob, Bob Bobbin' Along (2002)
Oscar Hammerstein II and Jerome Kern: Ol' Man
River and Showboat (2003)
Mickey Mouse (2004)
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The Digital Dilemma:
Intellectual Property in the
Information Age
Computer Science and
Telecommunications Board
National Research Council
National Academy of Science
A Study of the National Research
Council/CSTB
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The National Research Council & CSTB
Nature of a Study
– common ground btwn stakeholders, not necessarily what is best
for NAS or research
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Origins of This Study
– unbundling of previously-grouped packages
(publishers/distributors, works as units, …)
– changing interpretations of concepts such as first sale and fair use
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Scope of This Study
Study focused on US
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Study Committee (Part 1 of 2)
Randall Davis, MIT
(study chair)
 Shelton Alexander,
Penn State Univ.
 Joey Anuff, Wired
Ventures
 Howard Besser,
UCLA
 Scott Bradner,
Harvard Univ.

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Joan Feigenbaum,
AT&T Labs-Research
 Henry Gladney, IBM
Almaden Research
 Karen Hunter,
Elsevier Science
 Clifford Lynch,
Coalition for Net Info
 Christopher Murray,
O’Melveny and Myers

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Study Committee (Part 2 of 2)
 Roger
Noll, Stanford
Univ.
 David Reed, Cable
Television Labs
 James N. Rosse,
Freedom Comm
 Pamela Samuelson,
UC Berkeley
 Stuart Shieber,
Harvard Univ.
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 Bernard
Sorkin, Time-
Warner
 Gary Strong, Queens
Public Library
 Jonathan Tasini,
National Writers
Union
 Alan
Inouye, Study
Dir. & Prog. Officer
Computer Science and Telecommunications Board
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A Long Standing Balance: Copyright
Law
 “We
must remember that the purpose of
copyright law is to create the most efficient
and productive balance between protection
(incentive) and dissemination of
information, to promote learning, culture
and development” (Whelan v. Jaslow, U.S.
Court of Appeals for the Third Circuit,
1986).
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The Digital Dilemma: The Balance
Upset
 Information
in digital form
 Networks
 World
Wide Web
 Consequences of these technological
developments; natural barriers erode
 Unbundling-
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Previous bundling becomes
unraveled
works are no longer discrete packages
(embodied objects)
u works become multiple entities
u roles of author, typist, editor, typesetter,
publisher, distributor, user becoming
blurred
u rights like fair use, first sale and personal
use take on different meanings
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access
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Implications:
Control and Access
 For
authors and publishers
 For individuals
 For societal institutions (e.g., libraries,
archives)
 For public policy
 Key
traditional tool for controlling content
is the law. However, there are alternatives
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in10/30/00
the digital age...
Computer Science and Telecommunications Board
Digital IP Issues are Complicated
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Not solely legal
Not solely technical
Social, economic & public policy aspects
If you think there are simple answers, you
haven’t been listening
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Digital IP Issues Have Advocates With
Vigorously Different Perspectives
 Consensus
often not possible
 “I can live with that”
 Process blunts sharp edges
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No Need to Overhaul IP Laws, But:
 Areas
to watch
 Areas to research
 Areas to “clarify” the law
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Selected Highlights from the Study
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Go slow on Legislation
Provision needs to be made for traditional entities to preserve works in
digital form
Legislation criminalizing circumvention of protection mechanisms is
far to broad and harsh
Not all classes of works need the same treatment
Technological protection methods may prove useful but have their
limitsNew Business Models show great promise for solving the problemsWe need reliable research on the economic impact of copying-
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Characteristics of the Techniques for
Technical Protection
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Technology provides means, not ends
No technique will provide perfect
protection
Technical protection does more than
protecting the rights of copyright owners
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Characteristics of the Techniques for
Technical Protection
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There are different degrees of technical
protection: curb-high deterrence vs. security
against commercial pirates
Technical protection almost invariably causes
some inconvenience to users
Historically, amount of inconvenience correlated
with degree of protection
Techniques that are useful in special-purpose
devices are quite different from those intended for
general-purpose computers
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Traditional Business Models for
Protecting IP
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Based on fees for products or services
Relying on advertising
“Free” distribution models
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Maybe less traditional Business
Models are better
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Universal/Disney vs. Sony
know what business you’re really in
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Less Traditional Business Models
for Protecting IP
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Give away the information product; earn
revenue from auxiliary product/service
Give away initial information product and
sell upgrades
Extreme customization
Provide large product in small pieces
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Less Traditional Business Models
for Protecting IP (2)
 Give
away digital content because it
complements the traditional product
 Give away one piece of digital content
because it creates a market for another
 Allow free distribution; request payment
 Position the product for low-priced, mass
market distribution
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Economic Impact Research
Recommendations
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Different types of copying
Social and economic impact of illegal
copying ( vs. personal copying)
Economic impacts of copyright
Public perception of what is legal
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Personal Observations
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Copying & Access
Licensing and Technical Protections Services
Archiving and Preservation
Opportunities and Challenges for Authors and
Publishers
Impact of Technical ProtectionBusiness ModelsEconomic Impact of Copyright ViolationsCopyright basis other than Copying
Fair Use, derivative works, etc.
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Personal Observations
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Copying & Access
Licensing and Technical Protections Services
Archiving and Preservation
Opportunities and Challenges for Authors and Publishers
Impact of Technical Protection
Business Models
Economic Impact of Copyright Violations
Copyright basis other than Copying
Fair Use, derivative works, etc.
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For Additional Information...
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Committee on Intellectual Property Rights and the
Emerging Information Infrastructure, National
Research Council, National Academy of Sciences.
The Digital Dilemma: Intellectual Property in
the Information Age, Washington: National
Academy Press, 2000 (Jan)
http://books.nap.edu/catalog/9601.html
http://books.nap.edu/html/digital_dilemma/
– http://www.gseis.ucla.edu/~howard/Copyright
– http://www.cni.org/
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Anti-Circumvention & Rule-Making (1/2)
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DMCA compromise required Rulemaking by LofC as to
which circumvention measures should be allowed
– Concern from library and other communities that circumventing
protection mechanisms to engage in perfectly legal acts (like fair use and
preservation) would make them subject to criminal penalties
House Bill Section 1201(a).
– No person shall circumvent a technological protection measure that effectively
controls access to a work protected under this title.
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“While sounding innocuous, what the provision does is create a brand new
and unlimited right to control access to copyrighted works. If enacted into
law, this new right could bypass the carefully crafted balance between
exclusive rights of ownership and public access to works for educational,
scholarly, and scientific purposes, which has been part of copyright law for the
entire 20th Century. In short, it could eliminate fair use from copyright law.”
(John Hammer, National Humanities Alliance, 6/5/98)
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Anti-Circumvention & Rule-Making (2/2)
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On 10/28/00, Lof C ruled that the following should be
exempted until 10/28/03:
– Compilations consisting of lists of websites blocked by filtering software
applications; and
– Literary works, including computer programs and databases, protected by
access control mechanisms that fail to permit access because of
malfunction, damage or obsolescence.
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Immediate responses of outrage from librarians, consumer
protection groups, digital divide groups, etc.-
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Outrage at Anti-Circumvention
Rulemaking Decision
Digital Future Coalition 10/26/00 press release
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“Unfortunately, today’s decision took 70 pages to essentially say that
few persons may ever circumvent a technological protection measure
— even to gain access to a work solely for legitimate noncommercial
purposes.”
“Once again, content owners have successfully promoted their own
narrow financial interests over the broader public interest in preserving
consumer access to literary, scientific, and other works,”
“deep disappointment that content owners effectively had been given
a green light to use technological protection measures to lock up
access to copyrighted works.”
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Outrage at Anti-Circumvention
Rulemaking Decision
American Library Assn ALAWON 9:85, October 26, 2000
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“The Librarian of Congress James Billington has ruled against the
American public and library users by negating fair use in the digital
arena..”
“Because of this decision users of digital information will have fewer
rights and opportunities than users of print information. In fact, the
pay-for-use scenario that librarians have feared appears to have now
become a reality with this rule.”
"The Copyright Office has issued a misguided ruling taking away
from students, researchers, teachers and librarians the long standing
basic right of ‘fair use’ to our Nation's digital resources," said Nancy
Kranich, ALA president. "All library users will be impacted."
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Outrage at Anti-Circumvention
Rulemaking Decision
Congressman Rick Boucher October 27, 2000 press release
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“I regret the decision of the Librarian of Congress, acting upon the recommendation of
the Register of Copyrights, to reject the recommendations of the Administration,
concerned Members of Congress, universities and libraries in announcing a decision
that does not protect traditional fair use rights. This disappointing decision has moved
our Nation one step closer to a "pay-per-use" society that threatens to advance the
narrow interests of copyright owners over the broader public interest of information
consumers.”
“In crafting section 1201(a)(1) of the Digital Millennium Copyright Act, Congress
sought to preserve the principle of "fair use" that has served our Nation so well for more
than a century. Unfortunately, based on the advice of the Register of Copyrights, the
Librarian of Congress today announced his decision to limit the ability of ordinary
consumers in most cases to circumvent electronic security measures for the purpose of
exercising their non-infringing fair use rights. Consequently, any person who
circumvents a technological protection measure to gain access to information to which
he has a fair use right will be guilty of a crime. ”
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Concern about Anti-Circumvention
Rulemaking Decision
US Dept of Commerce National Telecommunications and Information
Administration (NTIA) 9/29/00 letter to Copyright Office from Gregory L. Rohde
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“NTIA believes that implementation of far-reaching access control
technologies without carefully drawn exemptions would not only
invert 200 years of judicial interpretation regarding the scope of
protections given to copyright holders, but also eviscerate individual
scholarship and the notion of free inquiry. NTIA’s immediate concern
is the very one envisioned by the Commerce Committee when it
warned of the development of a legal framework that would
inexorably create a pay-per-use society.”
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Database Protection Legislation
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The educational exemptions in this bill
“appear too narrow to support current
university information-use practices”, and it
appears that ANY claim of “market harm”
could nullify the fair use exemptions.
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--Dr. Debra W. Stewart, testifying Feb 16, 1998 on behalf of the
Association of American Universities in front of the House Judiciary
Subcommittee on Courts and Intellectual Property considering
proposed Database Protection legislation
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Copyrighting Facts:
Proposed Database Extraction legislation
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No requirement that the DB contain any original
content (can copyright facts, government information,
etc., taking these out of the Public Domain)
DB owner given recourse, even if they didn’t suffer
harm
Implications on:
– Transformative uses
– Uses other than those intended by the compiler (citation analysis)
– Copyrighting court decisions
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NRC analysis of Coble Bill
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reduce the amount of data that can be obtained, particularly from the private
sector or public-private partnerships, an increasingly important source of data;
increase the cost of obtaining data, particularly from database owners with a
monopoly on the data;
restrict access to data for at least 15 years from the time the data was created;
discourage the transformation of existing databases into new ones, creating
artificial gaps in data availability;
prevent the use of data for purposes other than than which it was collected,
minimizing the scientific and societal value of original data; and
increase restrictions on the use of compilations of all kinds, including works of
authorship (e.g. collection of articles) not normally considered to be
databases”
Linn, 2000
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Further commodification of
information, diminishment of
exploration and experimentation-
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Dangers
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Eliminating a public domain of information
Controlling social/political commentary, satire,
creation of new derivative works/recombinant
worksCriminalizing acts that might possibly impede
digital commerce
Making sure that the Internet is used only for info
consumption, not production
Controlling access to older info (controlling
history)
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Fair Use is Disappearing
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Criminalizing Fair Use
Copyrighting DB contents in perpetituity
Proposed Legislation
The 1998 Digital Millenium Copyright Act
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Use of IP Laws to inhibit free speech
and stifle creativity
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Jeff Koons case
Scientology vs.
Netcom
Star Trek fans sites
2 Live Crew
Negativland and U2
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Contract with America
Snow White & AIDS
Disney and Dan
O’Neil
The Rio player
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Economics and Contract Laws
preempting long-standing rights
Moving long-standing common-law or constitutional
rights into the arena of person-to-person business
transactions, where these rights no longer apply
– extending reach beyond “first sale” to control Use
– shrink-wraps eliminating any negotiating power (UCITA)
– shrink-wraps and technological protection don’t allow for fair use
exemptions
– licensing curtailing fair use
– Privacy invasions to prove licensing compliance
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Further commodification of
information
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Dismantlement of the public sphere in
general
Attempts to turn everything into a
commodity (even things that don’t really
behave like commodities)
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Why does any of this matter?
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Derivative works
Postmodernism
Diminishment of exploration and
experimentation
Public discourse
Democratic values (anyone can be a
creator)
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Copyright Dangers
and the Importance of Fair Use
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http://www.gseis.ucla.edu/~howard/Copyright/
http://www.gseis.ucla.edu/~howard/Copyright/publicdomain.html
http://books.nap.edu/html/digital_dilemma/
http://books.nap.edu/catalog/9601.html
http://www.dfc.org
http://www. gseis.ucla.edu /~howard/Papers/caa-fairuse/sld001.htm
http://www.pdos.lcs.mit.edu/~cananian/UCITA/
http://www.badsoftware.com/
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Draft of House version of Digital
Millenium Bill
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“[This bill] contains a provision that would effect the most dramatic change in
copyright law in over one hundred years. Buried in the Digital Millennium
Copyright Act, a measure designed to implement new international copyright
treaties which bring the rest of the world up with current U.S. law, reads:
Section 1201(a). No person shall circumvent a
technological protection measure that effectively
controls access to a work protected under this title.
While sounding innocuous, what the provision does is create a brand new and
unlimited right to control access to copyrighted works. If enacted into law,
this new right could bypass the carefully crafted balance between exclusive
rights of ownership and public access to works for educational, scholarly, and
scientific purposes, which has been part of copyright law for the entire 20th
Century. In short, it could eliminate fair use from copyright law.”
-John Hammer, National Humanities Alliance, 6/5/98
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House version of Digital Millenium
Bill
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"H.R. 2281, as drafted, would grant copyright owners a new and
unrestricted exclusive right to control access to information in digital
works which could negate one of the most basic principles that has
made the U.S. so clearly a leader in intellectual creativity, innovation,
and commerce -- the ability to gain access to information in published
or publicly available works... By access I mean the right to read and,
even more simply, the right to browse published works. Taken another
step, it means the right to use works in ways currently allowed by
exemptions and limitations in copyright -- expressly crafted by
Congress -- to permit fair use, use for library preservation, and use in
classroom teaching."
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-Prof. Robert Oakley, library director, Georgetown University Law
Center, 6/5/98
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