Preface

     The revolution in information technology is changing access to information in fundamental ways. Increasing amounts of information are available in digital form; networks interconnect computers around the globe; and the World Wide Web provides a framework for access to a vast array of information, from favorite family recipes and newspaper articles to scholarly treatises and music, all available at the click of a mouse. Yet the same technologies that provide vastly enhanced access also raise difficult fundamental issues concerning intellectual property, because the technology that makes access so easy also greatly aids copying--both legal and illegal. As a result, many of the intellectual property rules and practices that evolved in the world of physical artifacts do not work well in the digital environment. The issues associated with computerization are also amplified by the rise of the Internet and broader and more pervasive networking. These are the issues that inspired The Digital Dilemma.

     This project grew out of a long history of Computer Science and Telecommunications Board (CSTB) interest in the legal issues related to computer technology in general and to intellectual property in particular. In 1991, CSTB published Intellectual Property Issues in Software, the report of a strategic forum in which I participated, and in 1994, it published the report of its second strategic forum, addressing intellectual property and other issues, entitled Rights and Responsibilities of Participants in Networked Communities. Recognizing the growing questions about intellectual property in the networked environment, CSTB hosted a project-planning meeting in December 1994 chaired by Pamela Samuelson (now at the University of California, Berkeley) and involving experts from the areas of law, computer science, technology, library science, and publishing. In spring 1996, the former Federal Networking Council Advisory Committee (FNCAC) recommended that CSTB be asked to undertake a project in this area. After clarifying a division of labor with another part of the National Research Council (NRC) regarding the issues related to scientific databases as intellectual property,¹ CSTB transmitted a proposal in late 1996 to the National Science Foundation (NSF), which then administered the FNCAC; the project was funded in the fall of 1997, and CSTB empaneled the Committee on Intellectual Property Rights and the Emerging Information Infrastructure at the end of 1997. The course of this project reflected the circumstances of the time in which it was undertaken: the climate in the late 1990s for thinking about intellectual property policy reflected the early and mid-1990s history of public debates associated with attention to national and global information infrastructure, a period in which information policy (which includes intellectual property, privacy, and free speech issues) began to inspire unusually vigorous public-interest-group and commercial advocacy activity.

     CSTB's project was designed to assess issues and derive research topics and policy recommendations related to the nature, evolution, and use of the Internet and other networks, and to the generation, distribution, and protection of content accessed through networks. Box P.1 outlines the statement of task.

BOX P.1 Synopsis of the Statement of Task      1. Assess the state of the art and trends in network and document or content technologies relevant to intellectual property rights management. The challenge is to sort out which trends are relevant, enduring, and promising, and how new communications and information technology may vitiate existing protections for intellectual property that the law offers to creators, users, and distributors.      2. Identify emerging opportunities and forms of publishing that have no precedents in existing media or current copyright law that may present new needs and opportunities for managing intellectual property rights.      3. Describe how electronic distribution is changing the markets (scale, distribution, cost incidence) for information products, whether they are available in alternative media or only electronically. This includes the rapidly changing structure of information and communications industries that operate and provide content for networks.      4. Assess the kinds, quality, and sufficiency of available data for measuring and analyzing relevant trends in the supply and demand for networked information services and associated electronic publishing of various kinds.      5. Review the characteristics of existing and proposed intellectual property law for both copyrightable works and noncopyrightable databases, in the United States and internationally, and the potential impacts of the proposed legal changes on the nation's research, education, and federal networking communities as information providers, distributors, and users of content.      6. Consider the mapping of technology and content elements, their owners, and their rights and responsibilities (e.g., the changing nature of liability and responsibility for service providers). Given that understanding, develop recommendations on how new technology might provide new mechanisms and tools to protect both property rights and public interests. Also, recommend what legal changes are necessary to respond adequately to the changing networked environment, while maintaining a reasonable balance between the protection of property rights and public interests.

COMMITTEE COMPOSITION AND PROCESS

     The study committee convened by CSTB included experts from industry, academia, and the library and information science community, with expertise that spanned networks, computer security, digital libraries, economics and public policy, public and academic libraries, intellectual property law, publishing, and the entertainment, software, and telecommunications industries (see Appendix A for the biographies of study committee members). It did its work through its own expert deliberations and by soliciting input and discussion from key officials from the sponsoring agencies, other government officials, technologists, legal experts, economists, social scientists, librarians, industry experts, and advocacy group spokespersons (see Appendix B for a list of briefers to the committee). The committee met first in February 1998 and five times subsequently; it revised and strengthened its report during mid-1999.

     Central to the content and flavor of The Digital Dilemma is the fact that the authoring committee is, by design, a microcosm of the diverse community of interest. Because of the contentious nature of intellectual property issues, every effort was made to ensure that a broad range of perspectives was represented--on the membership of the study committee, in the solicitation of briefings and other inputs to committee meeting agendas, and in the materials distributed to the study committee. The contention was evident throughout the course of the study, beginning with adjustments to committee composition to assure balance and continuing through committee debates on the numerous issues it addressed. It is an accomplishment that the committee agreed on its characterization of key issues and on a number of recommendations. It is not surprising, however, that the committee could not agree on all of the recommendations that it contemplated. In Chapter 6, uncharacteristically for a CSTB report, a number of issues are presented by articulating the different schools of thought. In these areas, the committee sought to inform debates that must continue because coming to a national consensus now--and deciding on policy that will have far-reaching impacts--is premature. Among the contributions of the report, therefore, is an articulation of the nature and concerns of multiple stakeholders--whose involvement is important for sound policy making--and a description of the issues where progress may be difficult in the near term.

ACKNOWLEDGMENTS

     The committee appreciates the financial support and guidance provided by the National Science Foundation. Within the Directorate for Computer and Information Sciences and Engineering, the Division of Information and Intelligent Systems (Programs on Computation and Social Systems and Information and Data Management), the Division of Experimental and Integrative Activities, and the Division of Advanced Networking Infrastructure and Research provided support for this study, coordinated through Suzanne Iacono and Les Gasser (formerly at NSF; now at the University of Illinois, Urbana-Champaign). In addition, the Directorate for Social, Behavioral, and Economic Sciences provided support for this study through the Division of Science Resources Studies and the Division of Social and Economic Sciences (Programs on the Law and Social Sciences and Societal Dimensions of Engineering, Science, and Technology), coordinated through Eileen Collins.

     We would also like to acknowledge the role of the Large Scale Networking Group of the Subcommittee on Computing, Information, and Communications (formerly the Federal Networking Council) and the instrumental efforts of Carol C. Henderson (formerly of the American Library Association) and Frederick Weingarten (American Library Association) in helping to launch this study.

     Throughout the course of this study, a number of individuals contributed their expertise to the committee's deliberations. The committee is grateful to those who agreed to provide testimony at its three open meetings (see Appendix B). In addition, the committee would like to acknowledge Rick Barker (Digital Stock), Steven M. Bellovin (AT&T Labs-Research), Bruce Bond (The Learning Company), Scott Carr (Digimarc), Stephen Crocker (Steve Crocker Associates), William Densmore (Clickshare), Laurel Jamtgaard (Fenwick & West), Robert P. Merges (University of California, Berkeley), Steve Metalitz (International Intellectual Property Alliance), Diane Pearlman (Online Monitoring Services), Shira Perlmutter (U.S. Copyright Office), Burt Perry (Digimarc), Marybeth Peters (U.S. Copyright Office), Paul Schneck (MRJ Technology Solutions), John Schull (Softlock Services), Oz Shy (University of Haifa), Linda Stone (Mitretek), Robert Thibadeau (Television Computing Inc.), and David Van Wie (Intertrust).

     The committee appreciates the thoughtful comments received from the reviewers of this report and the efforts of the review monitor and review coordinator (who represent the Report Review Committee and the Commission on Physical Sciences, Mathematics, and Applications, respectively). These comments were instrumental in helping the committee to sharpen and improve this report.

     Finally, the committee would like to acknowledge the staff of the National Research Council for their hard work. As the primary professional staff member responsible for the study, Alan Inouye crafted meeting agendas; drafted, edited, and revised text; and completed numerous other tasks that were instrumental in moving the committee from its initial discussions to this final report of the committee. Alan's consistent and apparently bottomless energy, insight, dedication to the task, and willingness to nag when needed were instrumental in getting this project to completion; it would not have been done nearly so well without his involvement. Jerry Sheehan shared the primary staff responsibilities with Alan Inouye during the first half of the study and continued to provide comments on the report manuscript as it progressed. Marjory Blumenthal provided input and guidance that were valuable in improving the final drafts of this report. Margaret Marsh, Nicci Dowd, and Mickelle Rodgers provided the committee with excellent support for meetings during the course of the study. The contributions of editors Susan Maurizi and Kim Briggs are gratefully acknowledged. Angela Chuang and Tom Lee, doctoral candidates at the University of California, Berkeley and the Massachusetts Institute of Technology, respectively, Jim Igoe, and Margaret Marsh provided valuable research assistance. D.C. Drake and Suzanne Ossa of the CSTB and Theresa Fisher, Claudette Baylor-Fleming, and Sharon Seaward of the Space Studies Board assisted with the final preparation of this report.

Randall Davis, Chair

Committee on Intellectual Property Rights and the    Emerging Information Infrastructure

Note

¹ A concurrent NRC study produced A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases (National Academy Press, Washington, D.C., 1999), which identifies and evaluates the various existing and proposed policy approaches (including related legal, economic, and technical considerations) for protecting the proprietary rights of private-sector database rights holders while promoting and enhancing access to scientific and technical data for public-interest uses.