The Digital Dilemma Intellectual Property in the Information Age (2000) / Chapter Skim
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4 Individual Behavior, Private Use and Fair Use, and the System for Copyright
4 Individual Behavior, Private Use and Fair Use, and the System for Copyright
Pages 123-151
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From page 123... ...
UNDERSTANDING COPYRIGHT IN THE DIGITAL ENVIRONMENT Earlier sections of the report note how the technology of digital information has vastly increased the ability of individuals to copy, produce, and distribute information, making the behavior of individuals a far more significant factor in the enforcement of IP rights than in the past. Yet we as a society apparently know relatively little about the public's knowledge of or attitude toward intellectual property.
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From page 124... ...
copyright laws do not apply; that posting content from a CD owned by an individual is not an infringement; that downloading sound recordings is not an infringement, and so on.2 As discussed in Chapter 2, the extent of the unauthorized copying of copyrighted material posted on the Internet and the apparent ignorance of the rules of copyright are particularly compelling in regard to digital music files.3 Other misconceptions concern print, graphics, or other visual content. Some of these are that if the purveyor of the illegal copies is not charging for them or otherwise making a profit, the copying is not an infringement; that anything posted on the Web or on a Usenet news group must be in the public domain by virtue of its presence there; that the First Amendment and the fair use doctrine allow copying of virtually any content so long as it is for personal use in the home, rather than redistri 1See, for example, |
From page 125... ...
The intuitive conclusion is that a relatively small portion of the end-user population can be expected to read and fully comprehend all of the restrictions regarding intellectual property protection by which they may be legally bound, and in that sense the public is not well informed about what constitutes legal behavior.5 The committee believes that if, as a matter of legal and social policy, members of the general public are expected to comply with the requirements of intellectual property law, then it is important that the law be set forth in a clear and straightforward manner that the general public can readily comprehend. At face value, those sections of the Copyright Act that relate most directly to the conduct of members of the general public can appear to be somewhat straightforward: the exclusive rights of the copyright owner embodied in section 106, the first-sale doctrine embodied in section 109, and the four factors to be analyzed and balanced in evaluating fair use under section 107.6 Much less straightforward is the interpretation of these sections in particular instances, which can be very complex and difficult (Box 4.1~.
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From page 127... ...
.9 This movement toward clarity and specificity must, however, preserve a sufficient flexibility and adaptability in the law so it can accommodate the future evolution of technologies and behaviors.l° It is important to note that making it easier to comply with the law does not guarantee improved compliance.ll 7u.s. copyright law is embodied in several key federal statutes the 1909 act and the 1976 act, amended by additional statutes from time to time, including, for example, the Digital Millennium Copyright Act of 1998 and the Copyright Term Extension Act of 1998, and interpreted by numerous decisions of U.S.
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From page 128... ...
Yet the fair use privilege in the Copyright Act clearly authorizes the reproduction of at least some limited portion of a copyrighted publication for legitimate purposes, including critical commentary, scientific study, or even parody or satire. In that respect the absolute nature of the prohibition above is an overstatement of the copyright owner's rights.
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From page 129... ...
Many members of the general public appear to believe that all or virtually all private, noncommercial copying of copyrighted works is lawful. In the national copyright law of a number of countries, there is a specific private use copying privilege.l2 In the United States, for example, some private use copies are shielded by specific exceptions in the copyright statute.
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From page 130... ...
Yet observed behavior suggests that the general public's views on private copying are closer to the Supreme Court's general pronouncement on private copying, rather than its precise ruling in the case. Among some rights holders, the Sony decision remains unpopular.
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From page 131... ...
Academic "private use" copying includes hand-copying of quotes from a book or article for research; photocopying of portions of a work for the same purpose; cutting and pasting from an electronic version of a work for the same purpose; making a copy of one's own articles in order to have a complete file of one's writings (a potential act of infringement if the scholar has assigned copyright to the publisher) ; making copies to send out to reviewers to enable them to assess one's work for tenure; making a copy of an article from one's own copy of a journal so that the copy can be carried into the laboratory and the journal itself kept from possible damage in the laboratory work environment; making a copy of an article to share with a colleague at another institution with whom one is working on a research project; making a similar copy for a graduate student who can't afford to buy his own copy of the journal; doing the same, but instead from a library copy of the journal; and developing an archive of materials on a subject for research purposes, just to name a few.
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From page 132... ...
Texaco case, Arguments That Private Use Copying Is Not Fair Use Some rights holders would argue that private use copying is not fair use. A legal argument in support of this position could be based on the fact that copyright law gives rights holders the exclusive right to control the reproduction of their works.
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From page 133... ...
To counteract the seemingly widespread view that private use copies are lawful, it may be necessary to establish a counterprinciple that private use copies are not lawful, and, as the argument goes, to use all means necessary within reason to regain control of commercially valuable properties. An important part of the argument that private use is not necessarily fair use is the position that fair use is a defense against charges of infringement, not an affirmative right possessed by members of the public.20 This argument maintains that the copyright law is clear in giving authors certain exclusive rights, subject to specific enumerated exceptions.
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From page 134... ...
The publicity from such a lawsuit would be a public relations nightmare. While publishers may again regard this as their business decision, as a practical matter, the public may sense that rights unenforced are rights abandoned.24 Some private use advocates also believe that what one does with a copy of a copyrighted work in the privacy of one's own home is simply none of the copyright owner's business.
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From page 135... ...
The Supreme Court's decision in Campbell v. Acuff-Rose recognizes that leaving some room for fair use is often necessary if copyright law is to achieve its constitutional purpose of promoting knowledge.26 Some copyright scholars regard fair use as such a strong right that it overrides contractual provisions or technical protection services aimed at eliminating fair use.27 Private Use Copying: The Committee's Conclusions This report cannot resolve the debate over private use copying.
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From page 136... ...
Progress would be made if members of the public at least considered the question of whether the copying they do is justifiable or not.28 The Future of Fair Use and Other Copyright Exceptions As with private use copying, diverse views exist about the future of fair use and other exceptions and limitations on copyright owners' rights in digital networked environments. The Intellectual Property and the National Information Infrastructure (IITF, 1995)
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From page 137... ...
Among those that could arise under the laws of the United States and some other nations are those that permit performance of copyrighted works in the course of face-to-face instruction in nonprofit educational settings; those that enable libraries and archives to make copies for preservation, replacement, and other legitimate purposes; and those that enable the creation of derivative works for the blind. It is worth noting that the Digital Millennium Copyright Act seeks to maintain an appropriate balance between the rights of rights holders and the needs of others and contains a provision to enable libraries and archives to make digital, as well as print and facsimile, copies for these purposes.
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From page 138... ...
Accolade case, which upheld the legality of unauthorized decompilation of computer programs for the legitimate purpose of developing a compatible but noninfringing program. As the Sega case demonstrates, competition policy issues may arise at times when information is in digital form.
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From page 139... ...
Whether they can be justified on de minimis grounds or are pure pork barrel politics is perhaps debatable. Better examples of de minimis or incidental uses for which special copyright exceptions have been created are those in the Digital Millennium Copyright Act, which provides some "safe harbor" rules for certain copies in the digital environment, such as those made in the course of a digital transmission from one site to another where the transmitting intermediary (e.g., a telephone company)
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From page 140... ...
The committee considers here whether the notion of copy remains an appropriate mechanism for achieving the goals of copyright in the age of digital information, exploring two reasons why it might not be.36 One reason is that so many noninfringing copies are routinely made in using a computer that the act has lost much of its predictive power: Noting that a copy has been made tells far less about the legitimacy of the behavior than it does in the hard-copy world. A second reason is that, in the digital world copying is such an essential action, so bound up with the way computers work, that control of copying provides, in the view of some, unexpectedly broad powers, considerably beyond those intended by the copyright law.
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From page 141... ...
In addition, the very fact that copyright law specifies the rights holder's exclusive control over performance and display, as well as copying, underscores the central role of copying as one mechanism for protection of intellectual property through copyright, not its goal. Note that in analyzing an act of unauthorized reproduction under current law, we need not ask what consequences that reproduction has for the rights holder in order to determine its legality; the law specifies an exclusive right to reproduction (within limits such as fair use)
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From page 142... ...
Code must be copied from the hard disk into random access memory in order to run a program, for example, and a Web page must be copied from the remote computer to the local computer in order to view it. More generally, in the digital world, access requires copying.
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From page 143... ...
In the digital world, then, reproduction of many sorts is a common, indeed technologically necessary, action with fundamental technical justification, frequently innocent of any infringement intent or effect. As making those technologically necessary copies is the means of gaining access to the work, such copying is in fact the fundamental mechanism by which a rights holder exploits the work in the digital world.
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From page 144... ...
First, in the digital world reproduction loses much of its power as a predictor of important consequences, and hence the question of whether a protected work has been copied may be considerably less important. Second, in the digital world control of reproduction is a blunt instrument whose impact reaches considerably beyond the original intent, bringing into question its use in accomplishing the goals of intellectual property law.
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From page 145... ...
copyright law that relate most directly to the conduct of members of the general public are reproduced in this addendum: the exclusive rights of the copyright proprietor embodied in section 106, the four factors to be analyzed and balanced in evaluating fair 39While this would be no small undertaking, the legal system has successfully struggled with such tasks in the past, as, for example, elucidating over time the distinction between "idea" and "expression." 40For example, committee deliberations on this subject were extremely intense.
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From page 146... ...
in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. 106A Rights of certain authors to attribution and integrity" (a)
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From page 147... ...
of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.
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From page 148... ...
with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work or of ownership of a convri~ht or of anv exclusive right under a copyright in that work. 107 Limitations on exclusive rights: Fair user Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use)
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From page 149... ...
, unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program) , and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program)
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From page 150... ...
(B) Not later than three years after the date of the enactment of the Computer Software Rental Amendments Act of 1990, and at such times thereafter as the Register of Copyrights considers appropriate, the Register of Copyrights, after consultation with representatives of copyright owners and librarians, shall submit to the Congress a report stating whether this paragraph has achieved its intended purpose of maintaining the integrity of the copyright system while providing nonprofit libraries the capability to fulfill their function.
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From page 151... ...
, as amended, "shall not affect the right of a person in possession of a particular copy of a computer program, who acquired such copy before the date of the enactment of this Act, to dispose of the possession of that copy on or after such date of enactment in any manner permitted by section 109 of title 17, United States Code, as in effect on the day before such date of enactment." The amendatory Act also states that the amendments made to section 109(b) "shall not apply to rentals, [easings, or [endings (or acts or practices in the nature of rentals, [easings, or [endings)
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