The Digital Dilemma Intellectual Property in the Information Age (2000) / Chapter Skim
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6 Conclusions and Recommendations
6 Conclusions and Recommendations
Pages 199-239
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From page 199... ...
Providing an appropriate level of access to digital IP is central to realizing the promise of the information infrastructure. Ensuring that this appropriate level of access becomes a reality raises a number of difficult issues that in the aggregate constitute the digital dilemma.
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From page 200... ...
One of the committee's key contributions is to urge an appropriately broad framework for use by policy makers, one that acknowledges the full spectrum of stakeholders and forces. The first two sections of this chapter focus on the implications for society and individuals that arise from the everyday use of the information infrastructure, with an emphasis on intellectual property that has been published in the traditional sense.2 The next two sections address research and data collection that are needed and near-term actions that can be initiated to help in getting beyond the digital dilemma.
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From page 201... ...
At least since the modern era of public libraries, broad access to a college education, and mass media, such information has become increasingly available. Yet there are aspects of the information infrastructure that, although vastly increasing access in some ways, also have the potential to diminish that access, which is a valuable component of our social structure.
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From page 202... ...
But the mechanisms for achieving this access and the definition of "limited degree" will need to evolve in response to the attributes of digital intellectual property and the information infrastructure. Consequences of the Changing Nature of Publication and the Use of Licensing and Technical Protection Services In liberating content from its medium of presentation, digital information challenges many long-held assumptions about copyrighted works, most notably those regarding the nature and character of publication.
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From page 203... ...
to confront the key problem that digital information seemingly cannot be distributed without the risk of large-scale copying and redistribution.6 TPSs offer rights holders some assurance that distributing a single copy of a digital work need not result in subsequent unlimited and uncontrollable dissemination. By enabling network distri 6Technical protection services are discussed further below under "Moving Beyond the Digital Dilemma: Additional Mechanisms for Making Progress" and in greater detail in Chapter 5.
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From page 204... ...
Conclusion: The confluence of three developments the changing nature of publication in the digital world, the increasing use of licensing rather than sale, and the use of technical protection services creates unprecedented opportunities for individuals to access information in improved and novel ways, but also could have a negative impact on public access to information. Developments over time should be monitored closely.
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From page 205... ...
Although the distinction between public and private may never have been crystal clear in the copyright regime, it has become far murkier in the digital environment. Conclusion: The information infrastructure blurs the distinction between publication and private distribution.
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From page 206... ...
Similarly, concerns related to free speech may arise if mass market licenses seek to limit criticism of a digital information product or disclosure of its flaws. Part of the intent of fair use is to encourage critical analysis; however, if works are licensed, there is currently no automatic fair use provision and hence no established foundation for criticism.8 Some committee members favor subjecting mass market licenses to fair use limitations, viewing fair use and other limiting doctrines of copyright as having an affirmative character i.e., as providing a right for users under copyright law, rather than solely a defense to infringement.
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From page 207... ...
These negotiations seem to have been reasonably successful thus far when carried out with scholarly publishers that share an interest with libraries, authors, and readers in ensuring that electronic publications will be archived. The likelihood of success is less clear with mass market publishers and content providers outside the print tradition (e.g., in the music industry)
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From page 208... ...
Conclusion: Significant economic, technical, and legal issues need to be resolved if libraries and archiving institutions are to be as successful with digital information as they have been with hardcopy information. Recommendation: A task force on electronic deposit should be chartered to determine the desirability, feasibility, shape, and funding requirements of a system for the deposit of digital files in multiple depositories.
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From page 209... ...
This committee does not have sufficient information to indicate what the congressional or total funding level should be, but wants to make clear its belief that the total funding needed is substantial; and · Evaluating other nations' strategies for the deposit and preservation of information and considering how a U.S. system could build on and relate to these other national efforts, recognizing that the creation and dissemination of digital information are global activities, and that preservation of content is thus a global problem.~° Preservation 209 Preservation within the context of the information infrastructure introduces new challenges.
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From page 210... ...
This migrating process goes beyond simple copying and might be construed as the creation of a derivative work, which will also need to be allowed under the law to enable preservation. Technical protection services may also pose difficulties for migrating or accessing archived digital information.
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However, in some parts of the government, the evolution of the information infrastructure has instead been associated with a trend toward the commercialization of government information, increasingly limiting the amounts of information that can be accessed inexpensively by the public. Broad access to and use of publicly funded information are inhibited when distribution agreements curtail the availability of information.
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From page 212... ...
Previous studies, some more than a decade old, have typically examined behaviors and attitudes of only narrow groups of people prior to the widespread use of the Internet.l4 Anecdotal evidence suggests that most people are not generally informed about copyright in the context of the information infrastructure; instead, myths and misunderstandings abound regarding what is legal and what is not. The committee believes that such misunderstandings extend to contracting arrangements as well.
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From page 213... ...
Although this issue is not unique to digital intellectual property, the ease with which digital copies can be made and distributed, especially in networked environments, makes private use copying far more extensive in the digital environment and a more significant problem for content owners. A second controversy concerns the viability of fair use and other limitations on copyright in the digital environment.
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This group would also advocate an extensive copyright education campaign specifically directed against private use copying. Technical protection services may also make private use copying more controllable than it currently is.
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Although the evolving information infrastructure changes the processes by which fair use and other exceptions to copyright are achieved, it does not challenge the underlying public policy motivations. Thus, fair use and other exceptions to copyright law should continue to play a role in the digital environment.
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Because ignorance regarding copyright law, the fundamental philosophy it embodies, and its intent may be a significant factor contributing to misuse of protected material, the committee believes that a copyright education program may prove quite useful. Promoting respect for copyright in the United States would lay an important foundation by educating society about some of the ground rules on which an information-based society is built and help ensure that inadvertent violations of law are not commonplace events.
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From page 217... ...
However, progress can be made, and, indeed, several avenues for moving forward have already been discussed in this chapter establishing a Task Force on Electronic Deposit, recommending changes to the law to facilitate the maintenance of digital archives, encouraging stakeholders to work together to develop mutually agreeable public access models for licensing and technical protection services, and increasing the use of copyright education. Additional means for progress are discussed in this section; the following section discusses the need for research and improved data.
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From page 218... ...
and the effort of users, who typically experience inconvenience in dealing with the system.l7 While this trade-off often results in a distributor's choosing a TPS of only moderate strength, such a solution is frequently entirely adequate and appropriate. Conclusion: Technical protection services need not be perfect to be useful.
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Conclusion: Robust, integrated technical protection services based on the vision of trusted systems using specialized hard 19The committee uses the phrase "trusted systems" as it is generally understood within the consumer technology market. "Trusted systems" also has a specific and different meaning within the U.S.
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Recommendation: Rights holders might consider using technical protection services to help manage digital intellectual property but should also bear in mind the potential for diminished public access and the costs involved, some of which are imposed on customers and society.22 Not every information product need be distributed by digital networks, given the availability of alternative mechanisms offering most of the advantages and fewer risks. High-value, long-lived products (e.g., classic movies like The Wizard of Oz)
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This variety of bright-line distinction may be of use in making consumers aware of and more respectful of IP rights. r cat Conclusion: Some digital information may be distributed more securely using physical substrates rather than by computer net works.
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But the provisions are also technically unsound in some respects and need to be refined to align better with standard practices in these fields and to allow decisions that are more pragmatic in the context of encryption research and computer security testing.24 Conclusion: More legitimate reasons to circumvent access control systems exist than are currently recognized in the Digital Millennium Copyright Act. For example, a copyright owner might need to circumvent an access control system to investigate whether someone else is hiding infringement by encrypting a copy of that owner's works, or a firm might need to circumvent an access control system to determine whether a computer virus was about to infect its computer system.25 Point of Discussion: Many members of the committee believe in the need to add to the DMCA an exception that would permit circumvention of access controls for "other legitimate purposes." This change would enable judicial discretion in interpreting exceptions to anticircumvention provisions, and would provide needed flexibility in the statute for dealing with legitimate circumvention activities not anticipated by Congress.
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~1~(ii) , which outlaw technologies having "only limited commercially significant purposes or uses other than to circumvent" technical protection measures.
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Recommendation: Rights holders should give careful consideration to the power that business models offer for dealing with distribution of digital information. The judicious selection of a business model may significantly reduce the need for technical protection or legal protection, thereby lowering development and enforcement costs.
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But making law or policy by focusing on those examples would be as inappropriate as creating the policy based on the segment of the market that gives away IP and sells auxiliary products or services. Conclusion: There is great diversity in the kinds of digital intellectual property, business models, legal mechanisms, and technical protection services possible, making a one-size-fits-all solution too rigid.
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From page 226... ...
Conclusion: The methodology employed by some trade associations in the analysis of data concerning illegal commercial copying produces high-end estimates of losses in gross revenue by these industries. Trade associations would make a more useful contribution to the debate if they revised their methodology so that their estimates better reflect the losses attributable to illegal commercial copying.26 Notwithstanding the methodological deficiencies in the reported information, the volume and cost of illegal commercial copying are substantial.
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The information infrastructure carries both promise and peril for intellectual property; the peril arises from the ability of the technology to make reproduction and transmission of information vastly easier, cheaper, and faster. This, in turn, substantially increases the difficulty of enforcing copyright law.
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Digital information leads to new kinds of information products and services, which in turn may require legal protection that is difficult to provide through traditional intellectual property law. Digital repositories pose difficult questions about authorship, ownership, and the boundaries among copyright-protected works (e.g., does the information stored on a firm's computer network qualify for protection in the aggregate, or does it consist of many works, some of which qualify while others do not?
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The dynamic and interactive character of digital information raises a host of questions about how the derivative work right of copyright law should be applied. At least one court has thus far taken a fairly narrow view of the derivative work right in the digital environment.30 But filtering, framing, "morphing," real-time language translating, and visualization by other than the rights holder are among the many uses of digital works that raise derivative work rights issues that have yet to be settled.
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From page 230... ...
The committee suggests above that the notion of copy may not be an appropriate foundation for copyright law in the digital age. Where digital information is concerned, legitimate copies are made so routinely that the act of copying has lost much of its predictive power: So many noninfringing copies are made in using a computer that noting that a copy has been made tells us little about the legitimacy of the behavior.
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The committee recognizes that this undertaking will be both difficult and controversial but suggests, nevertheless, that such an investigation is likely to prove both theoretically revealing and pragmatically useful. Content Creators and the Digital Environment The evolution in the information infrastructure presents both potential dangers and opportunities for individual authors of all varieties.
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From page 233... ...
THE PROCESS OF FORMULATING LAW AND PUBLIC POLICY 233 The committee has tried, wherever possible, to recommend specific legal and policy actions that will assist in dealing with the digital dilemma. But society is still in the early stages of the ferment brought about by the information infrastructure and still has much to learn about the multiplicity of forces that affect intellectual property.
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Conclusion: Law and public policy must be crafted to consider all the relevant forces in the digital environment. Initiatives that consider or rely on only one or a subset of the relevant forces are not likely to serve the nation well.
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New or revised intellectual property laws should be drafted accordingly. Conclusion: The movement toward clarity and specificity in the law must also preserve a sufficient flexibility and adaptability so that the law can accommodate technologies and behaviors that may evolve in the future.
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Major adaptations will also be needed to ensure that the important public purposes embodied in copyright law, such as public access, are fulfilled in the digital context. Considering the vitality of the participants, the committee is optimistic that workable solutions will be forthcoming in time.
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