The Digital Dilemma Intellectual Property in the Information Age (2000) / Chapter Skim
Currently Skimming:
1 The Emergence of the Digital Dilemma
1 The Emergence of the Digital Dilemma
Pages 23-75
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 23... ...
The widespread use of computer networks and the global reach of the World Wide Web have added substantially to the information sector's production of an astonishing abundance of information in digital form, as well as offering unprecedented ease of access to it. Creating, publishing, distributing, using, and reusing information have become many times easier and faster in the past decade.
|
From page 24... ...
This action came in response to requests from industry executives such as Bill Gates, chairman and CEO of Microsoft Corporation, and Jack Valenti, chairman and CEO of the Motion Picture Association of America (Rogers, 1999~.
|
From page 25... ...
The emergence in the past 10 years of a new information infrastructure marked by the proliferation of personal computers, networks that connect them, and the World Wide Web has led to radical changes in how informational works are created and distributed, offering both enormous new opportunities and substantial challenges to the current model of intellectual property. 4Lord Mansfield in Sayre v.
|
From page 27... ...
That report, which provides good descriptive coverage of the relevant technologies and trends and some discussion of the pertinent economic and legal issues, identified trends but did not provide conclusions and recommendations. This report of the Committee on Intellectual Property Rights in the Emerging Information Infrastructure does not duplicate the detailed legal analyses of the IITF white paper or the extensive review of technologies in the Hardy report.
|
From page 28... ...
Three technological changes in particular the increased use of information in digital form, the rapid growth of computer networks, and the creation of the World Wide Webhave fundamentally altered the landscape and lie at the heart of many of the issues presented by the evolving information infrastructure. These changes, coupled with the emergence of the information infrastructure as a part of daily life, present significant legal, social, economic, and policy challenges.
|
From page 31... ...
Rights holders may seek to control access to digital information, because access involves reproduction. Readers may find their traditional access to information susceptible to control in unprecedented ways.
|
From page 32... ...
Information in digital form is largely liberated from the medium that carries it. When information is sent across networks, there is no need to ship a physical substrate; the information alone flows to the recipient.
|
From page 33... ...
The liberation of content from the medium has unsettling consequences for the protection of IP in digital form. Until very recently, intellectual works have been produced and distributed largely as analog works embedded in a physical artifact (e.g., printed books, movies on video tape)
|
From page 34... ...
Copyright law explicitly anticipates the sale of intellectual property products and, by the "firstsale rule," constrains a copyright holder's rights in copies of the work that have been sold. For example, the purchaser is free to lend, rent, or resell sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.
|
From page 35... ...
But there are also drawbacks, particularly the possibility that the terms of a license may be far more restrictive than the provisions for access normally granted under copyright's first-sale doctrine. To the extent that highly restrictive licensing replaces the sale of copyrighted works, society may be the loser, especially if the public policy goals embodied in copyright law are omitted from contracts.
|
From page 37... ...
may be viewable by many people simultaneously, but, unlike digital information, no viewer has control
|
From page 38... ...
As a consequence, digital information presents opportunities for access that are vastly greater than those presented by traditional media. Why Computer Networks Matter: Economics and Speed of Distribution Today, computers are routinely connected to networks that enable rapid, inexpensive distribution of information.
|
From page 39... ...
The issue has become real and pressing now as a consequence of the World Wide Web and rapidly growing amounts of information in digital form. 20The Web is of course considerably more interesting and powerful than the bulletin board metaphor conveys.
|
From page 40... ...
In the print world, publishers incur substantial costs in manufacturing multiple tangible copies of copyrighted works whether CDs or books and shipping them to various points in a distribution chain. Publishers have to pay for storage and display of tangible copies; there also may be costs in remaindering or destroying extra copies if too 2)
|
From page 41... ...
It is tempting to focus on the reproduction and distribution aspects of digital publishing where it is clear that there are very substantial reductions in the cost of publishing attributable to digitization. But the analysis doesn't end there; there is more to publishing than manufacturing, distribution, and storage.
|
From page 42... ...
In addition, it is relatively common for publishers to engage in dual publication, with one version of a work in print and one in digital form. This is necessarily more expensive than print publication only.
|
From page 43... ...
Works in electronic form on the Web may have none of these characteristics. Posting does not make them irrevocably available; they can be removed from scrutiny at the pleasure of the rights holder.22 Nor are they inherently public: Network access can be controlled to permit as restricted a distribution as the rights holder cares to enforce.23 Nor are they fixed: Old versions are routinely overwritten with new ones, obliterating any historical record.
|
From page 44... ...
It also means that when some type of technical protection is required, implementing a generic system that protects information across multiple-device platforms and applications may become increasingly difficult. For example, encryption, either in software or specialized hardware, offers only a partial solution to the problem of protecting information, because much of the information distributed digitally must be comprehensible to the viewer.25 Encryption can protect information on the way to and from the consumer and during storage.
|
From page 45... ...
A second factor challenging the balance arises from the transformation of the digital information infrastructure into a routine part of everyday life. In the United States, computers and the Web have become commonplace in work settings and are fast becoming a routine presence in households; what was once the province of corporations and research laboratories has become a broadly available capability.
|
From page 46... ...
These uncertainties become more acute as Web users become more informed about intellectual property issues and as they become more willing to try to obey the sometimes intricate law. A second consequence of the emergence of the information infrastructure into everyday life is that individuals find themselves capable of reproducing vast amounts of information, in private, using commonplace, privately owned equipment.
|
From page 47... ...
Now that the issues have emerged into the mainstream of daily life, the same complexities are being faced by people unprepared for them. Music offers one illustration of the complexity of copyright laws that consumers routinely encounter.
|
From page 48... ...
The response also demonstrates the frustration in the ordinary consumer's view of the distinction that can arise between law and perceived fairness. The consumer's attitude here may not be admirable, but it is not unusual and will continue to be a problem as long as the subtleties of intellectual property law intrude on everyday life and as long as those subtleties require difficult judgments.
|
From page 49... ...
Given that we can expect more technological change, additional issues will always arise. The core problem is not the individual issues, but the complexity of copyright law and the lack of a set of principles that are clear and comprehensible enough for the average person to apply them to the next new issue.
|
From page 50... ...
As noted, it is impossible to make any use of a copyrighted work in digital form without also making a number of temporary copies. Suddenly, the right to control reproduction of works would seem to encompass the right to control even
|
From page 51... ...
The questions raised by the growing use of the information infrastructure are also difficult because they raise the possibility of redistribution of economic power. For example, given the ease of reproduction and modification, authors are concerned about losing control over works that they make available in digital form.
|
From page 52... ...
may offer content producers and distributors the important ability to manage access to their intellectual property, but those mechanisms may also enforce restrictions on the use of content that do not align with the (limited) rights of authors specified in copyright law.
|
From page 53... ...
This contrasts with the legal and property view, which sees protection and enforcement as an issue of property and ownership rights. A second, sometimes counterintuitive economic concept used in this report is the notion of economic efficiency.
|
From page 54... ...
This is not to the benefit of the individual rights holder, but it is optimal from an economic cost-benefit perspective for society as a whole (though rights holders do of course need sufficient revenues to recover first-copy costs and costs associated with reproduction and distribution, in order to be willing to create and distribute the works to begin with)
|
From page 55... ...
When a Web server (the computer providing information) gets a request for some of its information, that request contains the Internet 30Doyle (1994)
|
From page 58... ...
32see, for example, |
From page 59... ...
THE EMERGENCE OF THE DIGITAL DILEMMA 59 (how it got that way) , and some understanding of legal context (i.e., how the statute fits into the collection of laws)
|
From page 60... ...
Chapters 3, 4, and 5 present detailed discussions of the major issues. Chapter 3 considers implications for public access and archiving of the social and cultural heritage, addressing the major effects the information infrastructure has on intellectual property and society.
|
From page 61... ...
ADDENDUM: THE CONCERNS OF STAKEHOLDERS The issues surrounding digital intellectual property addressed in this report derive much of their complexity from the varied nature of the stakeholders and the wide range of their concerns. This addendum provides additional background on the stakeholders to better illuminate IP issues.
|
From page 62... ...
Follow-on creation challenges for intellectual property protection are epitomized by digital multimedia works, which bring together visual images, sound recordings, text, programs, and other materials, rarely created completely de nova, or out of original material. Instead, they often weave together elements of previous works in a novel arrangement; some 35The concept of a continuing connection with creations for which rights have been transferred relates to so-called moral rights a concept honored in European intellectual property law though relatively new in the United states.
|
From page 65... ...
The first is the overhead cost of determining whether the existing material is copyrighted and who holds the copyright and then negotiating with that entity. The second component is the actual payment that must be made to the rights holder once he or she has been identified and the license negotiated.36 Developments such as rights clearinghouses, stock photo archives, and the like may greatly reduce the overhead costs (the cost of the clearinghouse operations can result in lower royalty rates to the artist)
|
From page 66... ...
· Legal uncertainty. Many of the legal issues surrounding content in the information infrastructure are unclear, and they are being settled slowly and haphazardly through case law.
|
From page 67... ...
Publishers have been moving to secure more control over the works they publish, given the severe uncertainty about the impact of digital media on revenue, including the effective value of existing content to which they hold rights, potential losses from experiments with new media, consolidation in media industries, and so on. It is generally understood that few publishers can accept agreements covering only print distribution, because digital distribution is increasingly a standard and essential part of their business.
|
From page 68... ...
Schools and Libraries Historically, schools and libraries have played two special roles with regard to public access to intellectual property. They serve as custodians for the cultural record, and they make intensive and integral use of a wide range of intellectual property in the course of teaching and supporting scholarship.
|
From page 69... ...
How is digital archiving to be organized and what rights does the library and archival community have pertaining to the archiving of copyrighted works?
|
From page 70... ...
Researchers are prolific producers of IP, which typically is published, sold, and distributed primarily by commercial publishers and professional societies, the business models of which depend heavily on existing copyright law. Technological changes challenge the viability of today's publication system through electronic publishing of journals, prepublished material ("preprints")
|
From page 71... ...
By contrast, most citizens have not seen themselves individually as IP producers or rights holders, a characterization that is changing as the Web enables many people to see themselves as suppliers of information (whether or not they regard it as "property" or appreciate the legal rights)
|
From page 72... ...
The circumstances that gave rise to this situation have changed, however, and the rate of change is increasing. Beginning with the development of inexpensive document copying in the 1950s and 1960s, copyright law emerged as a matter of direct concern to individual citizens.
|
From page 73... ...
Repackaging, adding value, and sale of some government information by commercial vendors raises questions about loss of information from the public domain. 46See Chapler 3 for additional discussion.
|
From page 74... ...
Private Sector Organizations Private sector organizations comprising for-profit companies and not-for-profit organizations use prodigious quantities of intellectual property in the course of their operations and, consequently, share with other consumers of IP many similar concerns already discussed, such as fair use and information integrity. In addition, private sector organizations, as visible targets for those who conduct IP enforcement programs,
|
From page 75... ...
Standards Organizations Standards organizations play an important role in the continuing evolution and health of the information infrastructure. They make extensive use of copyright to ensure control over their works, the integrity of these works, and the continuity of access to these works.
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.