The Digital Dilemma Intellectual Property in the Information Age (2000) / Chapter Skim
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3 Public Access to the Intellectual, Cultural, and Social Record
3 Public Access to the Intellectual, Cultural, and Social Record
Pages 96-122
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From page 96... ...
The private interests of authors and publishers in creating and selling copies of works have coincided with the interests of members of the public eager to get access to the ideas, information, or expression in the works.1 Public access has not, however, been achieved solely by virtue of the incentives arising from the grant of rights to authors and the transfer of some of these rights to publishers; a number of other mechanisms have been at work as well. A variety of public policies promote access, including fair use, the first-sale rule, and the copyright registration requirement of depositing a copy in the Library of Congress; some of these accomplish their ends by placing limitations on the rights of authors and publishers.2 The emergence of organizations such as public libraries, universities, and cultural heritage institutions has also added significantly to public access, making a wide variety of works available, by acquiring them and making 1In Federalist 43, Madison wrote, "The public good fully coincides in both cases [patent and copyright]
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From page 97... ...
This intent is evident from the Constitution's grant to Congress of power "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." In United States v. Paramount Pictures, Inc., the Supreme Court's decision considered the purpose of this clauses The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.
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From page 98... ...
For example, U.S. copyright law, like the copyright law of many other nations, promotes public access by the "first-sale" rule, a limitation on the right of rights holders to control copies of their works that have been distributed to the public.
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From page 99... ...
The Supreme Court's decision in the Sony case cited public access concerns as favoring a fair use ruling about making copies of television programs for time-shifting purposes and about the impact of the ban on videotape recorders that certain motion picture studios sought.8 Finally, public access is also promoted by the limited duration of monopoly rights conferred under copyright law.9 Every copyrighted work eventually becomes part of the public domain, making the work even more widely accessible to the general public by virtue of its royaltyfree public domain status (e.g., books by Mark Twain, operas by Giuseppe Verdi)
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From page 100... ...
Licensing is a newer phenomenon for some other digital information products particularly for those traditionally delivered in physical form. An increasing amount of the information acquired by libraries, for example, is in digital form, and unlike print materials, which have historically been available on a sale-of-copy basis, digital materials are frequently available only through licenses.
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From page 101... ...
See CSTB (1998) for a discussion on pricing models for digital information.
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From page 102... ...
Will contracts simply override some of those considerations? Copyright law currently gives owners of copies of computer software the privilege to make back-up copies; can that privilege be taken away by a shrink-wrap license in the software package that says loading the software onto the computer means one has agreed to the license terms that expressly prohibit making a backup?
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From page 103... ...
to validate mass market licenses of computer information. It regards licenses or license terms as enforceable unless they were unconscionable at the time they were made.
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From page 104... ...
Many rights holders have high hopes that these systems will provide them with control over unauthorized uses, thereby enabling worldwide markets for a variety of digital information products to emerge and thrive on the Internet. And, indeed, without effective TPSs, rights holders may well choose to restrict greatly the availability of their most valuable digital content.
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From page 105... ...
The report of the Librarian of Congress on the impact of circumvention legislation, which will be published in the year 2000, is likely to be of considerable importance in addressing public access concerns raised by these systems.24 In summary, some people are optimistic about the prospects of technical protection services to enable far greater public access to copyrighted works than has ever been possible previously, and they view the 23Even if the circumvention of technical protection measures is deemed ultimately to be legal when done in pursuit of access and fair use, such access is then accorded only to those with the technical skill to circumvent effectively or the luck to be interested in content whose protection has already been circumvented. 24This report will presumably be written by the staff of the U.S.
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From page 106... ...
Policy intervention may prove unnecessary, if the market adjusts to provide broad access to consumers while still offering appropriate levels of technical protection. The New Information Environment Challenges Some Access Rules The discussion of the exceptions in copyright law for public access is important because there is reason to believe that the change to digital distribution could make a number of those exceptions less applicable and less effective.
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From page 107... ...
Whether published or unpublished, those facts and ideas are in the public domain and may be freely reused under copyright law. See for, example, Salinger v.
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From page 108... ...
This is important because copyright laws vary among countries. Suppose a citizen of the United States publishes an article on an AOL-owned (a U.S.
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From page 109... ...
Whether and under what circumstances each of these situations constitutes publication has significant consequences for public access to the information in the work, but deciding whether the work has been published may be difficult.3~ Thus, what appears to be a relatively simple distinction in the print world published vs. private becomes complex in the digital world, where the boundaries between public and private are blurred.
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From page 110... ...
Because databases are used globally and access via the Internet cannot easily be restricted to national users, continuing to pursue mutually acceptable international agreements that harmonize the IP protection of noncopyrightable databases is important. 33see Directive 96/g/E.C.
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From page 111... ...
Directive, although nothing has yet been enacted into law, because of the conflicting views among the stakeholders.34 The alternatives for IP protection of databases that have been advocated include de minimus changes to existing law, unfair competition/misappropriation models, sui generis models that are close to the E.U. Directive and provide strong property rights to the producers of databases, and the sort of technical protection mechanisms discussed in Chapter 5 of this report.35 The Information Infrastructure Is Changing the Distribution of and Access to Federal Government Information From the earliest days of our nation's history, Congress recognized its responsibility to inform the American public of the work of the federal government.
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From page 112... ...
Broad access and use of publicly funded information are substantially impaired when distribution agreements prevent or curtail distribution of information.36 For example, depository libraries can obtain the National Criminal Justice Reference Service CD-ROM for their collections but have to pay subscription costs for access to the Internet database that contains the actual reports.37 The response of government agencies has not been homogeneous because different agencies have different relationships and interests with respect to the various kinds of government information. Agencies vary in the extent to which they seek to protect the information that they generate in carrying out their task, with these differences arising from the nature of the responsibility of the agency and its relationship with the rest of the government, especially Congress.
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From page 113... ...
In general, there is far less precedent for viewing information from state and local governments as being in the public domain, and there is a correspondingly wide variability in policies and practices among jurisdictions. ARCHIVING OF DIGITAL INFORMATION PRESENTS DIFFICULTIES Historically, most of the materials preserved in archives are in printed form (including printed transcriptions of spoken words)
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From page 114... ...
. Preservation of these materials has been carried out for society by libraries, archives, and museums and similar cultural heritage institutions, frequently with public support and funding.
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From page 115... ...
Thus, although they had a huge public impact and were viewed by millions, therefore unquestionably qualifying as part of the social record, they were in effect never published and hence could be preserved only by their owners or by archives if their owners donated them to such institutions. Historically, copyright deposit has been another important factor in ensuring the archival availability of our cultural heritage, allowing the Library of Congress to amass an extensive collection of printed materials that it has been able to hold in trust for the nation.41 Sometimes, obtaining voluntary compliance with deposit rules proves difficult.
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From page 116... ...
These printed strips of still frames turned out to be the only extant copies of some early movies. As these works have moved out of copyright protection and into the public domain making them available to the public again as part of the nation's cultural heritage has been possible in the case of film, by turning the sequences of still frames back into film.
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From page 117... ...
One effort The Internet Archive is capturing wholesale snapshot copies of substantial portions of the Web (on what many view as very shaky copyright grounds) , which will undoubtedly become important archival records.46 Yet the data collection tools used by the Internet Archive to traverse the Web take weeks to capture a single snapshot; so, for some archival purposes, this method may not record forthcoming CSTB report of the committee on the Information Technology strategy for the Library of congress.
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From page 118... ...
In fact, the copyright laws have permitted limited copying for preservation purposes, such as the microfilming of books. For the first time, the DMCA permits digitization as a means of preserving printed materials; until the DMCA, digitization was generally considered reformatting, rather than copying, and thus outside of permitted action under the copyright laws.
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From page 119... ...
, they will surely find it difficult to obtain the economic support for doing so for a century or more if they cannot provide the benefits that were formerly available to society in terms of limited consultation under the doctrine of first sale.49 Intellectual Property and Archiving of Digital Materials Large-scale archiving of the cultural record requires resolution of two key legal issues the ability to make copies when migrating from one storage technology to another, and the ability to reformat, thereby creating derivative works when moving from one software technology to the next. But even if these issues could be settled, another issue remains: Libraries and similar cultural heritage institutions continue to be dependent on the framework of publication and first sale for the acquisition of most materials.
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From page 120... ...
In the digital world one must always go to the expense of sorting out and clearing rights, even for ephemera. In addition, is there a point at which a work becomes sufficiently public, even if not published in the existing legal sense, that it should become part of the collections of our cultural heritage institutions, to ensure both continuous availability to the public (at least on some limited basis, as libraries' holdings are available today)
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From page 121... ...
. Technical Protection Services and Archiving As indicated, preservation of digital materials is a difficult and far from fully solved technical problem, and technical protection services for intellectual property make this problem even more challenging.53 If a digital object can be read only through some type of proprietary, secure content-distribution software, this software must be migrated from one generation of hardware to the next; if the system really is secure, then the ability to preserve the content (even if legally permitted)
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From page 122... ...
This largely unforeseen consequence of the recent legislative endorsement of technical protection services may, in the long term, run counter to the public good of a healthy and accessible public domain (Lynch, 1997~. An assessment is needed to consider whether the requirements for disengagement of a TPS should be part of the legal and social constraints on the deployment of such protection services in the first place.
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