The Digital Dilemma Intellectual Property in the Information Age (2000) / Chapter Skim
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Executive Summary
Executive Summary
Pages 1-22
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From page 1... ...
Yet the very possibility of borrowing a book, whether from a library or a friend, depends on a number of subtle, surprisingly complex, and at times conflicting elements of law, public policy, economics, and technology, elements that are in relative balance today but may well be thrown completely out of balance by the accelerating transformation of information into digital form. The problem is illustrated simply enough: A printed book can be accessed by one or perhaps two people at once, people who must, of course, be in the same place as the book.
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From page 2... ...
will be created and published online if the entire market can be extinguished by the sale of the first electronic copy? The nightmare of consumers is that the attempt to preserve the marketplaces leads to technical and legal protections that sharply reduce access to society's intellectual and cultural heritage, the resource that Jefferson saw as crucial to democracy.
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From page 3... ...
Although the report builds on some past efforts, it takes a broader approach, analyzing the issues from the perspective of a multiplicity of relevant disciplines: law, technology, public policy, economics, sociology, and psychology. The committee strongly believes that attempts to consider digital intellectual property issues through a single lens will necessarily yield incomplete, and often incorrect, answers.
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From page 4... ...
With transmission speeds approaching a billion characters per second, networks enable sending information products worldwide, cheaply and almost instantaneously. As a consequence, it is easier and less expensive both for a rights holder to distribute a work and for individuals or pirates to make and distribute unauthorized copies.
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From page 5... ...
amount of literal copying has occurred. The "defense" view of fair use holds that the literal copying, while a violation of the original author's exclusive rights, is excused by fair use and its public policy goal (namely, that society benefits from authors building on and critiquing previous work, even if they have to copy a small part of it)
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From page 6... ...
ISSUES IN ACCESS TO INFORMATION Public Access Copying and Access In the digital world, even the most routine access to information invariably involves making a copy: Computer programs are run by copying them from disk to memory, for example (an act that some courts have ruled to be "copying" for the purposes of copyright law) , and Web pages are viewed by copying them from a remote computer to the local machine.
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From page 7... ...
Nor are they inherently public: Software enables finegrained control of access, making works as open or as restricted as the rights holder specifies, with considerable ability to fine-tune who has what kind of access. The information infrastructure also offers many options for distribution other than printing and selling copies, including distribution on electronic mailing lists, posting on a password-protected Web site, and posting on preprint servers, among others.
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From page 8... ...
Technical protection mechanisms currently being explored are similarly a two-edged sword. They make possible the distribution of some digital information that rights holders would otherwise be reluctant to release, but also have the potential for significant adverse impact on public access.
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Recommendation: Representatives from government, rights holders, publishers, libraries and other cultural heritage institutions, the public, and technology providers should convene to begin a discussion of models for public access to information that are mutually workable in the context of the widespread use of licensing and technical protection services. Archiving and Preservation The information infrastructure raises important concerns with respect to archiving and preservation.
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From page 10... ...
Conclusion: When commercial enterprises add value to basic data, the resulting products deserve copyright protection insofar as these products otherwise satisfy the legal requirements for copyright. Recommendation: As a general principle, the basic data created or collected by the federal government should be available at a modest cost, usually not to exceed the direct costs associated with distribution of the data.
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From page 11... ...
While the issue is applicable beyond the sphere of digital information, the risks to rights holders are especially acute when the information is in digital form. Some rights holders believe that nearly all unauthorized reproductions are infringements, while many members of the general public believe that virtually all private, noncommercial copying of copyrighted works is lawful.
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Publishers are unsure, for example, what their revenue models will be in the online environment and face the most fundamental of issues in the digital dilemma: How can they distribute digital information without losing control of it? Mechanisms for Protecting Intellectual Property Technical Protection Tools Technical protection tools include a wide variety of software- and hardware-based mechanisms that limit access to or use of information.
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From page 13... ...
Yet, as with any security system, perfection is not required for real-world utility: Existing technical protection mechanisms can protect digital information to a degree that keeps fundamentally honest people honest; this appears to be sufficient for a wide range of uses. The deployment of mechanisms also involves trade-offs that must be judged carefully: Adding a protection mechanism involves costs to the vendor (software development and maintenance)
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From page 14... ...
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. The experimental circumvention of technologies used to protect intellectual property is a common practice in the cryptology and security R&D community, one that enables the development of more efficient and effective protection technologies.
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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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Summary Protecting Intellectual Property Given the diversity of digital information products, from scholarly articles and single songs to encyclopedias and full-length movies, no single solution is likely to be a good match to the entire range, nor would it be useful to attempt to select just one: It would be as unreasonable to treat all IP as if it were an inexpensive, low-end product as it would be to treat it all as an expensive, high-value product. 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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17 The committee could not decide how extensive copyright education should be, who should conduct this education, or who should pay for it. However, the committee agreed that copyright education should focus on the basic fairness of the copyright law, should not be oversimplified, and should not be mandated by the federal government.
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Operation of Copyright Law in the New Digital Environment Digital technology enables the creation of new kinds of information products and services, which raises a multitude of legal issues. Digital repositories pose difficult questions about authorship, ownership, and the boundaries among protected works.
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The interaction of intellectual property law and contract law is likely to be of particular significance in the relatively near future, as licensing becomes a more common means of information distribution, leading to potential conflicts with the goals of IP law. Impacts of the Broadening Use of Patents for Information Inventions The long-term effects of the substantial de facto broadening of patent subject matter to cover information inventions such as computer programs, information design, and business methods (e.g., Internet business models)
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From page 20... ...
Such research should address how these views differ from one community to another, how they differ according to type of material, how user behavior follows user beliefs, and to what extent further knowledge about copyright law is likely to change user behavior. A series of careful studies would help in assessing how various groups of individuals perceive copyright, and aid in determining when the law is violated through lack of knowledge versus when it is violated knowingly.
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From page 21... ...
If intellectual property law is perceived as being so absolute in its prohibitions as to sweep within those prohibitions behavior that most individuals feel is not morally or ethically culpable, then even the more reasonable restrictions contained in the same body of law may be painted with the same brush and viewed as illegitimate. Conclusion: Public compliance with intellectual property law requires a high degree of simplicity, clarity, straightforwardness, and comprehensibility for all aspects of copyright law
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From page 22... ...
A FINAL WORD Intellectual property will surely survive the digital age, although substantial time and effort may be required to achieve a workable balance between private rights and the public interest in information. Major adaptations may need to take place to ensure that content creators and rights holders have sufficient incentives to produce an extensive and diverse supply of intellectual property.
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