NATIONAL INFORMATION INFRASTRUCTURE

BACKGROUND

Intellectual property is a subtle and esoteric area of the law that evolves in response to technological change.[1] Advances in technology particularly affect the operation and effectiveness of copyright law. Changes in technology generate new industries and new methods for reproduction and dissemination of works of authorship, which may present new opportunities for authors, but also create additional challenges. Copyright law has had to respond to those challenges, from Gutenberg's moveable type printing press to digital audio recorders and everything in between -- photocopiers, radio, television, videocassette recorders, cable television and satellites..[2]

Uses of computer technology -- such as digitization -- and communications technology -- such as fiber optic cable -- have had an enormous impact on the creation, reproduction and dissemination of copyrighted works. The merger of computer and communications technology into an integrated information technology has made possible the development of the National Information Infrastructure which will generate both unprecedented challenges and important opportunities for the copyright marketplace.

An information infrastructure already exists, but it is not integrated into a whole. Telephones, televisions, radios, computers and fax machines are used every day to receive, store, process, perform, display and transmit data, text, voice, sound and images in homes and businesses throughout the country. Fiber optics, wires, cables, switches, routers, microwave networks, satellites and other communications technologies currently connect telephones, computers and fax machines. The NII of tomorrow, however, will be much more than these separate communications networks; it will integrate them into an advanced high-speed, interactive, broadband, digital communications system. Computers, telephones, televisions, radios, fax machines and more will be linked by the NII, and users will be able to communicate and interact with other computers, telephones, televisions, radios, fax machines and more -- all in digital form..[3]

The NII has tremendous potential to improve and enhance our lives. It can increase access to a greater amount and variety of information and entertainment resources that can be delivered quickly and economically from and to virtually anywhere in the world in the blink of an eye. For instance, hundreds of channels of "television" programming, thousands of musical recordings, and literally millions of "magazines" and "books" can be made available to homes and businesses across the United States and around the world.[4]

The NII can provide access to rich cultural resources around the world, transforming and expanding the scope and reach of the arts and humanities. It will provide opportunities for the development of new markets for cultural products. It can broaden our cultural experiences through diversity of content, and increase our understanding of other societies.

The NII can support our education systems by, for example, linking students and educators in remote locations around the world. It can also improve the nation's health care systems by increasing public awareness of health issues, providing continuing education of health care professionals, and allowing patients to take a more active role in their own health care.

The NII can dramatically increase the opportunity for democratic participation in government. The Task Force has shown some of the potential in its work. For instance, the IITF Bulletin Board makes available copies of Task Force reports, testimony, speeches, meeting schedules and minutes, hearing notices, transcripts, and other documents related to the work of the Administration and opportunities for public participation.[5] The Task Force has also accepted comments from the public through the Internet and has conducted an on-line public conference.[6]

Individuals and entities that heretofore have been predominately consumers of works can now become authors and providers through the NII. It can put easier, more sophisticated communication and publishing tools in the hands of the public, increasing the ability to communicate with, and disseminate works of authorship to, others.

The NII can boost the ability of U.S. firms to compete and succeed in the global economy, thereby generating more jobs for Americans. It can spur economic growth. More than half of the U.S. work force is in information-based jobs, and the telecommunications and information sector is growing faster than any other sector of the U.S. economy. New job opportunities can be created in the processing, organizing, packaging and dissemination of the information and entertainment products flowing through the NII.

The NII can provide benefits to authors and consumers by reducing the time between creation and dissemination. It will open additional markets for authors. If authors choose to enter those new markets, it will provide a wider variety and greater number of choices for consumers, which should increase competition and reduce prices. The availability of these benefits is by no means assured, however. Authors are wary of entering this market because doing so exposes their works to a higher risk of piracy and other unauthorized uses than any of the traditional, current modes of dissemination. Therefore, authors may withhold their works from this environment. Further, even if authors choose not to expose their works to this more risky environment, the risk is not eliminated. Just one unauthorized uploading of a work onto a bulletin board, for instance -- unlike, perhaps, most single reproductions and distributions in the analog or print environment -- could have devastating effects on the market for the work.

Thus, the full potential of the NII will not be realized if the education, information and entertainment products protected by intellectual property laws are not protected effectively when disseminated via the NII. Creators and other owners of intellectual property rights will not be willing to put their interests at risk if appropriate systems -- both in the U.S. and internationally -- are not in place to permit them to set and enforce the terms and conditions under which their works are made available in the NII environment. Likewise, the public will not use the services available on the NII and generate the market necessary for its success unless a wide variety of works are available under equitable and reasonable terms and conditions, and the integrity of those works is assured. All the computers, telephones, fax machines, scanners, cameras, keyboards, televisions, monitors, printers, switches, routers, wires, cables, networks and satellites in the world will not create a successful NII, if there is no content. What will drive the NII is the content moving through it.

Ensuring consumer access to and enjoyment of both copyrighted works and new technologies is an attainable goal, and recent experience has confirmed this.[7] For example, the introduction of digital audio tape recorders recently posed significant problems for copyright owners. Congress responded to the increased threat of rampant unauthorized use with legislation that incorporated both technological and legal measures to protect the interests of both consumers and copyright owners.[8]

Advances in digital technology and the rapid development of electronic networks and other communications technologies raise the stakes considerably. Any two-dimensional work can readily be "digitized" -- i.e., translated into a digital code (usually a series of zeros and ones). The work can then be stored and used in that digital form. This dramatically increases: the ease and speed with which a work can be reproduced; the quality of the copies (both the first and the hundredth "generation" are virtually identical); the ability to manipulate and change the work; and the speed with which copies (authorized and unauthorized) can be "delivered" to the public. Works also can be combined easily with other works into a single medium, such as a CD-ROM, which contributes to a blurring of the lines that typically divide types of works and the rights and limitations applicable thereto.

The establishment of high-speed, high-capacity electronic information systems makes it possible for one individual, with a few key strokes, to deliver perfect copies of digitized works to scores of other individuals -- or to upload a copy to a bulletin board or other service where thousands of individuals can download it or print unlimited "hard" copies. The emergence of integrated information technology is dramatically changing, and will continue to change, how people and businesses deal in and with information and entertainment products and services, and how works are created, reproduced, distributed, adapted, displayed, performed, owned, licensed, managed, presented, organized, sold, accessed, used and stored. This leads, understandably, to a call for adaptation of -- or change in -- the law.

Thomas Jefferson stated:

Our task is to determine whether the coat still fits in this new information age. An effective intellectual property regime must (1) ensure that users have access to the broadest feasible variety of works by (2) recognizing the legitimate rights and commercial expectations of persons and entities whose works are used in the NII environment.

For more than two centuries, copyright law, with periodic amendment, has provided protection for an increasing variety of works of authorship. The most recent complete revision of the law -- The Copyright Act of 1976[10] -- was enacted in response to "significant changes in technology [that had] affected the operation of the copyright law."[11] The legislative history of the 1976 Act notes that those changes had "generated new industries and new methods for the reproduction and dissemination of copyrighted works, and the business relations between authors and users [had] evolved new patterns." [12]

We are once again faced with significant changes in technology that upset the balance that currently exists under the Copyright Act. Our goal is to maintain the existing balance.

Some assert that copyright protection should be reduced in the NII environment. The public wants information to be free and unencumbered on the NII, it is argued, and the law should reflect the public interest. Without doubt, this is a valid concern. Information per se should not be protected by copyright law -- nor is it. Facts and ideas from any work of authorship may be freely copied and distributed; the Copyright Act expressly excludes such information from the scope of the protection it accords.[13] The copyright law should also serve the public interest -- and it does. While, at first blush, it may appear to be in the public interest to reduce the protection granted works and to allow unfettered use by the public, such an analysis is incomplete. Protection of works of authorship provides the stimulus for creativity, thus leading to the availability of works of literature, culture, art and entertainment that the public desires and that form the backbone of our economy and political discourse. If these works are not protected, then the marketplace will not support their creation and dissemination, and the public will not receive the benefit of their existence or be able to have unrestricted use of the ideas and information they convey.

Others assert that technological advances justify reduced protection. Since computer networks now make unauthorized reproduction, adaptation, distribution and other uses of protected works so incredibly easy, it is argued, the law should legitimize those uses or face widespread flouting. This argument is not valid. Technology makes many things possible. Computer networks can be and have been used to embezzle large sums of money and to commit other crimes. Yet, these acts are prohibited by law. Simply because a thing is possible does not mean that it should be condoned.

Finally, there are those who argue that intellectual property laws of any country are inapplicable to works on the NII or GII because all activity using these infrastructures takes place in "Cyberspace," a sovereignty unto itself that should be self-governed by its inhabitants, individuals who, it is suggested, will rely on their own ethics -- or "netiquette" -- to determine what uses of works, if any, are improper. First, this argument relies on the fantasy that users of the Internet, for instance, are somehow transported to "chat rooms" and other locations, such as virtual libraries. While such conceptualization helps to put in material terms what is considered rather abstract, activity on the Internet takes place neither in outer space nor in parallel, virtual locations. Satellite, broadcast, fax and telephone transmissions have not been thought to be outside the jurisdiction of the nations from which or to which they are sent. Computer network transmissions have no distinguishing characteristics warranting such other-world treatment. Further, such a legal free-for-all would transform the GII into a veritable copyright Dodge City. As enticing as this concept may seem to some users, it would hardly encourage creators to enter its confines.

Nonetheless, content providers are currently experimenting with a number of business models in the networked environment, and it is already clear that a wide variety of such models may coexist. Some content providers will choose not to enforce all -- or any -- of their rights; others may change their business practices. For instance, some newspaper publishers are selling individual articles using electronic payment mechanisms, in addition to selling subscriptions and individual issues. Some software companies are making their "client" software freely available for individual use in an effort to increase the market share of their "server" software. Some hypermedia magazine publishers on the World Wide Web are choosing to give away their product but charge sponsors for advertising space. A number of information service providers are charging for the use of the search engines that add value to freely available public domain content.

Some content providers will not be motivated by any commercial considerations. For instance, certain scientific communities are working together to create archives of freely available electronic pre-prints on the Internet. The copyright law allows copyright owners to exercise the rights granted to them, to license their rights to others, or to give them away. Those creators who wish to dedicate their works to the public domain may, of course, do so notwithstanding the availability of protection under the Copyright Act. Nothing in the law prevents those who do not wish to claim copyright from waiving their rights and allowing unrestricted reproduction, distribution and other use of their works. Indeed, notices to that effect are not uncommon on the Internet.

The absence on the NII of copyrighted works for which authors do wish to exercise their rights -- fully or to some limited extent -- under the copyright law, of course, would not necessarily result in its demise. The Internet, for instance, could continue to serve as a communications tool and resource for Government, public domain and works of willing authors. However, unless the framework for legitimate commerce is preserved and adequate protection for copyrighted works is ensured, the vast communications network will not reach its full potential as a true, global marketplace. Copyright protection is not an obstacle in the way of the success of the NII; it is an essential component. Effective copyright protection is a fundamental way to promote the availability of works to the public.

Preserving the framework does not require, however, a dramatic increase in authors' rights, such as more limited or no further applicability of the fair use doctrine in the NII environment. Some have argued that because it may now be technically feasible to "meter" each use of a copyrighted work, and to charge a user a fee for the use, the concept of fair use has no place in the NII environment. They argue equally that other limitations on rights should be abolished or narrowed for similar reasons. The Working Group believes that weakening copyright owners' rights in the NII is not in the public interest; nor would a dramatic increase in their rights be justified.

With no more than minor clarification and limited amendment, the Copyright Act will provide the necessary balance of protection of rights -- and limitations on those rights -- to promote the progress of science and the useful arts.[14] Existing copyright law needs only the fine tuning that technological advances necessitate, in order to maintain the balance of the law in the face of onrushing technology. There must be, however, effort in three disciplines -- law, technology and education -- to successfully address the intellectual property issues raised by the development and use of the NII.

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Posted on 10/5/95
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