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Pamela Samuelson's Critique of the NII Inteellectual Property Green Paper Part 1
From: David Farber <farber () central cis upenn edu>
Date: Tue, 27 Sep 1994 19:37:00 -0400
Legally Speaking: The NII Intellectual Property Report by Pamela Samuelson (to be published in the December 1994 issue of Communications of the ACM) In July 1994 the Clinton Administration's Working Group on Intellectual Property Rights issued a Preliminary Draft Report on Intellectual Property and the National Information Infrastructure[1]. This column reflects the principal comments I made about the Draft Report in response to a call for public comments on it. If the National Information Infrastructure (NII) is to achieve its potential as a channel for distribution of a wide range of creative works, says the Report, authors and publishers of those works will need reasonable assurance that their intellectual property rights will be respected. Digital networked environments pose particularly severe challenges for owners of intellectual property rights because digital networks make it so simple for members of the public to make multiple copies of those works and distribute them to whomever they choose at virtually no cost. Left unregulated, this activity would undermine the incentives of authors and publishers to invest in the creation and distribution of creative works, for the first distribution of a digital copy to the public would enable those who receive it to set themselves up as alternative publishers of the work, able to undercut the first publisher's price because they need not recoup any development costs. On this point, the drafters of the Report and I are in agreement. Where we principally disagree is about the wisdom of making certain changes to copyright law and about the Report's characterization of these proposed changes as "minor clarifications and changes necessary to modernize copyright law for digital networked environments. The Report recommends: (1) making digital transmission of a copy of a copyrighted work an act of copyright infringement; (2) abolishing the "first sale" rule for works distributed by digital transmission (this rule generally permits owners of copies of copyrighted works to redistribute their copies without the copyright owner's permission); and (3) making it an infringement of copyright to construct or distribute any device intended to circumvent copy-protection systems by which owners of the copyright might attempt to protect their work. As the remainder of the column will demonstrate, the Report misrepresents the current state of copyright law in several important respects. In particular, it overstates the extent to which current law favors publisher interests. It downplays the extent to which the changes it recommends would, in fact, bring about a radical realignment in the historical balance between publisher interests and the public interest in access to information products, pushing the law in a direction that would favor publisher interests to the detriment of the public interest. It would abolish longstanding rights that the public has enjoyed to make use of copyrighted works, rights that have been consistently upheld in courts and in the copyright statute. The Report is full of legalistic terminology that makes it difficult for members of the public to read and comprehend. As a consequence, it doesn't provide an adequate basis from which the public, including the technical community who reads Communications, can make an informed judgment about whether the public should accept this revised copyright law. The remainder of this column will translate the Report and its recommendations into plain English so that readers can understand what is at stake and why I question whether the Report's recommendations would be in the public interest. To put the point plainly, let me say that not since the King of England in the 16th century gave a group of printers exclusive rights to print books in exchange for the printers' agreement not to print heretical or seditious material has a government copyright policy been so skewed in favor of publisher interests and so detrimental to the public interest. AN EXCLUSIVE RIGHT TO BROWSE? Until the NII Report came out in July, no one had ever thought to declare that merely browsing a copy of a copyrighted work could be regarded as an act of copyright infringement. The copyright statute grants authors five exclusive rights (i.e., rights to exclude other people from doing certain things with their work): (1) an exclusive right to reproduce the work in copies; (2) to make derivative works of it; (3) to distribute copies of it; (4) to publicly perform it; and (5) to publicly display it. Unlike patent law, copyright law does not grant rights to control all uses of the protected work. On occasion, copyright owners have tried to persuade courts to construe the exclusive rights more broadly than Congress had clearly intended; courts have often rejected expansionistic arguments, saying that those who seek broader rights than the statute clearly grants should take their case to Congress. One respect in which the Report interprets copyright law more expansively than Congress has intended is in its statement that "browsing" a work in digital form is an infringement of copyright (unless authorized by the copyright owner). Neither browsing nor reading a work has ever been regarded as an infringement of copyright. When I go to bookstore or a dentist's office, I can browse a book there without infringing its copyright. If I thereafter buy it or another book, I can lend the book to a friend so he or she can read it. Neither of us has interfered with any exclusive rights of copyright owners. (Although I will have distributed a copy to my friend, this does not violate the exclusive distribution right because the copyright owner is generally entitled to control only the first sale of a copy to the public. My personal property rights in the copy I purchase override the copyright owner's interests in further distributions of that copy.) So what makes the drafters of the Report think that browsing and reading--or any other use, for that matter--of digital works should be regarded as copyright infringement? It is because, in contrast with printed works, works in digital form can only be browsed, read or used if the machine on which they are displayed makes copies of them. But rather than explicitly recommending that copyright law be amended to make all browsing, reading, and uses of copyrighted works in digital form into acts of infringement--a recommendation likely to be highly controversial--the Report takes advantage of an incidental property of digital works (that they need to be copied in order to be browsed or otherwise used) to assert that existing law already allows publishers to control all uses of works in digital form. This lucky happenstance makes it unnecessary for the drafters of the Report to mention that they are advocating a vast expansion of copyright scope. AN EXCLUSIVE RIGHT OF DIGITAL TRANSMISSION? The Report is more express in its endorsement of another expansion of the exclusive rights of copyright. It would give copyright owners an exclusive right to control digital transmissions of their works. To understand why such a right might be needed, it is necessary to realize that the present copyright statute grants copyright owners an exclusive right to "distribute copies...to the public by sale or other transfer of ownership, or by rental, lease, or lending." The Report would change this phrasing to add "or by transmission" after "lending" in the statute. The Report recommends this change because current statute is too focused on the distribution of physical objects and transfers of rights in physical objects. The term "copy," for example, is defined as a "material object[]...in which a work is fixed...." If the statute only gives copyright owners rights to distribute material objects, it may be ill-equipped to deal with digital transmissions, for they are distributions of bit streams, not of physical objects. Posed in this manner, the Report's argument for adding a provision that permits copyright owners to control digital transmissions seems quite plausible. Yet, by reading the Report as a whole, one might question whether an explicit digital transmission right is really necessary. The Report discusses two recent cases in which judges treated digital transmissions, such as up- and downloading software from a bbs, as violative of both the reproduction and distribution rights of copyright law. In truth, if the courts took the reproduction and distribution rights as literally as the Report sometimes does, it would be hard to argue that *any* digital copy infringes copyright since all digital copies are, by their very nature, immaterial. Despite the sophistical appeal of an argument that digital copies don't infringe because of their immaterial nature, courts have rejected such arguments. This too suggests that no statutory change may be necessary to give copyright owners the right to control digital transmissions. Before delving into a more subtle reason for questioning the desirability of the digital transmission right, I want to highlight another respect in which the Report takes a more expansive view of the exclusive rights of copyright than Congress intended. The Report endorses the conclusion of some relatively recent cases that digital copies "fixed" only in RAM infringe the reproduction right, notwithstanding language in the statute and the legislative history indicating that Congress intended to limit the scope of the reproduction right to those copies sufficiently permanent or stable to permit the work to be perceived or reproduced for more than a transitory duration. A legislative report about this provision gave as an example of a noninfringing reproduction the temporary display of images on a screen. Proponents of the view that RAM copies infringe copyrights argue that as long as the machine is on--and it can be on indefinitely--a copy of the copyrighted work stored there can be perceived or reproduced, thereby satisfying the "more than transitory duration" standard. (By this logic, holding a mirror up to a book would be infringement because the the book's image could be perceived there for more than a transitory duration, i.e., however long one has the patience to hold the mirror.) Applying the logic of these cases, the Report seems to view any digital transmission as an infringement of the reproduction right because of the copies made during the transmission as well as when the transmission arrives at its destination. This is a questionable interpretation of current law. The more subtle reason to question the need for and desirability of a digital transmission right is that it would change existing law far more than the Report admits. This change too would favor publisher interests over the public interest. To understand why, it is worth noticing that of the existing exclusive rights of copyright, the one that the proposed digital transmission right most closely resembles is the exclusive right on which broadcasters principally rely for the protection of their products. Broadcasters don't distribute physical objects; they transmit intangible information which the public can view with the aid of television and radio machines. Like broadcast television today, the NII may eventually be used to provide a wide variety of motion pictures and other programs to the public with the aid of satellite technologies. The NII Report invokes the image of a "celestial jukebox" by which consumers might order a particular movie which, with appropriate compensation to the holder of the copyright, could then be received by the consumer in the privacy of his or her home. Digital transmissions of copyrighted movies frequently violate two of the existing exclusive rights of copyright: those pertaining to public performances and public displays of copyrighted works. If these exclusive rights already provide a means for controlling many digital transmissions, surely it is fair to ask whether copyright owners really need a new exclusive right to control distributions by digital transmissions. Although the Report does not say so, its digital transmission right would rectify what copyright industries today regard as a very serious limitation on the scope of the rights current law gives to rightsholders. Copyright law does not grant owners rights to control all performances and displays of their works, but only *public* performances and displays of those works. (When you and I sit at home and watch a program on television, copyright law considers our viewing as a performance and a display of a copyrighted program. Because it is not a public performance or display of the work, this activity is not a copyright infringement.) The real purpose behind the proposed digital transmission right is to enable copyright owners to control *all* digital performances and displays of copyrighted works, without regard to whether they are public or private. Adoption of the digital transmission right would, in effect, repeal the public performance and display rights of copyright and replace them with exclusive rights to control all performances and displays of copyrighted works distributed in digital form. Had the Report explicitly recommended repeal of the public performance and display rights, its recommendations would provoke controversy. By seeking the repeal indirectly, the Report hopes to avoid this controversy. Perhaps a case could be made for such a repeal, but the Report does not make a persuasive argument on behalf of this vast expansion of the rights of copyright owners. To understand how fully the NII Report would limit public access to works in digital form, it is necessary to examine not only the proposed digital transmission right, but also the kindred proposals to abolish the "first sale" rule for works transmitted digitally and to ban devices aimed at defeating copy-protection schemes. Especially given the Report's highly constrictive view of the fair use doctrine, adoption of these three recommendations would dramatically change the historical balance of copyright law as between the interests of copyright owners and of the public.
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- Pamela Samuelson's Critique of the NII Inteellectual Property Green Paper Part 1 David Farber (Sep 27)