IP: a summary from Pam Samuelson of her excellent article in

[Dave Farber <farber () cis upenn edu>]

Posted-Date: Mon, 4 Nov 1996 11:18:04 -0500
Date: Mon, 04 Nov 1996 08:17:58 -0500
To: Dave Farber <farber () central cis upenn edu>
From: Pam Samuelson <pam () sims berkeley edu>




Dave:


Here is an excerpt from the first monday article that gives its principal
point: 


        Underlying current initiatives for extending authors' rights in
cyberspace is a well-publicized perception that rightsholders currently feel
so insecure about copyright protection in cyberspace that they are unwilling
to make their works available in digital networked environments.  The U.S.
Working Group on Intellectual Property Rights of the National Information
Infrastructure (NII) Task Force report entitled "Intellectual Property and
the National Information Infrastructure" (Sept. 1995) (commonly known as
"the White Paper") is probably the most widely read document expressing this
view.  The U.S. White Paper argues for additional legal protection at both
national and international levels to overcome this insecurity and provide
needed inducements to publish works in cyberspace.


        There are several reasons to question the White Paper's assertions.  First,
it is simply not true that there is no content available in digital
networked environments.  The World Wide Web and the Internet are replete
with sites containing many megabytes of information which sitemasters wish
to share with other people.  While much of the information available on the
Internet today is free, creative people are managing to find ways to make
money even from free distributions of information on the Web.  The Hotwired
site, for example, makes considerable revenues from advertising.  And some
electronic publications on the Web are charging fees to users, often by
subscription charges.  The notion that the existing information
infrastructure for digital information is all empty pipeline awaiting
content is simply a myth.


        Second, even if some content owners may be holding back from distributing
content in cyberspace, there may be other reasons than insufficiencies in
copyright law to explain this.  Print publishers are, for instance, finding
it more difficult than they expected to retool both their technological
bases and their production processes so they can become effective electronic
publishers.  New business models for publishing in cyberspace only just
beginning to emerge.  Everyone is expecting some new models to be wildly
successful, but most publishers are content to wait until a more
enterprising firm has discerned the best way to make money in cyberspace
before they enter this new market.  


        Also yet to be developed are "microtransaction" systems that will enable
transactions for digital content for small amounts of money (i.e., under
$15) without undue transactions costs.  Moreover, until publishers, bankers,
and the general public have confidence that a truly secure means of payment
for delivery of or access to digital objects has been developed, there may
be a limited amount of commerce on the net, whether in digital objects
(i.e., content) or in physical goods.  Further complicating the development
of digital commerce are uncertainties that currently exist about some
contract rules for digital objects (e.g., when one orders digital content
through cyberspace, is that a "sale" of "goods" or a "licensing" of
"intangibles," questions that are significant because different consequences
currently flow from these different characterizations).


        Third, notwithstanding the earnest efforts of content owners and
policymakers to adapt existing legal regimes so that they will protect
authors' rights in cyberspace, a growing number of commentators suggest that
copyright law may not be able to protect authors' rights in cyberspace, or
at least may not be able to do so in the same manner as it has in the
physical world.  In his book Being Digital, Nicholas Negroponte, head of the
Media Lab at the Massachusetts Institute of Technology, has put the point
succinctly:  shipping bits (that is, works in digital form) is fundamentally
different than shipping atoms (that is, tangible embodiments of works, such
as books and CD's).  Negroponte is one of a number of technologists who
predict a dim future for copyright law.  He may, of course, be wrong in
asserting that copyright cannot work in cyberspace, but even the U.S.
Copyright Office has begun to realize that copyright law may, in time, need
to be substantially reconfigured to regulate the digital environment in an
appropriate way.


        Fourth, even assuming that there is some inadequacy in copyright protection
in cyberspace, the problem may not be the law as such, but rather
difficulties in enforcing legal rights already on the books.  At least three
factors contribute to difficult enforcement of authors' rights in
cyberspace:  (1) the ubiquitous availability of technologies that facilitate
rapid inexpensive copying and distribution of digital content; (2) the
global character of existing digital networks which renders the copyright
laws of each nation no more enforceable than its ability to control the
availability of its nationals' content on servers outside its borders; and
(3) the widespread public perception that private noncommercial copying of
protected works is not and should not be illegal.  None of these factors
will be affected by any legislative expansions of the rights of authors.
New legislation, therefore, may have some symbolic value to authors and
publishers, but as a substantive matter, it may accomplish next to nothing.


        Fifth, any insufficiency in the law or in enforcement of authors' rights in
cyberspace may be more than made up for by emerging technological means of
protecting digital works.  Adoption of technological means to protect works
against unauthorized use or to track down infringements may, in fact, mean
that authors' rights will become better protected in cyberspace than they
have ever been in the physical world.  Among the relevant emergent
technologies are digital envelopes, encypted signal streams, software
metering schemes, digital watermarks, and copyright management information
attached to digital copies of works.


        To safeguard technological protection for copyrighted works, the White
Paper recommended that Congress make it illegal to make and sell devices, or
to offer services, whose primary purpose or effect is to aid in the
circumvention of technological protection for works of authorship.  The U.S.
submission to the WIPO experts proposes a very similar provision for the
Berne Protocol.  Although the idea behind this proposal may have some merit,
the anti-circumvention provision proposed in the White Paper has met with
considerable opposition in Congress.  Among the concerns of industry
opponents is the potential for such a provision to be used to challenge the
sale of technologies whose developers had no knowledge or intent that they
would be widely used for illicit purposes, even though consumers might
choose to use them so.  Several organizations have proferred alternative,
more narrowly tailored provisions to regulate anti-circumvention
technologies, but consensus has not yet emerged about which is the best
approach.  


Prof. Pamela Samuelson
University of California at Berkeley
SIMS, 102 South Hall
Berkeley CA 94720
(510)642-6775
(510)642-5814 (fax)
pam () sims berkeley edu


"The significant problems we face cannot be solved at the same level of
thinking we were at when we created them."
        Albert Einstein