September 1994
This summer an intellectual property working group, chaired by Assistant Secretary of Commerce Bruce Lehman, issued an extensive preliminary report — a so-called “Green Paper” — calling for minimal changes in U.S. copyright law in order to provide greater protection for intellectual property traveling on the information superhighway. This working group is a part of the Information Infrastructure Task Force (IITF) which was formed by President Clinton in early 1993 to articulate and implement the administration’s vision for the National Information Infrastructure (NII).
The group’s stated premise is that the intellectual property laws are having difficulty keeping pace with technology. The present Copyright Act was intended to be highly flexible, but the group noted that “technology has a habit of outstripping even the most flexible statutes,” and therefore recommended several minor modifications.
The “Distribution Right”. The key concept the group proposes to add to the law is that of a “transmission.” The present law refers to copyright owners distributing “copies” of their works. However, a copy is deemed to be a material object, such as a compact disk, videocassette or book. In the world of the NII, a work, e.g., a computer program or multimedia work, can easily be transmitted from one computer to many other computers. The Green Paper recommends that the law be amended to expressly recognize this form of distribution, and that the right to transmit a copy of a work be limited to the copyright owner.
The “First Sale” Doctrine. Copyright law presently permits the owner of a lawfully made physical copy of a copyrighted work to sell or otherwise dispose of “possession” of that copy. For example, a book purchased in a book store may be freely resold, loaned or given to another person.
The Report recommends that the law be amended to exclude transmissions from this law, since transmission usually involves the creation of a new copy at the recipient’s end, not transfer of the original copy. This technical change to the law would make it clear that a user who obtains a copy electronically may not make further electronic distributions without the copyright owner’s express permission. Apparently, this would be the case even if the owner of a computer program wished to sell her copy and does, in fact, destroy her copy of the program following transmission to a third party.
This proposal obviously favors copyright owners. The same book that could be resold if purchased in a store is presumed not to be resalable if it is obtained on-line. In other words, transactions in which the user downloads a copy are presumed to be the creation of a copy (the distribution of which may still be controlled by the copyright owner), not the transfer of a copy.
Other Issues. The Report recommends outlawing devices and services whose “primary” purpose or effect is to break technological means of copy protection. It also suggests that it be made illegal to delete or alter copyright information that is digitally linked to a work. The biggest question expressly left open by the Report is how to protect information while allowing the public the same sort of “fair use” that it would get in a public library or school. The working group is expected to sponsor a conference to explore this question.
TLB Comment : The working group has taken a very narrow approach to the question of how the laws can accommodate and encourage the NII, fine tuning the copyright laws in only a few places. For example, it has ignored altogether the critical issue of whether and under what circumstances the owner of an on-line service might be liable for illegal material posted by a third party (e.g., infringing, defamatory or obscene material). The report has also ignored the question of how multimedia works are to be treated under intellectual property laws that were not created with their existence in mind.
We think that this “minimalist” approach is likely to prove inadequate given the technological changes that are sweeping the computer, communications and information industries. Nevertheless, it may be unrealistic to expect lawmakers to develop laws that will properly promote technological innovation and competition before some stability emerges on technical and political issues relating to both the National, and what is anticipated to become a Global, Information Infrastructure.