Originally delivered at University of London and Oxford University, England, February 3 and 4, 1997.
This paper is intended to examine some of the proposals recently ratified (and in one case, tabled) at the December, 1996 meeting of the World Intellectual Property Organization, or WIPO. WIPO administers the Berne Convention, the international copyright provisions currently in force in the US, the UK, and most industrialized nations. I'm going to be dealing primarily with issues of fair use, private use, and educational use; some of what I say will seem to apply to the U.S. only, but it doesn't: although domestic laws in the various Berne countries will doubtless add their own inflections to these proposals, the U.S. is currently driving the international agenda, and the WIPO proposals either originated with or were significantly extended by, the US Patent and Trademark Office.
I am not speaking to you as any kind of legal expert, nor as an expert in anything but the production and consumption of intellectual property; moreover, I am speaking from a distinctly partisan point of view. Nonetheless, I think the situation calls for partisanship, to offset the one-sidedness of the WIPO proposals; the stakes at this juncture are so high, and the potential ramifications so extreme, that I think neutrality would irresponsible. I apologize in advance, then, for my bias, my amateurism, and above all for the dullness of the topic at hand--treaties, legislation, bureaucratic white papers. The fact is that this dullness has provided very effective cover to date--so effective that most of us aren't very aware, or even aware at all, of what's going on.
What is going on? For our purposes, there are two areas of concern, which I will call copyright and databases. On the copyright front, according to Pam Samuelson, visiting professor of Law at Cornell and fellow of the Electronic Frontier Foundation,
your traditional user rights to browse, share, or make private noncommercial copies of copyrighted works will be rescinded. Not only that, your online service provider will be forced to snoop through your files, ready to cut you off and turn you in if it finds any unlicensed material there. [The Clinton Administration] regards digital technology as so threatening to the future of the publishing industries that, it argues, the public must be stripped of all the rights that copyright law has recognized - including rights of privacy. 
The specific provisions that Samuelson and others think will produce these effects are as follows (and here I am borrowing from Samuelson's definitions, interspersed with my examples):
--a new definition of copying, to include even temporary reproductions in random access memory.
The implications of this are actually fairly staggering: since you have to reproduce a digital work at least once every time you view it, whether it is viewed from local disk or across the network, this redefinition would provide a hook for a pay-per-use regimen that implies a charge every time you read or view a digital work, even if you have that work on local disk.
--a new "transmission right" for works in digital format, coming under the existing "distribution right"
At present, you are permitted to transmit a copyrighted work in digital form from one computer to another, as long as you have obtained the work legally and as long as you are not, by transmitting it, distributing the work to the public or performing it for the public. The new language concerning transmission would make every transmission an act of republication, so that even if you were moving a copyrighted work from one computer to another for your private use, you could be assessed a new charge by the publisher. You may think it unlikely that this transmission--or private reproduction in RAM, for that matter--could, in practice, ever be tracked or the charge assessed, but don't be too certain; more on that subject later.
--the elimination of "fair use" in copyrighted materials whenever a use might be licensed.
Under the kind of micro-payment schemes that one can easily imagine, and given the copyright tracking and management provisions we'll be discussing next, there is no piece of a copyrighted work so small that its owner could not imagine charging for it. Therefore, there is, in practice, no such thing as a right of fair use: a paragraph copied from an electronic journal, a statistic quoted from a database, would be something for which you could be charged, and if it were used without payment, that would be something for which you could be prosecuted.
--the elimination of first-sale rights (the rights that permit you to redistribute your copy of a work after the publisher's first sale of it to you)
First sale rights are what permit libraries to buy books and then circulate them to the public. If electronic forwarding of a work is both a reproduction and a transmission, and the first is a protected act of copying and the second an act of publication, first sale rights are doubly doomed with respect to electronic materials.
--new penalties against the falsification of "copyright management information," and new penalties for circumventing technological measures designed to protect copyright.
These provisions would make it a crime to interfere with copyright management schemes, by producing or by using software or hardware tools that could keep copyright owners from tracking your use of copyrighted material. This, in combination with the aforementioned extension of the "public" sphere of use into your home computer and your private reading, is stunningly panoptical. Most people don't realize that, even now, the web is a two-way mirror: you can see everything, but everything can also see you. If you doubt it, go to www.anonymizer.com and see what information about you, your location and business affiliation, etc., is announced by your browser to every server it meets. Cookies provide a means--primitive by comparison to what could be coming--to expand this capability quite a bit. Any software--software for encryption, anonymity, or other forms of privacy--that gets in the way of tracking your information consumption would be illegal, under these rules.
More on this later: suffice it to say that your online service provider (or university, or sysadmin) could be held liable for the storage or transmission of copyrighted material.
And on the database front? According to the presidents of the National Academy of Sciences, the National Engineering Society, and the Institute of Medicine, the tabled WIPO provisions (which could still be introduced in the next legislative session as US legislation, and which are still actively being investigated by WIPO experts groups), would: --Prohibit unauthorized extraction, use, or reuse of any database, or any substantial portion of a database (as defined by the database vendor), and effectively establish the basis for a pay-per-use system;
The authors of this letter of protest, addressed to the US Secretary of Commerce, go on to say:
While we certainly do not dispute the right of database compilers and vendors to obtain reasonable protection of their products, the proposed law fails to provide for any public-good exceptions, such as the fair use exemption traditionally enjoyed by the research and education communities for their limited use of copyrighted works. Database publishers would effectively obtain an absolute and perpetual monopoly in their data compilations, including preexisting data sets. The proposed changes would significantly inhibit researchers seeking to reuse and combine data for publication or for research (an especially acute problem for researchers using large, continuously updated observational data sets), as well as educators wishing to use portions of data sets for instructional purposes. The new law also would overturn a series of Supreme Court cases that limit intellectual property rights in the interest of free competition. 
The absence of a fair-use exemption in the database provisions is noteworthy, not only for the obvious reasons but also because it is an artifact of the sui generis nature of these provisions: the rights of protection proposed for database vendors are not subject to limitations or exceptions that would apply to copyright, such as fair use, because these new database rights are not derived from existing rights. They are, in short, new territory and a newly staked claim.
Players and Events:
Before going further, I want to provide some background on the players and the events to date. The December WIPO conference considered three treaty agreements:
The language of these provisions can be found at the US Patent and Trademark Office Web site, or at WIPO's web site. The first two of these provisions were introduced by the US PTO, and were approved by negotiators from 160 countries; these are the provisions I am referring to, collectively, under the heading of copyright. The third--the database stuff--was originally proposed by the European Union, was expanded upon in some respects by the US PTO, and was tabled, after considerable debate.
The US proposals have a pre-history worth mentioning: they were developed in the form of a White Paper by the Clinton Administration's Working Group on Intellectual Property Rights, a working group of the Information Policy Committee, a part of the Information Infrastructure Task Force (IITF). The Chair of the Working Group on Intellectual Property Rights was Bruce Lehman, the Clinton Administration's IP guru, and a former lobbyist for the information industry. The Working Group's recommendations were proposed as amendments to US copyright law, in legislation called the "National Information Infrastructure Copyright Protection Act of 1995." This legislation failed to pass the House, and it is--to say the least--an unusual move for the Clinton Administration to take its case to Geneva, in what amounts to an end-run maneuver. Its proposals (now ratified by WIPO) will come back to the Congress in the form of treaty legislation which the Congress cannot amend, but can only vote up or down. WIPO itself is the only body which could amend the language of these provisions, and that body meets about once a decade.
Why is the Clinton Administration so keen to prosecute the agenda of the information industry? According to the Lehman White Paper,
Recent studies show that the core copyright industries -- those that create copyrighted works -- represent an estimated $238.6 billion in annual contribution to the U.S. economy. Moreover, other related industries, such as those that distribute copyrighted works, account for an additional contribution of approximately $120 billion annually. Between 1991 and 1993, while the entire U.S. economy grew at an annual rate of approximately 2.7 percent, the core copyright industries grew twice as fast, at the rate of 5.6 percent. Furthermore, the employment generated by these industries grew at four times the annual rate of the whole economy in the period between 1988 and 1993. 
And who besides the US PTO favors the new provisions on copyright and databases? You guessed it: "the core copyright industries." The major proponents here act largely by proxy, through lobbying and trade organizations such as the Information Industry Association, whose members include (according to the New York Times) "Reed Elsevier, the owner of the online databases Lexis-Nexis and Westlaw, and major financial exchanges like the New York Stock Exchange and NASDAQ." Proponents also include some major entertainment companies (film and recording giants), some commercial publishers, and some information technology companies. At the same time, and especially as concerns the database provisions, there are a number of publishers, telecommunications companies, internet service providers, and other information and information technology interests who line up with the opposition, an opposition which also includes organizations such as the Library of Congress, the National Academy of Sciences, the National Academy of Engineering, and the National Education Association, among others. In the UK and Europe, the major organized opposition comes from ASLIB (The Association for Information Management), the European Council of Information Associations, and the European Copyright Users Platform [http://www.aslib.co.uk/ is a good place to start, if you're looking for more detail on the European side, and http://www.dfc.org/dfc/, the web site of the Digital Futures Coalition, is a good source of information on the US side; if you'd like to keep up with the ongoing debate on the database provisions, you can subscribe (in the usual listproc way) to email@example.com].
Perhaps the most important thing to note, in surveying the players and events that have led up to this point, is that the evolution of the Clinton Administration's Digital Agenda has been attended with very little public discussion, and even less consensus: as Duane Webster (et al.) noted in the Association of Research Libraries' letter to the Director of the Clinton Administration's Office of Science and Technology Policy, "There were no opportunities to comment upon the original U.S. proposal before it was formally presented to WIPO in May. In addition, there were no hearings on H.R. 3531 [the domestic legislative version of the EU database proposals, introduced in May, 1996]...." And while some stages (green papers, white papers) of these proposals were put up on the Web for comment, it is arguable that in this case the Web was used to simulate public discussion, while fora that would have imposed actual constraints and responsibilities were bypassed.
In the area of copyright, and especially in the proposed amendments which redefine the act of publishing (or transmitting), one can see a kind of reaction formation to computer networks and digital technology in general--as the Lehman White Paper put it, "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." The need for a change in the rules becomes apparent, according to Lehman, when we consider that fact alongside the current US Copyright Act, which clearly states "that 'any form of dissemination in which a material object does not change hands . . . is not a publication no matter how many people are exposed to the work.'" And finally, in the new copyright penalties and prohibitions, we can see a reaction to decisions such as United States v. LaMacchia, in which copyright infringement charges were dismissed because the defendant had no profit motive--he just wanted to give someone else's stuff away.
But in some very real sense, all of this radical upheaval in the established order of intellectual property rights is traceable to a single legal decision, Feist Publications, Inc. v. Rural Telephone Service. This 1991 decision involved a dispute between two directory publishers in Kansas; Rural Telephone refused to license its listings to Feist, a company which wanted to incorporate those listings into a larger directory; Feist used the listings anyway, and Rural sued them for copyright infringement. District and appeals courts found for Rural, but the Supreme Court held that Rural's directory listings were not entitled to copyright, and therefore there was no infringement.
Why is this decision so important? It wouldn't be, for an author of novels or poems, or for someone who writes software, or for many other kinds of content producers: its special significance was for database compilers, companies like Westlaw. Feist vs. Rural held, among other things, that:
Since facts do not owe their origin to an act of authorship, they are not original and, thus, are not copyrightable. Although a compilation of facts may possess the requisite originality because the author typically chooses which facts to include, in what order to place them, and how to arrange the data so that readers may use them effectively, copyright protection extends only to those components of the work that are original to the author, not to the facts themselves. This fact/expression dichotomy severely limits the scope of protection in fact-based works. 
This finding, obviously, threatens companies who publish factual databases, such as stock- exchange information, weather, sports scores, legal information, public record information, et cetera. Some of these companies are very large, and some are owned by media conglomerates which are very, very large. It is not at all difficult to read the database provisions of WIPO as a direct response to Feist vs. Rural, an attempt to establish the new, indeed the revolutionary, idea that facts could be someone's property.
Most of the issues involved here can, in some real sense, be traced back to legal, conceptual, and theoretical contradictions which originate in the oxymoron "intellectual property" itself, in its first term, intangible, ideational, even platonic, and in its second term material, tangible, and fungible.
I'd like to examine that phrase and its background for a few minutes. In the United States, the idea of intellectual property derives from the Constitution, which provides Congress with the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The purpose is to promote the creation of new knowledge: the mechanism by which this will be accomplished is the economic motivation that authors will have in owning, for a limited time, the rights to their discoveries. In short, a material inducement will be provided to encourage the production of an intellectual and spiritual good.
The Lehman White Paper, in one of its more absurd passages, reveals which side of this equation its attention is focused on when it proposes a Copyright Awareness Campaign, which would include modifications to the curriculum, described in part as follows:
Ball, Pencil, Idea. Ball, Pencil, Idea, Fact. Mine, mine, mine. This is very telling: it makes it absolutely clear that what's at stake is the economic goods, not the social good. Moreover, it makes it clear that the Digital Agenda, which sounds so bold and forward-looking, is really a rear-guard attempt to hold on to a notion of economic goods that is itself being undermined and perhaps mooted by the digital era.
It would be instructive to oppose to this idea of economic goods as property an argument made by John Perry Barlow, in "The Economy of Idea." Barlow subtitles this essay "Everything you know about intellectual property is wrong," and he opens it with an extended quotation from Thomas Jefferson, a figure often quoted on both sides of the intellectual property argument. Barlow's choice of a text is this:
He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. 
The message in this passage, and in Barlow's citation of it, is equally clear: an Idea is not matter but energy; it cannot be owned, and it isn't diminished by being shared. Barlow goes on to propose that
Digital technology is detaching information from the physical plane, where property law of all sorts has always found definition.
With physical goods, there is a direct correlation between scarcity and value. Gold is more valuable than wheat, even though you can't eat it. While this is not always the case, the situation with information is often precisely the reverse. Most soft goods increase in value as they become more common. Familiarity is an important asset in the world of information. It may often be true that the best way to raise demand for your product is to give it away.
In the physical world, value depends heavily on possession or proximity in space. One owns the material that falls inside certain dimensional boundaries. The ability to act directly, exclusively, and as one wishes upon what falls inside those boundaries is the principal right of ownership. The relationship between value and scarcity is a limitation in space.
In the virtual world, proximity in time is a value determinant. An informational product is generally more valuable the closer purchaser can place themselves to the moment of its expression, a limitation in time. Many kinds of information degrade rapidly with either time or reproduction. Relevance fades as the territory they map changes. Noise is introduced and bandwidth lost with passage away from the point where the information is first produced.
The economy of the future will be based on relationship rather than possession.... 
Even if we think Barlow is right, it would be dangerous to leap from the belief that this will be the economy of the future to the assumption that this economy is inevitable, whether or not we act in the present. One has only to look at the history of the telephone (for example, in the study with that title, by de Solla Pool) to understand that the evolution of technology and its impact on culture is usually determined by legal, cultural, and social forces that have little or nothing to do with the technology, its possibilities, or its limitations per se. If ours is becoming a global economy in which developed nations trade largely in informational goods, and if everything, sooner or later, becomes part of a database, then (for example) rules that allow large database compilers to control and charge for your access to and use of factual material will radically alter the way you can do research, the way news can be reported, the way education can be conducted.
Are there better solutions? There must be. To begin with, I think it would behoove us to return to some fundamental principles, and examine them carefully. If the purpose of copyright is to promote the creation of resources for the public good, and if economic incentives are the way to do that, then how might we structure the rules to accomplish that purpose, and use that mechanism, without giving an unfair advantage to the property "owner."
Clearly, a limitation of ownership in time is part of the solution, and has been since the beginning: after some period in which economic benefit can be reaped by the information producer, the information ought to enter the public sphere. This notion would, in fact, accord with Barlow's assertion that "in the virtual world, proximity in time is a value determinant." On the other hand, an endless regime of protection, such as the WIPO database provisions would allow, is a problem, because it prevents private goods from entering the public domain at any point along this timeline of diminishing value. Perhaps, too, we need to establish what would be a fair return--as a percentage of the investment, possibly. With continually developing resources, such as observational databases, a certain part of the data (probably the oldest) might become public property each year, in proportion to the cost recovered for the database as a whole. And even there, I would think a limitation in time should be in force, so that there is a term beyond which the database compiler, even if costs have not been recovered, cannot continue to restrict access to the data.
I'm sure we would all agree that computer networks and digital technology in general present new problems, and bring to the surface new contradictions, in the notion of intellectual property; I'm sure we would also agree that new circumstances sometimes require new rules and treaties and agreements. But I feel certain that no good law, no good treaty, is going to come out of a deliberative process that is rushed, secretive, and representative of only the largest commercial interests in the question. If nothing else is clear from the short history of the information industry and information technology, at least we do have plenty of evidence that large corporations have been unable to identify correct strategies for maximizing profit, much less the public good, in this rapidly evolving new economy.
There is more to be said, but I'm going to stop here, with a suggestion. You may recall a recent controversy in the US over the Communications Decency Act, which would have regulated obscenity on the internet. That legislation was actually passed by Congress and then overturned in the courts. The connection between the CDA and the rest of the Digital Agenda is arguably that both seek to prop up a property system that is grounded in physical space, and the physical control of goods. How so? Obscenity, as currently defined in US law, is a matter of local standards: what is obscene in Florida may be (and often is) just fine in Massachussetts. Regulating networked transmission and use of obscene material under a local-standards regime would have submitted network traffic to the same institutions of local, state, and federal commerce control that now exist to regulate traffic through space, and the transfer of physical goods. There are people, and I'm among them, who think that the CDA was less about obscenity than about trade and tariffs. All of these regressive legislative moves, the CDA and the new copyright and database provisions, represent, in my view, a concerted backlash by the established order, which sees its fundamental principle--the property system--threatened in the most fundamental way, by the shift from an economy of physical goods to an economy of virtual ones.
National Academy of Sciences Letter with regard to The Database Proposal [Back]
Bruce A. Lehman, "Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights" [Back]
Geoffrey Green, "Who Owns Facts Within Databases?" (New York Times, Cybertimes, January 14, 1997) [Back]
Joint Letter to Dr. John H. Gibbons, Office of Science and Technology [Back] [Back]
Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (1991) [Back]
United States Constitution, Article 1, Section 8 [Back]
Thomas Jefferson, in Writings of Thomas Jefferson, vol. 6, H.A. Washington, Ed., 1854, pp. 180-181. [Back]
John Perry Barlow, "The Economy of Ideas" (Wired 2.03) [Back]
Copyright 1997 by John Unsworth, all rights reserved
Document URL: http://www3.isrl.uiuc.edu/~unsworth/WIPOut.html
Last Modified: Monday, 01-Mar-2004 17:18:19 CST