Hearings On The Green Paper On Copyright

At hearings in 1994, members of the public were invited to respond to the Green Paper before a panel of members of the Working Group on Intellectual Property Rights. The meetings were held in Chicago (September 14), Los Angeles (September 16), and Washington, D.C. (September 22-23). The words of these people tell us more about the real meaning of copyright than the law itself or even the papers of the committee.

Speakers at the hearings represented a range of interests. Many were lawyers for industries or organizations that produce commercial intellectual property. The major online services of CompuServe and America OnLine spoke to the issue of carrier liability. A surprising number of musicians, composers and songwriters appeared on behalf of themselves and their fellow artists. At each hearing, one or more members of the library profession made an eloquent plea for public access.

There were also groups that were most notable by their absence. Schools were not represented. No producers of fine arts gave testimony. And no one appeared as a member of the general public. It's not surprising that these segments of our society were not present. The hearings were announced in the Federal Register and information about them was available at the Internet site of the Information Infrastructure Task Force. These are not sources that reach the general public, and it can be assumed that even if they did not many people would understand the importance of the changes being discussed. So the hearings were naturally populated by those with a professional interest in the topic.

There are three main groups of interested parties: the artists and creators of intellectual property; the companies whose products are intellectual property; and the public. The latter is spoken for by members of the library profession, other non-profit service organizations, and the occasional advocate for public access.

The quotes below are from transcripts of the hearings, which were made available on the IITF gopher site. The wording may be less eloquent than written pieces would have been, but the message is no less clear. The people quoted here were responding to the first draft paper from the Working Group on Intellectual Property. Very little, and nothing of substance, changed between the Green Paper (1994) and the White Paper (1995), which then became the guide for the actual legislation.

Concerns of Creators

Creators of intellectual property are authors, artists, musicians, playwrights, directors, and others. Their interest in the copyright law is as varied as the ideas they produce and they media they use.

Scott Turow, speaking for the Author's Guild, recognizes both the value of the NII to writers, as well as the potential dangers:

(1) Scott Turow/Author's Guild "The NII has every potential of being of enormous benefit to writers and authors, especially those of our membership who write non-fiction ... are highly dependent on research, and the breadth of the NII offers an opportunity to our members to do research that's both more comprehensive and quicker."

"The photocopying machine, notwithstanding the fact that whole books are seldom copied, still I think represents a device that's often used to circumvent author's rights and we would hope to see the NII structured in a way that doesn't allow those kinds of wholesale incursions into the rights of authors."

"Any step that would cut into the earnings that are really minimal for many authors would obviously imperil the cultural diversity that the NII itself both champions and benefits from."

But it is often not the artist who reaps the profits of her or his work. The intellectual property market is dominated by large companies that control the sale of those works. Some artists fear that the new benefits from the new technology will not be passed on to the creators:

(2) Thomas White/consultant, artists' rights "Every new opportunity created by technology underscores for creators, such as screen writers, actors, directors, musicians, singers, record producers, song writers, film score composers, lyricists, dancers choreographers, photographers and others, the reality that they will have little or no control with respect to how their artistic works or the excerpts or elements thereof will be used or exploited. And that they will obtain little or no money from the sale of their works in those new markets."

Still others are concerned about the role the online services can play in copyright infringement:

(2) William Daniels/journalist, entertainment industry "I accept CompuServe's argument that it cannot act as a gatekeeper of its own system. And I believe that if CompuServe and systems like that aren't held to account for the content in some fashion that they are distributing for a profit, we risk creating essentially electronic, not really free ports, but more like no copyright zones."

Artists in the performing media earn their primary revenues from performance royalties, not from sales. For textual works, a digital transmittal would be like the sale of a book. The same digital transmittal of a sound recording could be either a sale or a performance. For musicians and songwriters, this is a difference that will determine if they can earn a living from their work:

(1) Pat Rogers/Executive Director of the Nashville Songwriters Association "... the average songwriter depends upon performance royalties to feed and clothe his or her family." "Royalties for the right of reproduction... cannot substitute for performance royalties. Songwriters have come to depend upon the concept of continued payment for continued use."

(1) Julie Gold/Songwriter "I depend entirely upon my songs for my income. The vast majority of that incomes comes from my performance royalties. In order to keep writing I rely upon the fact that I'll receive royalties on a consistent and regular basis every time my songs are performed anywhere in the world."

One of the differences between the copyright law of some European countries and U.S. law is that of "moral rights." Moral rights, not recognized in this country, protect the integrity of the artistic product even when copy rights have been sold. For example, under moral rights it probably would not be possible for the current copyright owner to colorize a film originally shot in black and white. In the world of digital media, modification of a work is much easier than it was in the past. For this reason, some artists expressed concern that moral rights were not added in this revision of the copyright law:

(2) Glenn Gumpel/Director's Guild of America "... we are greatly troubled by the tone and tentative conclusions of the report in regard to the issue of moral rights. In our view the draft report shows a disregard for artist's rights, while focusing entirely on ways to facilitate economic rights."

(3) Janel Hurrell/Author's Licensing and Collecting Society "It is disappointing that more emphasis is not given to moral rights in the paper. In the digital environment, the right of integrity is under severe threat. It is not only a threat to the integrity of the creator of an artistic work, but equally to the integrity and authenticity of scientific writers."

Commercial Concerns

By far the greatest number of speakers came from the commercial producers and sellers of intellectual property. These are generally not the artists or writers but the publishing companies and media companies that market the works of others. There is no question that it is this segment of the intellectual property industry, not the creators themselves, where the greatest economic gains are made. Most creators sign over their rights to publishers and distributors who have the means to manufacture and market their works. As George Vradenburg of Fox, Inc. put it:

"... our laws encourage the private transferability of the rights of copyright.... The ability of individual rights holders, be they directors, writers, performers, musicians or literary authors, to convey by contract their economic and other rights to a single rights holder creates, I think, a system of tremendous value and flexibility. The value to the individual artist, who can sell all the fruits of his creative labors, or her creative labors, to others better able to exploit the values in his or her creation."

In general, the members of this group had a very positive reaction to the increased protection that these changes in the copyright law would provide to works transmitted online. They made a strong case for the economic benefits of the changes:

(2) George Vradenburg/Fox, Inc. "... the United States copyright industries are one of the healthiest and fastest growing sectors of the American economy. In 1991 the core copyright industries accounted for over $20 billion in revenues, 3.6 percent of the gross domestic product. In recent years those industries have grown at close to three times the rate of the economy as a whole. Total copyright industry employment in 1991 stood at close to five percent of all U.S. employment. And those industries delivered in $40 billion in foreign sales, a performance exceeded only by the aerospace and agricultural industries."

(2) Mary O'Hare/Executive Committee of the Intellectual Property Section of the State Bar of California ".. the work of the Working Group cannot be seen by others in government as a nuisance, a side issue, or an afterthought in the debate concerning the building of telecommunication systems and information infrastructures. If our government institutions still remember, and can resurrect that sign saying, it's the economy, it may be appropriate to put right under it one reading, and intellectual property is the key."

(1) Priscilla Walter/law firm of Gardner, Carton & Douglas, Chicago "...I also very strongly agree with the report's statement that the potential of the NII will not be realized if the information and entertainment products protectable by intellectual property laws are not protected effectively when disseminated on the NII....I can certainly assure you that my clients will not continue to invest the millions they are now investing in building networks and developing entertainment and information products to be disseminated over them if they believe that they will not be able to protect that distribution or earn a fair return on their investment."

Jack Valenti explained to the panel that what would really make or break the NII was not the hardware, but the content, and that the creation of content will require large investments that must be protected:

(3) Jack Valenti/Motion Picture Association of America "... people don't buy wires and digital and head ends and all of the technology in its arcane form. What they buy and subscribe to and want to have come into their home is programming that they want to see, when they want to see it. Now there is no question that programming arises from creativity, and creativity's life is nourished by copyright....And I think that it is a given that huge private investments are going to be required to give shape and form to this highway or this infrastructure.... But no one is going to invest any private money in something that they think they are not going to get some kind of a worthy return. And that means that copyrighted programs ought to be and must be protected in the fullest sense of the word, which this Green Paper underscores very staunchly, I must say."

There was general agreement on the need to exempt transmitted works from the first sale doctrine:

(1) Scott Turow/Author's Guild "... it seems clear that the amendments that are proposed in the Green Paper to the Copyright Act are sensible and necessary, especially the making of transmissions, something that falls within the exclusive rights of copyright owners and making transmission an act of publication and making transmissions something not covered by the first sale doctrine. For the same reasons we support the enhanced technological controls."

Some of the speakers found themselves at odds with the Internet culture of free and open exchange. To be sure, the commercial world of information is very different to that of the university environment that originally built the Internet.

(1) Robert Thompson, Professor of ethics at the Owen Graduate School of Business, Vanderbilt University. "...the word information connotes a certain free as air, free as water connotation to the average person. In that regard I might humbly suggest that some consideration be given to reformulating this process and perhaps even calling the highway the intellectual property network, or IPNET. ... The reason I say that is to educate the general public to the fact that what they will be accessing through this technology is in fact property, private property in some cases."

(1) James Schatz/West publishing "West commends the Working Group's timely recognition that a strong and continuing education program at every educational level is necessary to reverse the present and growing attitude of many citizens that works should be free for the taking in the electronic environment."

(1) Edward Massie/President and CEO of Commerce Clearing House "We're concerned about the use of metaphors for the NII such as information highway, digital library or universal service, that imply that all of the information available might be free."

(2) Robert Simons/Dialog Information Services "The bad news is, of course, being college students to a large extent, they believe that if it comes from cyberspace it therefore must be free and unencumbered. I myself am not that far out of college, a few decades, but I had very similar views when I was young as well, until I was married and had a family and a mortgage."

Some speakers see libraries as a threat to their copyrights:

(1) John F. Dill/Chairman and CEO and President of Mosby Year Book Incorporated "The dissemination of knowledge is the essence of publishing. There is no other reason to publish or to make public an author's work than to accumulate and refine the world's knowledge base. No publisher wants to restrict that flow of information. We have a responsibility, however to our authors to insure that the fruits of their labor are protected."

"Recent years however, have seen an increasing number of document delivery devices improperly labeled inter-library loans. The unauthorized transmittal of copyright materials between libraries threatens the very foundation of journal publishing in particular. The NII will provide a convenient relatively inexpensive means for libraries to continue and even expand this practice. We believe that the final report must address this issue and provide appropriate protection for the publishing community and the authors it serves."

Others are concerned about competing with government publishing:

(2) Robert Simons/Dialog Information Services "Under the guise of being enticed by the potential for revenues, we're quite concerned about the potential within the government to get into the retail information business, which we do not believe is a fundamental government role in this country."

The online services, such as America OnLine and CompuServe are concerned not about the issue of copyright infringement but about their potential liability for the infringing activities of their customers:

(3) Ellen Kirsh/America OnLine, Inc. "The strict liability standard has been imposed on print publishers of copyrighted materials, whether or not the publisher intended to infringe or had knowledge of the infringement. However, print publishers have the opportunity to review what they publish in advance of publication. This is not the case for o-line service providers. Our medium is interactive and participatory in real time. We have no means of knowing what will be made available on our services until it is posted there. ... We are simply not publishers. We are something new and different from anything that we have known before."

(3) Allan Arlow/Computer and Communications Industry Association "... the authors [of the Green Paper] seemed to suggest that mere transportation of works across the NII should trigger either direct infringement liability or the requisite knowledge for contributory infringement liability. We are very concerned about the implications of such a position, if that is indeed the case, because some NII service providers may be mere passive conduits, simply acting as a pipeline through which works travel under the command of subscribers or users."

The ability of information seekers to browse was threatening to some:

(1) Edward Massie/President and CEO of Commerce Clearing House "... we note the report applies the notion of fair use to electronic browsing rather more broadly than we would like."

(2) William Barlow/Times-Mirror Company "But I think that we want to make clear though that when you have public access that does not mean free access....And I think that one of the concerns we have is we have newspapers. And nobody prints out a newspaper, they don't reproduce it. If we send it over on-line and make it available, people are going to browse that issue. And I don't think that, given the nature of our products, magazines, newspapers, that browsing should be something that would be a fair use... we want to make it clear that fair use is an area where private usage does not equate to public use and public access."

There was some recognition among the attendees that copyright is only part of the story. A great deal of intellectual property use is governed by contracts and licenses rather than copyright.

(1) Priscilla Walter/law firm of Gardner, Carton & Douglas, Chicago "Although copyright offers very significant protection for content providers, many of our clients rely very heavily on contract, certainly to establish the terms of their licenses. Contract rights are especially important for those of our clients whose products contain primarily facts or otherwise non-copyrightable materials. After the Feist v. Rural Publications case, such clients rely almost totally on contractual protection."

(2) Lorin Brennan/American Film Marketing Association "... there are two general models of licensing, what we would call per user licensing and per use licensing. Per user is a hard copy business. You hand someone the software program or a record. You don't care how many times they play it or that they use it because you're looking at the user to license the works. The motion picture business is based on per use licensing. Every public performance has a different use. you go in to see a movie a second time you pay a second ticket."

Many speakers expressed strong support in the development of copy protection technologies:

(1) Priscilla Walter/law firm of Gardner, Carton & Douglas, Chicago "The technical developments addressed by the report, including access control, digital signatures and copyright management systems, will all be important to make electronic contracts practical. The role of the federal government should, in my view, be to encourage and to create an environment for the development of such technologies."

Speakers not only applauded the committee's proposal to make defeating of such technologies subject to criminal penalties, some wished to see those penalties expanded:

(1) James Schatz/West publishing "West believes that the Working Group should carefully consider making such actions criminal infringement under Section 506(a) of the Copyright Act..."

(1) Charlotte Gibberman/Tribune Company "We could like to see the prohibition of the importation of copyrighted works by electronic transmission without authorization and to insure that these laws are enforced effectively...Our concern is the hacker, the weekend user that may not rise to the level of fraud but certainly interferes with our work, and we would like to also see some sort of law, some sort of remedy that we can use against those people."

Not everyone is at ease with the coming digital age. This speaker expressed his fears about the future of the intellectual property industry:

(1) Edward Massie/President and CEO of Commerce Clearing House "First, we're concerned about the technical ease of fast, clandestine conversion of printed works to digital format without authorization of the copyright owner. Second, we view the electronic network environment as one that makes it easier than ever for information shoplifters to operate and more difficult than ever to identify who they are. Third, we believe [in an] information on demand world, but we see no means to electronically create a binding contractual terms and conditions by which intellectual property rights are currently protected. Fourth, we are unsure how the NII will permit copyright information to travel with copyrighted data and how its legal underpinnings will deter tampering with such information."

Others have already embraced the online world, and are proud of their role in its development:

(2) Robert Simons/Dialog Information Services "... we believe that we actually were helpful in blazing the trail and cutting down the trees over which the highway will be paved in the near future."

Concern for Public Access

Public access advocates feel the proposed changes to the copyright law threaten our information democracy. No one denies that the changes would provide greater protection for digital works than they now have under the law. Where access advocates and commercial marketers differ is in the former's belief that the public has a right to equal access to information, regardless of one's ability to pay.

(3) Robert Oakley/American Association of Law Libraries "Libraries are essential to the American democratic society where education and learning are available to all, not just to an aristocratic elite. This idea that anyone in American can get the information they need simply by going into a library is threatened by the kind of technological controls over information now being developed and discussed at length in the draft report. If implemented, these controls will potentially give copyright owners a complete monopoly, allowing them to dictate who will have access to information and on what terms. Gone will be any notion of fair use. Gone will be libraries serving the community. Gone will be a society without an information elite. In its place we will have a society where users who can afford to pay will pay by the screenful."

Probably the most common theme of those who spoke for the public interest in copyright law was the need to preserve a balance between the rights of copyright owners and the right of the public to have access to information. For many, especially the representatives of the library profession, the proposed changes to the copyright law puts that balance in jeopardy:

(1) John Berry/University Library, Univ. of Illinois at Chicago "The real genius of the United States copyright law, we feel, is that it balances the intellectual property rights of authors, publishers and copyright owners with society's need for the free exchange of ideas....The preservation and continuation of these balanced rights in an electronic environment are essential to the free flow of information and to the development of an information infrastructure that serves the public good and the public interest."

(2) Gloria Werner/Association of Research Libraries "First of all, the need to retain a balance, and I want to underline the word balance, of interests between the rights of copyright owners and users... We believe that the Working Group's interpretation of transmission, and the related recommendation, is troublesome. The recommendation that all transmissions fall within the exclusive distribution right of the copyright owner would greatly expand copyright owner rights as they now exist and would limit current and acceptable practices that we now experience throughout the libraries of the country."

(3) Jessica Litman/Professor of Law, Wayne State University "Copyright rights are limited because the system is designed to benefit all of us in a variety of creativity enhancing ways. My basic objection to the draft report is that, as I read it, it does not seek to preserve that balance."

One aspect of this loss of balance is in the assumption in the report that electronic transmission cannot support the first sale doctrine:

(3) Gary Shapiro/Electronics Industries Association & Home Recording Rights Coalition "Electronic purchasing and distribution of copyrighted materials may supplement or ultimately replace traditional sales channels such as record and video stores. The methods of delivering books or movies to the consumer should not determine whether they are covered by the first sale doctrine."

(3) Alfred Willis/Art Library Society of North American "... we agree that the recommendations made in this report with respect to copyright of works distributed by transmission must be reconsidered because they are skewed in favor of copyright holders without simultaneously granting limitations to balance reliably the purely financial interests of those holders with the interest of the public at large. ... Publishers should be able to make a reasonable return on the first sale of material published by transmission without depriving readers and many authors the benefits deriving from subsequent distributions essentially from the first sale doctrine as it operated in the print environment."

Professor Jessica Litman interprets the copyright law as giving some specific rights to users as well as the rights clearly assigned to owners of copyrights:

(3) Jessica Litman/Professor of Law, Wayne State University "... copyright law has never given copyright owners control over all of the uses of their works. Instead, the law has given copyright owners exclusive rights over uses that lend themselves to public commercial exploitation. ... Today, they have the exclusive rights to reproduce, adapt, distribute, perform publicly, and display publicly. Rights over essentially consumptive uses, like the right to read or see or listen to or discuss or think about or lend or resell or display privately or perform privately are rights that have been reserved the public."

Among these rights generally afforded to users is that of "fair use." Many of the public advocates who appeared at the hearings were concerned that fair use would be restricted in the digital information world:

(2) Gloria Werner/Association of Research Libraries "It is ... critical that they [researchers, students, members of the public] have opportunities on-line equivalent to their current opportunities off-line, to browse through copyrighted works. It is equally critical that they have on-line opportunities equivalent to their other opportunities off-line, to exercise such fair use rights in making individual copies of quotations, brief extracts from copyrighted works, or journal articles for research or scholarship purposes."

(3) Lucretia McClure/Medical Library Association "The copyright law allows fair use of the intellectual content of materials, and that must not change because the container is electronic rather than print. It is essential that researchers, students, health professionals, and the general public be able to use the on-line equivalent of their current opportunities to browse through copyrighted works and to exercise their fair use rights in making individual copies of quotations, brief extracts, or journal articles for fair use or scholarly purposes."

Educational institutions are probably more affected by any change in the interpretation of fair use than any other organization:

(3) Sandra Walker/International Visual Resources Association "I think the Working Group has not fully considered the implication of networking as it relates to class use by non-profit educational institutions....As an example of how materials might be used in a networked environment for distance learning, an art history professor physically located in a university might wish to relate images of art works and related text to students physically located at other sites. Will this use of the information infrastructure be construed as fair use or copyright enfringement?"

Use of digital information resources is often governed by licenses and contracts. These contracts can be more restrictive than copyright law and can therefore limit public access to works:

(1) John Berry/University Library, Univ. of Illinois at Chicago "... licensing agreements should not be allowed to abrogate the fair use and library provisions authorized in the copyright statute."

(3) Robert Oakley/American Association of Law Libraries "Licenses have come into increasing use for library acquisition of all types of electronic information. However, too often such licenses fail to take into account uses permitted under the Copyright Act. Licenses should not be used to contract around otherwise legitimate uses of proprietary material."

In one of the successes of public advocacy, pleas like this one by John Kelly resulted in the insertion of special exceptions into the White Paper for the reproduction of materials for the visually handicapped:

(3) John Kelly/Recording for the Blind "Clearly, we need an NII environment in which the manufacturers and owners of intellectual property are comfortable with the protection of their material. The greater the assurances of protection, the freer the flow of information and the greater the benefit of all end users. However, as systems are developed to protect the copyright holder's material, we cannot afford to add further layers of inaccessibility to people with print disabilities to that information."

Professor Litman questions the basic premise that amendments to the copyright law are needed to increase the amount of digital information available to the public:

(3) Jessica Litman/Professor of Law, Wayne State University "And to the extent that it [the Working Paper] does offer reasons for enhancing rights in the copyright bundle, it relies on arguments, again, that we have heard repeated today that stronger copyright protection is required in order to entice authors and copyright owners to make their work available over the NII. And I doubt that. The report's working model for the NII is the current Internet now. As members of the Working Group or the audience who have made use of their Internet access are no doubt aware, whatever deficiences the Net suffers from, and there are many, there is surely no lack of content."

And she suggests that there is a need to have an advocate for the rights of the public equal to the advocacy that the commercial interests bring to bear in this arena:

(3) Jessica Litman/Professor of Law, Wayne State University "Current stakeholders have very able lawyers. .. What I think is needed now is for someone to act as the copyright lawyer for the public. To examine these proposals as one would if the public had retained one as its copyright lawyer and said: here is a proposal - is this in my interest? ... I believe that the public's copyright lawyer would seek an amendment expressly privileging individuals using their computers for ordinary reading, viewing, or listening to authorized copies of copyright works."

©Karen Coyle, 1996
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