Copyright in the Digital Age

By Karen Coyle
A talk given at San Francisco Public Library, August 7, 1996. A shorter version of this talk was presented at the 1996 LITA/LAMA conference in Pittsburgh.

The U.S. Constitution gives Congress the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to the respective writings and discoveries."

That simple phrase is represented today by hundreds of pages of law and thousands of pages of legal cases. It isn't a simple world.

Copyright law first developed at a time when copies were relatively hard to make. You needed a printing press, and you had to reset all of the type for the work. Early in US history, at a point where English law seemed totally irrelevant to us since we'd just broken away from it, publishers in this country imported British books and reprinted them here without giving anything back to the British copyright holder.

But it just wasn't within the power of the average person to make copies.

The advent of the photocopy machine (Xerox) began the modern age in copyright, throwing things into disarray. Then came home sound tape recording, video recording, and now -- the biggest threat of all to copyright -- the computer - the ultimate copying machine.

The change from hard copy to digitized materials is really much greater than just a change in the method of copying. Up until now, there has always been a physical object that could be referred to. Something you could hold in your hand.

And up until now, most copies were degraded forms of the original. Photocopies are of a lower quality than a printed book or article (though that technology is getting better). Home sound recordings are inferior to professionally produced ones. And of course video tapes of TV programs are abysmal. So they aren't really great rivals for the originals.

Now we have digital information, information stored on a computer. That information can be copied exactly, with no loss of quality, with the touch of a few keys. Add the Internet to the mix, and you have a situation where in the information can be copied and send to thousands of other people with those same few keystrokes.

Let me tell you, the holders of copyrights are very upset about this.

Copyright Holders

Let's first clarify who we are talking about here. Who are the copyright holders who have a stake in this? Because most of us, when we hear about copyright, we think of authors. (As an aside, we should really think of authors, song writers, playwrights, artists)

In fact, most copyrights today are held by corporations. In order to get your work published, you sign the "rights" over to the publisher. If you are a famous author, the contract you sign gives you a nice percentage of the sales and lets you make money off any new editions or reprints of your work. If you are a regular, non-famous author, the contract essentially gives you a small percentage of the sales and you lose any rights to any future use of the work - or else you don't get published. Many digital compilations of works that were originally issued in print, like the many online databases of journal articles, are not returning any money to the original authors.

So when we talk about copyright we need to remember that we aren't talking about authors vs. Readers. We're talking about the interests of corporations versus the interests of the public.

Enter the Information Highway

One of the misconceptions that people have about the Internet when they first get onto it (or before they do) is that it contains all of the information in the world. That it is, in essence, this library - digitized. The opposite is true.

There is very little intersection between the content of the Internet and the content of your local public library. The library consists mainly of commercially published works. Works that are protected by copyright. These works are revenue for their publishers, that is they are sold. There is profit to be made. Place any one of these works on the Internet and it is instantly available, for free, to some tens of millions of people. Because there is not, as yet, a way to charge people for the documents they access over the Internet, and there is no way to keep them from making copies of digital documents once they have received them.

After all, the Internet was designed so that researchers and academics could quickly and cheaply share information. It was never intended to be used to sell information. And I'm not even sure that we can use computer networks to sell information in the way that we sell books or CDs. We no longer have a physical object that we can call our product. Something very fundamental has changed.

The New Copyright Law

But those who make their profits off of intellectual property very much want to make use of this new technology of computer networks. To them, it promises great wealth. So one of the primary goals that was included when the Clinton administration announced its program called the "National Information Infrastructure" was the development of ways to protect intellectual property.

First I need to remind you that the information infrastructure planning is taking place in the Department of Commerce. The information infrastructure is not an education project, it is not a logical outgrowth of the Library of Congress - it is business, and purely business for the Clinton administration. And for the business interests of our country. And in their mind, the Internet as it exists today, with billions and billions of bytes of information, tens of millions of users - is irrelevant because there is no place for for-profit activities.

Commissioner Bruce Lehman, head of the National Telecommunications and Information Administration, goes around giving speeches in which he tells people that unless we find a way to protect intellectual property on the Internet, there will be no content worth accessing.

This seems absurd on the surface, but in some ways he is right. The current content of the Internet is a portion of the total output of intellectual property in this country, and not a representative portion. It still reflects its academic beginnings in many ways. And being non-profit, it has government information, lots of non-profit organizations, the works of interesting but somewhat quirky individuals, etc. But waiting in the wings we have folks like Disney, Time/Warner, Viacom - with all of their films, music, and programming. And these are the people the Department of Commerce is designed to serve.

So the first thing that the DoC did was work on some changes to the copyright law aimed at protecting intellectual property in the digital, networked environment. After some study, they came out with a draft paper that stated that there was really very little that had to be changed in the copyright law. The main thing they did was add a short phrase to define the making of a copy to include "transmission."

This looks innocent enough. But what it comes down to is that every time you access information on another computer, that is every time you browse a web page, that you follow a link, the information is being transmitted to your computer. So every access would be an act of making a copy under the copyright law.

In addition, the report interprets some case law as implying that if you have a document stored on your own hard drive, it is "transmitted" when you then view it on your own screen.

This is an incredible grab of power for the copyright holders. In the hard copy world, once they have sold a physical object, say a book, it is out of their control. The owner of a book can show it to others, sell it to a used book store, or lend it out. The object belongs to the buyer. If that were a digital document, each of these transactions would be a "transmission," and would, by law, be part of the rights of the copyright holder - that is that it wouldn't be legal without payment or the permission of the copyright holder.

Understand that this also eliminates library lending of digital information objects, since there is no lending that does not make a copy.

In between the draft report, called the green paper, and the final report, called the white paper, the DoC held a series of four public hearings where interested parties could give their input. They announced these "public" hearings in the Federal Register (which we all read daily, right), and held them in four cities: NY, Los Angeles, Chicago and Washington D.C. That covers everybody, doesn't it?

No one stood up at these hearings as a simple member of the public. A librarian or two testified at each session, arguing for the public interest. But most of those giving testimony were members of law firms representing the interests of the corporations that hold the copyrights. I'm going to share with you some quotes from those hearings, because I think it will help you understand the tenor of the discussion.

The Money Connection

What was obvious from the caliber of the speakers was made even more clear by some. As Vradenberg points out here, intellectual property is big business. It's also one of the few businesses, other than computing, where we are running a healthy balance of trade. After all, how many French TV shows do we watch? (Not even on cable!) The whole world is awash in American cultural products.

Content, Content, Content

The success of the information highway depends on content. Though Valenti is talking about entertainment as content, we should remember that this is also true of information content. People aren't going to purchase equipment and pay monthly fees unless the system gives them what they need. The current emphasis on ISDN vs. Fiber to the home ignores the fact that we don't currently have a clue as to what will be traveling over those wires.

Protection of Intellectual Property

This sentiment was reiterated by a large number of the speakers - the need for some kind of protection of their products as an essential element of the NII. As I've said, this does ignore the fact that a huge information system has developed without any of that protection. These people really don't think that the Internet has any substance at all. Perhaps they don't even know that I was able to download every word they said at those hearings - I, who normally wouldn't be privy to this kind of discussion.

And note that she is the first to use the words "entertainment products." Really, that's what it's all about - that's the real market. A new vehicle to bring entertainment into the home. She's not concerned about whether everyone in the country having instantaneous access to every bill in Congress. Of course, that's not her business.


One of the issues that was discussed often was "browsing." If even viewing a document on a screen constitutes the making of a copy, how will people browse?

His first statement is very interesting - public access does not mean free access. Is his concern that his company won't get paid, or is he concerned that some people will get access to the information for free?

Libraries lend books for free, but the publishers have gotten their legal payment for those books. But I get the impression that in digital age, even if libraries had infinite budgets and paid for every patron's use, this guy still wouldn't be happy, because someone is getting something for free. I begin to wonder if the discussion here is really about copyright.

Online materials, like all other materials, are copyrighted simply by the fact of their existence. You may know that for something to be copyrighted, it does not have to be registered with the Copyright Office, nor does it have to have the little "c" in a circle on it. The mere fact that you wrote it, and you can prove that you wrote it, is enough.

Fair Use

But this guy isn't suggesting that his materials be copyrighted - because they already are. What he's suggesting is that there shouldn't be "fair use." That no one should be allowed to even look at his "products" without paying. The issue instead is really about greater control of digital works, and this quote is a perfect example of that.

In the hardcopy world, even with magazines and newspapers, which is Mr. Barlow's line of work, we have a concept of "fair use." Fair use, in a nutshell, because it's a very complex topic and I'm not knowledgeable enough to go beyond the nutshell level, allows a person to make a copy of a portion of work for personal or educational use.

Fair use is the other side of the copyright equation - it's the side that says that the public has a right to read and review intellectual property; to quote from it; to make copies of portions for personal and educational use. But what this copyright grab (as Pam Samuelson called it in her Wired magazine article) is about is control of use of the products, not just the copying.

Control of Use

If a book is in the library, the publisher cannot "cut off a user." The publisher has lost control over that work. What Barlow has said here means essentially that the publishers and corporations could decide who gets to have information.

If you think this is unlikely, let me tell you a story. You might know that the online information system called Lexis/Nexis gives special discounts to educational institutions for access, since it's otherwise quite pricey. When their system reaches a certain point of load (or overload), they are able to tweak it so that the higher paying corporate customers get faster service, and the discount educational customers get slower service. A little over a year ago, one of our CSU campuses was getting a lot of complaints from the students when the Lexis/Nexis system was terribly slow. The students didn't understand that it wasn't something that the library could fix. Tired of giving the explanation over and over, the library placed a sign on the Lexis/Nexis terminal explaining the situation.

Now I didn't see the wording of that sign, but Mead, the parent company, found the sign to be "critical" of their service, and cut off the CSU's access to the system. After what I presume was an amount of closed-door cow-towing to Mead, access was restored a few weeks later.

I'm sure you can grasp what this means for intellectual freedom in the digital age. You can criticize a book that you find on the library shelf, and it will still be there. But digital resources can be withdrawn.

Pay Per View

But there's more. If you accept that each "viewing" is a transmission, and each transmission makes a copy, then you can reasonably conclude that the copyright holder should get paid "per viewing" - meaning that if you access the same document twice, you may be asked to pay twice. And sure enough, one of the questions discussed at the hearings was how users might be required to pay for works.

I think this concept points out some of the real problems we are having in terms of reconciling different interests in the digital world. We have had very different ways of paying for different kinds of products, like performance rights. Until looking into this area, I wasn't really aware of "performance rights", which are in important part of copyright law and pertain to performed intellectual property like songs, plays, etc.

But this speaker is wrong about "per user" and "per use." Neither really exists. For example, you sell a magazine to a user, who can read it over and over. But the magazine world knows darn well that each copy is read by more than one user. They do polls and use these figures when negotiating with advertisers rather than the number of copies they print. Even for movies, you can rent a video and cram as many people as you want around your TV set.

And we have never paid for each and every use of anything, except perhaps live performances. And in spite of this, the intellectual property industries seem to be doing just fine. These folks are asking to be paid for uses in the digital world that are far beyond the uses they can charge for in the analog world. Though they claim that they are merely trying to "maintain" their current set of rights, they are actually trying to tack on a number of rights that they have never had. And all of these rights would restrict the public's access to these materials.

Libraries Under Assault

This isn't, though, the worst of the bad news, I'm afraid. The worst, to me, is that libraries are being portrayed as part of the problem.

This statement from International Publisher's Association reveals their interest in having the copyright holder have control over every single use of an item. And it implies that the library, insinuating itself between the reader the and publisher, is really stepping on the publisher's business.

Information Wants to Be...

There's also a strong backlash against the "free information" movement on the Internet. You know the expression "information wants to be free."

Of course, the fact is that there is a rather large body of free information, such as government information, a lot of academic information, information coming out from non-profits or public service areas. Clearly, that information is just giving users mistaken ideas.

And of course, some people get those ideas from libraries.

This speaker seems to think that we should quit even talking about libraries, since the mere concept gives people the wrong idea. And I love his inclusion here of universal service. Obviously, he doesn't want to be required to provide his service in an affordable and equitable way to all members of our society. It's clear that to these people, there is no place for libraries in the digital age.

Libraries and the Third Wave

The digital age then follows perfectly the Tofflerian vision of the "Third Wave" where we function entirely as individuals, with no need for institutions mediating between us and the rest of the world. Note that in Toffler's book "Third Wave" he mentions libraries only once, and in an example of second wave institutions.

Where Are We Now?

It's true that there have been some tensions between publishers and libraries in the past - mostly with publishers of higher end academic journals, which libraries share through Inter-Library Loan because they can't afford copies. This then makes the prices of these journals go up, more libraries drop their subscriptions... etc. But there's never been, to my knowledge, any evidence that libraries cut into the business of book publishers. And some books are published almost entirely for the library market, like the more expensive reference books.

Remember that everything that libraries do in terms of lending and disseminating information is within the scope of the copyright law. What's happening today is an overt assault on the idea that we should be providing universal access to information.

What's happening today is that we have moved abruptly from the Jeffersonian ideal of an educated public, and have truly entered the information age. Because, as it has been said, information is the Product of the 90's.

Addendum: December, 1996

Two bills were introducted into Congress but did not pass this session. There is a significant amount of opposition to this change from the U.S. library and education communities, as well as from other quarters. The bills, S.1284 and HR. 2441, were almost word-for-word what was recommended in the Department of Commerce's White Paper on Copyright.

Meanwhile, from December 2 through 20, 1996, representatives from more than 150 countries, 25 intergovernmental organizations and 140 non-governmental organizations are meeting in Geneva at the World Intellectual Property Organization to discuss three proposed international treaties that would regulate intellectual property on an international scale. These treaties are very much in the spirit of the White Paper, and have clearly been influenced by it.

For more information on WIPO and the proceedings, visit The Digital Future Coalition. The DFC has over 30 members representing business, libraries, education, consumer and technology organizations, and supports copyright law that rewards creativity and benefits the public interest.

There are a number of sources of information on copyright on the Internet. A good, comprehensive site is that maintained by the International Federation of Library Associations, "Copyright and Intellectual Property Resources".

©Karen Coyle, 1996
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