Washington, D.C.
October 18-20, 1995

Building Partnerships that Shape the Future

Debate for America’s Intellectual Soul

Arnold Lutzker, Attorney
Fish & Richardson

[An outline of Mr. Lutzker’s remarks as they appeared in his overhead presentation follows.]

Debate for America’s Intellectual Soul

Copyright is Commerce

v.

Copyright is Learning, Speech, and Research

The Issue for the NII is not Hardware

• It is Content

Technological wizardry will result in

• greater controls on ACCESS than ever before

• greater opportunities to commercialize research

Library community needs to understand that the monetary costs of research is about to escalate and that some research will be stifled at the source.

The power of copyright is the legal right of J. D. Salinger to prohibit publication of his private letters. He enjoined Random House from publishing tens of thousands of copies of a book it already printed.

If the library community is not personally involved in this debate, you will leave the playing field to those that are— entities that control content know the stakes.

But all is not lost because the legislators respond to you— educators of America’s youth and the folks “back home.”

Time Line

• 1993-Clinton Administration announces NII Initiative

• July 1994-Working Group on Intellectual Property releases Green Paper, draft report

• Sept. 1994-Spring ’95-Working Group conducts hearings

• Sept. 1995-Working Group publishes White Paper, final recommendations

• Nov. 1995-Joint House-Senate Hearings on White Paper to begin—. witnesses

• Jan. 1996-Public Hearings begin

Other Developments

• 1970s-DOD creates ARPANET— of INTERNET

• 1980s-INTERNET becomes resource tool for government and universities

• 1990s-INTERNET is “IN”

Other Developments, cont.

1995

• Domain Sites (new information networks) increasing at a rate of 15,000 per month.

• Texaco court (2nd Cir.) rules research photocopying NOT FAIR USE— settled without further appeal.

• Netscape Goes Public. Software to cruise INTERNET raises $2 Billion in one day.

WHITE PAPER Highlights

New Definition of Distribution to include “Transmission”— sending of electronic copies to remote computers would be an exclusive right of the copyright owner.

Library Exemption

Current Law Provision

Libraries and their staffs may:

A. Reproduce and distribute one copy of an unpublished work in their collection IN FACSIMILE FORM for preservation or research;

B. Reproduce IN FACSIMILE FORM one copy of a published work to replace a damaged, deteriorated, lost, or stolen copy that is not available at a fair price; and

C. Reproduce and distribute one copy of an article from a library collection to a qualified researcher or an entire work when it is determined that the work cannot be acquired at a fair price.

WHITE PAPER

Recommendations for Libraries

A. Allow up to THREE copies to be prepared, but only one may be distributed.

B. Allow DIGITAL as well as FACSIMILE copy of unpublished work for purposes of preservation, but only FACSIMILE copy may be on deposit for research.

C. Allow reproduction of published works in FACSIMILE or DIGITAL form to replace a damaged, deteriorated, lost, or stolen copy that is not available at a fair price.

D. Require copyright notice on reproduced copies only if copyright notice appeared on original copy.

Interlibrary Loans (ILL)

CONTU Guidelines help define when libraries can share works in their collections.

But application to electronic transactions is unclear.

Therefore, WHITE PAPER urges copyright owners to develop special “institutional licenses.”

New Exemption Proposed

Reproduction for Visually Impaired

• One-year waiting period

• Give up if copyright owner steps in

Other White Paper Recommendations

• Expand criminal sanctions against anti-copy defeating devices

• Establish Copyright Management Information System

• Support Performance Rights in Sound Recordings

• Criminalize willful copying if value exceeds $5,000

First Sale Doctrine

• Allows owner of copy to transfer it to another. GREEN PAPER discussed making FSD inapplicable to electronic transmissions. WHITE PAPER retreats. Or does it?

• Expanded definition of Distribution Right.

• First Sale clarifies Distribution Right. It is inapplicable to Reproduction Right.

Fair Use Doctrine

• Defense to claim of infringement

• Context—, comment, news reporting, teaching, scholarship, research

• Four Factor Test

Fair Use Factors

1. Purpose and character of use.

2. Nature of copyrighted work.

3. Amount and substantiality of portion used in relation to work as a whole.

4. Effect of use upon

Fair Use Update

CONFU— on Fair Use

CCUMC— Use Multimedia Guidelines

Technology— or Foe?

Server Controls— Liability

Encryption

Digital Signatures

Stegnagraphy— Watermark

Copyright Law

and

The WHITE PAPER

Setting the Legal Standards for Ownership and Access in the Digital Age

Question and Answer Session

MS. CRETH (University of Iowa): I am concerned about the current focus Congress and society in general has on commerce, and I am interested to find out whether you think it is possible for those of us in the education community to find a way to translate how limited access, including access limited monetarily, will affect commerce in this country.

It will affect health care. It will affect the qualifications of the young people that we send out there into the market to our businesses. It will affect research regarding the scientific areas of our job and economic markets.

We have to find a way to move away from only considering education in terms of the intellectual soul to addressing the issues of employment, a quality workforce, and quality health care in this country. Those are the issues that resonate in our current Congress.

We have to find a way to talk their language. There are some really meaty issues there, and when we limit access we will affect our economy. I would like to hear your response.

MR. JASZI: I think that’s a point of tremendous importance. At the moment some of us are trying to build an effective coalition to approach Congress regarding issues in the White Paper. This is an effort in which the Washington office of ARL has been active and extraordinarily helpful.

Our goal is to build a coalition which consists of more than the usual academic suspects, a coalition which also incorporates as broad a spectrum as possible of those who have not only emergent but concrete and present economic interests in maintaining open network communications. I endorse what you have said completely, and it is remarkably important that some, if not all, of you think that one possible outcome of this meeting is your contacting Congresspersons.

The rhetoric of education as the foundation of enterprise is a critical one, but there is another piece as well. It is something that those of who have watched various academic projects spin off into commercial projects are well aware, the growth of “sunrise businesses” as a result of network technology, businesses which will prosper because they are the vehicles by which value is added to available public domain information.

All of those sunrise businesses are at risk in this legislation. This legislation is really not designed to promote all kinds of enterprises equally; it is designed primarily to protect the interests of established content providers who have large sunk investments in old media.

We need to make common cause with commercial interests who have the same stakes in an open network, as we do in our academic and professional roles. So your comment is critical.

MR. LUTZKER: If I could add just one short statement. One of the debated issues in the CCUMC is about the limitations on how students can use copyrighted material. The debate between the educators and the content owners is fascinating, because there is clearly a sense that the content owners want to retain control.

But great creativity will be stifled if monetary road blocks are created. It’s not in anybody’s interest to do that. So, you are right to be concerned about developing the facts needed to support the issues. That should absolutely be part of the debate.

MR. CAMPBELL (Duke University): My comment is that, since one implication of the Texaco verdict was that if there is a way to pay a fee to get something, then the fee must be paid in order to get it, it is then conceivable that we may be required to publish all scholarship in a commercial venue, as opposed to not-for-profit, because a commercial venue does exist.

MR. LUTZKER: The fundamental thing to understand in this whole debate is that there is a Fair Use Doctrine. At the core of how copyrighted works are exploited is fair use, maintaining delicate balance between the commercial and the nonprofit.

A concern for people in the educational community is whether the White Paper will smudge the line as to what fair use means, thereby losing the essence of what copyright has given to the educational community.

That is where a lot of the debate should be focused, to insure that we still have fair use, as well as to define what it means and how it can be effectively used in an electronic environment.

DR. LYMAN (University of California-Berkeley): I have an interest in this discussion as an author of a paper that has been reprinted eight times. I gave away the copyright in order to get tenure, and every time it has been reprinted it has been edited to say things I never intended. So I have, as an author, an interest in what happens to the intellectual work I create.

It makes me think that, paralleling Sheila’s comment, the second kind of discourse we have to have is with our faculty about what their interests are as authors. Should we, as universities, be retaining some rights that we now let faculty give away, and should we, as faculty, perhaps make different decisions about how we provide access to our intellectual works?

MR. LUTZKER: I’ll add one or two brief comments. Over the years I have worked with the Directors’ Guild in connection with moral rights questions in the film industry, the concerns of the filmmakers whose works have been colorized or edited, and yet their name is associated with it, and what kind of redress they might have.

Moral rights is basically the concept that you have the right to control paternity, your name on a work, and a right that, when changes affect your honor and reputation, you have a right to object. That is conceived as independent of copyrights. These are moral rights. They come from French law.

One of the interesting things that Peter alluded to about the White Paper is that we are moving towards an internationalization of copyright issues. There is the National Information Infrastructure (NII), but also discussed in this White Paper is the Global Information Infrastructure (GII). I believe that, as the US moves to reconcile itself with the rest of the world, we will extend our copyright term as Europe has, harmonizing our laws with the rest of the world.

That can have a positive impact in this area, because what the White Paper tries to do is co-op the ground and say that the international world should conform to our systems, rather than our systems conforming to theirs. So concepts like moral rights I see as grounded in common decency and genuine principles of copyright and authenticity. These are the issues that will resonate in this debate.

MR. GUTHRIE: Being involved with JSTOR and in a partnership with publishers, I believe that many of your libraries will, over time, be content providers as well as distributors. Yet, having these copyright rights does not always restrict access in the sense that, for example, you all have unique materials that don’t exist anywhere else. To make them digital and then distribute them to a broad community will cost real money.

Some of you will be faced with the question of whether or not to digitally convert some of those materials in order to recover those costs. So all the implications need to be carefully considered in this debate.