Eugene, Oregon
May 13-15, 1998

The Future Network: Transforming Learning and Scholarship

Intellectual Property Legislative Update: Copyright, Paracopyright, and Pseudo-Copyright

Peter Jaszi, Professor of Law
Washington College of Law
American University

It is a tremendous pleasure to be here. Your association and the other library associations have been among the staunchest and most effective warriors for the cause of good in the copyright battles of the last three years, which I'm happy to say aren't over yet, and about which you will hear a lot more in the next few minutes.

I'm going to be using the phrase "big content" in my talk today as a shorthand description for the motion picture industry, the recording industry, large elements although not all of the computer software industry, and the publishing industry, both trade and scientific. These are the forces. Of course, behind them stand yet other forces, giant and ever-growing international information conglomerates which are largely responsible for the presence in Congress now of the different pieces of legislation that are going to be my topic in the minutes to come.

I'm going to go very light today since my time is limited--and I'm anxious to get on to your questions and the general discussion--the history, the background, and the theory of this story. But I can't omit it entirely, and I want to refer to just one strand of that background and history as a way of framing my remarks.

In this debate about the future of intellectual property and, in particular, the future of intellectual property in the digital environment we hear a good deal about how things are done elsewhere. We hear a good deal about the importance of harmonizing the laws of the United States with the laws of other countries, in particular the laws of the countries of the European Union.

The principal rationale--or a principal rationale--for some of the initiatives we are now up against is this notion of the importance of harmonization. So I thought that it would be interesting for just a moment to look at the American law of intellectual property in general and copyright in particular from a European perspective. I have the opportunity to do this from time to time because I teach European students and lecture sometimes to groups of European lawyers.

There are two things about our laws which surprise and sometimes shock European observers. One is this fair use doctrine: This strange, amorphous, residual category of uses which would ordinarily be considered infringing but aren't because they are on balance considered to be in the public interest. Europeans say, "We don't have anything like that." They have in their laws very, very narrowly and specifically defined lists of specific and particular limitations and exceptions, but there's no catchall category like fair use. So that surprises them.

And another thing that takes them aback is the fact that we don't in this country have very much in the way of so-called neighboring rights legislation, "neighboring rights legislation" being the umbrella term that's used to describe special schemes of intellectual property law that look a lot like and work a lot like copyright law, but aren't copyright law; that are designed to protect some specific category of material that falls outside the scope of copyright law like performers' rights or the publishers' rights and the book designs, and as the European countries in many cases have it, rights in sound recordings.

We have in the United States one or two very, very minor examples of this kind of legislation, but on the whole very few. We like to keep it simple. In general when we talk about products of the imagination, they're either protected under copyright or they're not protected. And Europeans don't understand that either. When I try to explain these two seeming anomalies to European friends, I stress to them that they are, in fact, closely related; that they are, in fact, aspects of the same phenomena.

This fair use doctrine I tell them is really part of a larger picture. It's really one of a whole short or perhaps long laundry list of broadly defined and generously interpreted limitations and exceptions on the right of copyright owners that are engrained in our law of copyright: Our relatively strict term limits, our prohibitions on protection for government works, our progressively interpreted idea expression doctrine, our first sale doctrine, our special education and library exemptions and so on and so forth, all of which incidentally received their most comprehensive articulation when they were inscribed in the text of the Copyright Act of 1976.

These limitations and exceptions, which have no counterpart in the laws of countries anywhere else in the world, are important because they are an essential element in the dynamic balance of owners' rights and users' privileges which has proved so extraordinarily successful in enabling what I sometimes refer to as the American cultural, educational, industrial complex, a whole range of commercial and noncommercial activities organized around products of the mind which have proved to be, among other things, a tremendous source of good news for the U.S. balance of payments.

It's because of this principle of balance, this offset between owners' rights and users' privileges which is inscribed in our law of copyright, that we are wary about going outside of the copyright law to create new kinds of neighboring or adjacent rights. We are wary precisely because, in doing so, we won't necessarily carry along into this newly imagined domain of legislation the dynamic balance of rights and privileges which has proved so extraordinarily productive in the domain of copyright itself. So by and large we have kept our discussions within copyright, and we have achieved within copyright this very, very satisfactory and fruitful balance of interests.

Well, the message is simple. Now, this year, here in the 105th Congress, this week, today, all this is at risk as a result of recent initiatives in Congress, which are the result of the effective and well-financed lobbying efforts of big content. And today I want to talk about three such sets of developments: Copyright term extension, digital copyright legislation, and database protection or, as it's sometimes called, protection for compilations or collections of information. And the point I want to make, first and foremost--and if you would take away from this talk no other point than one, it would be, I hope, this one--and it is for the most part, considered as a whole, we are talking here about something other than traditional copyright legislation.

Of the three initiatives--copyright term extension, digital copyright, and database protection--the only one that is truly a copyright initiative is the first: Term extension. It may be an ill-informed and badly judged copyright initiative, but it is a copyright initiative. Otherwise, what's usually described as digital copyright legislation or WIPO (World Intellectual Property Organization) treaty implementing legislation really is, for the most part, not copyright at all. It goes beyond copyright, what I sometimes refer to as paracopyright. And the database legislation isn't copyright by any stretch of the imagination. It is, if anything, pseudo-copyright.

These are proposals for new kinds of intellectual copyright, what Europeans would call neighboring rights, rights which overlap copyright and which provide protection where copyright does not provide protection and for works and against uses to which copyright protection does not apply. And most crucially perhaps, from our standpoint, these are new forms of intellectual property protection which are not subject to the traditional limitations and exceptions which are part of that traditionally understood, carefully developed balance of rights and privileges to which I referred a moment ago.

Copyright Term Extension

Let me dispose first of term extension, the one item on the list which is really, as I say, copyright legislation, albeit of a very peculiar kind. The plan exemplified by H.R. 2589, as you all know, is to tack 20 more years on to the duration of all existing terms of copyrights so that the work which is now protected for 75 years would be protected for 95 years; a work that is now protected for the life of the author plus 50 years would be protected until 70 years after the author's death.

Now the crucial thing to understand about term extension is that it applies not only to works that would be created after the date on which such legislation entered into force, it also will apply to works in being and protected by copyright at that time. So, not surprisingly, this legislation is being pushed, and it's being pushed hard, by forces of big content which own commercially valuable properties which are at or near the end of their copyright life. There are music publishing interests which are strongly in favor of term extension, and the motion picture industry in general and the Disney corporation in particular is very much in favor of term extension, at least in part because by most calculations the copyright life of Mickey Mouse is due to expire very, very early in the next millennium unless something is done. Well, this is that something.

I wish I could tell you that there were mitigating factors and circumstances in the term extension proposal. There really aren't. The only mitigating circumstance which needs to be mentioned is the presence in the legislation of a very, very partial, very, very narrowly defined exception for certain library and archival uses of works in the 20-year extension period, an exception which, despite the heroic efforts of those who represent the library associations in Washington, is in the current form of the legislation so circumscribed as to be in many respects effectively meaningless. Apart from that, there is no significant mitigating feature in this legislation.

Now the legislation is a matter of concern in itself; and it's a matter of concern, in part, because it's impossible to justify in terms of the traditional understanding of the rationale or purpose of copyright law in the United States. There is no way in which extending the term of protection for works already in being can be said to stimulate or promote the creation of those works. By definition since they already exist, no incentives to their creation are required. There is no way of linking this legislation to our core understanding--articulated and rearticulated by the Supreme Court over many decisions and over many years--of what copyright in the United States is for. So that's a matter of concern in itself.

It's a matter of concern that the net effect of this law would be to create a 20-year moratorium on the enrichment of the public domain by new material which enters in at the conclusion of its established term of protection. And it's a matter of concern because I have every reason to believe that this is just the first of what we'll see over future time if this legislation is successful as a parade of successive requests for more and more protection. I characterized this legislation once as a down payment on perpetual copyright on the installment plan, and I continue to believe that that's the case. I continue to believe that, if copyright extension does become a reality as a result of the actions of this Congress or the next Congress, we can expect similar legislation 15 or 20 years in the future.

Now we are told that this is all being done to harmonize the laws of the United States with the laws of Europe, but we should make no mistake: We will experience the consequences, the effects, of copyright term extension first and foremost here domestically in our own institutions. Copyright term extension is part of the general assault on the public domain, and that general assault on the public domain is related to a broader attack on public access to information, which brings us to the topic of digital copyright legislation.

Digital Copyright Legislation

This topic has a long history of which many of you are closely familiar, a history stretching back to the late summer of 1995 and the White Paper and, indeed, beyond that into the hearings that followed the issuance of the Green Paper that preceded the White Paper. I'm not going to review that history although we can talk about it in the question period. Rather, I want to talk to you today about where digital copyright legislation stands today.

It stands in the following position. There are two bills: H.R. 2281 in the House and H.R. 2037 in the Senate, both of which have passed the relevant committees and are awaiting action. I think it's possible, if indeed likely, that the later of those bills, H.R. 2037, the grandly named Digital Millennium Copyright Act, is the one that the forces of big content intend at least to be the final pattern for the imposition of new legal discipline on the electronic information environment.

Now this bill is styled as a measure to implement the December 1996 WIPO treaties, but in large part this characterization of it is a kind of a smoke screen. Much of what is in the Digital Millennium Copyright Act, the DMCA, like much of what is in the House measure H.R. 2281, isn't required by the treaties.

By contrast, there are many things that aren't in this legislation that really should be present in any bill that's designed to fairly reflect the outcome of the WIPO treaty's negotiation, which wound up in Geneva in December 1996.

A fair reflection of the treaties would include in domestic legislation provisions restating the importance of fair use in the digital environment, provisions assuring that distance education can be carried on using digital media in the same way that it can be carried on today using analog media, some clarification of the status of temporary and ephemeral reproduction in connection with digital uses. None of those provisions are to be found in this legislation. Instead, the legislation consists almost exclusively of provisions which are designed to restrict and constrain access to information.

But what I want to suggest to you is that, although the occasion for this legislation may be the implementation of the WIPO treaties, the real objective of these bills is to achieve a recalibration of the balance between owners' rights and user privileges to which I referred a moment ago, in effect to undo many of the accomplishments of the 1976 Copyright Act; and in so doing, to create the legal conditions for the emergence of a ubiquitous pay-per-use model of information commerce in the digital environment and with it a concomitant withering away of traditional institutions including, I fear, libraries.

The main vehicle that the digital copyright legislation has or includes for achieving this effect is so-called Section 1201 (a)(1). And I want to read to you a bit from that section of the Digital Millennium Copyright Act just to give you a flavor of what we are talking about in this discussion. 1201 (a)(1) deals with so-called anti-circumvention conduct: Conduct that is undertaken by a user of information which involves somehow getting around, over, under, or through a technological protection system that may be applied to information by its proprietor.

No person, it says, shall circumvent a technological protection measure that effectively controls access to a work protected under this title--period. No exceptions, no qualifications, no limitations of any kind, no fair use provision, no educational exemption, no scholarly use exemption: The prohibition is absolute. In other words, uses of protected, copyrighted information that could be made today under any one of the limiting doctrines that I have described to you before could not be made after the enactment of Section 1201 (a)(1) because to make them would involve acquiring access in contravention of the 1201 (a)(1) prohibition.

This is in some real respect a blueprint, a legislative blueprint, for the end of fair use as we know it in the digital environment. And I want to point out to you once again that, although it is sometimes referred to as part of the digital copyright legislation, this provision, Section 1201 (a)(1) like the rest of Section 1201, isn't really copyright legislation at all; it's paracopyright legislation. It is legislation which is designed to supplement, which is the kind way of putting it, or to override, which I think is the more accurate way of putting it, the studied set of arrangements which our copyright law itself provides.

Not surprisingly, this provision that I've just read to you is the provision on which the forces of big content have, from the beginning of the current copyright wars, placed the greatest political emphasis. It is their most desired outcome from this legislative struggle. It is the piece on which they have consistently proved least willing to even consider compromise.

Database Protection

Let me turn to my third topic. Term extension threatens the survival of the very notion of the public domain. Section 1201 (a)(1) threatens fair use and other user privileges. H.R. 2652, the Collections of Information and Privacy Act, represents, if possible, an even more comprehensive threat than either of the two legislative vehicles that I have just described because what this legislation proposes to do is to overturn what is one of the most fundamental limiting principles in our law of copyright, the notion that facts, pure information, data as such, are beyond the reach of the law of intellectual property.

Now that principle is a traditional one. It was restated by the United States Supreme Court in 1991 in the Feist Decision (Feist Publications v. Rural Telephone Service Co., Inc.). But it was a dominant strand in the copyright jurisprudence of the United States for many years before. Not only is the principle traditional, but it is Constitutional as the Supreme Court of the United States was quick to point out. Not only doesn't copyright law extend to facts as such; but according to the Court, it can't extend to facts as such.

So you may well ask: How can the Congress be considering legislation which would have the effect of protecting compiled data. The answer is they propose to do it not under the copyright clause of the Constitution, Article 1, Section A, Clause A, but instead under their generic commerce power. Now whether that end run is, at the end of the day, constitutionally acceptable or not remains to be seen. What's important today is that, despite substantial doubts about the constitutionality of this end run approach, big content has pressed its drive for database legislation and has received a very sympathetic response, by and large, in the Congress.

That response has been based on, first not surprisingly, arguments that we need to do this in order to achieve reciprocity for American databases under the new protection regimes of Europe which are coming into play as a result of the 1996 European Database Directive. That's the first argument: We've got to do this to be more like Europe to harmonize.

And the second argument is we have got to do it because there are examples, anecdotes, about how some people rip off other people in the commercial database industry. But do not be misled. The main impact of database protection legislation like H.R. 2652 will be felt here at home and not abroad. And again don't be misled: The scope of the proposed database legislation goes far beyond remedying the evils of predatory unfair competition in the commercial database market. This is not a misappropriation regime that is being proposed, at least not in any reasonable sense of that term.

The rights that the new regime would create would apply to information of all kinds, including scientific data, and they would apply not only among commercial competitors but--and this is the crucial point--against institutional and individual end consumers of information products.

Again I want to read to you a little piece of the language. This is a bit of the database law that describes what would be prohibited if it were to become a part of our scheme of intellectual property. Any person, it says, who extracts or uses in commerce all or a substantial part measured quantitatively or qualitatively of a collection of information gathered, organized, and maintained by another person through the investment of substantial monetary or other resources so as to harm the actual or potential market of that other person shall be liable to that person for the remedy set forth in Section 1206. By the way, these are civil and criminal remedies.

In other words, anyone who uses information from someone else's compilation may be civilly or criminally liable if, by doing so, they harm the market. Now to the extent that they, the users, are the market, to the extent that this information would otherwise be available to them from the proprietor only at a price, then by definition their use harms the market. So this legislation, as designed, would make users of data potentially liable under its terms, not just commercial competitors engaging in predatory practices.

If and when--and I hope it's neither of those--H.R. 2652 were to be signed into law, it would represent the biggest single land grab in the history of our intellectual property laws, the wholesale privatization of a wholesale segment of the public domain. And it would be a privatization incidentally without any significant qualifications or limitations on the rights created. There is no fair use in H.R. 2652. There are no significant or meaningful academic, educational, or other exceptions.

What's disturbing about this legislative effort is that it is being considered now, seriously considered in the Congress, without any clear demonstration of need, without any showing that there is any significant market failure in the database industry; and from my view as significantly, it is being considered now in Congress without any systematic inquiry into the consequences that this kind of an enclosure movement might have for, among others, scientific and academic practice.

We all depend on a culture of free exchange of data and open access to research findings, and that culture itself is at risk as a result of these database protection proposals. In a regime or in an environment where database protection is law, information acquisition costs will inevitably rise. Administrators will look to the research and scientific community and the databases they generate for cost recapture. And gradually or not so gradually we'll all find ourselves in the not-for-profit sector as subject to this regime. It is unfortunately inevitable that, if this regime in its present form, in its present comprehensive form becomes law, we will all be caught up in its operation whether we like it or not.

Let's move very quickly from the descriptive to the prescriptive, to the question of what has to be done. Here I think we have to make a distinction between the short term, the medium, and the long term. In the short term what is to be done is all a matter of politics. Term extension has passed the House of Representatives. It has not yet been the focus of attention in the Senate. But at the same time no champion is emerging within the Senate to oppose or question the appropriateness of term extension legislation. The members of the Senate who played that role in prior Congresses have retired, and they have left it for the moment without a clear friend on this issue. We should all be thinking about whether there are members of our senatorial delegations who could be interested in the term extension issue before it is too late.

The WIPO legislation, the digital copyright and paracopyright legislation, is poised for passage in the Senate. It was on the calendar yesterday and the day before. It seems likely that it will be considered as early as Monday evening or Tuesday by the full Senate. If there are any members of the Senate delegations of any of the groups you represent who could still be contacted and informed that S. 2037 and in particular Section 1201 (a)(1) pose tremendous problems for these communities, that would be very much worth doing.

But at the same time we have to look to the House of Representatives where the next battle on the WIPO implementing legislation and the circumvention provisions is going to take place. There is in the House of Representatives an excellent alternative piece of legislation, H.R. 3048, which manages to fulfill all the requirements of the WIPO treaties without trammeling traditional ideas about information access. And members of the House of Representatives should be encouraged to support H.R. 3048 in the House of Representatives and to reject the current House legislation H.R. 2281 as well as this Digital Millennium Copyright Bill.

Where database legislation is concerned H.R. 2652 was early this week on the very verge of passage in the House of Representatives. The House seems to have stepped back at least temporarily from the brink so there is time, time still to contact members of the House of Representatives and express in no uncertain terms our concern about and opposition to database protection legislation in its present form and to show them that this is an issue that matters not only to a few international conglomerates but also an issue that matters profoundly to constituents who are much, much closer to home. Those are the short-term goals and objectives.

But I want to address just for a moment the medium and long term as well, what happens beyond politics. Very simply we all need to take, I think, more responsibility for explaining to the larger community, ultimately to the policymakers and the administration and the members of the two houses of Congress, why the public domain matters, why information access is important, why the dynamic balance of copyright law, the traditionally struck equilibrium between owners' rights and user privileges to which I referred a number of times, has in fact been productive over historical time, productive not only for education and research but ultimately for all of the commercial enterprises and the sectors of the economy which depend on education and research for their ultimate success. We haven't done as well as I think we ought to have done in making that explanation. I hope that the outcome of the current struggle will be that we still have time to make that explanation. But we should, even as we engage in our short-term political struggles, be thinking ahead to how we are going to make that important showing.

Thank you very much. I welcome your comments and questions.

QUESTION: Would you consider newspapers as members of big content?

MR. JASZI: Newspapers are in a very interesting and difficult position because, in a sense, they participate in both worlds. They have a historical commitment to fair use, on which they depend for their ability to report on particular stories. But at the same time they are increasingly--by virtue of cross-ownership among other things--very much a part of big content.

The effective result of that is the newspaper establishment has been neutralized in this battle. We haven't seen, at least overtly, very much specific advocacy by newspapers for these changes, but neither, until recently, have we seen much to the contrary. The exception now begins to come in editorials, which are beginning to express skepticism about term extension and database protection; that is a very happy result.

One of the things I believe it reflects is the traditional separation between the editorial and the business parts of most newspaper enterprises. So there is hope there, but unfortunately not a great deal in terms of how much support we will have from newspapers in the exercise I described a moment ago in making the case for the public domain, for fair use, and for information access. I expect them to be partial allies at best.

QUESTION: I want to the ask about 1201 (a)(1)--the paracopyright legislation. As I recall, the 1976 act is not just neutral. It was quite imaginative as regards technology. It says the provisions of this law apply to whatever happens technologically.

MR. JASZI: Yes.

QUESTION: Now, I thought the way you reversed law was to repeal it, not to write other laws that are simply incompatible, as this paracopyright law appears to be. Can you help me understand the situation?

MR. JASZI: I think your description is historically correct; that is to say, we have, as a society, always had our discussions about how rights and privileges in terms of control of access to information ought to be distributed within the framework of copyright law, and that's why the 1976 act is so important, because it represents the summing up of a couple of centuries of that kind of discussion.

But there is nothing in the U.S. Constitution about that arrangement. There is nothing written that says we cannot make new laws that simply bypass or trump these arrangements. That is what the Europeans have been doing for decades under the heading of "neighboring rights," which I referred to earlier. Well, copyright doesn't quite cover performers, but that's okay; we'll make a law over here that does. Copyright doesn't quite cover broadcasting signals, but that's all right; we'll make a law over here that does. That has never been, if I may say so, the American way. But it is a variable way, and it is the way that big content has now discovered to achieve what it could not achieve in 1976.

The spokespeople for big content are very explicit about this. If you listen to them, they will say we got a bad deal in 1976, that they got the short end of this seesaw of equilibrium, and it is time now to get their own back. I am not quoting verbatim, but it's a faithful paraphrase of what their representatives will say and have said in public. Since it can't be done within copyright, it is being done outside of copyright. It is being done by paracopyright, by pseudo-copyright. It's unseemly, but it's not illegal.

QUESTION: Many of us were in Washington last week trying to talk about this, and I think we contacted almost every congressman. On the House side, what I was told over and over again is that they haven't heard about this from their constituents. And I wonder, "Are we not constituents?"

So the question is: How do we better engage the other communities that also have a lot at stake in this? That's part A. And, part B, my friend on the Senate side kept saying, "Well, the content providers have assured us they're protecting fair use in this legislation." I tried to explain that that's not quite the case; we get into this debate about the technicality. And trying to explain it and getting our message across is very difficult.

So the second part of the question is: How do we counter some of the misleading messages that are out there?

MR. JASZI: Let's do those in order. The first question, engaging other constituencies, is tremendously important. At the national level, through the Digital Future Coalition and so forth, we have done as good a job as we can to engage different constituencies through their Washington offices or presences. So we work with the National Education Association, with the Consumer Federation of America, and with a large number of diverse national organizations representing multiple constituencies. But there's a difficulty: Those organizations have, as we all have, many issues and many agendas, and it is sometimes hard to get their national representatives fully and consistently engaged on these issues.

The message I would give, then, is that, to the extent possible, you need to work locally with the representatives of those constituencies, with the state teachers associations, with the state branches of the American Association of University Professors, and with other local branches, because it's only when the national organizations begin to hear from those local affiliates that they will engage as fully as it will be necessary for them to do if we are going to beat this back in the end. So, all of you who are so well informed and so active on these issues can play a role in grass-roots mobilization and building links with other constituencies at the local level. We are doing work at the national level, but that support is required.

But the second question is the hardest. You know, I was with someone the other day who does a lot of lobbying on these issues who said that the problem with all of this is that these issues are very complicated. Most staff members don't understand them, and those staff members who do understand them for the most part despair of being able to explain them to the others.

That means that if one side of the debate is offering a very simple message, even if it's a simple message in the nature of big lie--fair use has been taken care of--that message tends to get through much more clearly than a more complicated message. That's particularly true if the message is backed by a certain amount of money.

My approach--and I offer it for what it is worth--to this issue is several-fold. One is to point out that, although they may have taken care of fair use in copyright law, they have not made any provision for an equivalent to fair use in this new regime of paracopyright law, the 1201, and the circumvention regime, which is not copyright law. If anyone has any doubts about that, I pull out a couple pages from the testimony of the "Register of Copyright" of Marybeth Peters, Register of Copyrights, who has not been a great friend of ours on these issues but sometimes speaks plainly. In this testimony, given at one of the early hearings, Marybeth Peters clearly said that the savings clause for fair use in section 1201 doesn't apply to violations of section 1201. It says, in effect, nothing in these provisions shall affect fair use in connection with actions for copyright infringement. But it says nothing about fair use or an equivalent to fair use as it applies to violations of section 1201. (See http://www.house.gov/judiciary/4012.htm, Statement of Marybeth Peters, Register of Copyrights, Before the House Subcommittee on Courts and Intellectual Property on H.R. 2180 and H.R. 2281, 105th Congress, 1st Session, September 16, 1997.)

That's why it's so important to remember, as I emphasized at the beginning today, that there is copyright legislation and then there is legislation beyond copyright--paracopyright, pseudo-copyright--which isn't necessarily governed by the same rules. Sometimes showing the transcript of those pages from Marybeth's testimony could be a useful device in making that point. We simply have to hammer at it.

QUESTION: Is there any possibility that copyright extension and database protection are unconstitutional?

MR. JASZI: I think that there is a real possibility that database protection is unconstitutional. Marcy Hamilton at Cordoza Law School wrote a very thoughtful and intelligent letter to the House Judiciary Committee, which was completely disregarded in its recent action in passing a law on database protection to the floor of the House. In this letter she made the case for the unconstitutionality of database protection very well. I think it's a litigable issue. I would not bet on it, but then I wouldn't bet on the outcome of Supreme Court litigation in general. I think there's a case, and I very much hope that it doesn't have to be brought forward. But if it has to be, I look forward to having some involvement in it.

Term extension I think is less litigable. As far as I can tell, we have engaged too frequently in the historical past in tacking on bits of additional time to copyright duration for it to be argued straightforwardly, at least to the point that doing it again would somehow violate the limited times language of Article 1, Section A, Clause A. I'm less sure that there's even a colorable constitutional issue in that case.

QUESTION: What about the idea that copyright is intended to address the entitlements of authors and inventors? In this case copyright extension is clearly not aimed at authors.

MR. JASZI: In fact, there was an interesting episode in the history of this term extension legislation when it was proposed that, in the case of works that had been created by an individual and then subsequently sold to another individual or to a company, the 20-year extension should revert back to the individual. Of course, that was immediately rejected as impossible, although the reason for the rejection was never entirely clear. In other words, whoever owns the rights at the end of the existing term of copyright by definition automatically receives the 20-year extension.

But I would have to think about that. Maybe there is more to that notion of a constitutional challenge than I have credited there for being. One concern I have is that we have over time been so loose and inclusive in our definition of what constitutes an author that we have easily extended the category of authorship to include, for example, companies that hire other people to make things or companies and individuals who commission others to produce particular works, so that it may be difficult at this late date to stand up constitutionally for a more puristic understanding of what it means to benefit authors. But I shouldn't dismiss the possibility. That's a case I wouldn't like to have to litigate, but maybe there is more to it than I have previously thought.

The other line of argument might be one to which I referred indirectly before; the copyright clause says this is all being done to promote the progress of science and useful arts. Well, insofar as the extension of the copyright for existing works is concerned, where is the promotion factor to be found? What is being promoted?

Jack Valenti, Motion Picture Association of America (MPAA) President, has an answer to that. He essentially says, "If you give us, the motion picture industry, more money by allowing us to collect more royalties for a longer period of time, we will reinvest that money in making more movies. So, you see, it will all work out the way the Constitution had in mind." I wouldn't mind seeing that argument put to a constitutional test. I believe that might be a very interesting exercise.

QUESTION: I am puzzled by why members of the American Congress respond to the companies of big content?

MR. JASZI: I don't know the answer to that. I have my suspicions. Historically some of the entities that are now enfolded within the West Publishing Company, for example, have been very generous political contributors. They're all players in a number of districts, and they are able to trade themselves--although foreign owned, they are significant domestic employers. And, to be honest, they are also employers of large platoons of effective, very persistent, very dedicated lobbyists.

However, one of the things that I've learned in the last couple of years is that members of Congress, although they certainly respond to constituents and they certainly respond from time to time to financial contributors, also will respond to persistent, articulate, even if sometimes biased, advocates in the nature of lobbyists. So they have done a very good job.

They have also been very effective in capturing sympathy. For instance, when on this database issue they need a witness, they don't get the CEO of West Publishing to testify--they get a gentleman who runs a small company that publishes cable television system directories and who had a bad experience being ripped off by a small fly-by-night operation that put his data into a system, produced CD-ROMS, and undersold him in the marketplace, and who then had some trouble getting relief under the copyright law. So they roll out the small employer of a family-owned company, and it makes a very nice, tear-jerking presentation. They are very adept at that kind of presentation. And we have perhaps not always been so adept in making the counter-presentation, in bringing forward the researcher or information consumer whose practices and activities would be curtailed or stopped by these developments.

Another thing I have noticed is that it's hard to get members of Congress to think ahead. It's very easy to get members of Congress to respond to descriptions of past and present wrongs, but it's very difficult to get them to focus on what the future impact of a change in law might be, one that may affect the distribution of rights and privileges and of information. Some of the most intelligent and articulate members of Congress simply seem unwilling to engage on these issues in that way.

MS. ADLER: Thank you very much, Peter, for that great synopsis.