Washington, D.C.
October 14-16, 1998

Confronting the Challenges of the Digital Era

The Digital Millennium: What Does It All Mean?

Arnold P. Lutzker, Esq.
Lutzker and Lutzker

DIGITAL TIMELINE:

WHERE WE'VE COME FROM

1993 - INFORMATION INFRASTRUCTURE TASK FORCE

NATIONAL INFORMATION INFRASTRUCTURE (NII):
AGENDA FOR ACTION

1994 - NII "GREEN PAPER"

HEARINGS BEFORE COMMERCE DEPARTMENT
CONFU - CONFERENCE ON FAIR USE BEGINS

1995 - NII "WHITE PAPER"

CONGRESSIONAL HEARINGS BEGIN
COPYRIGHT TERM EXTENSION NEGOTIATIONS

1996 - DIPLOMATIC CONFERENCE

WIPO COPYRIGHT TREATY ADOPTED
SUI GENERIS DATABASE TREATY SCRAPPED

1997 - LEGISLATIVE INITIATIVES INTRODUCED

• PROHIBITION ON CIRCUMVENTION OF TECHNOLOGICAL PROTECTION MEASURES (TPMs)
  
• COPYRIGHT MANAGEMENT INFORMATION
  
• DATABASE PROTECTION
  ON-LINE SERVICE PROVIDER LIABILITY NEGOTIATIONS
  SECTION 108 LIBRARY EXEMPTION AMENDMENTS

1998 - NEGOTIATIONS RESPECTING

• LIBRARY EXEMPTION
  
• ANTI-CIRCUMVENTION OF TPMs
  
• DATABASE
  
• COPYRIGHT TERM CONFU ENDS WITHOUT ADOPTION OF GUIDELINES
  FINAL CONGRESSIONAL APPROVAL OF
  
• COPYRIGHT TERM EXTENSION
  
• DIGITAL MILLENNIUM COPYRIGHT ACT

WITHDRAWAL OF COLLECTIONS OF INFORMATION ANTIPIRACY ACT (DATABASE BILL)

KEY ISSUES FOR THE LIBRARY COMMUNITY

*FAIR USE IN THE DIGITAL MILLENNIUM

• RECONCILING FAIR USE WITH ACCESS PROHIBITIONS
  -DATABASE PROTECTION

*MAINTENANCE OF PUBLIC DOMAIN

• COPYRIGHT TERM EXTENSION
  
• DATABASE PROTECTION

• LIBRARY PRESERVATION UPDATE
  

  -ON-LINE SERVICE PROVIDER EXEMPTION
  -DISTANCE LEARNING

LEGISLATIVE HIGHLIGHTS

DIGITAL MILLENNIUM COPYRIGHT ACT

HIGHLIGHT OVERVIEW

• NEW RIGHT TO CONTROL ACCESS BASED TECHNOLOGICAL PROTECTION MEASURES (TPMs)

• PROHIBITION ON MANUFACTURE AND SALE OF DEVICES WHICH DEFEAT TPMs

• COPYRIGHT MANAGEMENT INFORMATION (CMI)

• ONLINE SERVICE PROVIDER LIMITATION ON LIABILITY

• STUDY ON UPDATING SECTION 110(2) DISTANCE EDUCATION FOR THE DIGITAL FUTURE

• UPDATE OF SECTION 108 LIBRARY REPRODUCTION RULES

• DATABASE TITLE STRIPPED FROM FINAL VERSION

• OTHER AMENDMENTS PREPARE U.S. COPYRIGHT LAW FOR ADOPTION OF WIPO TREATIES

COPYRIGHT TERM EXTENSION ACT

HIGHLIGHT OVERVIEW

• TWENTY YEAR EXTENSION

• LIBRARY EXCEPTION

• MUSIC LICENSING - RESOLUTION OF BITTER DEBATE BETWEEN PERFORMING RIGHTS SOCIETIES AND RESTAURANTS AND SMALL BUSINESSES WHICH TIED UP LEGISLATION FOR YEARS

DIGITAL MILLENNIUM COPYRIGHT ACT

KEY ELEMENTS

1. PROHIBITIONS ON ACCESSING WORKS PROTECTED BY TPMs AND ON SELLING DEVICES WHICH CIRCUMVENT PROTECTION MEASURES

A. ACCESS PROHIBITION VS. FAIR USE: FAIR USE WINS LIMITED VICTORY!
* PROHIBITION STAYED FOR TWO YEARS
* SUBJECT TO ON THE RECORD RULEMAKING BY LIBRARIAN OF CONGRESS REGARDING "ADVERSE AFFECTS" ON ABILITY TO MAKE NON-INFRINGING USES OF WORKS
* FOLLOW-UP RULEMAKING PROCEEDINGS EVERY THREE YEARS

B. PROHIBITION ON MANUFACTURE, IMPORT, SALE OF TECHNOLOGY, PRODUCT, SERVICE, COMPONENT OR DEVICE THAT

• IS PRIMARILY DESIGNED OR PRODUCED FOR PURPOSE OF CIRCUMVENTING TPM
  
• HAS LIMITED COMMERCIALLY SIGNIFICANT PURPOSE OR USE OTHER THAN CIRCUMVENTION
  
• IS MARKETED FOR CIRCUMVENTION USE

THIS IS A SLAP AT U.S. SUPREME COURT SONY BETAMAX CASE WHICH HELD DEVICES (VCRs) WHICH HAVE "SUBSTANTIAL NON-INFRINGING USES" ARE NOT ILLEGAL

C. LIMITED LIBRARY "BROWSING" EXCEPTION

• NONPROFIT LIBRARY, ARCHIVE OR EDUCATIONAL INSTITUTION CAN CIRCUMVENT TO GAIN ACCESS SOLELY TO MAKE GOOD FAITH DETERMINATION TO ACQUIRE THE WORK
  
• CANNOT RETAIN WORK LONGER THAN NEED TO MAKE THIS DETERMINATION
  
• CANNOT ACCESS FOR ANY OTHER PURPOSE
  
• PENALTIES FOR VIOLATION

1. COPYRIGHT MANAGEMENT INFORMATION (CMI)

A. PROHIBITION ON

• PROVIDING FALSE CMI
  
• ALTERING OR REMOVING CMI

B. PENALTIES CIVIL AND CRIMINAL INCLUDING ATTORNEY FEES AND STATUTORY DAMAGES

• ACCESS VIOLATIONS - $200 - $2,500 PER VIOLATION
  
• CMI VIOLATIONS - $2,500 - $25,000 PER VIOLATION
  
• NONPROFIT LIBRARY, ARCHIVES OR EDUCATIONAL INSTITUTION: COURT MAY REMIT IF VIOLATOR WAS NOT AWARE AND HAD NO REASON TO BELIEVE THAT ITS ACTS CONSTITUTED AN INFRINGEMENT
  
• FINES - UP TO $500,000 AND IMPRISONED FOR 5 YEARS FOR FIRST VIOLATION AND $1 MILLION AND 10 YEARS (REPEAT OFFENSES)
  
• NONPROFIT LIBRARY, ARCHIVES AND EDUCATIONAL INSTITUTION - NO CRIMINAL EXPOSURE

ONLINE SERVICE PROVIDER LIMITATION ON LIABILITY

RULES PERMIT -

• INTERMEDIATE AND TRANSIENT STORAGE
  
• SYSTEM CACHING
  
• INFORMATION RESIDING ON SYSTEM SERVERS

PROVIDED THAT COMPLEX CONDITIONS MET, INCLUDING

• THIRD PARTY IS SOURCE
• NO ADVANCE KNOWLEDGE OF INFRINGING ACTIVITY
• COMPLIANCE WITH "NOTICE AND TAKE DOWN SYSTEM"
• COMPLIANCE WITH "NOTICE AND PUT BACK"

SPECIAL RULES COVERING EDUCATIONAL INSTITUTIONS BEING ABLE TO "DISOWN" ACTS OF FACULTY AND STUDENTS

DISTANCE EDUCATION

COPYRIGHT OFFICE TO STUDY DIGITAL UPDATING OF SECTION 110 OF COPYRIGHT ACT

PARTICIPANTS: COPYRIGHT OWNERS, NONPROFIT EDUCATIONAL INSTITUTIONS AND NONPROFIT LIBRARIES AND ARCHIVES

REPORT: HOW TO PROMOTE DISTANCE EDUATION THROUGH DIGITIAL TECHNOLOGIES, INCLUDING INTERACTIVE DIGITAL NETWORKS

ASSESS BALANCE - RIGHTS OF OWNERS AND NEEDS OF USERS

FACTORS TO BE CONSIDERED INCLUDE:

1. NEED FOR AN EXEMPTION FOR DISTANCE EDUCATION THROUGH DISTANCE NETWORKS

2. APPROPRIATE QUANTITATIVE LIMITATIONS ON PORTIONS OF WORKS THAT MAY BE USED UNDER DISTANCE EDUCATION EXEMPTION

3. WHO IS ELIGIBLE TO ACCESS MATERIAL ONLINE

4. WHETHER AND WHAT TYPES OF TECHNOLOGICAL MEASURES CAN OR SHOULD BE EMPLOYED TO STOP UNAUTHORIZED ACCESS

5. EXTENT TO WHICH AVAILABILITY OF LICENSES FOR USE OF COPYRIGHTED WORKS SHOULD BE CONSIDERED

SECTION 108 LIBRARY EXEMPTION UPDATE

LIMITATION IN SECTIONS 108(b) AND (c) MODIFIED

• UP TO THREE COPIES CAN BE MADE

• "FACSIMILE ONLY" LIMITATION ELIMINATED

• REQUIREMENT OF COPYRIGHT NOTICE APPLIES ONLY IF ON ORIGINAL

• FOR UNPUBLISHED WORKS, MAINTAIN DIGITAL COPY ON PREMISES

• FOR PUBLISHED WORKS

-COPYING ADDITIONALLY PERMITTED IF "FORMAT" BECOMES OBSOLETE

-DIGITAL COPY NOT AVAILABLE IN DIGITAL FORMAT TO PUBLIC OUTSIDE PREMISES OF LIBRARY OR ARCHIVE IN LAWFUL POSSESSION OF THE COPY

HIGHLIGHTS OF COPYRIGHT TERM EXTENSION ACT

WORKS MOVING INTO PUBLIC DOMAIN WILL HAVE TWENTY MORE YEARS OF PROTECTION

EXCEPTION FOR LIBRARY OR ARCHIVES, INCLUDING A NONPROFIT EDUCATIONAL INSTITUTION:

DURING LAST TWENTY YEARS OF TERM, INSTITUTIONS MAY

• COPY, DISTRIBUTE, DISPLAY OR PERFORM WORK
  
• IN DIGITAL OR FACSIMILE FORM
  
• SCHOLARSHIP OR
  
• RESEARCH

PROVIDED THAT INSTITUTION HAS DETERMINED ON BASIS OF REASONABLE INVESTIGATION THAT NONE OF FOLLOWING APPLY

• THE WORK IS NOT SUBJECT TO NORMAL COMMERCIAL EXPLOITATION AND
  
• A COPY OR PHONORECORD CANNOT BE OBTAINED AT A REASONABLE PRICE, OR
  
• THE COPYRIGHT OWNER OR AGENT PROVIDES NOTICE THROUGH COPYRIGHT OFFICE THAT THOSE CONDITIONS APPLY

THE EXEMPTION DOES NOT APPLY TO SUBSEQUENT USES BY USERS OF THE LIBRARY OR ARCHIVES

THE BILL THAT DIDN'T HAPPEN: COLLECTIONS OF INFORMATION ANTIPIRACY ACT (DATABASE PROTECTION)

AFTER PASSING THE HOUSE TWICE AND AFTER ALMOST TWO MONTHS OF NEGOTIATIONS, THIS BILL WAS PULLED IN THE FINAL DAYS OF THE SESSION

• ALTHOUGH ACTIVELY ADVANCED BY THE HOUSE JUDICIARY COMMITTEE, THE SENATE CONFEREES PREVAILED IN DROPPING TITLE, SUBJECT TO A PROMISE TO TAKE THE MATTER UP EARLY IN NEXT SESSION OF CONGRESS

• THIS BILL WAS THE #1 LEGISLATIVE PRIORITY OF ONLINE PUBLISHERS (REED-ELSEVIER AND THOMSON & THOMSON)

KEY ELEMENTS OF DATABASE PROPOSAL

1. INVESTMENT IN ORGANIZING, ASSEMBLING AND MAINTAINING INFORMATION PROTECTED

2. INFORMATION INCLUDES - FACTS, BITS OF DATA, GOVERNMENT WORKS

3. HARM TEST BASED ON ACTUAL OR POTENTIAL MARKET - MEASURED BY TAKING EVEN A FEW BITS OF DATA

4. TERM OF PROTECTION - POTENTIALLY PERPETUAL

OPEN ISSUES IN DATABASE BILL INCLUDE

• AFFECT ON FAIR USE, LIBRARY PRESERVATION AND OTHER EDUCATIONAL, SCIENTIFIC OR RESEARCH USES

• WHAT IS "POTENTIAL MARKET" AND HOW IS IT DETERMINED?

• DEFINITION OF HARM AND THE USE OF A FEW BITS OF DATA

• WHAT ARE ALLOWABLE "TRANSFORMATIVE" USES

• PROPER RELATIONSHIP TO COPYRIGHT LAW

• U.S. SUPREME COURT FEIST CASE

WHAT'S IT ALL MEAN

1. ANTI-CIRCUMVENTION OF TECHNOLOGICAL PROTECTION MEASURES
   

   • MORE COPYRIGHTED WORKS WILL COME IN ENCRYPTED FORM

ENTITLEMENT TO PROVIDE EVEN LIMITED THIRD PARTY ACCESS IS COMPROMISED - THIS COULD HIT LIBRARIES HARD

PAY CAREFUL ATTENTION TO CONTRACT NEGOTIATIONS

IF YOU WANT A HARD COPY, WHICH COMES WITH FAMILIAR COPYRIGHT USE RIGHTS, BARGAIN FOR IT

IF YOU ONLY HAVE DIGITAL COPY, YOU MAY FIND FUTURE ACCESS LIMITED AND PERHAPS IMPOSSIBLE WITHOUT ADDITIONAL PAYMENTS

EQUIPMENT OR SOFTWARE WHICH DECODES ENCRYPTED WORKS MAY BE CONTRABAND

1. LIBRARIAN OF CONGRESS ACCESS STUDY AND REGULATORY ACTIONS

• EXACT NATURE OF STUDY AND IMPACT UNCERTAIN

• PARTICIPATION IN EARLY PHASES - FIRST TWO YEARS IS IMPORTANT

-NECESSARY TO MAKE A RECORD
-VOICE CONCERNS

• PARTICIPATION IN SUBSEQUENT STUDIES MAY NEED TO BE WEIGHED

• UNCERTAIN ELEMENTS OF RULES

-WHAT WORKS ARE COVERED ("PARTICULAR CLASSES OF WORKS")

-HOW DOES ONE ESTABLISH "ADVERSE AFFECT"

-WHAT IS SIGNIFICANCE OF "PAY-PER-USE"

WE DID NOT ASK FOR THIS STRUCTURE BUT IT WAS BEST WE COULD GET UNDER ALL THE CIRCUMSTANCES. NEVERTHELESS, LIBRARY AND EDUCATIONAL COMMUNITIES NEED TO MAKE USE OF FAIR USE ACCESS PROCEEDINGS

1. OSP LIMITATION OF LIABILITY

• IMPORTANT RESOLUTION FOR SERVICE PROVIDERS, WHICH INCLUDES MANY IN LIBRARY AND EDUCATIONAL COMMUNITIES

• RULES COMPLEX AND WILL REQUIRE VERY CAREFUL MONITORING FOR COMPLIANCE

• EXAMPLE OF COMPROMISES BROUGHT ABOUT BY CONGRESSIONAL SCRUTINY

• NEGOTIATIONS WERE LONG, DRAWN OUT, BUT MAY SERVE AS MODEL FOR BALANCING CONCERNS OF CONTENTIOUS AND POLITICALLY POWERFUL INTERESTS

• PREDICTION:

-THIS WILL REMAIN A VERY IMPORTANT "HOT BUTTON" ISSUE FOR THE CONTENT COMMUNITY

-THERE WILL BE MAJOR LITIGATION IN NEAR TERM OVER THIS EXEMPTION AND COMPLIANCE

1. DISTANCE EDUCATION STUDY

• MAJOR BATTLEGROUND - LEARNING AND THE INTERNET

• AT STAKE IS RELATIONSHIP OF INTERNET TO EDUCATION AND THE USE OF DIGITAL MATERIAL ONLINE

• CONTENT COMMUNITY WILL TRY TO KEEP ANY EXCEPTION VERY NARROWLY DRAWN

• TECHNOLOGICAL PROTECTIONS WHICH DENY ACCESS TO UNAUTHORIZED USERS WILL BE IMPORTANT ELEMENT

• VERY QUICK TURNAROUND

• REPORT DUE IN SIX MONTHS

• SENATORS HATCH AND LEAHY GAVE COMMITMENT TO ADDRESSED THIS ISSUE EARLY IN NEXT SESSION OF CONGRESS

• LOOK FOR HOME SCHOOLERS TO PARTICIPATE

1. SECTION 108 LIBRARY EXEMPTION UPDATE

• THIS WAS SURPRISINGLY HARD FOUGHT

• CONTENT VERY NERVOUS ABOUT ANY DIGITAL COPIES NOT OTHERWISE AUTHORIZED OR CONTROLLED

1. COPYRIGHT TERM EXTENSION

• ALSO SURPRISINGLY HARD FOUGHT

• KEY ISSUE: DEFINITION OF NORMAL COMMERCIAL EXPLOITATION

• CONTENT PROPONENTS WILL SAY MERE AVAILABILITY FOR LICENSING IS ENOUGH TO CONSTITUTE NORMAL COMMERCIAL EXPLOITATION

• EVEN IF THEY DO NOT HAVE A COPY OF THE WORK BECAUSE IT IS SO OLD, THEY MAY REFERENCE IT ON A LIST OF WORKS AVAILABLE FOR LICENSING

1. DATABASE - THE 800 POUND GORILLA

• DRAMATIC PROPOSAL WITH POTENTIALLY DEVASTATING IMPACT ON PUBLIC DOMAIN

• IT WOULD CREATE A NEW LICENSING REGIME FOR FACTS, DATA AND GOVERNMENT WORKS

• VERY BROAD IMPLICATIONS IN DIGITAL WORLD

• URGENT NECESSITY FOR MAINTAINING EFFECTIVE POLITICAL ALLIANCES

• LIBRARY COMMUNITY JOINED WITH "COMMERCIAL SKEPTICS" TO FORM INFLUENTIAL ALLIANCE

• NEED TO MAINTAIN VERY CAREFUL WATCH OVER THIS LEGISLATION

-IMPORTANT ALLY IN COMMERCE COMMITTEE MEMBERS AND STAFF

-LIKELIHOOD IS STRONG THIS WILL BE TOP AGENDA ITEM FOR MANY IN CONTENT COMMUNITY IN 1999