Washington, D.C.
October 14-16, 1998
Arnold P. Lutzker, Esq.
Lutzker and Lutzker
NATIONAL INFORMATION INFRASTRUCTURE (NII):
AGENDA FOR ACTION
HEARINGS BEFORE COMMERCE DEPARTMENT
CONFU - CONFERENCE ON FAIR USE BEGINS
CONGRESSIONAL HEARINGS BEGIN
COPYRIGHT TERM EXTENSION NEGOTIATIONS
WIPO COPYRIGHT TREATY ADOPTED
SUI GENERIS DATABASE TREATY SCRAPPED
- PROHIBITION ON CIRCUMVENTION OF TECHNOLOGICAL PROTECTION MEASURES (TPMs)
- COPYRIGHT MANAGEMENT INFORMATION
- DATABASE PROTECTION
ON-LINE SERVICE PROVIDER LIABILITY NEGOTIATIONS
SECTION 108 LIBRARY EXEMPTION AMENDMENTS
- 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
*FAIR USE IN THE DIGITAL MILLENNIUM
- RECONCILING FAIR USE WITH ACCESS PROHIBITIONS
-DATABASE PROTECTION
*MAINTENANCE OF PUBLIC DOMAIN
- COPYRIGHT TERM EXTENSION
- DATABASE PROTECTION
-ON-LINE SERVICE PROVIDER EXEMPTION
-DISTANCE LEARNING
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
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
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
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
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
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:
NEED FOR AN EXEMPTION FOR DISTANCE EDUCATION THROUGH DISTANCE NETWORKS
APPROPRIATE QUANTITATIVE LIMITATIONS ON PORTIONS OF WORKS THAT MAY BE USED UNDER DISTANCE EDUCATION EXEMPTION
WHO IS ELIGIBLE TO ACCESS MATERIAL ONLINE
WHETHER AND WHAT TYPES OF TECHNOLOGICAL MEASURES CAN OR SHOULD BE EMPLOYED TO STOP UNAUTHORIZED ACCESS
EXTENT TO WHICH AVAILABILITY OF LICENSES FOR USE OF COPYRIGHTED WORKS SHOULD BE CONSIDERED
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
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
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
INVESTMENT IN ORGANIZING, ASSEMBLING AND MAINTAINING INFORMATION PROTECTED
INFORMATION INCLUDES - FACTS, BITS OF DATA, GOVERNMENT WORKS
HARM TEST BASED ON ACTUAL OR POTENTIAL MARKET - MEASURED BY TAKING EVEN A FEW BITS OF DATA
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
- 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
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
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
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
THIS WAS SURPRISINGLY HARD FOUGHT
CONTENT VERY NERVOUS ABOUT ANY DIGITAL COPIES NOT OTHERWISE AUTHORIZED OR CONTROLLED
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
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