Volume 19, Number 5
Nov 1995

Copyright Revisions for Internet Would Cut Fair Use

On September 5 the Commerce Department released a "White Paper," recommending changes to intellectual property laws on the Internet; on September 28, Senators Hatch and Leahy introduced Senate Bill 1284 to implement those recommendations: the National Information Infrastructure Copyright Protection Act of 1995. It went into hearings November 15 in the Judiciary Subcommittee, and at press time was still in committee. There is a similar bill in the house, HR 2441.

The bill, which will revise the Copyright Law of 1976, does not support the principle of "universal access to information," as one might expect of a document from our current Administration; it greatly weakens it. The balance between the rights of those who own copyright and the rights of those who want to consult or make individual copies of copyrighted works is replaced by a plan to facilitate the economic exploitation of copyrighted works.

The Association of Research Libraries has been following this issue. It put out a commentary by Arnold Lutzker on the White Paper September 15 (available at http://sunsite.berkeley.edu/ and also in ARL, the ARL's newsletter, for October 1995). Lutzker concludes that "the core thrust of the Report is far-reaching. It posits the thesis that copyright is an economic right of owners to be exploited.… The weakest part of the Report is its assessment of the relationship of fair use to digital use."

On November 15 ARL sent to people on its electronic mailing list a four-page open letter to Congress, signed by 27 organizations, who make up the Digital Future Coalition (DFC). These organizations include the American Library Association, Association of American Geographers, Consortium of Social Science Associations, and the National Writers Union. The letter is available on the ARL server: http://www.arl.org/ More information about the DFC is available from Prue Adler, ARL Assistant Executive Director, Federal Relations and Information Policies (prue@cni.org).

"Tightening the Copyright Noose: Why You Should be Worried About the White Paper on Intellectual Property and the National Information Infrastructure," by Pamela Samuelson, is an article forthcoming in WIRED, 4.01, January 1996. It is about 15 pages in printout. The author is a visiting professor of law at Cornell Law School and a Fellow of the Electronic Frontier Foundation. She speculates that the Clinton Administration has abandoned its position as an advocate of public access because it seeks to please the copyright industries, upon whose campaign contributions it is counting to fund the President's re-election effort. Established copyright industries, she says, are frightened about losing control over content when it is disseminated via digital networks.

The subheads she uses are:

Eliminating User Rights Through Biased Interpretations of Existing Law
Understanding the Interrelated Parts of the Maximalist Agenda
Competing Visions of Copyright
The Global Part of the Agenda
Reasons to Say No to the White Paper's Agenda

An article entitled "The Information Toll-Road" comments on both the White Paper and the Senate bill. This article, written by James Boyle for private distribution, is adapted from his book, Shamans, Software and Spleens: Law and the Construction of the Information Society, to be published by Harvard University Press in 1996. The author is a professor of law at American University, Washington College of Law, and he can be contacted at 202/885-2641 or boyle@postoffice.wcl.american.edu.

Here are some of Boyle's comments:

"If the White Paper is implemented--and the resulting law interpreted by the courts in the way the drafters of the report seem to want--the information superhighway will become an information toll-road. The 'fair use' provisions of the current law would be turned on their head, depriving users of many of their current rights to make 'fair use' of copyrighted material…. Individuals will be denied the right to give away their copies of digital works to their friends, even if they delete their own copies of those works…Even reading a document on the screen of your World Wide Web browser…becomes a copyright violation! [On intellectual property issues, he says, the press calls only the largest property holders for their commentary--the Business Software Alliance, the recording industry and the publishers' lobbyists.] The idea that startup software developers, academics, librarians, civil libertarians, and so on might have a distinct perspective on these issues, simply hasn't emerged into popular consciousness."

For the historians' adverse reaction to a draft of the White Paper a year ago, see the April issue of this Newsletter, p. 16c.

Commentary

This critical issue is of course relevant to the missions of libraries, archives, and the people who rely on them for information. It is also relevant to the work of people who make their living in conservation and preservation, and who have to collect much of their own information by photocopying and downloading, because the specialized information they need is often not found in library books. They have to build their own libraries and files by buying books when possible, subscribing to as many journals as they can afford, keeping handouts from conferences, photocopying much-sought-after pamphlets or papers from friends' files, and downloading everything they see of value on the Internet or hear about on the grapevine. If they work in a research library, they check out every book on the subject of their specialty, and keep it--indefinitely --in their lab or office. This field changes so rapidly, and is so eclectic, and so few specialists in it have a complete formal education, that practitioners depend heavily on their collection of information, and add to it every time they get the opportunity. They feel (rightly) that the information in their files helps them do a better job.

If they had to pay someone for every photocopy or every document on the Internet that they read or downloaded, this would take significant amounts of time and money and place many documents beyond reach. They would be unable to do their best work, because they would lack critical information. And the institutional collections of books and documents for which they are responsible would suffer as a result.

A law restricting or eliminating the right to "fair use" of copyright materials would not stop people from photocopying copyright materials. Photocopy machines are ubiquitous, and the universal drive to make a copy of something occasionally for oneself is almost undeniable. Many people will circumvent the law somehow, rather than be denied that right.

Libraries and archives, however, are much more vulnerable. They are not at liberty to go underground or circumvent the law. They do not have the power to oppose organized commercial interests. The Executive Branch of the government has let them down. If they cannot find some far-sighted friends in Congress or the press, it is hard to see where they can turn for help.

Citizens' groups and professional organizations are the normal channels through which the public communicates its concerns to Congress and the press. However, Congress seems to be on the verge now of making any lobbying by nonprofit groups illegal, whether or not the groups spend any money on lobbying activities. It may soon be impossible to communicate with Congress through nonprofit organizations. Watch out for the Istook amendment, which may become law as part of a bill on the budget or lobbying in general. This issue is being followed by the NCC, a coalition of 53 scholarly organizations, over the Archives listserve <ARCHIVES@MIAMIU.ACS.MUOHIO.EDU>. -Ed.