9.4 The Working Group on Intellectual Property Rights
With the formation of the Information Infrastructure Task Force (IITF) in early 1993, President Clinton acted on the issues that were facing the policies and laws for intellectual property. The Administration envisioned creating a National Information Infrastructure (NII) that would combine the existing single infrastructures of radio, television, telephones, fax machines, and computers and create one information infrastructure of all communication mediums. Computers and communication tools would be merged to create an unlimited interaction between all media of communication. The NII is to become an "advanced, high-speed, interactive, broadband, digital communications system" (The Report of the Working Group on IP Rights).
The purpose of the IITF is to work "with the private sector, public interest groups, Congress, and State and local governments to develop comprehensive telecommunications and information policies and programs that will promote the development of the NII and best meet the country's needs."(The Report) The IITF was organized into three committees; Telecommunications Policy Committee, Committee on Application and Technology, and the Information Policy Committee. The third committee includes a group called the Working Group on Intellectual Property Rights. Bruce Lehman, the Assistant Secretary of Commerce and the Commissioner of Patents and Trademarks, chairs this group. The Working Group was created to examine the existing intellectual property policies and determine how they are affected by the creation of the NII. Secondly, the group was to make recommendations on how the policies needed to be changed, amended or revised. The Working Group's main focal point was on copyright laws.
The Working Group had a very difficult task ahead of them. They began by allowing many opportunities for individuals, companies and organizations to state their concerns and opinions on what should happen to the laws. Next the Working Group developed a preliminary draft of "Intellectual Property and the National Information Infrastructure." This is called the "Green Paper." The Working Group had to address many issues, a few of which are explicitly addressed by Lehman and the committee. The "Background" section of the report reviews common suggestions made to them by involved parties and states the committee's position on the matters. Since these requests are common it is important to go over them here.
One suggestion was made that copyright law should be less strict on the WWW. The argument for this is that information should be "free and unencumbered on the NII," and "the law should reflect the public interest."(The Report) The Working Group responds to this by stating that "creative works of authorship" will eventually disappear from the WWW. Without protection on the NII authors will not have the incentive to make their works available. Hence, in the public's best interest, it is important to apply these laws to the NII in order to continue having creative work available.
Another suggestion is that copyright protection could be reduced because technology makes it so easy to violate copyrights. The Working Group simply responds that "this arguement is not valid" (The Report) because the ability to do something does not mean that it should be allowed to be done.
The last common suggestion reviewed by the committee was that any law, regardless of what country, did not apply to "Cyberspace" because it is "a sovereignty unto itself that should be self governed by its inhabitants."(The Report) The idea behind this is that the inhabitants "will rely on their own 'netiquette' to determine what uses of works, if any, are improper."(The Report) The Working Group responded that "Cyberspace" is not a virtual world and is in fact in the jurisdiction of the law. Communications or transmissions, whether it be through satellite, broadcasts or networks are governed by the country from which they are coming and going. And once again, the Working Group suggests that if cyberspace were a law free domain, authors would choose not to enter it with their contributions.
The members of the Working Group on Intellectual Property Rights feel that in order to have the NII reach its "full potential" copyright law must be applied and that the laws must be effective. In order for the IITF to be successful in building and developing the NII there needs to be "efforts in three disciplines - law, technology and education.
The Green Paper was subject to much review and was eventually developed into the White Paper in September of 1995. The hearings and testimonies before and after the Green Paper became recommendations for intellectual property policies and proposed legislature for copyright protection. "The Report of the Working Group on Intellectual Property Rights" covers the majority of question that can be thought of concerning IP policies and issues that are related to today's technology. It is likely, however, that because of the rapid advancement of technology these answers and recommendations will become outdated quickly. Regardless, it is important to examine the issues addressed in the report.
It is best to review some of the major proposals rather than the White Paper as a whole. First, (this is not neccesarily in the order in the paper) it is suggested that the owner of a copyright have exclusive use of the digital form of that work. In order for any other person to legally own a copy of a work in digital format, the copyright owner must have given them a copy whether through a license or for free. Additionally, transmitting a digital copy of a work with a copyright is suggested to be a form of distribution. Hence, without the permission of the copyright owner, this is an illegal action. For a simple example, if you have a copy of a paper or article which you obtained by buying a license and would like to share it with a colleague and do so via e-mail, you violate a copyright law. Your colleague cannot benefit from this article unless they obtain the article in the same manner that you did.
On a similar note, the reason this will be illegal is because fair use will be eliminated according to the recommendations of the White Paper. By creating licensing systems throughout the NII, the only way to obtain articles would be to buy them. The only way to share a copy with another person would be to send the original copy from the first person's machine to the second person. This is the "first sale right". The Working Group compares this to utilizing first sale rights with a book. Once a person sells a book, either to a friend or a used book store, they no longer have a copy of the book. Therefore, a person should not retain a digital copy of an article. Hence, if a person is prohibited from making a copy, fair use has been eliminated.
The White Paper also calls for Copyright Management Information. This is information about the author, copyright owner, license information and the terms of the license, distribution information, etc. The proposals suggests that it is not mandatory for this information to be included in a document, but that it should be illegal to provide false information or to falsify copyright management information provided. The Working Group also suggests a new section to the copyright law that would prohibit devices that are for the primary purpose of avoiding, or deactivating protection on a work. For example, it is illegal to possess, manufacture or distribute a device that is for decrypting protected, encrypted files.
Finally, the Working Group suggests that On-line Service Providers (OSPs) become the enforcers of the Web. The OSPs have the authority to watch and control activity that occurs in their domain. Therefore, they should be the police that serve to protect the copyright owner. OSPs have the ability to discover violations and punish users for inappropriate actions. Working toward a solution for the future, the Working Group suggests educating children to help set standards for the NII that is developing.
The Working Group on Intellectual Property Rights provided only proposals for new policies. It is at the discretion of the law-makers to use these recommendations as they please. In November of 1995 Congress enacted the first of the accepted recommendations with the NII Copyright Protection Act of 1995.
Copyright © 1996 Kelly R. Hanood
Kelly Hanood <hanood@simon.cs.vt.edu>