Commodification of Information
and the Assault on Public Space
Golden Gate Library Network
3/19/02
Howard Besser
Associate Professor
UCLA School of Education & Information
http://www.gseis.ucla.edu/~howard/
Besser--Commod of Info, GGLN
3/19/02, 1
Commodification of Information
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Info is a public resource, not a commodity
Librarians are traditional guardians of this
public resource
This public resource is under attack
Besser--Commod of Info, GGLN
3/19/02, 2
Attacks fromu
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Licensing replacing sales
pay-per-use models
drastic reduction of public domain and fair
use
Rightsholiders controlling downstream use
Besser--Commod of Info, GGLN
3/19/02, 3
Licensing replacing sales
We won’t own the work
u Others can control how we use the work
u The work can be withdrawn if the licensor
doesn’t like how it’s used
u Licensors will try to track who views the
work
u Variant forms of the work will be missing
important pieces
Besser--Commod
Info, GGLN
3/19/02, 4
u ofHow
will any of these works be preserved?
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Pay-per-use Models
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Discourage browsing
Encourage viewers to follow wellestablished authorities
Discourages new and innovative
exploration
Promotes best-sellers
Besser--Commod of Info, GGLN
3/19/02, 5
Importance of Public Domain
and Fair Use
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What are they?
A robust public domain is essential for a common
heritage and for the creation of new works
Fair Use is a powerful tool for both education
and social commentary
First Sale is important for social aims
Important mechanisms to assure an Information
Commons of available content
Besser--Commod of Info, GGLN
3/19/02, 6
An Information Commons of
Content is critical for society
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Creators draw on it for new works
Scholars use it for new discoveries
Social commentators use it to satirize or
criticize
Teachers teach with it, young people learn
from it
A key part of public discourse
Besser--Commod of Info, GGLN
3/19/02, 7
But our Information Commons is
rapidly eroding
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Fair use and first sale severely limited
Perpetual © and elimination of public
domain
Licensing
Tracking use
– To freely use it, people need to know they’re
not being tracked
Besser--Commod of Info, GGLN
3/19/02, 8
What is Copyright About?
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The Congress shall have power ...to provide for the ...
general welfare of the United States To promote the
progress of science and useful arts, by securing for
limited times to authors and inventors the exclusive
right to their respective writings and discoveries;
-US Constitution, Article 1, Section 8 (underlining added)
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(exclusive control) Incentivizing creators to create more
(limited time) Establishing a vast and rich public domain
for use as new creative materials, as well as for public
edification and appreciation
Besser--Commod of Info, GGLN
3/19/02, 9
What is Copyright?
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Copyright is a delicate balance btwn users and
creators, but is supposed to be clearly oriented
towards the public good
Copyright is NOT an unlimited Economic Right
Copyright is really a temporary monopoly right
granted to creators in order to fulfill the societal
need to increase creativity
The Copyright monopoly is temporary, then
works become freely available for all purposes
Besser--Commod of Info, GGLN
3/19/02, 11
What has copyright become
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(1/2)
Who actually holds Copyright?
Licensing is replacing copyright in the
digital age
Legislation lengthening duration
Erosion of Fair Use
Besser--Commod of Info, GGLN
3/19/02, 12
What has copyright become
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(2/2)
The larger trend -- moving long-standing
common-law or constitutional rights into the
arena of person-to-person business transactions,
where these rights no longer apply
licensing eliminating fair use
– privacy
– international arena
– increasing time before work enters public domain
Besser--Commod of Info, GGLN
3/19/02, 13
Fair Use is Disappearing
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Criminalizing Fair Use
Copyrighting DB contents in perpetituity
Proposed Legislation (USCITA, etc.)
The 1998 Digital Millenium Copyright Act
The 1998 Sonny Bono Term Extension Act
Besser--Commod of Info, GGLN
3/19/02, 14
The erosion of the public domainu
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What is it?
What threatens it?
Why should we care?
Besser--Commod of Info, GGLN
3/19/02, 15
What’s part of Public Domain?
Still is
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Air
Sunlight
Numbers
God
Ideas & Facts**
Besser--Commod of Info, GGLN
Was
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Water
Land
3/19/02, 16
Lawyers defining the Public Domain
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"things in the public domain can be appropriated by anyone without liability
for infringement" (Black's, 1996)
“the law’s primary safeguard of the raw material that makes authorship
possible” (Litman, 1989)
“a commons that includes those aspects of copyrighted works which copyright
does not protect"” (Litman, 1990)
the converse of property rights in information where the government prohibits
certain uses or communications of information to all people but the owner; the
public domain “is the range of uses privileged to all” (Benkler, 1999)
“the ultimate source of all new works (because nothing is ever wholly new in
and of itself)” (Karjala, 1998)
“copyright’s raison d’etre is to benefit the public by encouraging the
production and dissemination of new copyrighted works” (Kreiss, 1995)
Besser--Commod of Info, GGLN
3/19/02, 17
Public Domain -- a simpler
explanation
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resources freely available for all members
of society to do whatever they want with
them
no permissions or fees required
no tracking of what you read or use
Besser--Commod of Info, GGLN
3/19/02, 18
Content in Public Domain
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Shakespeare
Ballads
Fables
...
Besser--Commod of Info, GGLN
3/19/02, 19
What threatens it?u
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An aggressive Content Industry
Term extension
Returning out-of-copyright works back to
copyright
Mickey Mouse
Elimination of Fair Use and First Sale
Licensing
Other forms of Contract Laws
Besser--Commod of Info, GGLN
3/19/02, 20
Pat Schroeder's New Chapter:
The Former Congresswoman Is Battling For America's
Publishers --Washington Post, 2/7/01
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...Schroeder is president of the Washington- and New York-based Association of
American Publishers, sponsor of the event. Like a nurturing shepherd, she moves
gently among her flock. But when she talks about threats to the group, she stiffens her
back.
And who, you might be wondering, is giving Schroeder and her publishers such a
fright?
Librarians, of course.
No joke. Of all the dangerous and dot-complex problems that American publishers face
in the near future -- economic downturns, competition for leisure time, piracy -perhaps the most explosive one could be libraries. Publishers and librarians are
squaring off for a battle royal over the way electronic books and journals are lent out
from libraries and over what constitutes fair use of written material.
Grossly oversimplified: Publishers want to charge people to read material; librarians
want to give it away.
"We," says Schroeder, "have a very serious issue with librarians."
Besser--Commod of Info, GGLN
3/19/02, 21
Publishers Accuse Librarians
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"They've got their radical factions
(librarians), like the Ruby Ridge or Waco
types," who want to share all content for
free, said Judith Platt, a spokeswoman for
the Association of American Publishers.
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Besser--Commod of Info, GGLN
-ZDNet News, July 12, 2001
3/19/02, 22
Content Industry trying to control all
Downstream Use
users will no longer “buy” content; they’ll “license” it
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Pushing new legislation
Lawsuits
Copy protection
Contract Law
New business models
Besser--Commod of Info, GGLN
3/19/02, 23
Hollings Bill
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All consumer devices sold in US must
enforce copy-portect schemes
What happens to Fair Use rights?
Besser--Commod of Info, GGLN
3/19/02, 24
Www.digitalconsumer.org
Advocates confirming consumer
rights to:
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Time-shift content
Space-shift content
make back-up copies of content
Translate content into diff formats (e-book
becomes audible for blind)
No technological barrier should deprive one
of their Fair Use rights
Besser--Commod of Info, GGLN
3/19/02, 25
Content Industry Plans
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[advocating legislation that] “guarantees
publishers’ control of not only the integrity
of an original work, but of the extent and
duration of users’ access to that work, the
availability of data about the work and
restrictions on forwarding the work to
others” -- Peter Chernin, News Corp President (owner of HarperCollins) quoted in Publishers Weekly, May 2001
Besser--Commod of Info, GGLN
3/19/02, 26
Content Industry Attacking all Peerto-Peer
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"Napster is about song files, most of which
are pirated… On the Gnutella network, you
have so many other cool things. The other
day I found the complete work of
Shakespeare and a classic vampire movie,
Nosferatu, which is in the public domain." -Stephen Cho quoted in Jefferson Graham, "Next Napsters Wait in the Wings;
As music-swap site goes legit, users threaten to quit," USA Today, Feburary 8,
2001, page 3D.
Besser--Commod of Info, GGLN
3/19/02, 27
Strong Content Control Threatens
Creativity
imagine:
u Having no public domain to draw upon
u Having to negotiate rights for every clip,
every drawing, every still image, every
sound sample
u Having to renegotiate all these rights every
time you redistribute it in a different form
or in a different media
Besser--Commod of Info, GGLN
3/19/02, 28
Difficulty of clearing rights affects
Completeness of Content
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Image Not Available
Image Not Available
Image Not Available
Image Not Available
Image Not Available
Recent changes are reducing the
tools artists used to create new art
based on old
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Lengthening copyright terms
Shrinking public domain
Technical protections that prevent one from
accessing content that one may legally be
able to fairly use-
Besser--Commod of Info, GGLN
3/19/02, 30
Time before works enter public
domain
Law
Duration
1709 British
14 years
1790 US
14+14 years renewal
1909 US
28+28 yearsrenewal
1976 US
75 years (corporate)
life+50 years (individual)
1998 US
95 years (corporate)
life+70 years (individual)
Besser--Commod of Info, GGLN
3/19/02, 31
Lengthier Copyright Means
Date
Term
Published 1923-63
67 years if renewed
Published 1964-77
28+67 years
Created before 1/1/78
Life+70 years or
-12/31/02 if not published
-12/31/47 if published before end of 2002
whichever is greater
Life+70 years (95/120
years corporate)
Created after 1/1/78
Besser--Commod of Info, GGLN
3/19/02, 32
Works that should have already entered the
Public Domain (but didn't)
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Virginia Woolf: Jacob's Room
Film -- Sherlock Jr.
F. Scott Fitzgerald: Hot and Cold Blood and Invasion of the
Sanctuary
Zane Grey: Code of the West, Steelhead, Tappan's Burro,The
Vanishing American, and Down into the Desert
Ben Hecht: Fingers at the Window
Rudyard Kipling: Independence and London Stone
P.G. Wodehouse: Jeeves, First Aid for Dora Heart of a Goof, Leave It
to Psmith, Magic Plus Fours, No Wedding Bells for Him,The Return
Of Battling Billson, Rollo Podmarsh Comes To, Ukridge Rounds A
Nasty Corner, and Chester Forgets Himself
Besser--Commod of Info, GGLN
3/19/02, 33
Works that should have entered the Public
Domain in the next few years (but won't)
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Irving Berlin: Blue Skies (2002)
Harry Woods: When the Red, Red Robin Comes
Bob, Bob Bobbin' Along (2002)
Oscar Hammerstein II and Jerome Kern: Ol' Man
River and Showboat (2003)
Mickey Mouse (2004)
Besser--Commod of Info, GGLN
3/19/02, 34
Eldred Case
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Sonny Bono Term Extension is
unconstitutional
Besser--Commod of Info, GGLN
3/19/02, 35
Use of IP Laws to inhibit free speech
and stifle creativity
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The Wind Done Gone
E-Toy
Leonardo Finance vs
Leonardo Arts
Jeff Koons case
Barbie
Scientology vs.
Netcom
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Besser--Commod of Info, GGLN
Fans sites (Star Trek,
Harry Potter)
2 Live Crew
Negativland and U2
Contract with America
Snow White & AIDS
Disney and Dan
O’Neil
The Rio player
3/19/02, 36
Content Industry Myths
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Recording labels speak for Music Industry
on © issues (Pho, Love, …)
MPAA speaks for independent filmmakers
Publishers speak for writers on © issues
(ask Tasini)-
Besser--Commod of Info, GGLN
3/19/02, 37
Creators/Users commonality
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Make good use of content created by others
Want widest possible distribution of content
Benefit from moves away from perpetual
“locking up” of content
Have interest in works persisting over long
periods of time
Besser--Commod of Info, GGLN
3/19/02, 38
IP Issues for Multimedia
difficulties in Creation
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20th Century Art was about
contextualization & recontextualizationRequires access to content, but content is
increasingly being locked up
Vast layers of rights to negotiate
Disappearance of fair use and first sale
From commons to commodity
Besser--Commod of Info, GGLN
3/19/02, 39
Art builds upon prior Works
new works involve repurposing old
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Collage
Pop
Postmodern
Sampling
Shakespeare
Besser--Commod of Info, GGLN
3/19/02, 40
Importance of Info Commons for
Content
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Common Heritage (philosophical)
New Knowledge incorporates Old
(progress)
Derivative Works rely upon pre-existing
Works (creativity)
Social Commentary (free speech)
Besser--Commod of Info, GGLN
3/19/02, 41
Other serious erosions
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UCITA
Database Treaty
Anti-Circumvention
– Felten & SDMI challenge
– Sklyarov-
Besser--Commod of Info, GGLN
3/19/02, 42
Criminalizing © violations
Dmitri Sklyarov jailed
Besser--Commod of Info, GGLN
3/19/02, 43
Pseudo-public spaces
Economics and Contract Laws
preempting long-standing rights
Moving long-standing common-law or constitutional
rights into the arena of person-to-person business
transactions, where these rights no longer apply
– extending reach beyond “first sale” to control Use
– shrink-wraps eliminating any negotiating power (UCITA)
– shrink-wraps and technological protection don’t allow for fair use
exemptions
– licensing curtailing fair use
– Privacy invasions to prove licensing compliance
Besser--Commod of Info, GGLN
3/19/02, 44
Dangers
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Eliminating a public domain of information
Controlling social/political commentary, satire,
creation of new derivative works/recombinant
works
Criminalizing acts that might possibly impede
digital commerce
Making sure that the Internet is used only for info
consumption, not production
Controlling access to older info (controlling
history)
Besser--Commod of Info, GGLN
3/19/02, 45
Database Protection Legislation
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The educational exemptions in this bill
“appear too narrow to support current
university information-use practices”, and it
appears that ANY claim of “market harm”
could nullify the fair use exemptions.
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--Dr. Debra W. Stewart, testifying Feb 16, 1998 on behalf of the
Association of American Universities in front of the House Judiciary
Subcommittee on Courts and Intellectual Property considering
proposed Database Protection legislation
Besser--Commod of Info, GGLN
3/19/02, 46
Copyrighting Facts:
Proposed Database Extraction legislation
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No requirement that the DB contain any original
content (can copyright facts, government information,
etc., taking these out of the Public Domain)
DB owner given recourse, even if they didn’t suffer
harm
Implications on:
– Transformative uses
– Uses other than those intended by the compiler (citation analysis)
– Copyrighting court decisions
Besser--Commod of Info, GGLN
3/19/02, 47
Commodification of Information
and the Assault on Public Space
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http://www.gseis.ucla.edu/~howard/Copyright/
http://www.gseis.ucla.edu/~howard/Copyright/commons.html
http://books.nap.edu/html/digital_dilemma/
http://www.digitalconsumer.org
http://www.dfc.org
http://www.pdos.lcs.mit.edu/~cananian/UCITA/
http://www.gseis.ucla.edu/~howard/Papers/brook-book.html
Lee Felsenstein, 'The Commons of Information,' Dr. Dobb's Journal,
May 1993
Besser--Commod of Info, GGLN
3/19/02, 48
Besser--Commod of Info, GGLN
3/19/02, 49
An Information Commons:
© concepts as enablers
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A robust public domain
Time limits for copyright monopoly
Fair use
First sale
Besser--Commod of Info, GGLN
3/19/02, 50
What is an Information Commons
and Why Should We Care?u
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Background & importance
The disapearing Physical Commons
The importance of a Content-rich
Information Commons
Besser--Commod of Info, GGLN
3/19/02, 51
Characteristics of a Commons
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No one owns it
Almost no control over it
Usually has lots of diversity
People can be anonymous there
Besser--Commod of Info, GGLN
3/19/02, 52
What happens in a Commons?
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Free speech
Exposure to different ideas
Exposure to different cultures
Inspiration for new thoughts and creativity
Besser--Commod of Info, GGLN
3/19/02, 53
Historical examples of Commons
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Greek’s Agora
Middle Ages’ Commons
20th Century parks, streets, town squares
…electronic version?
Besser--Commod of Info, GGLN
3/19/02, 54
Much more than commerce happens
in a Commons
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“What goes on in these marketplaces is more than
commerce. People hang out there, display their identities
(usually as members of groups), gather groups of friends,
banter and gossip within and among the groups, overhear
others' conversations, and inject themselves temporarily
into those conversations. In short, they get to know who
the other people are who share their society, and keep up
with their daily doings.”
--Lee Felsenstein, The Commons of Information, Dr Dobbs Journal, May 1993
Besser--Commod of Info, GGLN
3/19/02, 55
Information Commons disappearing
mirrors Public Spaces disappearing
Besser--Commod of Info, GGLN
3/19/02, 56
Bath bathrooms
Besser--Commod of Info, GGLN
circa 1650
3/19/02, 57
Paddington Station
Besser--Commod of Info, GGLN
3/19/02, 58
Naples Train Station
Besser--Commod of Info, GGLN
3/19/02, 59
Westwood Farmers Market
Besser--Commod of Info, GGLN
3/19/02, 60
but in the US we have things like
Beverly Center Mall
Besser--Commod of Info, GGLN
3/19/02, 61
Public Space is no longer public
Private Property. Permission
to pass revocable at any
time.
Besser--Commod of Info, GGLN
3/19/02, 62
Street-cams
Besser--Commod of Info, GGLN
3/19/02, 63
3 blocks near Penn Station
Map compiled by Matt McCourt and Carl Dahlman, Department of Geography, University of Kentucky
Besser--Commod of Info, GGLN
3/19/02, 64
Enemy of the State
Besser--Commod of Info, GGLN
3/19/02, 65
Public Spaces rapidly disappeared in the
late 20th Century
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Erosion of Inner City, growth of suburbs
Decay of public transit
No more privacy in public spaces
The rise of pseudo-public spaces
BroadcastingThe erosion of the public domain-
Besser--Commod of Info, GGLN
3/19/02, 66
Static Over Low-Powered Radio
NYT Editorial, 3/31/00
Besser--Commod of Info, GGLN
3/19/02, 67
Our Commons in other spaces are
disappearing, with threats to:
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Free speech
Privacy and anonymity
Access to content
Besser--Commod of Info, GGLN
3/19/02, 68
We also have a less physical, more
abstract/intellectual commons
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Our Information Commons -- a rich set of
Content that anyone can draw upon to use
in any way they see fit
Besser--Commod of Info, GGLN
3/19/02, 69
Besser--Commod of Info, GGLN
3/19/02, 70
NRC analysis of Coble Bill
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reduce the amount of data that can be obtained, particularly from the private
sector or public-private partnerships, an increasingly important source of data;
increase the cost of obtaining data, particularly from database owners with a
monopoly on the data;
restrict access to data for at least 15 years from the time the data was created;
discourage the transformation of existing databases into new ones, creating
artificial gaps in data availability;
prevent the use of data for purposes other than than which it was collected,
minimizing the scientific and societal value of original data; and
increase restrictions on the use of compilations of all kinds, including works of
authorship (e.g. collection of articles) not normally considered to be
databases”
Linn, 2000
Besser--Commod of Info, GGLN
3/19/02, 71
Pseudo-public spaces
Economics and Contract Laws
preempting long-standing rights
Moving long-standing common-law or constitutional
rights into the arena of person-to-person business
transactions, where these rights no longer apply
– extending reach beyond “first sale” to control Use
– shrink-wraps eliminating any negotiating power (UCITA)
– shrink-wraps and technological protection don’t allow for fair use
exemptions
– licensing curtailing fair use
– Privacy invasions to prove licensing compliance
Besser--Commod of Info, GGLN
3/19/02, 72
Further commodification of
information
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Dismantlement of the public sphere in
general
Attempts to turn everything into a
commodity (even things that don’t really
behave like commodities)
Besser--Commod of Info, GGLN
3/19/02, 73
Why does any of this matter?
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Derivative works
Postmodernism
Diminishment of exploration and
experimentation
Public discourse
Democratic values (anyone can be a
creator)
Besser--Commod of Info, GGLN
3/19/02, 74
Anti-Circumvention & Rule-Making (1/3)
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Perfectly legal activities (fair use) may be rendered
impossible without circumventing technical protection
mechanisms
DMCA makes circumvention of these protection
mechanisms illegal
Besser--Commod of Info, GGLN
3/19/02, 75
Anti-Circumvention & Rule-Making (1/2)
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DMCA compromise required Rulemaking by LofC as to
which circumvention measures should be allowed
– Concern from library and other communities that circumventing
protection mechanisms to engage in perfectly legal acts (like fair use and
preservation) would make them subject to criminal penalties
House Bill Section 1201(a).
– No person shall circumvent a technological protection measure that effectively
controls access to a work protected under this title.
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“While sounding innocuous, what the provision does is create a brand new
and unlimited right to control access to copyrighted works. If enacted into
law, this new right could bypass the carefully crafted balance between
exclusive rights of ownership and public access to works for educational,
scholarly, and scientific purposes, which has been part of copyright law for the
entire 20th Century. In short, it could eliminate fair use from copyright law.”
(John Hammer, National Humanities Alliance, 6/5/98)
Besser--Commod of Info, GGLN
3/19/02, 76
Anti-Circumvention & Rule-Making (2/2)
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On 10/28/00, Lof C ruled that the following should be
exempted until 10/28/03:
– Compilations consisting of lists of websites blocked by filtering software
applications; and
– Literary works, including computer programs and databases, protected by
access control mechanisms that fail to permit access because of
malfunction, damage or obsolescence.
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Immediate responses of outrage from librarians, consumer
protection groups, digital divide groups, etc.-
Besser--Commod of Info, GGLN
3/19/02, 77
Outrage at Anti-Circumvention
Rulemaking Decision
Digital Future Coalition 10/26/00 press release
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“Unfortunately, today’s decision took 70 pages to essentially say that
few persons may ever circumvent a technological protection measure
— even to gain access to a work solely for legitimate noncommercial
purposes.”
“Once again, content owners have successfully promoted their own
narrow financial interests over the broader public interest in preserving
consumer access to literary, scientific, and other works,”
“deep disappointment that content owners effectively had been given
a green light to use technological protection measures to lock up
access to copyrighted works.”
Besser--Commod of Info, GGLN
3/19/02, 78
Outrage at Anti-Circumvention
Rulemaking Decision
American Library Assn ALAWON 9:85, October 26, 2000
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“The Librarian of Congress James Billington has ruled against the
American public and library users by negating fair use in the digital
arena..”
“Because of this decision users of digital information will have fewer
rights and opportunities than users of print information. In fact, the
pay-for-use scenario that librarians have feared appears to have now
become a reality with this rule.”
"The Copyright Office has issued a misguided ruling taking away
from students, researchers, teachers and librarians the long standing
basic right of ‘fair use’ to our Nation's digital resources," said Nancy
Kranich, ALA president. "All library users will be impacted."
Besser--Commod of Info, GGLN
3/19/02, 79
Outrage at Anti-Circumvention
Rulemaking Decision
Congressman Rick Boucher October 27, 2000 press release
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“I regret the decision of the Librarian of Congress, acting upon the recommendation of
the Register of Copyrights, to reject the recommendations of the Administration,
concerned Members of Congress, universities and libraries in announcing a decision
that does not protect traditional fair use rights. This disappointing decision has moved
our Nation one step closer to a "pay-per-use" society that threatens to advance the
narrow interests of copyright owners over the broader public interest of information
consumers.”
“In crafting section 1201(a)(1) of the Digital Millennium Copyright Act, Congress
sought to preserve the principle of "fair use" that has served our Nation so well for more
than a century. Unfortunately, based on the advice of the Register of Copyrights, the
Librarian of Congress today announced his decision to limit the ability of ordinary
consumers in most cases to circumvent electronic security measures for the purpose of
exercising their non-infringing fair use rights. Consequently, any person who
circumvents a technological protection measure to gain access to information to which
he has a fair use right will be guilty of a crime. ”
Besser--Commod of Info, GGLN
3/19/02, 80
Concern about Anti-Circumvention
Rulemaking Decision
US Dept of Commerce National Telecommunications and Information
Administration (NTIA) 9/29/00 letter to Copyright Office from Gregory L. Rohde
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“NTIA believes that implementation of far-reaching access control
technologies without carefully drawn exemptions would not only
invert 200 years of judicial interpretation regarding the scope of
protections given to copyright holders, but also eviscerate individual
scholarship and the notion of free inquiry. NTIA’s immediate concern
is the very one envisioned by the Commerce Committee when it
warned of the development of a legal framework that would
inexorably create a pay-per-use society.”
Besser--Commod of Info, GGLN
3/19/02, 81
The Digital Dilemma:
Intellectual Property in the Information Age
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The National Research Council & CSTB
Nature of a Study
– common ground btwn stakeholders, not necessarily what is best
for NAS or research
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Origins of This Study
– unbundling of previously-grouped packages
(publishers/distributors, works as units, …)
– changing interpretations of concepts such as first sale and fair use
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Scope of This Study
Study focused on US
Besser--Commod of Info, GGLN
Computer Science and Telecommunications Board
3/19/02, 82
A Long Standing Balance: Copyright
Law
 “We
must remember that the purpose of
copyright law is to create the most efficient
and productive balance between protection
(incentive) and dissemination of
information, to promote learning, culture
and development” (Whelan v. Jaslow, U.S.
Court of Appeals for the Third Circuit,
1986).
Besser--Commod of Info, GGLN
Computer Science and Telecommunications Board
3/19/02, 83
The Digital Dilemma: The Balance
Upset
 Information
in digital form
 Networks
 World
Wide Web
 Consequences of these technological
developments; natural barriers erode
 Unbundling-
Besser--Commod of Info, GGLN
Computer Science and Telecommunications Board
3/19/02, 84
Previous bundling becomes
unraveled
works are no longer discrete packages
(embodied objects)
u works become multiple entities
u roles of author, typist, editor, typesetter,
publisher, distributor, user becoming
blurred
u rights like fair use, first sale and personal
use take on different meanings
u ofaccess
Besser--Commod
Info, GGLN control takes on new meaning
3/19/02, 85
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Selected Highlights from the Study
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Go slow on Legislation
Provision needs to be made for traditional entities to preserve works in
digital form
Legislation criminalizing circumvention of protection mechanisms is
far to broad and harsh
Not all classes of works need the same treatment
Technological protection methods may prove useful but have their
limitsNew Business Models show great promise for solving the problemsWe need reliable research on the economic impact of copying-
Besser--Commod of Info, GGLN
3/19/02, 86
Dangers
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Eliminating a public domain of information
Controlling social/political commentary, satire,
creation of new derivative works/recombinant
works
Criminalizing acts that might possibly impede
digital commerce
Making sure that the Internet is used only for info
consumption, not production
Controlling access to older info (controlling
history)
Besser--Commod of Info, GGLN
3/19/02, 87
Strong Content Control Threatens
Creativity
imagine:
u Having no public domain to draw upon
u Having to negotiate rights for every clip,
every drawing, every still image, every
sound sample
u Having to renegotiate all these rights every
time you redistribute it in a different form
or in a different media
Besser--Commod of Info, GGLN
3/19/02, 88
Pragmatic Considerations:
Acquiring Digital Materials (1/2)
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Try to own, not license (maybe impossible)
Worry about content completeness/integrity
Besser--Commod of Info, GGLN
3/19/02, 89
Pragmatic Considerations:
Acquiring Digital Materials (2/2)
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With licenses, try to get rights to:
–
–
–
–
–
Make preservation/back-up copies
Transfer to different formats/media
Perpetual access
Cap on annual license fee raises
Set your own standards for “authorized” university
community (walk-in use, etc.)
– Do your own user authentication (privacy)
– Use the work in course readers
– ILL
Besser--Commod of Info, GGLN
3/19/02, 90
Pragmatic Considerations:
Creating Digital Materials (1/2)
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No assurances + laws rapidly changing
Providing web access may constitute
“publishing”
Clearing rights can be a nightmare
Worry about underlying rights
Deep linking
Masters/Derivatives
Standards/Best Practices
Besser--Commod of Info, GGLN
3/19/02, 91
Pragmatic Considerations:
Creating Digital Materials (2/2)
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Fair Use Considerations
–
–
–
–
Purpose & character of use
Nature of copyrighted work
Amount and substantiality used
Market effect
Besser--Commod of Info, GGLN
3/19/02, 92
Besser--Commod of Info, GGLN
3/19/02, 93
Besser--Commod of Info, GGLN
3/19/02, 94
What is an Information Commons and
Why Should We Care?
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http://www.gseis.ucla.edu/~howard/Copyright/commons.html
http://www.gseis.ucla.edu/~howard/Copyright/
http://books.nap.edu/html/digital_dilemma/
http://www.dfc.org
http://www.pdos.lcs.mit.edu/~cananian/UCITA/
http://www. gseis.ucla.edu /~howard/Papers/caa-fairuse/sld001.htm
http://www.badsoftware.com/
Lee Felsenstein, 'The Commons of Information,' Dr. Dobb's Journal,
May 1993
Besser--Commod of Info, GGLN
3/19/02, 95
Besser--Commod of Info, GGLN
3/19/02, 96
What has copyright become
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(1/2)
Who actually holds Copyright?
Licensing is replacing copyright in the
digital age
Besser--Commod of Info, GGLN
3/19/02, 97
Personal Observations
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Copying & Access
Licensing and Technical Protections Services
Archiving and Preservation
Opportunities and Challenges for Authors and
Publishers
Impact of Technical ProtectionBusiness ModelsEconomic Impact of Copyright ViolationsCopyright basis other than Copying
Fair Use, derivative works, etc.
Besser--Commod of Info, GGLN
3/19/02, 98
Personal Observations
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Copying & Access
Licensing and Technical Protections Services
Archiving and Preservation
Opportunities and Challenges for Authors and Publishers
Impact of Technical Protection
Business Models
Economic Impact of Copyright Violations
Copyright basis other than Copying
Fair Use, derivative works, etc.
Besser--Commod of Info, GGLN
3/19/02, 99
For Additional Information...
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Committee on Intellectual Property Rights and the
Emerging Information Infrastructure, National
Research Council, National Academy of Sciences.
The Digital Dilemma: Intellectual Property in
the Information Age, Washington: National
Academy Press, 2000 (Jan)
http://books.nap.edu/catalog/9601.html
http://books.nap.edu/html/digital_dilemma/
– http://www.gseis.ucla.edu/~howard/Copyright
– http://www.cni.org/
Besser--Commod of Info, GGLN
Computer Science and Telecommunications Board
3/19/02, 100
Further commodification of
information, diminishment of
exploration and experimentation-
Besser--Commod of Info, GGLN
3/19/02, 101
Draft of House version of Digital
Millenium Bill
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“[This bill] contains a provision that would effect the most dramatic change in
copyright law in over one hundred years. Buried in the Digital Millennium
Copyright Act, a measure designed to implement new international copyright
treaties which bring the rest of the world up with current U.S. law, reads:
Section 1201(a). No person shall circumvent a
technological protection measure that effectively
controls access to a work protected under this title.
While sounding innocuous, what the provision does is create a brand new and
unlimited right to control access to copyrighted works. If enacted into law,
this new right could bypass the carefully crafted balance between exclusive
rights of ownership and public access to works for educational, scholarly, and
scientific purposes, which has been part of copyright law for the entire 20th
Century. In short, it could eliminate fair use from copyright law.”
-John Hammer, National Humanities Alliance, 6/5/98
Besser--Commod of Info, GGLN
3/19/02, 102
House version of Digital Millenium
Bill
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"H.R. 2281, as drafted, would grant copyright owners a new and
unrestricted exclusive right to control access to information in digital
works which could negate one of the most basic principles that has
made the U.S. so clearly a leader in intellectual creativity, innovation,
and commerce -- the ability to gain access to information in published
or publicly available works... By access I mean the right to read and,
even more simply, the right to browse published works. Taken another
step, it means the right to use works in ways currently allowed by
exemptions and limitations in copyright -- expressly crafted by
Congress -- to permit fair use, use for library preservation, and use in
classroom teaching."
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-Prof. Robert Oakley, library director, Georgetown University Law
Center, 6/5/98
Besser--Commod of Info, GGLN
3/19/02, 103