The justification of copyright in the information society (II)
2.1 The Digital Technology and the Works of Authorship
2.1.1 The New Characteristic of Works of Authorship in the Digital Age
Digital technology means describing reality through numbers. For example a picture made by a camera represents reality by changing the structure of the film in the camera. The same picture, through digital technology becomes a series of 1 and 0.
Pamela Samuelson identified six characteristics of works in digital format that are likely to influence the future of intellectual property in general and as such the future of copyright. First, digital works are easily replicated. Works of authorship in digital form may be easily copied by computer systems. One simply needs computer hardware and software, which may be used for replicating more than one work. As we have witnessed in the Napster case, this characteristic combined with the second one may lead to increased levels of unauthorised uses of a work. Second, works may be easily transmitted and accessed over networks. After a work of authorship has been digitised it can be transmitted over the Internet or any other network to any number of users at almost no cost and over a very short period of time. Third, digital works have a particular plasticity, i.e. they can be easily modified and the modification can be easily saved. The consequence of this characteristic is an enhanced possibility to obtain derivate works of authorship. Fourth, the traditional distinctions between different works of authorship (writings, music, photography) are blurred: an Internet page may contain a combination of all the above. Legal problems arise concerning what legal regime shall be applied to the digital work combining different categories of works already known to the law, as different legal regimes apply to these different categories of works. Fifth, digital works are compact and are not directly accessible to the user. Being only a sequence of 1 and 0, the digital works may be used only with the intermediate help of the computing devices through user interfaces. Sixth, the linking within works and between works is enhanced and research is eased. (77)
2.1.2 The Promise and the Fear
Because of the six characteristics, the digital works have something of the dual nature of Dr. Jekyl and Mr. Hide. The digital age has come with inherent contradictions:
At first glance, this is wonderful news. For the information consumer, the electronic holdings of libraries around the world become continuously available from a home computer. For authors and publishers, information technologies provide new opportunities and markets.
But there is also a more troublesome side. For publishers and authors, the question is: How many copies of the work will be sold (or licensed) if networks make possible planet-wide access to any electronic copy of a work? Their nightmare is that the number is one. How many books (or movies, photographs, or musical pieces) will be created and published online if the entire market can be extinguished by the sale of the first electronic copy to a public library? The nightmare for consumers is that author-publisher attempts to establish and protect new commercial marketplaces to exploit their works will lead to technical and legal protections that sharply reduce access to society’s intellectual and cultural heritage. (78)
The industries interested in distributing works protected by copyright were not late to react to these changes. Their reaction brought more changes in the copyright law as they sought to maximize the benefits of the digital age.
2.2.1 The Response of the US Government to the New Challenge
It seems that the rapid transformations in the digital environment, especially after the coming of the Internet technology, took even the United States Government by surprise. In 1994 the Information Infrastructure Task Force of the US Government released a preliminary report on the issues related to intellectual property and the new technologies. (79) The report reflected the plans of the government in adapting the copyright law to the new technologies. Two important ideas made established copyright industries (motion picture, sound recordings, computer software) happy, but dismayed many other groups, such as libraries and hardware manufacturers. First, the report deemed every reproduction of a work of authorship in the RAM memory of the computer to be a copy from the legal point of view. Second, transmissions over networks were to be regarded as distribution of copies and not as performances of works. This report suggested that if the information infrastructure was ever to be filled with content, the authors should be as strongly protected as possible. Consequently, the final report proposed that the then-current copyright law had to be fully enforced against individual end-users and had to provide for increased penalties if the end-users did not comply. Even at that time it was hard to believe that this would be a good solution to the digital challenge as the copyright laws were already very complicated: how could an individual end-user understand the counterintuitive law of copyright and comply with it? (80)
The report and the bill following were subject to strong criticism from many parties, both those interested in the market and those representing the general public. The public debate in the United States was paralleled by the discussions regarding the coming WIPO Copyright Treaty. After the signing of the WIPO Copyright Treaty in 1996 a new bill aiming at making US copyright law compliant with the WIPO Copyright Treaty was presented to Congress. After the usual negotiations between the market players (now including ISPs and other telecommunication industry companies), the bill was enacted with the name of Digital Millennium Copyright Act (“DMCA”). The new legislation prohibits any circumvention of a technological protection measure controlling access to, or copying of, a work, and also any technology, product, service, device or component conceived to help bypassing the technological protection. Also, if the content owners use copyright management information systems (i.e. adding information about the work, its author, the terms and conditions of use of the work and so on, to a digital work of authorship) nobody can alter the information therein without authorization of the copyright owner. Internet Service Providers benefit from a safe harbour provision exempting them from liability for content posted on-line by the users, under certain conditions. (81)
2.2.2 The WIPO Treaties
The effects of information digitisation and of the new characteristics of works of authorship in digital form were obvious to other countries as well, especially to the European Union. Beginning in 1991, WIPO had convened Committees of Experts to suggest improvements to the Berne system in the digital age. (82) The United States tried to convince the member states of the Berne Union, especially the European Union states, to adopt changes that were similar to the reports of their task force. (83) The representatives of the Berne Union member states met in Geneva in December 1996 in a Diplomatic Conference and approved the two new treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (84). The US did not succeed in completely imposing its point of view to the other states (85) . The proposals of the United States were the following:
(1) give copyright owners control over every use of copyrighted works in digital form by interpreting existing law as being violated whenever users make even temporary reproductions of works in the random access memories of their computers;
(2) give copyright owners control over every transmission of works in digital form by amending the copyright statute so that digital transmissions will be regarded as distributions of copies to the public;
(3) eliminate fair-use rights whenever a use might be licensed . . .;
(4) deprive the public of the 'first sale' rights it has long enjoyed in the print world . . . because the White Paper treats electronic forwarding as a violation of both the reproduction and distribution rights of copyright law;
(5) attach copyright management information to digital copies of a work, ensuring that publishers can track every use made of digital copies and trace where each copy resides on the network and what is being done with it at any time;
(6) protect every work technologically (by encryption, for example) and make illegal any attempt to circumvent that protection; [and]
(7) force online service providers to become copyright police . . (86)
Most of the US proposals were modified or rejected (i.e. the database proposal) during the Diplomatic Conference. The WIPO Copyright Treaty does not treat temporary copying as reproduction of the work. Though digital transmissions became communication to the public under the Treaty, this is not the same as distribution of copies.(87) Some individual user rights are recognized and new exceptions may be crafted under national laws under a three-step test. (88) Moreover, the WIPO treaty does not compel member states to enact legislation directly prohibiting ant circumvention technical measures. The member states should only provide for adequate legal protection and effective legal remedies against the circumvention as such and not necessarily against the technical measures. (89)
Still the WIPO Copyright Treaty is quite advantageous for the authors. One success for copyright owners was the inclusion in the WIPO Copyright Treaty of a right of communication to the Public (Article 8 of the Treaty). The new right includes the exclusive right of the author to make available her works to the public on-demand through the means of the Internet. (90)
2.3.1 The Effect on the Market
Following the digital revolution, the works of authorship embodied in digital form became information products and new markets for these products opened. Although development of copyright law was always related to new technologies, the new digital world was not quite similar to the previous technological advances. Every previous technical advance brought some illegitimate players on the market, the “pirates”. This time, however, two previous patterns changed: most of the pirates are no longer commercial pirates (i.e. seeking profit from their activity), they are individuals; and because they are just normal average individuals their number is numbing to the mind. Take only the example of Napster. Before Judge Marilyn Pattel ordered the service to filter “pirate” music there were 60 millions individuals using the service and trading files. (91) The number of “infringers” suggests that somehow the old notions, concepts and categories of intellectual property are at least suspect.
More questions over the viability of the copyright system come from the practical perspective. Suppose the policy makers find in theory and adopt in law a copyright balance for the digital age. Many commentators state that even if such balance exists, it is not enforceable. Suppose the lawmakers perfectly weigh the exclusive rights of the copyright owners and the limitations in favour of the public. Is there any guarantee that the state can enforce the rights and the limitations? (92) The new “pirates” are not commercial entities anymore. They are average school kids with an Internet-connected computer and the desire to break the code. There is a saying in the computing community: any code can be broken. If so many individuals can break the code protecting the authors’ rights, will the state be able to protect stakeholders in the future? A solution could be another compulsory license for digital works, paid by a surcharge for Internet access, but this solution raises serious issues of fairness.(93) Another solution could be a change in the patterns of business (copyright owners would get money from additional services, like selling nice hardbound book copies or T-shirts displaying the last picture of Jon Bon Jovi, but this basically means leaving copyright out. (94)
Yet another consequence of the change of authorship works into information products is the shift from copyright policy to information policy. If works of authorship are now information products then the way we regulate copyright directly affects the way information circulates among members of the public.
2.3.2 Private Copying, Fair Use and an Upset Balance
The coming of the digital age upset the fragile balance reached in history between the public and the authors. Throughout the history of copyright, owners of works of authorship and other interested market players had some exclusive rights in the works, but not all the possible rights. The other party in the bargain, the general public, kept some rights out of the reach of copyright owners. This is why in the United States the judges crafted the concept of fair use and in Europe all legislative texts included provisions regarding the limitations of author’s rights. But with the coming of the information age the old balance is challenged or at least brought into question. Some authors even argue that it is no longer functional and consequently the present copyright system should be completely rethought and reconstructed. (95)
The public and the copyright owners have opposite views on the fair use issue. Copyright owners tend to see any use or copying of their works in digital form as infringement, whereas the general public tends to believe the opposite. Fair use acts may range from research fair use (copying a research article) to personal fair use (copying a CD on tape). (96)The wide range of acts that may be viewed as fair use raises new issues in digital context. The influence on market of such new uses formerly classified under fair use upsets the balance. The question then is: what should still be deemed fair use and what not?
The copyright management systems are the weapon of the copyright owners against infringers in the digital age. However there is the other face of the coin too. Even if they are not granted more rights, the actual ant circumvention legislation could lead to some side effects regarding fair use: copyright owners could rely more on licensing than on sale and therefore works would be available for the user only for a limited number of times, restricting the possibility to derivate on the original work; or they could include contracts with the users within the digital work itself, prohibiting users to parody the work or use the work in any other way than contracted for. (97) These practices would certainly limit creativity and expansion of the public commons.
(77) Pamela Samuelson, Digital Media and the Changing Face of Intellectual Property, 16 COMPUTER & TECH. L.J. 323 (1990).
(78) Pamela Samuelson, Randall Davis, The Digital Dilemma: a Perspective on Intellectual Property in the Information Age, at http://www.sims.berkeley.edu/~pam/papers/digdilsyn.pdf (last visited March 28, 2002).
(79) LITMAN, supra note 67, at 91.
(80) Id. at 89-122.
(81) Id. at 123-145.
(82) STERLING, supra note 30, at 557, 558.
(83) JOYCE ET AL., supra note 1, at 53-56.
(84) STERLING, supra note 30, at 558, 559.
(85) See Pamela Samuelson, The U.S. Digital Agenda at WIPO, 37 VA. J. INT'L L. 369 (1997).
(86) Id. at 380, 381.
(87) Id. at 435.
(88) STERLING, supra note 30, at 569, 570.
(89) JOYCE ET AL., supra note 1, at 54.
(90) STERLING, supra note 30, at 568, 569.
(91) Brad King, Napster’s Not Up (or Down) Yet, at 16, Wired News (July 2001), at http://www.wired.com/news/business/0,1367,45364,00.html (last visited March 29, 2002).
(92) See Jane C. Ginsburg, Copyright and Control Over New Technologies of Dissemination, 101 COLUM. L. REV. 1613, 1643 (2000).
(93) Id. at 1642.
(94) Id. at 1643, 1644.
(95) LITMAN, supra note 67, at 114-115, 171-191.
(96) See Committee On Intellectual Property Rights And The Emerging Information Infrastructure, National Research Council, The Digital Dilemma: Intellectual Property In The Information Age (National Academy 2000), available at http://books.nap.edu/html/digital_dilemma/ (last visited March 30, 2002).
(97) Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of “Rights Management”, 97 MICH. L. REV. 462, 471-473 (1998).