ABSTRACT

The history of technology from the invention of movable type to the use of the microcomputers and telecommunications networks is a series of improvements in the ease with which copies can be made. Copying has become more rapid and less expensive. It is argued that differences in degree are not differences in kind. Proposed changes in American copyright law, as these may inhibit fair use in the networked environment, could have profound and negative effects in the international library community because of the Berne Convention.

Good Morning.

In her keynote speech on Wednesday, Dr. Betty Turock, 1995/96 President of the American Library Association, discussed three American government policy issues related to the Global Information Infrastructure of great importance to libraries, librarians, and library users: telecommunications policy and costs, regulation or censorship of content on the Internet, and intellectual property rights and copyright in Cyberspace.

My role in this panel is to follow the overview provided by Professor Shen Rengan of electronic publishing and copyright and the excellent overview of the current state of American copyright law including currently pending amendments thereto by Dr. Duane Webster. I am thus relieved of any responsibility to represent things as they are - the overview, or to accurately describe changes that have been proposed in the current state of affairs. Instead, I have an opportunity to speak about how things ought to be and why.

I will argue that of what appears to be a difference in degree is not, to prove, I hope, that no matter how things change they remain the same. We must recognize the difference between change in kind and change in degree.

In earlier millennia, characters on the walls of caves and/or on clay tablets were THE medium of communication. No possibility existed of moving the walls, although the tablets proved to be a bit more mobile. But in both cases, only a single copy existed.

The combination of three technologies in the second half of the 15th century flattened sheets of papyri bound together to form the codex, paper to replace papyri, and movable type - caused a revolution. Multiple copies could easily be made, and the codex format made each printed copy - conveniently the size of a saddle bag easily portable. Prior to the invention of movable type, the creation of a second or "nth" copy was the job of the scribes, and a single copy of a work might be the job of one lifetime. AAer Gutenberg, no longer so.

The social contract of the 17th and 18th centuries, and specifically the Constitution of the United States, recognized that creators of useful works deserved to enjoy some rewards for their labors, hence the notion that "to promote the progress of science and useful arts, by securing for limited times to authors... the exclusive right... to their writings." American copyright law was thus constitutionally based, to provide incentive to creators and, equally important, to encourage the exchange of ideas.

Fast forward to the great wars of the 20th century. For short documents, "thermofax" machines were used to transmit memoranda, maps, letters and other material. A document was passed by a "read" device, converted into signals, transmitted, decoded and printed by a receiving device.

In the 1960's, electrostatic copiers became commonplace, in libraries and in offices. A source document could be copied with ease. Not only was the labor of a lifetime no longer required; six pages per minute was now possible, and three decades later, many more pages per minute is commonplace.

Copiers were clearly an advance over the machines used in the wars; the copiers were faster and the copies were predominantly dry and on standard paper. There was a difference however - the earliest copiers not only transmitted a copy but they left a copy behind, on a wet film or negative, whereas the electrostatic copiers did not "create a copy to make a copy". No carbon copy remained &om the electrostatic devices, to be possibly reused to create yet another copy at some future time. To borrow a phrase, no copy was fixed in a "tangible medium", other than the copy which the machine put out to the user/operator.

Notwithstanding the absence of an enduring "third" copy, or copy-in-memory to use the phrase in the current pending amendments to America's copyright law, electrostatic copiers set off alarms among holders of rights to copyrighted materials. Clearly, the labor of a scribe, heretofore a deterrent to widespread copying, was no longer prerequisite. It followed therefore that rights holders were economically harmed, because copies could be made easily, rapidly, and cheaply. Well, not quite. It seems that photocopiers (the generic for Xerox machines) were not the death knell of the printing press. Copiers were not cost effective for an item of many pages. In the 1960's, copiers at five cents per page were common and books of 300 pages were common.. At such lengths, buying a book at the then current prices was often more economical, and a better use of users' time, and resulted in a superior "copy".

Fast forward to age of microelectronics - starting with the introduction of the personal computer in 1981 by IBM and the appearance of the first Macintosh in 1984. Clearly, a device which digitized information and had reusable memory had been invented; scanners could not be, and were not, far behind.

From the scrawl of the scribe to the speed of the copier, to the pace of the electron in scanners and microcomputers, copying has become easier and faster.

Combine microelectronics with increasingly pervasive telecommunications networks and voila, copies rapidly and inexpensively made are as easily and inexpensively transmitted, I. e. shared and the sharing is increasingly with a global community. One view is creators undercut, another view is that copying legally done is now more easily done. Indefensible reproduction, previously limited by time or expense, is now easy and cheap but ease doesn't equal legitimacy.

From scribes for copying and saddlebags for transport to scanners, pc's and high speed networks. Difference in kind or in degree?

The fundamental issues have not changed. Was it lawful for a St. Columba in the sixth century to copy for himself the Latin Psalter &om the "original" owned by Finnian of Druim Finn? Yes. Was it lawful in the 1960's and subsequently to use a copier to make one copy of a copyrighted work? Yes. Is it lawful now and in the next millennium to download one copy for private use? Yes.

The increased ease with which such copying could occur raised concerns,some legitimate, some false. Hence the doctrine of "fair use". When and under what circumstances could making a copy be regarded as "fair", and when would it be an infringement on the rights of the creator?. In American copyright law, there isa four part test to determine whether the use made of a work is "fair":

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) the nature of the copyrighted work;

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of thecopyrighted work.

As we approach the third millennium, the capabilities telecommunications, micro computing, and other technologies provide are, for better or ill, accelerating communication and change. These capabilities facilitate the advancement of knowledge. Information is more efficiently managed, analyzed and shared and the sharing of information is increasingly with a global community - of scholars, of journalists, of researchers.

In February, 1993 President Clinton formed the Information Infrastructure Task Force (IITF) to articulate and implement his administration's vision for the National Information Infrastructure, aka "information superhighway". The Task Force was organized into three committees: the Telecommunications Policy Committee, the Committee on Applications and Technology, and the Information Policy Committee. The Working Group on Intellectual Property Rights was established by the Information Policy Committee. The Working Group has issued two reports, a preliminary draA report dated July, 1994 (the so-called "Green Paper") and a final draft dated September, 1995 (the so-called "White Paper"). The final draft contains the Working Group's recommendations for changes in the United States Copyright Law of 1976.

There are three changes proposed by the Working Group, and currently pending before the United States Congress (H.R. 2441, S. 1284), which will severely inhibit, if not prevent, international resource sharing. First, the Working Group proposes that information which is recorded in electronic memory, regardless of for how long, is "fixed" for purposes of copyright and therefore a reproduction in violation of the rights holder's rights.. Hence, the microseconds (100,000 ths; or nano - millionths; or pico - billionths) an image or text from a page on the WWW is in the memory of a microcomputer constitutes fixation sufficient to qualify for copyright; in the words of the current law "fixed in a tangible medium of expression, when its embodiment .. is sufficiently permanent or stable to permit it to be perceived (i.e. read on the microcomputer's monitor), reproduced, or otherwise communicated for a period of more than transitory (!) duration."

Second, having thus redefined "transitory", the Working Group goes further. Transmissions would be the exclusive right of the copyright owner. Thus, the transmission of a sequence of bits representing a copyrighted work between computers - on the same desktop over a very short Ethernet connection, on the same continent, on the same planet or, presumably, to an orbiting space station - would be illegal.

Third, the Working Group's proposal would negate the "first sale" doctrine, at least in CYBERSPACE. Under the first sale doctrine, a user who purchases a copy of a copyrighted work - a monograph, a journal issue or article - can give the purchased copy to another user without payment of a royalty. For the Working Group, such a transfer would not be legal between two networked users.

The international implications of the recommendations of the Working Group on global access and resource sharing become clear when one considers the Berne Convention. This international treaty uses the "national treatment" doctrine as the means for determining copyright protection for materials transferred &om one Berne signatory country to another. The "receiving" country agrees to extend the same protection the copyrighted work would have had if originally published in that country. If the Working Group's amendments to the United States copyright law are enacted by the U.S. Congress, copyrighted works received in the U.S. from signatory countries would be subject to the restrictions on copying in computer memory, on transmission, and the negation of the "first sale" doctrine within the United States' networks.

Thus, in global resource sharing, if an information-rich and information-using country is also more protective of rights, an ever-increasing percentage of global information resources will become subject to more protections.

In April, 1996, the International Publishers Association meeting in Barcelona adopted and distributed a position paper entitled "Libraries, Copyright and the Electronic Environment". The IPA paper compares photocopying with digital copying as follows:

"Making a photocopy of a print product (however problematic unauthorized photocopying may be) is quite different Rom creating a digital version of the same work. Electronic versions are often as good or better than the original. They can be replicated an infinite number of times with no image degradation. They can be distributed electronically, worldwide, in an instant."

But one scribe often produced, legally, a superior copy to that of another, and a photocopying machine may produce a copy that is better than a deteriorating yellowing original with fading print. Are the improved copies unlawful in the eyes of the IPA by reason ofbeing improved? As to distribution: There can be no argument that digital telecommunication is faster than surface mail, but is it different &om telefacsimile using digital analog telephone lines? Finally, is distribution by motorized vehicle or airplane different in kind &am transport by stagecoach or ox cart or saddlebags?

The IPA paper goes on.

"Many national and international library groups have argued that they should be able to use digital formats of copyrighted works in the same way as they used printed versions in the past. This is a dangerous concept because it disregards the indisputable fact that digital uses are not equivalent to non-digital uses, and, when undertaken without regard for copyright, can have immeasurably harmful consequences."

"...digital 'browsing' is not the same as casually leafing through a few pages of a book on-site at a library (or bookstore or newsstand?). It is, instead, reproducing and transmitting to thousands of network users at myriad locations, digital content stored on a single library's computer.

"...there is not and should not be a "private" or "personal" use exemption &am copyright as such (apart &om limited, legitimate "fair uses" that are subject to sensitive criteria and do not impact the market for or value or the copyrighted work, or the interests of the creators).

The IPA paper introduces the concept of variable copyright treatment of libraries and works. "The problem with discussing 'library services in an electronic environment' is that such a generalization presumes that all libraries are of the same nature. There should be a way to discuss the impact of technology on various types of libraries to consider any relevant differences in collections and capabilities of small isolated (at least absent electronic links), public libraries and large, multi-branched facilities, or large research libraries in for-profit corporations, or libraries with specialized collections in various types and sizes of academic institutions."

Finally, the IPA paper argues that libraries which copy digitally and store copyright works electronically, even temporarily, as part of electronic document delivery services are not acting in conformance with Article 9 (2) of the Berne Convention.

In December, 1996 in Geneva, a meeting of the World Intellectual Property Organization, an arm of the United Nations that promotes protection of intellectual property, is scheduled to discuss and dry revisions to the Berne Convention. As of August, 1996 the American delegation was intent on advocating as revisions to Berne, the same changes to American copyright law discussed above and currently pending before Congress. It could be the case that the U.S. would be advocating proposals for inclusion in the international treaty (Berne) that had not been approved by Congress and signed into law by the President.

Advances in copying techniques and technologies, from the scribe through the invention of movable type to the photocopier to microelectronics and telecommunications have permitted the sharing of information and knowledge and thus enabled "progress in the useful arts" and real international library cooperation. As guarantors of access to information resources for the citizens of the world, and as custodians of the world's "information archive", librarians need to be as vigilant in the future as we have been creative in the past to assure that the resource sharing of yesterday, and today, will be possible to support the scholarship and research of tomorrow. To be sure, technological advances make indefensible abuses of intellectual property rights easier, but the remedy for abuses cannot be to restrict or eliminate fair uses. The United States should not be the Berne signatory who advocates elimination of "fair use" in CYBERSPACE.