National Writers Union Critiques Government White Paper on Intellectual Property & The National Information Infrastructure

NATIONAL WRITERS UNION, Local 1981/UAW, AFL-CIO
** National Office East, 873 Broadway, Suite 203, New York, NY 10003

email: nwu@netcom.com, tel: 212-254-0279

** New Technologies Campaign, 337 - 17th St., Suite 101, Oakland, CA 94612

email: nwu@netcom.com
tel: 510-839-0110

October 9, 1995

NOTE TO READERS: The Information Infrastructure Task Force was created by the executive branch of the U.S. government to recommend policy and legislation on the so-called Information Superhighway. The IITF set up a Working Group to make recommendations on copyright law and intellectual property. The "White Paper" is the report of this Working Group. The legislation recommended in the White Paper was sent to Congress on Thursday, September 28, 1995.

The National Writers Union welcomes the release of the report, "Intellectual Property and the National Information Infrastructure," prepared by the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force. Action is needed by government to address copyright law, and violations of the principles underlying that law, in the electronic information era. The NWU's initial critique focuses on a few major concerns of those who create intellectual property.

The NWU agrees with many of the points and policies in the IITF Working Group's document, and we differ on others. However, we cannot examine the content of the report without noting first that the document fails to address at all some of the most important issues facing individual creative people whose work will be central to the application of new information technology. That is to say, our major criticism of the Working Group's report focuses on what the report does not say. We are struck by the remote character of the report in that it misses the daily realities of the individual writer, artist or other creator.

The NWU approaches the report from two perspectives. First, as the largest union representing nearly 4,500 freelance writers in the U.S., we are concerned about the economic future of writers and other creators whose works will be transmitted on the NII. Second, the NWU's philosophy embodies deep concerns for society as a whole. Clearly, the NII has the potential to reshape our culture and nearly every aspect of our lives. For that reason, we must voice concerns that favor the rights of information users at the same time that we seek fair compensation for our work.

From the perspective of creators, we believe that the report merits mixed reviews. On the positive side, the report comes out strongly in favor of protecting the rights of "authors" on the NII and a companion Global Information Infrastructure (GII). We agree with the report that "copyright protection is not an obstacle in the way of the success of the NII; it is an essential component. Effective copyright protection is a fundamental way to promote the availability of works to the public."

We also agree, as the report states, that an "effective intellectual property regime must (1) ensure that users have access to the broadest feasible variety of works by (2) recognizing the legitimate rights and commercial expectations of persons and entities whose works are used in the NII environment." Indeed, this is simply a current application of the language of the U.S. Constitution itself, that Congress has the power 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." An important objective of copyright is to enable those of us who engage in creative work to pay our bills while we add to public knowledge.

We note that while both the Constitution and the White Paper refer to "authors," the modern term requires careful scrutiny. There is an important distinction between the creator of a written work and its owner. Too often the term "author" is used to mean the owner, not the creator, of the work. As economic power in the various communications media becomes increasingly concentrated, creators are being victimized by economic and power imbalances; often creators are not protected by copyright law despite the elegant language of the US Constitution.

Repeatedly, the report praises "authors" and their contributions to the lifeblood of our culture. Yet, the report contains not a word describing the massive consolidation underway in the telecommunications industries. Not once does it mention the decline in the standard of living of most writers, as well as of other creators--a decline due in large part to the stagnation, or outright decline, in pay; the theft of our work by large media corporations which commercially exploit our work and pocket the profit; and the seizure of an ever broader spectrum of rights by publishers who pay the same or less money than was paid out for print publication rights. Indeed, when it comes to the rights and needs of individual creators, the "balance" the Working Group aims to foster is simply invisible.

There is no mention of the developments similar to the following, which threaten to erode the protections of copyright for creators. All of these are related to the advent of the NII:

1. The attempt by The New York Times to force all contributors to sign "work-for-hire" agreements. Although we have seen "work-for-hire" agreements before, the unambiguous, non-negotiable demand on the part of The Times attempts to achieve a new low in the standards of conduct by a powerful media conglomerate toward individual creative people. Clearly, this is a move on its part to control all content absolutely, with no sharing of future profits with the original creator. In effect, The Times would rip away the right of creators to claim ownership to the product of our minds. Along with a diverse group of international creators' organizations, U.S. authors groups view this as a dangerous step certain to be adopted by other media companies if The Times succeeds in imposing this new policy.

2. The daily, unauthorized exploitation of writers' work on electronic databases and CD-ROMs by scores of magazine and newspaper publishers. The report fails to mention, even in passing, that there is a serious dispute over who controls and owns works currently circulating on even the most rudimentary version of the NII. In a landmark lawsuit filed by 11 members of the National Writers Union (Tasini, et. al. vs. The New York Times, et. al.), writers allege that a systematic violation of the copyright law is being committed every day, not by individuals or libraries, but by some of the largest media companies in the world.

3. All creators have been presented with contracts demanding the rights to a work for all technologies, including those not even currently existing. In our view, this makes a mockery of the notion of fair commerce, particularly because virtually all media companies seeking these board rights for technologies not yet existing cannot define the value of the right demanded.

If current laws are not amended to prevent these abuses or such practices are not halted by other means, the concept of "author" will have one meaning: an entity embodied in a media monopoly. And, in essence, the true meaning of the Constitutional protection of copyright to promote culture will have been obliterated. Based on its report, the Working Group appears to be either oblivious to or does not care about the survival of individual creators.

THE PUBLIC INTEREST

Our second overall concern relates to the broad public interest. Here, again, we detect a disconnection from reality on the part of the Working Group. In its report, the Working Group supports "increased funding for libraries and educational institutions to assist their ability to purchase and license works in digital form." But the Working Group gives no thought to the source of such funding. The Working Group's report ignores the terrible reality of unreasonable cutbacks in library funding, on all governmental levels, and neither challenges governments to do more, nor suggests a commercial alternative whereby those businesses profiting the most from the NII are required to devote a small portion of their profits to assure universal access.

Moreover, the Working Group explicitly releases from any responsibility the very sources who should be assisting in the funding of libraries and educational institutions. As will be discussed below, in the context of fair use, the Working Group explicitly rules out calling upon those who profit from the NII to fund universal access. We strongly disagree. If the forecasts of the NII are correct, the new industries created in this technological revolution will reap hundreds of billions of dollars in profit. They should be asked to assume some burden to include all people in the NII.

FAIR USE: The Working Group sidesteps the question of fair use pending the outcome of the Conference on Fair Use. Writers, copyright owners, and the public need a clearer notion of fair use today and in the future. Certainly, some use of copyrighted material is fair and must be allowed without violation of law or the copyright owner's rights. However, a murky definition of fair use has a chilling effect on both free speech and commerce. This important issue should have been addressed by the Working Group.

The NWU supports the extension of Fair Use principles to the electronic realm. We will consult closely with our friends in the library and educational community on how to achieve this.

We would be remiss before leaving the topic of fair use, if we did not take the Working Group to task for an outrageous comment worked into the brief Fair Use section of the report. The report states, "Some participants have suggested that the United States is being divided into a nation of information 'haves' and 'have nots' and that this could be ameliorated by ensuring that the fair use defense is broadly generous in the NII context. The Working Group rejects the notion that copyright owners should be taxed -- apart from all others -- to facilitate the legitimate goal of 'universal' access."

If this comment means to suggest that a liberal interpretation of the fair use principle constitutes a so-called "tax", and to suggest that the "haves" have no obligation to the "have nots," then the NWU must strongly differ. This would be a callous abdication of social responsibility on the part of the Working Group.

JOB CREATION: The Working Group continues to argue that the NII "can boost the ability of U.S. firms to compete and succeed in the global economy, thereby generating more jobs for Americans." However, global economic trends indicate that the technological revolution may, in fact, be eliminating jobs faster than they are created. While it is strictly true that new jobs may be created, the end result may be a net loss of jobs. Moreover, a recent article in The New York Times confirmed what many economists have been arguing for some time: high technology jobs, particularly the kinds involved in moving data, are highly mobile and are moving offshore. We urge the Working Group to take a more balanced and circumspect view of the economics of the NII as it relates to job generation.

PUBLIC EDUCATION ON COPYRIGHT: We strongly support a nationwide educational campaign on copyright, which takes into account region, age and other factors liable to influence the effectiveness of such a campaign. However, the report also should recommend a way of funding the copyright awareness program.

STATUTORY ISSUES

TRANSMISSION: Turning to the specific legislative proposals of the Working Group's report, we support the addition of "transmission" to the Copyright Act's delineation of the copyright owner's distribution right and to the statutory definition of publication. Clearly, transmission rights are valuable rights belonging originally to creators of copyrighted materials and the Copyright Act should be amended to reflect this reality. As with other provisions of the Act, this change must be balanced with clear, effective fair use protections to safeguard public libraries and public access to information.

CMI & CPS: The report and attendant legislative recommendations devote considerable attention to the related issues of Copyright Management Information and Copyright Protection Systems. The proposed legislation in the report provides severe penalties for alteration of Copyright Management Information or circumvention of Copyright Protection Systems.

Copyright Management Information is an extension to electronic form of the copyright notice that copyright holders attach to works today in hardcopy. In the future, this may grow into a tool to be used to track, calculate and, in theory, remit to authors the amount due to them from transactions involving the sale or resale of their works. In whatever copyright regime evolves, it is important that any attempts to undermine the integrity of our Copyright Management Information be vigorously punished.

Copyright Protection Systems encompass all technologies for prevention of unauthorized access or duplication. The statutory protections afforded to Copyright Protection Systems derive from the White Paper's focus on "piracy" as the primary threat to the creation of a flourishing information environment. Piracy is a legitimate concern, and may be the most serious threat perceived by publishers and distributors, but it is not the threat that most concerns creators of intellectual property. From the point of view of creators, the real threat is the usurpation, exploitation, and hijacking of our work without compensation by increasingly large and powerful publishers and distributors.

COMPOSITION OF THE NII TASK FORCE

To some extent, we believe the deficiencies of the report stem from the original composition of the NII Task Force. Unfortunately, the Administration has chosen to regard the NII as primarily an economic instrument, rather than as a public resource. As a result, the participants sitting on the advisory and decision-making bodies for the NII are overwhelmingly representatives of business and government bureaucrats. While we understand that the capital to construct the NII will come largely from corporate investment, substantial public monies, through direct government subsidy or regulatory oversight, will be expended on the NII. Moreover, the NII's impact transcends one sector's interests and, therefore, the public interest's voice--including that of individual creators--must be heard. It is not too late.

CONCLUSION

In summary, there are areas, as we have stated, in which we concur with the Working Group. However, the report would have to do a much better job of reflecting the concerns and needs of individual writers, artists and other creative people before we could consider an endorsement. The report's omissions and deficiencies are too great. We will follow closely developments in Congress. Legislation and regulatory action on intellectual property and the National Information Infrastructure must do a more complete job than has been done by this report to include the concerns of the creators of intellectual property and of the general public.