[The Congress shall have 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
-- US Constitution, Article I Section 8
Intellectual property law cannot be patched, retrofitted, or expanded
to contain digitized expression any more than real estate law might be
revised to cover the allocation of broadcasting spectrum (which, in
fact, rather resembles what is being attempted here). We will need to
develop an entirely new set of methods as befits this entirely new set
Most of the people who actually create soft property - the programmers, hackers, and Net surfers - already know this. Unfortunately, neither the companies they work for nor the lawyers these companies hire have enough direct experience with nonmaterial goods to understand why they are so problematic. They are proceeding as though the old laws can somehow be made to work, either by grotesque expansion or by force. They are wrong.
-- John Perry Barlow ("The Economy of Ideas", March 1994)
Browsing through a borrowed book, lending a magazine to a friend,
copying a news article for your files - all seem innocuous enough. But
the Clinton administration plans to make such activities illegal for
works distributed via digital networks.
-- Pamela Samuelson ("The Copyright Grab", January 1996)
Initially, respect for copyright protection needs to be highlighted --
intellectual property needs to become a "household word." ... Not
only must a curricula be developed and made available for all
educational levels, but also a methodology must be established for the
continual reinforcement of the importance of intellectual property
throughout the lifelong learning of every NII user. ... Certain core
concepts should be introduced at the elementary school level -- at
least during initial instructions on computers or the Internet, but
perhaps even before such instruction. ... At the same time that
children learn basic civics, such as asking permission to use somebody
else's pencil, they should also learn that works on a computer system
may also be property that belongs to someone else.
-- White House Information Instruction Task Force ("Intellectual Property and the National Information Infrastructure", September 5, 1995)
The result of this hair-splitting is highly confusing. It rests on complex and -- to be honest -- technically questionable decisions of the Court of Appeals for the Federal Circuit. If you delve into any of the patent cases described below, you will find them tough going. The following pieces can help get you oriented:
The Internet upsets this balance, because it trivializes the task of
copying digital information and making it available worldwide. This
issue first became apparent in the 1980s with "software piracy", since
software was the first kind of information to become generally
available in digital form. Consequently, what was once viewed as
simple software "sharing" is now widely considered reprehensible, even
criminal behavior. As the Internet expands, the same issues apply to
all kinds of information. Finding a new balance will require making
difficult political choices.
The report characterized its recommendations as "no more than minor
clarification and limited amendment" to the copyright statute. But
there are several significant changes proposed. One would give
copyright owners exclusive rights over "transmission" of information,
not just copying. Another would eliminate the first-sale doctrine for
digital works. Another would criminalize any tampering with copyright
protection mechanisms, or with copyright identification information.
Several bills have been introduced in Congress to
implement the White paper's recommendations, but none have been passed
The White Paper was roundly criticized by the academic and library
communities as a sell-out by the Administration to large publishing
(and especially motion picture) interests, and a significant erosion
of fair use. Some of the critiques have gone on to examine the
appropriate role of copyright in the Internet era.
The NII White Paper
These tensions surfaced in September 1995 with the publication of
"Intellectual Property and the National Information Infrastructure", a
report by the White House Working Group on Intellectual Property
Rights, part the of Secretary of Commerce's Information Infrastructure
Task Force, chaired by chaired by Bruce Lehman, Commissioner of
Patents and Trademarks. The NII task force was frankly worried that
content providers will not place anything of value on the Internet,
for fear of massive copyright infringement.
The WIPO treaties and enabling legislation
In December 1996, 96 nations participated in treaty negotiations in
Geneva under the auspices of the World Intellectual Property
Organization (WIPO). The
WIPO Copyright Treaty and the
WIPO Performances and Phonograms Treaty were the first
substantial revision of international copyright law in 20 years (since
the Berne Convention). The U.S. signed the treaties in April, 1997.
Implementing the treaties in the U.S. currently awaits enabling
The report characterized its recommendations as "no more than minor clarification and limited amendment" to the copyright statute. But there are several significant changes proposed. One would give copyright owners exclusive rights over "transmission" of information, not just copying. Another would eliminate the first-sale doctrine for digital works. Another would criminalize any tampering with copyright protection mechanisms, or with copyright identification information. Several bills have been introduced in Congress to implement the White paper's recommendations, but none have been passed yet.
The White Paper was roundly criticized by the academic and library communities as a sell-out by the Administration to large publishing (and especially motion picture) interests, and a significant erosion of fair use. Some of the critiques have gone on to examine the appropriate role of copyright in the Internet era.
A major motivating factor in negotiating the treaties was "the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works." The treaties clarify that copyright protection extends to computer programs, and they require signatory nations to provide legal remedies against any person who removes or alters electronic copyright information.
Implementing the enabling legislation has proved contentious, with several competing bills now before the House and the Senate. In July, legislation was introduced at the request of the Department of Commerce (H.R. 2281 and S. 1181) which critics say goes much farther than the treaties require in imposing strict copyright enforcement. Competing legislation seeks to clarify the liability risks of internet service providers and other issues, such as that search engines, links, and browsers are not infringing devices. Much of this activity is being tracked by the Digital Future Coalition, a coalition of nonprofit educational groups and commercial trade organizations representing computer and telecommunications industries.
Yet another view looks to digital rights management technologies as a way to salvage copyright. The idea here is that if the basic issue is that copying is so hard to control on the Internet, then we should implement technologies that make copying difficult. This can be accomplished using encryption techniques, which assure that information can be accessed only by intended (licensed) recipients, and trusted systems that will not perform unauthorized copying. A second class of technologies include digital watermarking, which "indelibly" mark information so that unauthorized copying can be detected.
As you might expect, there are both utopian and dystopian predictions about this technology. Some people view this as engendering an outpouring of creativity and productivity in the information economy, while while others fear that fine-grained, strong control of copying will kill fair use totally.
The Electronic Frontier Foundation archives has a section on intellectual property which is worth browsing for articles and source material.
Last modified: August 18 2014, 5:07 PM