Copyright and Freedom of Expression in Digital Networked Environment
By Ben Gross
Moderator Pamela Samuelson began this plenary session by stating that copyright law only protects the expression of the author, not the ideas themselves. Therefore, all that another author has to do is express the idea in his or her own words and the free flow of ideas is not inhibited.
There was a time when copyright policy was closely linked with censorship, rather than the issue of free expression. You would have had to print with a licensed printer and there was a contract with the government not to print seditious or salacious material.
David Post focused his remarks on disputes between the Church of Scientology and some of its dissident members. The alt.religion.scientology Usenet group (formed in 1991) is rife with material highly critical of the church. A few years ago, articles began to appear on the newsgroup which contained text which the Scientologists claimed were copyright.
The Scientology disputes remind us that copyright has a copy, Post said. Copyright should stimulate creative expression, but it also simultaneously inhibits the distribution of the material. Nowadays, the scope of such activities is much broader with the inclusion of the Internet; there are more people thinking about copyright now than any point in history.
With the application of copyright law to the Internet, Post said he is struck by the near consensus on these issues of members of Congress who are ill equipped to legislate for the Internet. There are unique features of the Internet that need to be taken into account, he said. These include the fundamental notion of copying. Those who spend time on the Internet, know that every act of copying cannot be a copyright infringement because the fundamental method of communicating on the Internet involves electronic reproduction of information many times. There is a great need to educate legislators and judges about the special characteristics of this medium, Post said.
Many people see the Scientologists as using the law to try to squash free expression on the Internet, he said. However, the Scientologists did not voluntarily enter the Internet community; their documents were "smuggled across the border." If we want the Internet to be taken seriously, we must consider those who have chosen not to be subject to those rules, Post said.
Bernt Hugenholtz discusses how have we achieved the balance between copyright and freedom of expression. Copyright does not protect all information, only creative expression, or original works of authorship. Copyright also protects acts of exploitation such as broadcasting. Any individual use of copywritten works has always been protected. The Internet presents quite a different way of communicating. Copyright should take this into account. We should not keep applying old media notions to new digital media as it is turning copyright into a monster on the Internet, he said.
Chris Barlas says copyright seems to a lot of people like an unnatural vice where the holders take things from the innocent and use it for themselves. The Authors' Licensing and Collecting Society in London, the organization he represents, considers themselves as the commercial arm for authors. Originally, no one really knew what copyright was as sort of an abstract right. The commodification of writing solved this problem. Essentially all rights have been commoditized, Barlas said.
Americans have tremendous problems with moral rights. Moral rights are the rights to be publicly acknowledged as the author and not to be defamed. Economic rights are derived from moral rights. Socially, what rights should an author be given? The rights of the authors have always been squeezed by the packagers. In the United States, there is the notion of work for hire, which changes copyright. If you turn a creator into an ordinary laborer, then you loose a great deal of freedom. At the root of copyright there is a force of democracy. On the other hand it could become a corporate tool working against democracy.
Barlas looked at many of the modern copyright systems as having a too restrictive model in that there is no looking before you buy. The Internet is a very different place depending on who you are. Cyberspace is really a whole world which contains different civilizations. We have to be aware of the collapsing of the vision of multiple worlds into a single vision, Barlas said. We need a recognition that the world of the copyright is extremely complex, he said. Barlas believes that copyright has worked for a long time, but there may be a new way of looking at things which would work better with the advent of the Internet.
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