>> Articles Copyright: Dead or Alive in a Digital Age? By David Green From: FYI: Practical Information for those Who Create and Work in the Arts, Spring 1997, Vol. 13, No 1. As more of our communications, discovery and learning takes place on-line, we should give increasing thought to the value of historic copyright law in the digital age: will it thrive or will it be surpassed by a totally new on-line economy of ideas? The function of copyright, as its name implies, guarantees for the creator of a work the rights to copy, reproduce and distribute it. However, from its legal origins (in England in 1710 and in the U.S. in 1790) copyright was as much about the promotion and circulation of knowledge and good ideas as it was about the protection and rewarding of creators. Limitations and exemptions to creators' copyright protection was as important to society as the protection itself. Copyright Basics Copyright protection applies not to facts nor to ideas but to the particular expression of ideas in a tangible medium. The duration of copyright protection is for the lifetime of a creator plus 50 years. Creators have the exclusive rights to reproduce their work, to prepare derivative works, to distribute copies, and to perform and display their work publicly. Creators can and usually do assign their rights to others for commercial exploitation of their creations, but should be careful not to assign more rights than necessary. The limitations on those rights, in which users do not have to seek permission of copyright owners are principally: Fair Use, "for purposes such as criticism, comment, news reporting, teaching, scholarship or research;" First Sale, whereby the purchaser of a copy of a work can sell or dispose of it anyway they wish; and certain library exemptions enabling, for example, a library to make one copy of a work under certain conditions. Copyright On-Line With the rapid growth of on-line traffic, and the ability of on-line users to copy, change and re-distribute material very easily, many creators and owners have withheld their work from the Internet for fear of its being pirated and abused. The fear of piracy and misappropriation of work on this fast, giant, multi-media, multi-format Xerox machine of the Internet was a very strong impetus behind last year's proposed revision of the copyright law, known as the National Information Infrastructure Copyright Protection Act. This bill proposed adding a new "transmission right" for owners, but appeared relatively unconcerned about fair use and other rights limitations, stepping rather flat-footedly over many of the complexities, the checks-and-balances, of existing copyright law. Testimony in the few hearings that were held focused on the Hollywood industries fear of piracy at the expense of more sophisticated concerns. However, the complexities fought back and the bill never made it out of committee, although it will re-appear in one form or another this session. Having failed in Congress, the Administration re-presented this bill as the text for a new international copyright treaty at a meeting of the World Intellectual Property Organization last December. Critics managed to inject many of the complexities and copyright limitions thay had been unable to do in the domestic bill and many hope the resultant treaty will be a model for 1997 domestic copyright legislation. Encryption and Licenses In addition to the concerns about the immediate developments in domestic copyright legislation, we should all be aware of new encrypting technology coming to market that enables owners of material to seal material electronically. This "cryptalope" technology allows material not only to be secured (in an encrypted envelope) behind password protection but it will also protect the work from being altered (assuring the user of its veracity) and even have the potential to track its use across the Internet (which of courses raises a host of privacy issues). Advances in arranging secure on-line transactions, either through traditional credit cards or through a variety of digital cash schemes under development will make "micro-payments" an easy transaction. The technology possesses the dangerous potential for locking up material: the equivalent to shrink-wrapping every book in the bookstore and curtailing the ability of each of us to make "fair use" of intellectual property without consulting the copyright owner. In addition to the technology, publishers, museums and other owners of "intellectual property" are developing licensing agreements (similar to those shrinkwrapped with software) for the sale and distribution of work on-line (as well as in CD form). The potential of these licenses to forbid free "fair use" of material and to fail to incorporate other of the limitations and exemptions of copyright law is one that many are watching. On the other hand, some enlightened models are emerging, such as a new collective site licensing project (the Art Museum Image Consortium--AMICO) that will enable very broad educational use of art museum digital images first on unversity campuses and then in the home. Many fear that the complicated ecology of the ownership, distribution and access to intellectual property that now exists will become stripped down to essentials: a pay-per-view dystopia. The issue of whether licenses can actually pre-empt copyright law is currently hotly debated and there will probably be some interesting court cases in the next few years that will help determine the road forward. However, with so many dystopic possibilities looming, the need for balanced protection offered by copyright law is more in demand not less. Can Information be Free? Another scenario to emerge is that as on-line technologies and users' behaviour develop, many owners of intellectual property will actually want to give material away for free. Netscape, after all, the company whose browser many of us use to connect to the Web, was the first company in history to go public, offering shares on the stock market, with a product that it gives away. The secondary market in selling more specialized versions of its browsers has been so big for Netscape that it can afford to give away its main product. For many artists and writers, distribution--just getting the word out to people--can be more of a primary consideration than getting paid for it. Payment can come in many other forms. John Perry Barlow, co-founder of the Electronic Frontier Foundation and Grateful Dead lyricist, has very ably articulated the landscape of these ideas in a 1992 essay: "Selling Wine Without Bottles: The Economy of Mind on the Global Net." The essay is freely available on the Internet but Barlow notes that he's earned considerably more from reprint rights than he would have if he had demanded cash for it up front. The essay includes an extremely illuminating "Taxonomy of Information" in which he argues that the immaterial nature of on-line intellectual property is unlike any other form of property we have known. Information is an activity; it's a life-form; it's a relationship and we should be prepared to witness the emergence of new principles, a new economics and even a new ethics of ideas on-line, rather than impose principles from our current platform. Should practice be bound by law or law follow practice? Economists, creators, entrepreneurs and Internet users of all stripes are nw both observing and trying to develop a new economics of the Internet, in which Barlow's "economy of ideas" will surely play a part. Increasingly, we will all become both buyers and sellers, readers and writers, performers and audience in the new digital environment. Dead or alive in a digital age? Copyright law may start to change dramatically in the next decade or be replaced by a totally new set of laws and principles reflecting new economic patterns of relationships on-line. For the time being, our copyright law structure is a good insurance structure, as long as it keeps the checks and balances that enable it to continue to reward creators and "promote Science and the useful Arts."