Workshop on Technology of
Terms and Conditions
September 24-26, 1996
Report on Sessions
Tuesday, September 24
The Workshop began on Tuesday evening with an introduction given by James Davis. Judith Klavans introduced the speakers for the evening. The first speaker was Pamela Samuelson and she spoke on national legislative issues and digital copyright. The second speaker was Jane Ginsburg and she spoke on comparisons in electronic libraries in international copyright law and U.S. copyright law. A written summary of the evening is below.
I. Introduction to the Conference - James Davis
A special thanks was given to the Steering Committee who helped put the conference together. Members of the Steering Committee included David Millman, William Arms, and Carl Lagoze. An introduction was given to Deborah Wolfe who took notes in order to turn the workshop into something that would benefit those not attending the workshop. The goals of the workshop and the schedule for the next two days were explained. The focus of the three-day workshop was set forth.
II. Introduction to Background Reading and to the Speakers - Judith Klavans
We assembled a set of articles as related reading for the workshop to help bring everyone together since this was an interdisciplinary and multidisciplinary group. The related readings included:
- "The Michigan Document Service
Decision and Fair Use for Coursepacks" by Kenneth Crews
- "Digital Libraries and Some of the Copyright Issues They Raise" by Jane Ginsburg
- "Who Owns Digital Works?" by Ann Okerson
- "Letting Loose the Light" by Mark Stefik
- "Economic Issues Facing the Internet" by Hal Varian
- "The Digital Property Rights Language", Mark Stefik
Other members of the group left papers on the desk to be read as well.
a. Introduction to Pamela Samuelson
Pamela Samuelson is on the faculty of UC Berkeley. She has a joint appointment in the School of Information and Management Systems and of the Boalt Law School. Her expertise is in copyright, including technical publications and software protection. Pam had intended to cover the national perspective but spoke instead on copyright management information, technology issues, and proposals to regulate technologies covering both national and international perspectives.
b. Introduction to Jane Ginsburg
Jane is a Professor of Law at Columbia University. She also has a doctorate in French law and is an expert in Fair Use. Jane had originally intended to speak on international perspectives. However, she spoke on publications in the digital context and their use in the digital context covering both national and international legal proposals.
III. "National Legislative Issues and Digital Copyright" - Pamela Samuelson
There are two aspects of current national legislative issues and digital copyright: Proposed Section 1201 of copyright statue and Proposed Section 1202 of copyright statues recommended in a paper on "White Papers on Intellectual Properties and the NII" written by the Clinton administration. The legislation on these two is on the legislative agenda and served as the U.S. mission to the international treaty process.
Section 1201 would make it illegal to make or sell a device or offer or perform a service that defeats copyright. The primary goal is to avoid, bypass, remove, deactivate or otherwise circumvent without the authority of the copyright owner. This Proposal is to amend copyright law.
Proposed Section 1202 would make it illegal to tamper with or remove copyright management information that might be attached to a digital document. It also makes it illegal to distribute documents whose copyright management information has been tampered with. Copyright management information would likely be attached to digital documents circulating on the Internet and we need regulations to stop tampering so copyright management information would be available to consumers and would prevent copyright infringement. The legislation that was introduced did not pass, but it is still on the legislative agenda. The issues also served as US admissions to treaty process. They have scheduled an international conference that will run along the same agenda.
Hearings on the white paper legislation were scheduled for this winter. More opposition arose than legislation expected. It wasn't what was proposed but what wasn't proposed that caused so much opposition to the bill. Specifically, the on-line service provider community thought the bill should contain a limitation on their liability for infringement by users. The issue is whether on-line services are liable for user behavior. More opposition to 1201 emerged from the Creative Incentive Coalition, which was formed to support the white paper legislation. Some of the CIC members from the computer and software industries found that the rest of section 1201 was disturbing and they brought forward an alternative language.
What does the debate about that provision look like? Three draft treaties have been published dealing with databases, and copyright. The goal is to establish some international minimal norms. Countries must legislate to comply but they can adopt stiffer laws if they wish. The anti-circumvention proposition is somewhat less strict than the U.S. white paper proposition. The technological proposition is applauded so the copyright law does not have to do so much work. There needs to be a language about legal concepts to encode the information in digital objects. We do not yet understand all implications about the applications.
The main discussion will be about the controversy surrounding anti-circumvention.
Where on the spectrum of legal standards does the regulatory marker sit? Underneath the first level is a set of other issues that haven't been addressed.
Where is the standard now with respect to technology that can be used to infringe copyright? The answer is given in the U.S. Supreme Court decision on the Sony Betamax case. Two motion picture companies wanted the FCC to stop the sale of Betamax machines because they are used to infringe on copyright. The decision was 5 to 4 ruling for Betamax. The ruling depended on the fact that there are significant other substantial uses with non-infringing purposes. Under the Supreme Court standards, copyright law can not be used to regulate those uses.
At one end of the spectrum you have the case where "It can't be stopped if it is capable of non-infringing uses". At the opposite end is the case "It can't be sold if it is capable of infringing uses". In between these two poles you can ask all sorts of questions about the use: Do you know that it will be used to circumvent or infringe? Has it been specially designed to be used where the primary purpose or effect is to enable to infringement or circumvention? Does this mean that the infringement use is more than half? If there are ten uses and one has 11 percent does that count as the primary use? The issue is still open to legal debate.
a. Questions for Pamela Samuelson
Alfred Aho. I'd say these arguments against infringing uses are aimed at more than the machine's capability to do it. If anything can replicate then it's a Turing machine. The motion picture industry and white paper would like it to be at the conservative pole but nobody is really capable of maintaining the position against possible uses.
What is the "primary effect" language going to do to developers? It's intended for X but the users do Y. Should you be at risk of a lawsuit by the motion picture industry because your users are doing Y? The world intellectual property organization proposal would add a knowledge requirement so you would have to know or have reason to know that the primary purpose or effect would be to aid infringement. Perhaps it is a better standard than provisions against use. This requirement doesn't take care of all the questions but it would take away from the conservative side of the spectrum. If there is infringement, would the other side be able to say to developers that they ought to have known about the market? How protective it would be is still a question.
Response. This is a classic problem in the formation of law. You want to weave a tight enough net that you catch enough fish but not too tight a weave that you catch too many fish. The Sony Betamax standard has too loose a weave and some people who are criticizing section 1201 say it's too tight a weave. There are many approaches to this problem. One approach would focus on infringement capabilities but would only regulate when people infringe. The second approach would be to ask about infringement when you develop technology. This is currently the case with video CD.
When separating out some of the terms in the provision, it protects processes, systems, and devices that manage copyright information. If there is some tampering with copyright management information, or say you have somebody making a device that doesn't read the copyright management information that comes with the particular document, can you have violated Section 1201 or 1202 by virtue of making this technology that doesn't read this information? Is not reading the information equivalent to some sort of removal or do you have to actively strip the copyright management off altogether? Some argue that you need to protect identifying information such as the name of the work, the author, etc. Others argue that terms and conditions are copyright management information. The white paper doesn't define digital objects as having metadata attached to them. Whether or not copyright becomes a contract law regulates what happens to copyright data.
Hal Varian. What are the manufacturers' obligations? At what level is there an obligation to read copyright management information? What about standards for technological methods that are embedded to read the information behind the scenes? Does the marketplace dictate the standards? The direction might move toward mandated standards. Companies will want to implement their digital rights technologies so that trusted systems can work.
How do standards come about? Do they come about by government regulations, cartel behaviors, policy, histories of use, or wide ranging negotiations. Will they be undermined by companies that might have competitive incentives to offer less protected items. Will competition shake things out? Will consumers accept technologies that prohibit copying?
We have seen the same power plays in the debate over who controls cryptography. Government wants to stake out that territory. Can you imagine a debate between the ACM and the U.S.? According to section 1201, there is the potential to stop research results that report on copyright infringement specifically where the report is on a system weakness? Is there a responsibility to copyright law made into the way that we protect all information? Or is it easier to point to the primary purpose or effect? What do you measure it by?
Geoffrey Nunberg. Are you understating the weakness of the provision? Isn't there a fair use defense?
Pamela Samuelson's Response. That's unclear for the anti-circumvention proposition. There hasn't been an opportunity to argue it yet. If someone has protected it, maybe that's a factor in deciding if the use is fair or not. The focus may not be on a particular use but whether the technology will be used in general for circumvention.
William Arms. Does the law follow technology or shall we write a law to anticipate changes. The law is criticized for lagging. Perhaps legislators are acting according to the belief that commerce on the net will be enabled when the protections are in place. There is a difference in opinion among the developers about the enabling technologies.
Alfred Aho. In a digital movie does the copyright extend to individual frames? Under new law what would change?
Pamela Samuelson's Response. Every frame is protected; each picture is treated like a photographic work. In digital form, the frame notion is different. It might be that taking a frame in the right circumstances will be an infringing use. What motion picture industry intends to do is embed identifying information in each frame. That could be extended to copyright management information. Is that sufficient for copyright management information? We aren't quite sure of the definition and yet we are making it a felony. The identifying information includes the author, the rights holder, and what else?
Brian Kahin. Consumers are not going for a trend in systems like the digital audiotape locks. The Internet is strong in imbedded systems. The EEC green paper (a logical extension of the white paper) is actively considering. There is interest among those who work on copyright. There is a sense that the computer industry will resist. The international treaty is more inclined to go to mandated systems. I sense a push in the U.S. against the mandate since there is a preference for the property rights arena. The clipper chip controversy illustrates the resistant attitude toward mandated systems.
IV. Jane Ginsburg
There are some comparisons in electronic libraries in international copyright law and U.S. copyright law. The library is a disseminator of the work of other people and it is also a creator and potential disseminator of its own work. On-line catalogs fall into this category.
Consider a scenario that tests out the library as a disseminator of the work of other people. A remote user in France accesses Columbia on-line catalog. The user doesn't access CLIO (Columbia Library Information Online) in its actual state, but a super online version, which has four different levels:
1. Bibliographic data
2. Abstract of contents
3. Excerpts selected by the library staff
4. Full text of the work
With this version, a user can read on screen and possibly download information to memory or printer. Featured on the "What's Hot, What's New" page of the library is a link to the unpublished collection of 18th century Alexander Hamilton drinking songs.
Someone must wait 50 years after an individual's death before a published work moves into the public domain. Under U.S. copyright law, works that were not published after the time that the current copyright act went into affect in 1978, remain protected by the Federal Copyright Law until the end of the year 2002. If they were subsequently published with authorization they get an extra 25 years of protection. Under the French law, even after the normal copyright material has expired, if the owner of the manuscript publishes the work, you get exclusive rights from the date of publication. Very old documents may be protected in the U.S. and France. In seeking permission, the owner of the manuscript would have to be consulted in France. In the U.S., the heirs would have the rights.
If every on-line user can access the documents, does that affect publication of the document? As a matter of the United States copyright law, a publication is defined as distribution of copies to the public. We will assume that this on-line catalog is publicly available. The next question is if digital dissemination of the document constitutes a distribution of copies to the public. The text of the United States copyright law, which defines the distribution rights as involving a transfer of ownership of copies, is somewhat ambiguous. In the hardcopy world, if I'm selling hardcopies, I'm distributing pieces of paper and there's been a transfer of ownership in copies. In the digital world, digital distribution doesn't work that way.
How does it work? It's similar to the story of the loaves and fishes in the four gospels. Christ was able to feed the hungry faithful with only four fish and two loaves. After all were fed, there remained four fish and 2 loaves in the basket. That's how digital distribution works. The initial disseminator has the original copy but everyone else gets one too.
Some people assume that if there are copies at the end of the process then it's a publication. What if the recipient only gets the document on screen and doesn't keep it (making it a temporary copy)? Is that considered distribution of copies? What if a temporary copy is the distributed one? Reproduction is controversial. The predominant view is that making temporary copies is still copying.
Given all those elements, Columbia's web site would constitute a publication of the drinking songs. What about in France? There is nothing that specifies what kind of distribution is needed for a publication. According to the Berne Convention definition, it is "whatever the means of manufacture provided that the means satisfies requirements of public." This definition is reinforced by the WIPO treaty which would provide that literary artistic works are made available to the public by wire or wireless means in such a way that members of the public make access to these works. It stipulates that exclusive rights of authors shall include direct or indirect reproduction of their work in any form. So the question is whether accessing information on the screen constitutes a reproduction. This would be resolved in the international arena if this text is adopted and it would cover access as well as permanent downloading. According to U.S. and International standards, this simple scenario does affect a publication but it doesn't tell you where the publication took place.
The attempt to localize in cyberspace is always a challenge. In thinking about a definition of publication, do we consider where the copy was received or do we think about the point of origin? The proposed WIPO treaty protocol would place the origin where the necessary arrangements have been made to make it available. Where is the source data file established? These criteria would not include intermediaries, or the on-line providers.
Why is it relevant to figure out the place of publication? It's relevant particularly in the context of posthumous publication rights. For example, if you aren't in France then the extra 25 years of rights doesn't attach. The rights are not created in France just because the drinking songs are accessed from there. Under French law, the right doesn't apply to descendants but to the owner of the manuscripts. In this scenario, since Columbia owned the trunk where the documents were found, it has the right to publish the document in France.
The next question would be do the activities implicated by the Columbia on-line catalogue infringe the copyrights in Alexander Hamilton's drinking songs or for that matter any works that are still protected by copyright law. The answer to that will depend on which level of the catalogue we're talking about. At level 1 (bibliographical data) and level 2 (abstract of content), basic information is not protected under copyright laws. What about the third level? Under French law, so long as the name and source are listed, one may include resumes and brief quotation if it is validated by inclusion in a work. Is the on-line catalog a work? According to a recent case, a database of the Le Monde is considered a work so quotations are permissible.
But there is more than mere information in level three. In the U.S., fair use is fact dependent. If it's a bibliographic database, then it will probably include fair use. In France, if excerpts are brief enough they will fit into French law. Bern quotations are available provided their making is compatible to fair practice. This idea is close to fair use in US provision 1073, which weighs amount or substantiality..
What about those full texts in Level Four? Is on-line browsing a copyright infringement? How did the work get digitized? The scanning done by the Columbia library is considered a reproduction. Scanning might not be considered in section 108 so the legitimacy is a preliminary problem. In U.S. law, on-line browsing is sometimes analogous to looking at a book. Is pulling a book off the shelf and skimming it against copyright laws? Nobody would go after the users for that. There are those that think browsing on-line includes making a copy. If on-line access happens one reader at a time, then isn't this parallel to the "book-off-the-shelf" use? In on-line access, the synchronous readership is indefinite and may reach large numbers. In this case we have an indefinite and large number of copies. This is where the real potential of fair use problem lies. The "looking-at-a-book" metaphor won't be an adequate protection against infringement.
For educational purpose, French law and other Bern countries only protect partial printing. For entire works to be exempted, there would have to be another reason. In civil law countries there is a tightly worded series of exceptions. Brief quotations are usually exceptions and one can make a private use of copies. The "private copy" defense would not work in the drinking song scenario since it is being made available at the library level. In fact, it's hard to make the case of "private use" in the digital world at all. There is a proposed clarification of the Bern convention but it still may not assist Columbia in its defense. There is a defense for the sole purpose of making it perceptible or intransigent provided that the copying takes place if permission is granted from the owner. Unless there is a residual fair use argument, there won't be a right to browse on-line.
The Bern convention's definition of copyright provides for use in creation and special cases where it does not conflict with normal exploitation of the work. Browsing is an economically significant activity, which might undermine the economic life of the work. There could be a problem fighting for the right to browse for free in existing or proposed Bern convention.
Mary Levering. What constitutes a publication? I agree that digital dissemination should be a copy but shouldn't it be considered a copy for publication? Do you deposit it in the library of Congress? There may be an answer to this in the distinction between performance and publication. According to the law, performance is making a work available unless to a limited number of persons for a limited purpose and therefore not published. This would be more like an electronic mailing list.
Response. Case law varies. What is the public? Is Columbia the owner? Did they get rights with the information? It is not sufficient to have transferred rights. Finding something doesn't give you the rights to it. In the U.S., it would belong to the heirs. In France, they would be the lawful owners.
Response. It doesn't take much to have work of authorship. Fair use of unpublished works may not have the same scope as published works.
Judith Klavans. What about the dead sea scrolls? Aren't we all descendants?
Response. In sacred texts there is a variety of solutions. There is still an editor. Where the producer acknowledges that they are divine works, the statement of responsibility must say "unknown".
Geoffrey Nunberg. I am often surprised at the uninterrogated view of the "public". Historically, the emergence of the definition is connected to the emergence of print discourse. It's not surprising that the definition is not going to survive. What is public? Is this determined by the quantity?
Response. In the U.S., the "public" is a substantial number outside the family or circle of acquaintances. In the case of "personal" email, it can be forwarded to the public. Prior case law tends to deal with public performance as a reproduction. Current proposals don't maintain the distinction.
Henry Gladney. Is part of the law missing? Nothing is said or can be inferred about what the publisher expects. The obligation is not stated. You just have the sinking feeling that Alexander Hamilton's heirs might come after you. Can the producer be confident of prior rights or must they clear them before scanning unpublished documents? What do you do when the technology is not anticipated at the initial grant of rights? Would it be enough if the heirs had granted permission to copy or show them to visitors? We addressed the risks to Columbia, but what about to the user? The user wouldn't know about obligation.
Evelyne Tzoukermann. I'm surprised at the lack of clarity in international copyright. In cases of the multimedia document, rights assignments can only get more complex. Each country has to have different procedures for permissions.
Discussion. Procedures and permissions are usually territorial, including Bern convention. Do we simplify applicable law or rally applications from different countries? When publication is placed at the point of origin (not relaying stations), and American ISDN lines are used, where is the server? Where is the company organization? The WPO would ask where the server is. Do sneaky companies look for mirror sites?
Vicky Reich. As a publisher, do you go copyright shopping for laws that are loose? Where could you go to sue this person?
Discussion. Do you go to the principle place of business, origin of work, or the place of receipt? How can you compel the defendant to show up in court? What law applies? The domicile might be author unfriendly while the place of receipt is lax on use. It may become a political technique to get the defendant based on the place of receipt.
Vicky Reich. As a librarian, I want to bring up fair use. Does the doctrine of first sale apply with the recycling of the copy? In order to share a copy you have to make one. Are we going to stick to the white paper interpretation where there is no first sale at all in the digital environment?
Discussion. If you delete the copy then that's within the spirit of the law because your copy is intermediary. What about the Bern exhaustion principle? If you buy or acquire a copy in South Africa, do you have the rights to share within South Africa? Some countries require international exhaustion; others favor national or regional exhaustion. What about digital distribution? Is the economic equivalent a "send" and "delete"? This becomes hard to prove.
Alfred Aho. What about digital audio and digital video? When including entire images, it's no longer brief. When you include partial reproduction you may get stuck with distortion charge. Are you violating a copyright to take a few frames for scholarly purposes? The brief quotation exception doesn't seem to carry us beyond the static image question.
Discussion. The French court ruled against static image users. The qualitative and quantitative tests are in American law. So it's a question of the amount and substantiality of the work that you include. It's industry practice to quote a film. Community practice is important. One thing that we've learned is to be careful with Snoopy and Disney.
William Arms. Copyright experts have met up with every branch in university computing. Are we being narrow minded? There is much to learn about defamation, obscenity, and freedom of speech. The licensing of intangibles has an impact on the industry. It's a big shift between first sale and licensing. What is the validity of shrink-wrap?
Discussion. Intermediaries is an enormous topic. How do we reach a compromise? When the intermediary is merely a conduit, there ought to be no liability whatsoever. Insofar as you have control, you can be liable with limited exceptions. In the Senate administration, there is a request not to do anything internationally that we can't vote on here, specifically about service providers.
Kenneth Crews. The themes set up the concepts in a static legal system. We supply a set of rules regarding the elements and entities. It should be flexible enough to deal with other cases. What are the chances that someone will take action? Chances are pretty small. What about the ethical responsibility? When do we obey the law and when is it okay to disobey the law. That's no way to run a democracy.
Wednesday, September 25
I. Electronic Publishing - Marie Hansen
Marie Hansen commented on the developments and problems she has seen as Director of Project Muse at Johns Hopkins University Press. In the area of academic publishing, she continually confronts questions of fair use and licensing. She believes that specifying terms and conditions for different users threatens to break the whole basis of easy delivery programs. The negotiation period is a new problem to overcome and scholarly publishing units have administrative problems as well. Staffing is divided between production and management, and there is little space for intermediaries to support custom sets of terms and conditions.
As the Muse project matures, questions have arisen about standardization and data structures. The team is developing tools and methods for getting data from publishers and rendering it into a form that can be published on the Internet. They have been able to bring costs down and address the unknowns regarding cost and delivery in the new format. The cost and time it takes for this new format is similar to that required in the paper arena. While saving money in distribution, more money must be spent for data checking and processing. Hansen also discussed archiving and updating questions for electronic material.
Marie Hansen's comments pointed to a deeper condition for electronic publishing and exchange. The discussion about terms and conditions assumes an incredible rate and proliferation of units in electronic exchange. Many believe if a document can be sent faster, it can be edited and sent back faster. This belief is a threat to copyright owners, and a promise to both technologists and to those interested in fair use. However, looking into a local situation, the belief in the rate of exchange and facility of production of electronic documents is challenged. If a document is in electronic form, the possible path of exchange is different than if it were in paper form. The production of the document in electronic form carries with it the marks of a different kind of friction in the system. Local publishers still have problems with managing the production of electronic documents. At this point in the process, a publisher might be better served by hiring an Internet expert over a lawyer.
II. Copyright Outreach - Kenneth Crews
Kenneth Crews explained the history of law and fair use in an academic environment. Fair use issues were ushered in with the photocopier and not the workstation, but there is still a need to define fair use to the public. In order to get trusted systems to work for publishers, detailed directions must be given to users, and policies should be established at the institutional level.
Several observations were made about individual rights management. If each author kept his or her copyright and entrusted the rights to a clearinghouse to manage, the users could clear all the rights with the clearinghouse and notice would go back to the authors. This constitutes an intermediary stage that has been tried out in the juridical scholarly publishing arena. Authors would have to accept the responsibility of maintaining their own copyrights to establish the practice. Although the comment is justly applied when discussing the prospects with technologists, the economists may have other ideas regarding copyright and digital rights management.
Crews, as director of the Copyright Management Center, presented a broad spectrum of critical issues facing universities today, including research publications, distribution of classroom material, and distance learning materials. Focusing on distance learning, Crews emphasized that he has directed a large portion of his time towards addressing questions such as who is going to own the product of a distance learning course when materials are generated from a range of sources. The ownership rights associated with this become a highly complex problem. Furthermore, he brought up the issue of electronic rights for faculty members. Many faculty and researchers are unaware that they are signing away rights for electronic distribution. His office is working closely with librarians, faculty member, and others to establish workable guidelines.
III. Economic Inquiry - Michael Lesk
Michael Lesk concentrated on two topics. First he spoke about economic issues in copyright transfer. He stated that students buy about 2 million dollars worth of textbooks per year. Although many claim that Internet distribution is cheap, production and distribution costs for most scholarly publications do not support this. Secondly, he discussed the performance issues of who controls the way material can be displayed.
Simply granting permission is not adequate since the electronic medium creates an environment completely different than that for the printed page.
Lesk also spoke about trends on the Internet regarding exchange, users, and content. He had several numbers and graphs to display these trends and observations. He questioned the feasibility of encryption and payment systems. He believes that if we separated all the bytes on the Internet into genres, the listserv genre would win since the archives of list discussions is extremely large. Early Internet users focused a lot of their attention on creating documents and once these documents were created, they were not looking for the rights to those documents. When large content providers go with the Internet, the scales will tip in the direction of rights requirements. The Internet is an exchange of medium where individual authorship and participation is important. As more publishers get involved, the importance of an individual author tends to get subsumed. Is it an accident that "Web TV" doesn't have a keyboard? A computer network allows for exchange between people where a television cable network does not.
As more and more publishers and individuals are tackling the formidable problems of building electronic databases, the economic implications of costs are beginning to be resolved. The most pressing question is how to build a self-supporting system for the collection and distribution of digital information while gathering the cooperation of libraries, publishers, and users working together.
IV. Design Issues for Terms and Conditions - Mark Stefik
Mark Stefik discussed his ideas for digital property rights, including a technology component with the potential to enable new forms of exchange and distribution of digital documents. Digital property rights take into account the way documents are used, and attempts to satisfy the needs both of publishers and users. The base technology is the trusted system, i.e. that the computer system can reliably respect rules governing use. Trusted systems will track the rights that are associated with each work, and will reliably track who has rights to these works. Other questions were raised, such as what does it mean to make a copy and how can fair use of digital documents be expressed. The notion of making digital copies is distinct from a photocopy or a copy of a videotape. Publishers and authors should expect to be compensated for the making of usable copies such as is done for photocopying and video tape copying. There are degrees of copying for digital documents for example, copying the bits from a network to an input buffer and then to main memory could be considered as three copies, however, these are not usable copies.
Stefik discussed a distinction between the rights to copy and the rights to transfer information. The right to copy refers to the creation of a new usable digital copy, but the old copy is not destroyed. In contrast, the transfer right refers to the making of a new usable copy, but the old one is either destroyed or made inaccessible. Stefik compared the transfer operation to loaning a book to a friend; once the loan has occurred, the lender does not retain a copy of the book. Finally, Stefik raised the possibility of establishing a loan right which is a transfer right with time limits.
Stefik presented the formal language that he has developed for trusted systems. His presentation inspired much discussion on several deep philosophical issues such as questions of ontologies for rights and permissions, and inferencing over metadata associated with digital documents. Stefik ended his presentation on an optimistic note with the hope that his contribution in developing technologies for rights management will enable new communication possibilities.
Thursday, September 26, 1996
Debate and Priorities
Steve Griffin. The NSF uses these gatherings as a point upstream for generating values and ideas for developing multi-million dollar programs. We are now half way through the Digital Libraries Initiatives, and we're gathering ideas for the programmatic conception of the next phase. I look forward to reports that will be widely disseminated within the agencies and will be the basis for many decisions. There is a reciprocal relationship between agencies and communities that they serve. Don't be surprised if we contact you in the future to help clarify some points or to participate in planning.
The timetable is:
Start the dialogue
Formal community-based meetings
Draft RP to the agencies this Summer
Official signoffs - October and November
Proposals due - end February 1998
Awards end of Summer 1998
One of the goals will be to maintain support for a set of essentially non-technical issues among those who view themselves as a technical community. In so doing, we spread the notion of a digital library and networked information. That can only lead to something beyond the technical perspective. Inquiries which stop short will not be of value.
In the past, we've been largely descriptive. Now, perhaps for the first time, we are in a position to be prescriptive since we are upstream. It is important to mention what each of us values as we come from different fields. Don't think that it's over because you have left the discussion group. Start the dialogue and continue with your colleagues.
I have been with the NSF, Division of Information, Robotics, and Intelligent Systems since the 1986 formation of directorate. Without a doubt, I approach these issues from a computer science perspective. So I am thrilled to hear legal and economic perspectives on these technologies. What we didn't talk about as much were the social and cultural issues. This is new, exciting, and potentially controversial ground. So, provoke some colleagues.
[Steve Griffin then thanked all of the participants, and gave a special thanks to Judith and Jim for organizing the meetings.]
Carol Mandel. [Notes were circulated from the second breakout session.]
Where do we go from here? We need to deal with the process of things continuing after today.
People who were involved in the breakout session should take responsibility for writing up the notes for what took place there.
-Take the ideas that we focused on today and use them as starting points.
-Forward them to the others in the group.
-Forward them to Judith & Jim after they have been annotated (Hal will provide the raw material, and Bill will write it up).
Participants: Vicky Reich and Brian Kahin, Geoff Nunberg and David Millman, Dale Flecker and Peter Jaszi
The Introduction to the Great Debate
Judith Klavans. Each of us should think about the following issue: In your field, what concrete, solvable problems do you see arising in the areas we have discussed in the breakout sessions?
Problems in the area of research: These could be proposals for research that appeal to specialists in other fields to solve problems that you have come across. The goal is to formulate projects that you think should take place, even if you would not be the one to work on the project. Next, tell us which individuals from what fields you think should be involved in working on those projects in order to best solve the problems you identify: What would you like to see happen? Who should do it?
Problems in implementation: The question of implementation isn't only for the technologists among us, but also concerns the educators and those who shape policies.
[Judith Klavans also discussed issues involving dissemination and lobbying.]
Vicky Reich. Speaking as a librarian, I think we need to be attuned to where contract law and copyright law interface. The area requires lobbying and practitioners who will help put more experience into the world. Remember that law takes clues from community practice.
Speaking as a publisher, we need to understand how people use information and how information is priced in the network environment. How might we balance greed, fear, and social good?
Hal Varian. I'm interested in the role of ambiguity in institutions and economic issues. In particular, there has been a historical reluctance to codify fair use. It is, after all, ex post imposed. It's not up-front. How does that work when you buy a package with rights? How do you know what you get before you pay for it?
And after understanding the legal issues, I would ask how that affects the economic environment. With regards to privacy, how do users know what bundle of rights they have and the means and advantages for contracting away those rights?
Dale Flecker. I'm also interested in the interface between contract and copyright, but the important focus for me is not in lobbying but in education. There are two agendas: one that deals with technology and the law and one that deals with technology and publishing.
As for implementation, I see an enormous gap between the systems we discussed where access is controlled and the way that systems are described out there. How can we arrive at more sophisticated control that goes beyond geographic location and/or the list of users?
Martin Röscheisen. Coming from the technology side, I'm working on contracts in the digital arena. I'm currently interested in privacy terms and conditions--particularly since the current rights language can't handle those things.
Interoperation is the next big issue. During that phase, we need to start defining a core of users. This can be accomplished by documenting what happens in the field through the usual means of user studies and through community work.
Pam Samuelson. I think the copyright/contract interface is emerging as the main idea. I would like to do some conference in the legal community where contract lawyers meet property lawyers. And of course, the technologists who impose the stuff should come too. One of the reasons that it is so big is that there is remarkably little work in law that takes into consideration both property and contracts. So I'd like to get into the solution space where people meet and we make a publication.
It will be crucial to develop a taxonomy of fair use. There will be a range of things and uses included. Some are easier than others to accept for different parties. The public believes that private copying is okay. Publishers disagree. And then there are a different set of issues for quoting a work.
A food poisoning example: We have a party where we serve vegetable cornucopias and all our friends get sick. We need a time stamp for the recipe to give to our doctor and our lawyer, but we forgot to ask for that the first time and so we download it again.
We may need to admit that the fair use argument is often a revolt to price.
Kim Taipale. As someone who joined late, I wonder if social issues have been covered. [Someone answers "no, not as much as they might have been."] I'm interested in social issues over the last two decades. One of the things that we haven't researched is specific attitudes of user communities about contracts, law, and options. After all, this talk about terms and conditions is aimed at controlling social behavior.
As an educator, I think that education relies on understanding current attitudes. And we must take that into consideration as we develop the process of education. Part of the goal is to address misconceptions as well as to validate what is working - to say that it is going okay.
As a member of the ILT lab, I notice that in doing school-based projects there is a tendency to start with the premise that everyone relies on fair use. We don't devote enough attention to the current conceptions of intellectual property.
Pam Samuelson. I suggest that you look at the Office of Technology Assessment for some of their reports on public conceptions. In particular, there is one report about home copying that presents a survey about attitudes and fair use. [Look for title Home Copying (and Fair Use)???]
David Millman. I'm with Martin and Sarah. I'm interested in trying out metadata implementations on users. I think we're ready to take a crack at first draft implementation. But as the discussion has evolved, I'm more convinced that we need a hierarchical scheme in place rather than one - to-one. I mean, you need trusted third parties first. And since it is hierarchical, we need legal advice about authority. How do we support privacy and dynamic/updatable information?
Cliff Lynch. I suggest that you take a look at the X.509 circular and track the outcomes. It will either complement or supersede the way that authentication plans have been going.
Marie Hansen. I think about contracts and copyright every day. What is missing is a set of better-defined standards about accepted behavior. Do we disambiguate it? Or do we go along with 150 years of history? I think there is a project in identifying packages of rights.
Hal Varian. Academic publishing is a tiny part of the content produced. In identifying rights, we need reps from other media producers.
Geoffrey Nunbergu. Coming from linguistic semantics, I come from the same angle as Mark and Marty: we need to work on an adequate abstract language to describe terms and conditions on which to build implementations. This includes getting the modalities and arguments right. It's also
Descriptive - you consider all the situations that you might need to account for.
Current work on Underspecification: It's an area of linguistic semantics that considers the process of leaving conditions unspecified. Up until now it has been a set of technical tricks but it could be an area of application. How little can we say to have a determinate offer, but not to tip our hand?
Mary Levering. Analysis of the social, cultural, and intellectual underpinnings of copyright law is needed. If underlying goals are still valid, how do we accommodate them in planning? Specifically, there are three tenets of Fair Use that might be reexamined:
First Sale Doctrine (section 109)
Library Preservation (section 108)
Fair Use for Purposes of Teaching (section 110)
The study should be technology-neutral. Fundamental questions need to be explored at a national policy level. We must collaborate to get solutions for distribution, access, and protection for copyright. Practical application seen as part of infrastructure. For example, there is the fruition of the copyright electronic registration and deposit system. And we might look toward digital works and digital objects. Will there ever be a standard formats and standard platforms? This is not true for most works. And remember that this is really important for archives. There must be inexpensive ways to convert diverse formats to a archival formats in order to make the process more commercially viable.
Peter Jaszi. I suggest a challenge to the lawyers who do research about copyright: We have made claims about the value of existing system, to what extent are these exceptional doctrines? We need to look at the deeper values behind the tendency to claim that leakage is a good thing. Fair use is based on a discourse-promoting function. Technological developments, however, may render copyright secondary (if not irrelevant). Rather than rely on woolly constitutional justifications, we need to get clear about the justifications for leakage. I believe that arguments about works in the public domain are still valid in supporting the exchange of ideas. During the period of change, we need to keep the intellectual property discourse going.
Secondly, it is important to lobby and stay informed since legislation may make our discussions irrelevant. We must make sure that we inform ourselves about developments and inform our communities. To this end, I participate in the Digital Futures Coalition which is a watchdog agency on these issues.
Bill Arms. First of all, let me put forth the following hypothesis: Complex technical solutions as ways of managing intellectual property will be impracticable and will prove to be socially unacceptable.
What I suggest is that we implement some leaky systems and prove that they work.
Mark Stefik. Speaking as the leaky system builder, I'm interested in fair use and digital rights technologies. I would like to work toward widespread testing and evolution of rights languages for commercial and public use. It's important to reach a critical mass of users and prove that the system is interoperable.
Carl Lagoze. Speaking as the system hacker, I'm interested in the experiments based on digital rights management technology. There is a need for testing since it is time to start building trust in these systems. You test for what works in order to prove that it has wide-scale potential merit. We need to work on publishing and disseminating technical reports. But most of all, we need to get some systems together.
Cliff Lynch. The systems that we end up with should be leaky - but not too leaky. Remember that this is a trust-building exercise with publishers. One way to maintain trust for these systems is to develop technology that can detect when the leakage is out of hand. I think there are various avenues for detecting the breaks. For example, you could have an agent look for anomalous traffic patterns on the net.
In the area of fair use, in order to gain footing we can look for things are so evidently fair use that we can codify them in a rights language that doesn't require telepathy for proper implementation. Maybe there is a broader set of things that publishers might be comfortable with, if they were simply alerted that the use was taking place. I also believe there is some low-hanging fruit that we can pick off. Since use of works in the public domain is defensible, mark things that don't have rights. Beyond that, until we can capture use structure, we can't get authentication.
Even if we solve the authentication issue, how does it get established in an environment where there will be copyrights on buildings and sports events, multimedia media, and translations? Over the next couple of decades there will be lots of stuff digitized that is public domain, say, pre-1918. But what if a museum asserts rights over digitized objects because the corresponding canvases are hanging in their walls? What's the protection on the digitized version? How we sort this out will either feed or disrupt the economic engine. We haven't yet talked about international issues. In developing rights-management technology, we need to talk with experts from other countries about moral rights, cultural differences, as well as technological lessons.
Suzanne Thorin. I'm involved with the Variation Project at Indiana University: digital audio at the School of Music. In this project technical aspects have been the center of focus. The user aspects and social issues have yet to be discussed, even though there may be some show-stoppers in these areas that will overtake the technological progress we make. And progress is considerable: you can have simultaneous and non-simultaneous use. It can be used in distance learning. And digital audio goes to a score that can get altered--does that count as a performance event? When we start to examine the rights involved, I'm afraid that we're going to have a limited project because of the barriers. The collaborators attempting to develop the project will be interested in user acceptance, fair use, and distance learning.
Sarah Sully. Speaking as an attorney, let me first say that it is especially gratifying to find out that what I do is both rare and important. I specialize in both copyright and contracts. In the large intellectual property firm where I started some years back, the contracts department used to be seen as a strange carbuncle. The work I do isn't exotic to the practice of law, but it is not something that usually would be performed by one lawyer. I think this set of circumstances will change since there is an increasing demand for both kinds of skills in one person, say, for in-house counsel to smaller companies and institutions. Working for JSTOR currently, it is important to me to gain a facility with drafting contracts in new areas of on-line publishing and services.
Henry Gladney. I see great prospects for the use of metadata in digital rights management. However, when I study the elements in the Dublin Core, I am becoming more convinced that the use of metadata will only work smoothly in limited contexts. We're not looking at just five or ten years, or even fifty or seventy. We're talking about managing digital objects for a long time. So there will be a tremendous problem when it comes to updating the metadata at several different levels. There needs to be checks for interoperability as well as standard updating procedures for making sure the right digital objects carry accurate metadata.
Brian Kahin. We need a better understanding of how intellectual property works in the global Internet, and we especially need more input from economists. We need to develop a generalized infrastructure for mediated access to information. He cited PICS and a document that he provided to Judith (Judith and Jim would determine who authored the document. Echoing Peter's point, there were policy processes underway (specifically, the debate over copyright policy leading up to a WIPO Diplomatic Conference in December). Those involved in terms and conditions issues should be concerned about this.
Kenny Crews. Judith posed this question: In our own areas, what concrete and solvable problems issue from the discussion of terms and conditions? My thoughts are:
1) What is the interrelationship between contract licensing for information resources and the application of fair use and other provisions of copyright law to the utilization of those resources?
Dale Flecker wants to explore this issue with the result of providing guidance to those who must implement methods for application.
Brian Kahin generalized the issue as an interrelationship between public law of IP, private law of contract, and other forms of private rights. He sees economics as the key to unlock discourse of these issues because the barrier between networks and communication is breaking down. Networks have been defined largely in economic terms. He referred to a Web document called "Content labeling and legal limits."
2) Can fair use and other public rights under law or contract be articulated in a user interface or expert system for resource access?
Pam Samuelson suggested a "taxonomy of fair use" to clarify concepts. Some examples of incorrect positions include people who use fair use as a rebellion against price and people who believe that all private copying is within fair use.
Marie Hansen would like to define fair use more specifically, or perhaps to establish a limited set of options related to the application of fair use.
Mark Stefik calls himself an experimenter and said that he wants to find ways to define FU or apply it in the rights management system.
3) Can a measure of fair use be deployed in the context of electronic delivery systems that serves the needs of users and is it likely to withstand legal challenge?
Bill Arms suggested that we cannot wait for formal studies but we need to experiment with creating "leaky systems" and test their viability.
Clifford Lynch said that he is building trust with publishers to allow leaky systems, and the networks can often detect leaks that get out of control.
Hal Varian would like to explore the feasibility of integrating fair use into a pricing structure for the resources.
Mary Levering proposed a more general study of the general policy and objectives of the copyright law and whether those policies can survive the transition to the digital environment.
Peter Jaszi suggested an interdisciplinary approach and perhaps empirical approach for better understanding the policy underpinnings of the law.
4) Can we establish an education or awareness program for copyright that provides balanced views?
Kim Taipale suggested that we need to learn more about prevailing public understanding of copyright. Pam Samuelson referred to OTA studies that surveyed the public about home copying.
Proceedings of the Forum in Technology-based Intellectual Property Management: Electronic Commerce for Content. IMA Intellectual Property Proceedings, Volume 2, August 1996.
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