Analysis of the "NII Copyright Protection Act"
 

Digital Future Coalition Amendment to "NII Copyright Protection Act" Facilitating Browsing and Networking ( 106)

Issue:

Whether an individual surfing the Internet, or otherwise "browsing" through computerized information, should be required in all cases to license that information (or otherwise obtain the copyright owner's permission) before viewing it?

Facts:

Sec. 106 of the Copyright Act provides a copyright owner with the exclusive right to control the "copying" of his or her work. Sec. 101 of the Act defines "copies," but does not address whether the temporary reproduction of digital information in a computer's random access memory ("RAM") -- or other temporary holding area that simply allows information to be viewed -- is included in the definition. While a few federal courts have found that RAM images are "copies" within the meaning of the Copyright Act, the Supreme Court has never ruled on this question. In its Report accompanying the 1976 Act, however, the House of Representatives made clear that it did not intend temporary reproductions of a work to be considered "copies" for purposes of the Copyright Act.

Analysis:

It is not possible to simply view a document, file or image on a computer screen without creating a temporary, or "ephemeral," reproduction in RAM or other non-permanent type of computer memory. By definition, such reproductions are erased after the computer is turned off if the user does not affirmatively direct them to be permanently retained. If such automatically erased images are considered true "copies" under the Copyright Act, and thus may be controlled by the copyright owner for the full copyright term, the right and opportunity to browse information on-line now enjoyed by millions will be seriously undermined or -- at some point soon -- completely precluded.

 The pending legislation does not directly address this "temporary" or "ephemeral" reproduction issue. It does, however, propose an amendment in Sec. 106(3) of the Copyright Act to "clarify" that a copyright owner's right to distribute works includes the right to distribute them "by transmission." (The pending legislation also would amend the definitions of "publication" and "transmit" in Sec. 101 of the Copyright Act.) Absent comparable "clarification" that the (literally) billions of temporary reproductions made when messages are sent electronically, someone surfs the Internet, or databases are otherwise accessed on-line are not legal copies subject to the control of copyright owners, Congress risks seriously imbalancing the Copyright Act.

Proposal:

The Digital Future Coalition urges Congress to amend Sec. 106(1) of the Copyright Act to make clear that RAM, and other "ephemeral," reproductions are not "copies" within the meaning of the statute.

 

Digital Future Coalition Amendment to "NII Copyright Protection Act" Clarifying the "Fair Use" Doctrine ( 107)

Issue:

Whether Congress should selectively amend Sec. 106 of the Copyright Act to update the rights of copyright proprietors for a digital age without similarly reaffirming in statute the principal counterbalance to those rights codified at Sec. 107: the "Fair Use" doctrine.

Facts:

As made clear in 1991 by the Supreme Court, "The primary objective of copyright is not to reward the labors of authors," but the purpose articulated by the Framers in the Constitution: "[t]o promote the Progress of Science and useful Arts.'" Accordingly, the Court explained, "copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work."

That critical balance, long at the core of the nation's copyright law, is most visibly embodied in the Copyright Act in Sec. 106 -- which grants copyright holders a "bundle" of enumerated rights -- and in Sec. 107 -- which codifies the centuries-old "Fair Use" doctrine. Under this venerable doctrine, "fair use" may be made of a copyrighted work "for purposes such as criticism, comment, news reporting, teaching . . . scholarship or research" under certain circumstances without the permission of the author. What constitutes fair use, according to the statute, is determined by the courts on a case-by-case basis by reference to four analytical factors. Fair use (in addition to reflecting in copyright law First Amendment-based principles of free speech) thus provides the basis for many of the most important day-to-day activities in scholarship and education. Moreover, it is no less vital to American industries, which lead the world in technological innovation.

Analysis:

The pending legislation proposes to "clarify" that distribution of a copyrighted work (one of the bundle of rights granted to copyright holders by Sec. 106 of the Act) may be accomplished, not through the transfer of physical copies, but by electronic transmission as well. The DFC believes that this seemingly small change in the law constitutes not merely a clarification of proprietors' current rights, but a real expansion of them. Under either interpretation, the Coalition believes that a comparable change is necessary and appropriate in the "Fair Use" portion of the statute (Sec. 107) in order to assure that the scope of fair use parallels the scope of the rights to which it relates. Including such language in the pending legislation and the Act will reaffirm Congress' critical commitment to the vibrancy of the Fair Use Doctrine in the digital future.

Proposal:

The DFC proposes to amend the introductory paragraph of Sec. 107 to clarify that the Fair Use doctrine, too, applies to the transmission of copyrighted works.

 

Digital Future Coalition Amendment to "NII Copyright Protection Act" Preserving our Cultural Heritage ( 108)

Issue:

Whether libraries and archives should be permitted to take full advantage of digital (and other new) technology to preserve copyrighted works important to the nation's cultural and scholarly heritage which are in imminent danger of being irretrievably lost to decay?

Facts:

Section 108 of the Copyright Act was expressly amended by Congress in 1976 to facilitate the preservation of otherwise unavailable and decaying copyrighted works by authorizing the making of a "facsimile" of the work -- the best technology available at that time. Because Sec. 108 is "technology-specific" (one of very few parts of the Copyright Act that is), however, the present statute has been read by some to preclude the use of digital, or other advanced, technology for library preservation purposes. In addition, the statute permits libraries to make only a single "copy" of a preserved work. That restriction severely limits what libraries can lawfully do to maximize the public's interest in preservation.

Recognizing the counterproductive character of Sec. 108 as now written, the pending legislation seeks to authorize the use of digital technology for library preservation purposes and to increase the number of copies of a preserved work that may be made. It does not fully succeed, however, in that good faith effort.

Analysis:

As detailed by the Digital Future Coalition in its February 1996 written testimony to Congress (and as endorsed by the Register of Copyrights), amendments to the pending legislation's provisions modifying Sec. 108 of the Copyright Act are required to fully and most productively permit libraries to both preserve works in digital and facsimile formats, and provide public access to preserved works.

 

First, the DFC recommends that libraries and archives be permitted to make three copies of historic works: an archival copy, a master from which subsequent copies might (if needed) be made, and a single copy to be used by researchers and the public. (At no time, however, would more than one copy be available for such use.) Second, the Coalition endorses making Sec. 108 technology-neutral by simply deleting the current reference to preservation in "facsimile form," without adding a specific reference to "digital" technology. In addition to meeting libraries', scholars' and the public's immediate needs, such a change now would preclude the need to modify the statute again when the state-of-the-art in preservation and storage media moves -- as it inevitably and rapidly will -- beyond digital technology. Proposal: The Digital Future Coalition strongly supports technical amendments to the pending legislation's proposed changes in Section 108 of the Copyright Act to maximize libraries' ability to preserve the nation's cultural and scholarly heritage.

 

Digital Future Coalition Amendment to "NII Copyright Protection Act" Reaffirming the "First Sale" Doctrine ( 109)

Issue:

Whether someone who lawfully acquires a digital version of a copyrighted work should be permitted to pass that copy, without making another, on to a second person just as that person may now do with a "hard" copy of a work under the venerable "First Sale" doctrine, codified in Section 109 of the Copyright Act?

Facts:

The "First Sale" doctrine is one of the most unique and significant features of American copyright law. (Traditionally, the Doctrine also has been closely linked to American values of freedom of expression.) Under it, one who has purchased or otherwise lawfully acquired an individual copy of a copyrighted work may pass that copy on to another without risk of copyright infringement liability (with narrow exceptions). Many important social institutions, from public lending libraries to video rental stores, could not legally operate without the "First Sale" doctrine. Although intended to clarify the applicability of existing copyright law to the digital environment, the pending legislation is silent with respect to the applicability of the Doctrine to digital works.

Analysis:

The Digital Future Coalition rejects the argument, made by the drafters of the pending legislation, that the "First Sale" doctrine applies only to the "physical" transfer of a "physical" object and does not apply to the electronic transfers under any circumstances. We believe it critical that Congress take the opportunity of the first revision of the Copyright Act intended to accommodate the demands and opportunities of "cyberspace" to reaffirm the First Sale doctrine's significance by clarifying that it applies equally to electronic and conventional "hand-offs" of information. There is every reason to believe that the Doctrine, so clarified, will be just as much an engine of learning and commerce in the digital future as it has been in the past.

Fears that such clarification will impose substantial new costs on copyright owners are illusory. Tracking and prosecuting unauthorized digital transmissions, for example, will pose the same challenges for copyright owners whether or not information consumers enjoy this important privilege. Concerns that the Doctrine might be abused are speculative. Moreover, in any event, proprietors and distributors of digital works now have the technical ability to "wrap" their digital products in electronic "packages" that effectively preclude a transmitted digital copy from being both retained by the original purchaser and retransmitted.

Proposal:

The Digital Future Coalition proposes amending Sec. 109(a) of the Copyright Act to make clear that the "First Sale" doctrine applies to digital copies lawfully acquired by means of transmission to the same extent -- no more or no less -- that it applies to physical analog copies.

 

Digital Future Coalition Amendment to "NII Copyright Protection Act" Fostering "Distance Education" ( 110)

Issue:

Whether revision of the Copyright Act should continue to encourage the burgeoning movement toward "distance education" in elementary, secondary and higher education?

Facts:

Since the advent of broadcasting and other means of electronic communication, educators have striven to use the latest communications technologies to provide or enhance elementary, secondary, vocational and university-level schooling to every corner of the country. Such "distance learning" opportunities are invaluable not only for young children (the next generation of American workers) in rural communities, but for disabled individuals, adults enrolled in courses at satellite campuses, and many other special communities of learners.

Congress has for the past two decades supported distance learning through the Copyright Act by affirmatively permitting electronically transmitted copyrighted works to be performed and displayed in classroom-like settings [see Sec. 110(2)]. Under current law, for example, a lesson that includes a teacher reading selections from a novel, or analyzing a newspaper photograph held up to the camera, may now be transmitted as part of a distance education lesson to remote "classrooms" of many kinds.

Analysis:

Current law grants educators the right only to perform and display a transmitted copyrighted work (under appropriate circumstances). The pending legislation, however, makes clear that electronic transmission also constitutes "distribution" of the work, as well. That "clarification" could render Sec. 110 inapplicable to the very new technologies now being aggressively used to bring the benefits of distance education to more and more Americans in even the remotest of locations. The effects on the further development of distance education would be devastating.

Moreover, written 20 years ago, the current statute equates "education" with a physical classroom in which a teacher lectures to a group of students who take notes. The classroom of the future, however, is and will be populated by educators and students heavily linked through computers connected by the "NII." In addition, present limits on educators' Sec. 110 exemption to certain types of copyrighted works have become outdated in an era of digital "multimedia" presentations. Such new teaching tools are critical if educators are to captivate and educate a generation of Americans reared on television and computer games.

Proposal:

The Digital Future Coalition proposes technical amendments to Secs. 110(2) and 112(b) of the Copyright Act to assure that the proposed clarification of proprietors' right of distribution does not deprive enrolled students working on secured networks of advances in distance education made possible by new technologies.

 

Digital Future Coalition Amendment to "NII Copyright Protection Act" Balancing Protection and Progress ( 1201)

Issue:

Whether the protection of intellectual property in cyberspace requires Congress to adopt sweeping new proposals that would reverse long-standing Supreme Court precedent which both fosters technologies that enable the "fair use" of copyrighted material, such as the home recording and time-shifting of broadcast material, and the design of innovative computer software?

Facts:

In its landmark decision in the Betamax case, the Supreme Court ruled directly on the question of whether the manufacturer of a video recording device should be liable for the reproduction of copyrighted material by a consumer who used that device to tape television programs for later private, non-commercial viewing. The Supreme Court held that because the Betamax was "capable of substantial non-infringing uses, . . . Sony's sale of such equipment to the general public [did] not constitute" contributory copyright infringement. The Court also affirmed that taping for time-shifting purposes is a "fair use" of copyrighted material that does not require the copyright owner's approval. In so holding, the Supreme Court established that devices which are capable of "substantial non-infringing uses" should not be prohibited. The pending legislation, however, would effectively reverse this ruling by outlawing any "device, product, or component" whose "primary purpose or effect" is to circumvent (or which is incompatible with) any technology employed to protect proprietors' rights under the Copyright Act.

Analysis:

As written, proposed Sec. 1201 of the Copyright Act is fundamentally inconsistent with the Supreme Court's holding in the Betamax decision and is dangerously overbroad. Specifically, it would inhibit the development of a variety of consumer electronics and computer products with substantial non-infringing uses, and the design of new computer programs compatible with (but not illegally taken from) copyrighted software. In addition, consumer electronic products -- if they are to be affordable and desirable in the marketplace -- should not be expected to comply with every possible anti-copying encoding system that may be developed in the future which would distort incoming TV pictures or otherwise frustrate consumers. Moreover, as broadly written, proposed Sec. 1201 threatens the development and deployment of hardware and software which will facilitate legitimate consumer access to material in the public domain and other lawfully useable information. Consumers should not be denied access to the latest technology by overbroad regulation which, rather than provide the certainty on which businesses thrive, will give rise to broad and stifling legal liability.

Proposal:

The Digital Future Coalition urges Congress to reject Sec. 1201's anti-technology premise by striking the proposed Section and (as it often has) to work with concerned industries to address copying issues on a more device- and technology-specific basis.

 

Digital Future Coalition Amendment to "NII Copyright Protection Act" Recalibrating "CMI" Proposals ( 1202)

Issue:

Whether copies of a work lawfully may be distributed by their owner, if the "copyright management information" contained in those copies is no longer correct?

Facts:

Proposed Sec. 1202(a) of the pending NII Copyright Protection Act would prohibit the public distribution of a work containing "false" copyright management information (CMI). CMI is defined to include the names of the author and copyright owner, and the terms and conditions for the use of the work. Proposed Sec. 1202(b) would prohibit the unauthorized removal or alteration of CMI. The distribution of a copy whose imbedded CMI is "false" by virtue of a transfer of copyright ownership of that work would violate proposed Sec. 1202.

Analysis:

Taken together, the pending proposals could needlessly and unfairly subject legitimate distributors of copyrighted works to civil and potential criminal prosecution. If, for example, a distributor owns a hundred CD-ROMs of a computer game, and the copyright owner sells the copyright to another party, the originally accurate CMI imbedded in the CD-ROMs will (without any involvement of the distributor) contain "false" information under the proposed statute because the copyright owner will have changed. If the distributor sells such "tainted" CD-ROMs with knowledge that the copyright has been transferred, it will have violated Sec. 1202(a). Correcting the CMI on a CD-ROM would be very expensive. If the distributor does so without authorization of the new copyright owner, it will violate Sec. 1202(b). Moreover, Sec. 1202 also would apply not only to digital works such as CD-ROMs, but also to all printed matter. (The copyright notice in a book is CMI. Sec. 1202(a) thus would prevent a bookstore from selling a book whose notice is incorrect because of a transfer in copyright ownership.)

Because copyrights are transferred frequently, there is a great risk that distributors will find themselves holding large quantities of works with outdated, and therefore false, CMI. Sec. 1202 thus will leave a distributor with three unpalatable options: sell the CD-ROMs in violation of Sec. 1202(a); go through the expensive and time consuming process of securing the owner's permission to alter the CMI, and then doing so; or forfeit its investment entirely. If adopted in its current form, Sec. 1202 clearly will impede substantial commerce in copyrighted works now lawful without deterring a single instance of the kind of illegal conduct -- intentional copyright infringement -- at which it is directed.

Proposal:

The DFC urges Congress to make clear that distribution of "false" CMI data will be unlawful only if made with the intent to infringe copyright, and requests that detailed hearings be held on the appropriate scope of proposed Section 1202 and the potential of "CMI"systems to compromise network users' privacy.

 

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