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Copyright and Technological Change

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Overview Edit

Although Congress has always had to reckon with technological change, the new information and communications technologies available today are challenging the intellectual property system in ways that may only be resolvable with substantial changes in the system or with new mechanisms to allocate both rights and rewards. Once a relatively slow and ponderous process, technological change is now outpacing the legal structure that governs the system, and is creating pressures on Congress to adjust the law to accommodate these changes. The pressures are coming from a number of different parties, and they are motivated by a wide range of concerns:

  • Designers and producers of functional works that do not fit comfortably into existing categories of copyright law. This group is concerned that, given the uncertainties in the law, their works will be inadequately protected. They are calling for more explicit and extensive protection under existing or under new laws.
  • Database producers, information analysts, and others who package existing information for specific uses. This group opposes restrictions on the use and reuse of copyrighted materials. They also want incentives to be reallocated so that they receive a greater financial return for the value that they add to information by analyzing, reorganizing, and packaging it.
  • Manufacturers of equipment capable of copying, reproducing, or recording. Members of this group oppose the imposition of taxes or royalties on tapes and any other actions that might increase the cost of their products to the consumer, or that make them less convenient to use. They claim that they aid copyright holders by creating new markets for products and so should not be penalized by having taxes imposed.
  • Educators and scientists. Members of this group generally oppose extensions of the law, arguing that such extensions would make the resources and materials they need to do their work prohibitively expensive. Some members of this group seek to exempt educational uses from the law. Others are calling for licensing agreements that would allow them to use copyrighted materials at reduced rates.
  • The general public. Many people are becoming increasingly accustomed to having new technology available at low cost to use as they please in their homes and offices. They want assurance that they can continue to copy motion pictures, CDs, and other information for their private use.
  • Developing countries. Many developing countries want to use American intellectual property products to further their social, economic, and political development. These nations believe that the United States and other industrialized nations should relax intellectual property protection so that they can afford to make use of these new products and services.

These competing interests give rise to policy questions that resist quick, simple answers. Part of the problem is that new technologies are bringing new parties into the copyright debate, many of whom hold values and attitudes that differ from those of more traditional players — the authors, printers, and publishers, for example. The extreme case of this is the so-called computer "hacker" who believes that software and other forms of information should be shared freely. Holding less extreme but more common views are those members of the public who believe that they should be able to continue to use the new technologies to copy materials, at home, for their own personal use. In addition, there are those secondary information providersinformation brokers and database producers, for example — who, in contrast to the original creators of information, want fewer restrictions on the use and reuse of information.

Complicating copyright issues even further is the fact that technology is also changing the roles that people involved in the copyright system play. In fact, taking advantage of the new technologies, many people now play multiple roles, and their attitudes about intellectual property protection may vary accordingly.

The relationship among traditional players are also changing, breaking down old alliances, and generating some new ones. Working online, for example, the author of a book can now edit, print, publish, and distribute his works; tasks that were traditionally within the purview of the publisher. Under these circumstances, the author may be less inclined to assign his rights to the publisher.

Similarly, because it provides new outlets for distribution such as pay-per-view cable television, DVDs and the Internet, technology is also changing the relationships among film makers, film producers, and film distributors. Transmitting his works directly to the user online, for example, an independent film maker can circumvent the major film companies and, in the same fashion, a major film company can avoid dealing with theater chains.

Capabilities and problems posed by new technologies Edit

To understand the legal and political pressures that new technologies place on copyright law, one needs to understand their unique capabilities. A few examples convey the scope and pace of technological progress and the problems that it poses:

  • A problem of identifying infringements and enforcing rights. The increased communications capacity (in terms of speed, bandwidth, and distance) made possible by the Internet allows computer users to rapidly transmit incredible amounts of information per a second. Such a capability permits the creation of centralized libraries with universal access. On the other hand, these high-speed communications media, combined with large capacity storage technologies, also poses enforcement problems. They allow individuals to trade vast quantities of copyrighted materials without the knowledge or permission of copyright holders. With these technologies, the situation is no longer simply one of an individual trading or giving away a book to someone else; rather, it is one in which individuals can inexpensively and privately share the contents of an entire library.
  • A problem of functional works. At one time a writer wrote solely to communicate meaning to his readers. He did so in novels, biographies, news stories, scientific treatises, and even in recipes. Today, however, a writer can write for a machine rather than a human audience. He does so when he writes computer software instructions that tell the machine what to do. A computer program can also create new programs, and even control industrial processes. In the future, information itself will play a similar functional role. A piece of information entered into a database, for example, may automatically retool one of several manufacturing facilities.
Writings of this kind are becoming central to the economy because they can efficiently substitute for labor and mechanical processes. It is, however, precisely the capability of substituting for machine processes that causes problems for the traditional copyright law. Intellectual property law provides two basic forms of protection — patent and copyright. These schemes reflect a basic distinction between invention and authorship. Inventions are essentially useful devices or processes, whereas works of authorship convey information and ideas. And although both schemes encourage the production and dissemination of ideas, they do so in two different ways. Patent requires disclosure, and copyright assumes that in order to profit from a work, an author must publish it. Moreover, the types of protection granted reflect the differences between writings and inventions. Copyright prevents commercial copying; patent prevents commercial use. With the development of computer software and other functional works, the clear distinction between inventions and writings has broken down. These developments raise questions about whether new information-based products can be accommodated within the old legal framework, and whether efforts to do so will undermine the original intent of the law.
  • A problem of derivative use. A major newspaper maintains its index on computer. A user of this index takes the information in it and analyzes it for another client, giving him up-to-date, timely information that is precisely tailored to his needs. Using electronic technology, a research chemist can search all bibliographic data on a particular chemical in a matter of hours, instead of the weeks it once would have taken. An investor who must make a snap decision about whether to buy or sell can call up a constantly updated database, and use the information to pursue his profits.
The information technologies, which allow for this kind of customized information on demand, have created a wide range of new opportunities to expand the variety, scope, and sophistication of information-based products and services. In fact, a whole new industry has developed. As the opportunities to create derivative works increase and as this sector comes to play a larger role in the economy, questions arise about what kinds of information can legally be used to create secondary information products. Under existing intellectual property law, copyright holders have the right to benefit from all subsequent works based on their original works. If interpreted broadly, it is possible, however, that this approach will inhibit the production and use of secondary materials.
  • A problem of intangible works. In their homes, people can now receive electronically a broad range of information-based products and services — e.g., shopping, stock market and banking information , educational software, videogames, films, and musical works, to name a few. In the long run, however, individual access to information may be more costly and thus more limited as intellectual work become transmitted in intangible forms.
Publication and dissemination of intellectual works were fostered under the traditional copyright scheme because authors had to publish copies of their work in order to profit. Although the author retained the right to print and publish a work, he no longer controlled the copies after the first sale. Since public dissemination went hand in hand with profit-making, this system promoted the interests of both the public and the author. As more and more works are transmitted electronically, however, public access to information, originally built into the copyright system, may in fact become more limited. Not only may the individual price of information be higher; now people may have to pay for it every time they wish to use it.
When printing was the dominant technology, this was not the case. Once a person bought a copy of a book or magazine, he owned it. It became his personal property. He could consult it repeatedly, without additional cost. He could share it, rent it, or resell it, without the proprietor’s permission. Copyright holders, therefore, did not control the market for their works. Their monopoly was limited. Booksellers competed for sales, not only with the proprietor, but also with one another. Information, therefore, was available from many sources at a competitive price. With the electronic distribution of works, however, proprietors have more control. Because their works need not be sold in hard copies, and because it is questionable whether individuals can legally copy them, they do not have to compete with resellers, wholesalers, or others who might drive down the price of their products. As the only source of distribution, people must come to the copyright holder on his own terms. Now controlling access to their works, copyright holders can restrict it in order to enhance their profits. If they were to do this, copyright law would no longer perform the function it was designed for under the Constitution. Moreover, once copyright serves to limit access, it raises issues for communications policy as well as for copyright.
  • A problem of meeting educational goals. The intellectual property system was originally designed to enhance learning and the useful arts. This goal is more difficult to meet today because of the increasing market value of intellectual properties. The technologies provide numerous opportunities for educational use. However, because software development is often expensive, it is in the interest of the developer to concentrate on products for customers who can pay the most — businesses, not schools. The schools then have the choice of doing without software, diverting money from other equally needed educational materials, or developing their own software, since they cannot legally copy copyrighted works. The copyright problem in this situation is simple: Copyright, designed as a policy tool to enhance learning, fails to meet its goal.
  • A problem of integrity. Assisted by the computer, a film maker can create scenes that were never actually filmed, or take existing images and place them in entirely new contexts. These capabilities open new avenues for creativity. But at the same time, they may be used to misrepresent a work or undermine its integrity. An unscrupulous artist, for example, might use technology to distort a well-known piece of art for his own purposes or profit without the knowledge of the original artist. In this electronic environment, creators may become as concerned about the integrity of their works as they are about their profits. To be effective, copyright law may need to take into account the problem of artistic integrity, as well as that of financial rewards.
  • An international problem. All of the capabilities and problems that characterize domestic use of the new technologies are equally prominent — sometimes more so — when they are used internationally. Satellite technology permits global communication, but it also beams in programming that nations may not want. The same is true for the Internet.
Satellites collect valuable agricultural and environmental information about the developing world. But once it has been analyzed by a commercial company and copyrighted, it may be priced too high for developing countries to afford. A nation near the United States is able to pick up and unscramble satellite programming that viewers want — and do so without paying the fee charged by the company. Domestic companies have no way to monitor use or enforce their copyright claims. These problems are exacerbated by considerable disagreement among nations about intellectual property issues.

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