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NEW TECHNOLOGIES AND COPYRIGHT: ARTHUR J. LEVINE

Our President, the President of the United States, said "Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression, they omit provision for many articles which under modern productive processes are entitled to protection. They impose hardships upon the copyright proprietor which are not essential to the fair protection of the public. They are difficult for the courts to interpret and impossible for the Copyright Office to administer with any satisfaction to the public. A complete revision of them is essential."

That was said not by President Ford, prior to the 1976 amendment to the Copyright Act in the United States; that was said by President Theodore Roosevelt in December of 1905, prior to the 1909 Act. But as much as things change they remain the same, and President Ford could easily have said that before 1976. Think, since 1909, of the methods of creating and transmitting copyrighted material, which did not exist when our 1909 Copyright Act was passed. Photorecords, audio tapes, motion pictures, talking motion pictures, radio, television, and cable television computers, satellites, and lasers, photocopiers; and the list is endless and you've heard them discussed this morning.

What happens when the new technologies come along? The Director General of the Hungarian Bureau of Authors Rights suggests a series of steps that copyright owners face with new technologies. First a new way of using works emerges. Then there is neither a specific provision in the legislation nor a precedent in jurisprudence for the use. If the users can interpret the lack of a clear cut answer in copyright laws in a way which makes free use possible, they base their practice on that. The possibility of the new use is more and more widely exploited and the fight begins for the rights and interests of the copyright owners. At the last stage, the chances of the copyright owner are weak because the use has now become common and legislatures are reluctant to change well established practices by creating what they see as new rights for the copyright owner.

The tension in copyright exists because the problem of access to information and the means of providing access are now so great that the copyright owners and copyright laws are seen by some as unnecessary and troublesome road blocks to the utopian society.

But let it not be forgotten that the purpose of copyright is to promote the general welfare and culture of the society by providing adequate incentives for authors to create. At least in the US, the foundation of copyright rests on the belief that these individual incentives will be for the general good.

BROWN, RUDNICK, FREED & Gesmer,
Boston, MA, July 28, 1983.

Representative ROBERT W. KASTENMEIER,
Subcommittee on Courts, Civil Liberties and Administration of Justice, Judiciary
Committee, House of Representatives, Washington, DC.

Dear Representative KastenMEIER: I write you in connection with your current hearings on copyright and technological change. Since I was unable to attend the hearings, I take the liberty of submitting some observations for your consideration. I trust that I am not unduly tardy.

The revolutionary technological developments that seem to be undermining copyright protection instead actually are dramatizing for the first time the realities of the inherent limitations of that protection. Those developments which happen to be in reprography generally, have made it remarkably inexpensive to copy most types of works of authorship, whether they are recorded on paper or magnetic media. The (160)

claimed halcyon days of copyright protection were characterized not by stronger laws, or more respect for them, but rather by copying technology that is primitive by today's standards.

Although copyright law purports to bar all copying without express or implied permission, as a practical matter, it never was feasible for copyright owners to apprehend closet copiers. They only could pursue persons whose unauthorized copying was open and notorious. That basic situation has not changed one bit.

The obvious significant development is the fact that there are many more closet copiers now than there were before the availability of xerography and means for replicating magnetic diskettes and other media.

What many people tend to ignore, however, is the important, related fact that the cash market for works of authorship has grown tremendously with the advent of microcomputers. The attractiveness of those devices is largely a function of the supply of recorded diskettes for software programs and data bases and suppliers of those items are rising to the occasion.

The brutal reality about copyright in the age of reprography is the fact that publishers of works of authorship, other than books thus far, cannot expect realistically to be compensated for every copy used. Instead, they must make individual publishing decisions based on the probably much smaller quantities of copies for which they can secure payment. In that regard copyright owners really can enforce their rights only against pirates.

No amount of tinkering with copyright law actually will enhance copyright protections now that reprographic technology has been unleashed. The only step that would restore the percentages of compensated copies to their former high levels would be the unthinkable measure of government control over the availability of copying devices.

Actually, the experience ever since the industrial revolution has been one of dynamic change throughout society, with constant, often severe, dislocations of persons with favorable economic situations. The reprographic revolution appears similarly to be affecting the interests of various types of publishers adversely. However, it has brought with it both many new publishers of novel types of works of authorship and substantial business in new types of machines.

Probably the most significant technological development really affecting copyright law itself is the phenomenon of downloading or downline loading. That entails the delivery of information to customers by the transmissions of streams of electronic impulses to them directly, rather than the transfer of tangible works of authorship produced by the publisher, such as magnetic diskettes particularly. This new method is growing rapidly in importance. In order to make the furnished information usable, the symbols that represent it have to be recorded by the recipient. In many cases, the impulses received are recorded directly in the internal memory of the recipient's computer, rather than on a diskette. That phenomenon of downloading introduces an incompatibility with the facet of current copyright law that contemplates only the dissemination of tangible works of authorship that can bear copyright notices.

It well might be that, to protect the interests of copyright owners in the face of downloading, the Copyright Act of 1976 should be amended at least to alter the manner in which copyright notices are to be applied, if not to eliminate the requirement to accord with the laws of other countries.

Just as the operation of computers, which are information processing machines, demonstrates that works of authorship are essentially devices for generating information signals to human, or machine, information processors, downloading now shows that the furnishing of copies of works of authorship is merely a means for delivery of information signals to information processors. The newer method is for the supplier to generate the signals at its site and transmit them over telecommunications lines directly to customers.

I trust that this discussion will contribute to the understanding of the members of your subcommittee of the impact of technological change on copyright. If you believe that I can be of any further assistance, by all means let me know.

Sincerely,

ROY N. FREED.

APPENDIXES

APPENDIX I

MATERIALS FROM Congressional Copyright anD TECHNOLOGY SYMPOSIUM, FORT LAUDERDALE, FL, FEBRUARY 4-6, 1984

OUTLINE

Day I: Saturday, February 4, 1984

8:00-9:00 (Coral Springs-Plantation Room) Buffet Breakfast.

9:00-9:15 (Amphitheater) Opening of the Symposium-Senator Charles McC. Mathias and Representative Robert W. Kastenmeier.

9:15-9:20 (Amphitheater) Introductory remarks-Librarian of Congress Daniel J. Boorstin, Register of Copyrights David Ladd and Symposium Rapporteur Paul Goldstein, Stanford Law School.

9:20-10:00-Overview-"Electronic Technology for the Policy Maker," Haines Gaffner, president, LINK, Resources, Corp.

10:00-12:00 (Board Room 1, and Meeting Rooms D & E) [with coffee available during session] Applications: Present and future-Sessions will include equipment demonstrations and opportunities for hands-on use of a variety of equipment, systems and services representative of the following technologies:

Broadcast, Cable, and Satellite Transmission Systems: to demonstrate projected capabilities of broadcast, cable, and satellite technologies, including two-day interaction and satellite services.

Home Computers and Electronic Entertainment Centers: to demonstrate the future integration of computer and communications systems to provide capabilities to use copyright works in new ways.

4:00-7:00 (Board Room 1 and Meeting Rooms D & E) Applications. Continued. Educational Technology: Application of interactive computer aided instruction, electronic libraries, and video technology to modern education.

Electronic Publishing: New Systems for specialized publication, videotext, teletext, viewdata, etc.

Optical Disks and Automated Libraries: Library of Congress System.

7:30-8:30 (Grand Ballroom C) Reception.

8:30 (Grand Ballroom D) Dinner "The Long-Range Future Impact of Computer and Communications Technology on Society": Martin Greenberger, IBM Professor of Computer and Information Systems, UCLA. Author of numerous books on science policy including "Computers, Communications and The Public Interest."

Day II: Sunday, February 5, 1984

8:00-9:00 (Bonaventure A) Buffet Breakfast.

A series of panel discussions on the future impact of technology on intellectual property.

9:00-10:15 (Amphitheater) [with coffee available during session] Panel Discussion I: Information Processing in the Future.

Moderator: Joe B. Wyatt, Chancellor, Vanderbilt University.

Panelists:

Christopher Burns, Information Consultant.

Donald Devine, Chief Executive Officer, Trilog Inc.

E. C. McIrvine, Manager of Advanced Planning, XEROX Corp.

Frederick Weingarten, Office of Technology Assessment.

10:15-11:45 (Amphitheater) Panel Discussion II: Publishing, Libraries, and Educa

tion.

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Moderator: Toni Carbo Bearman, Executive Director, National Commission on Libraries and Information Science.

Panelists:

Hon. Stephen Breyer, Judge, U.S. Court of Appeals for the First Circuit.
Karen Hunter, Planning Officer, Elsevier Science Publishers, B.V.

Joseph P. Lash, Author.

Jay Lucker, Director of Libraries, Massachusetts Institute of Technology. Warren Spurlin, Deputy Superintendent, The School Board of Sarasota County, Sarasota, Florida.

3:30-5:00 (Amphitheater) Panel Discussion III: Mass Media Distribution: The Future.

Moderator: Professor Harvey Zuckman, Director of the Communications Law Institute, Columbus School of Law at the Catholic University of America.

Panelists:

Bryan L. Burns, Director of Broadcasting, Office of the Commissioner of Baseball.

Mel Harris, President, Paramount Video.

Gustave M. Hauser, Chairman and Chief Executive Officer, Hauser Communications.

William Lilley III, Vice President, Corporate Affairs, CBS, Inc.

Clyde Washburn, Chief Scientist, Earth Terminals, Inc.

5:00-6:30 (Amphitheater) Panel Discussion IV: Administration of Rights in Copyrighted Works in the New Technologies.

Moderator: Professor Paul Goldstein, Stanford University Law School, and member of Cowan, Liebowitz, and Latman.

Panelists:

Thomas C. Brennan, Chairman, Copyright Royalty Tribunal.

Harlan Cleveland, Director of the Hubert H. Humphrey Institute of Public Affairs, University of Minnesota.

Alexander Hoffman, Senior Vice President, Doubleday & Co.

Professor John Kernochan, Columbia University Law School.

John C. Taylor III, Chairman of the Carnegie Corporation and member of Paul, Weiss, Rifkind, Wharton & Garrison.

Goerge Willoughby, Vice President and General Counsel King Broadcasting. 6:30-7:00 (Amphitheater) Rapporteur's Summation: Professor Paul Goldstein, Stanford Law School.

7:30-8:30 (Atrium Area) Reception.

8:30 (Meeting Room A) Dinner-Trends, Developments, and Projections: Frederick Pohl, prize winning science fiction author and editor.

Day III: Monday, February 6, 1984

7:45-8:30 (Coral Springs-Plantation Room) Buffet Breakfast. 8:30-9:30-Transportation to IBM Facility.

9:30-11:30-Tour of IBM Facility. Emphasis on Computer Aided Design (CAD) and Computer Aided Manufacturing (CAM): Including the design and manufacture of products and graphics and the use of robotics in manufacturing. This installation is the IBM world training center for robotics and computer aided manufacturing. In addition, the manufacturing facility is one of the most highly automated plants in the world and it is the home of the IBM personal computer.

11:30-12:00-Transportation from IBM Facility to airport.

CONGRESSIONAL COPYRIGHT AND TECHNOLOGY SYMPOSIUM: PANELISTS

About the Panelists

Paul Goldstein, symposium rapporteur, is a well-known scholar and educator in the field of intellectual property law. The author of the textbook, "Copyright, Patent, Trademark, and Related State Doctrines," he has taught at Stanford School of Law since 1972. After earning an A.B. at Brandeis University and an LL.B. at Columbia School of Law, he was on the faculty of the State University of New York at Buffalo. He is a member of the California and New York bars, the Copyright Society of the U.S.A., and is a former member of the Editorial Advisory Board of the "Patent, Trademark, and Copyright Journal."

Joe B. Wyatt, moderator, is Chancellor of Vanderbilt University. A scholar in mathematics and computer science, he taught at the University of Houston and was Senior Lecturer in Computer Science at Harvard University. He is the co-author of "Financial Planning Models for Colleges and Universities." He is a member of the

Advisory Committee for Information and Science and Technology of the National Science Foundation.

Christopher Burns, panelist, is a consultant and information specialist; he has worked with several major metropolitan newspapers, including the Washington Post, in the areas of automation and information technology. He is a member of the Proprietary Rights Committee of the IAA, the Information Industry Association.

Donald Devine, panelist, a founder of and Chief Executive Officer of Trilog, Inc., studied at the Case Institute of Technology and the University of Pennsylvania. He is a member of the Association of Data Processing Service Organizations and was section president in that group in 1983.

E.C. McIrvine, panelist, is Manager of Advanced Planning at the Xerox Corporation. He has had a 25-year career in industry as an applied physicist and R. & D. manager, working for companies such as General Atomic in San Diego, and Ford Motor Company in Dearborn, Michigan. A member of the governing Board of the American Institute of Physics, he earned a Ph.D. in theoretical physics from Cornell University in 1959.

Frederick Weingarten, panelist, Communications and Information Technologies Program Manager at the Office of Technology Assessment, directed a program for research on the impact of computers on society for the National Science Foundation in 1971. He also served on the White House Committee on the Right of Privacy, the State Department Committee on Transborder Dataflow, and the Privacy Commission. He earned a Ph.D. in mathematics from Oregon State University and was granted a doctoral fellowship at Lawrence Laboratories.

Toni Carbo Bearman, moderator, is Executive Director of the National Commission on Libraries and Information Science. After earning a Ph.D. in Management of Information Resources from Drexel University, she worked in London as a special consultant for the Institute of Electrical Engineers. She also worked as executive director for NFAIS, the National Society for Abstracting and Indexing Services. She is a member of the American Society for Information Sciences and received their Watson-Davis Award for 1983.

The Honorable Stephen Breyer, panelist, serves as a Judge for the U.S. Court of Appeals for the First Circuit. A graduate of Harvard Law School, he served as law clerk to Justice Goldberg on the United States Supreme Court. A professor of law at Harvard and at the J.F. Kennedy School of Government, he also served as assistant special prosecutor with the Watergate Special Prosecution Force. He served as special counsel to the U.S. Senate Judiciary Committee from 1974 to 1975 and afterwards as its chief counsel.

Karen Hunter, panelist, is Planning Officer at Elsevier Science Publishers in New York City. She earned M.A. degrees at Cornell, Syracuse University, and at Columbia University. Before coming to Elsevier, she worked at Baker & Taylor and at Cornell University Library. She is a member of the Association of American Publishers and is Chairman of the Innovations Committee of the International Group of Scientific, Technical, and Medical Publishers.

Joseph P. Lash, panelist, is an editor and writer; as a biographer, he chronicled the lives of Dag Hammarskjold, Felix Frankfurter, and Eleanor and Franklin Roosevelt. He won the Pulitzer prize for biography and the National Book Award, and the Francis Parkman prize in 1972; in 1976 he won the first Samuel E. Morison award. Among his books are "Eleanor and Franklin;" "Eleanor: The Years Alone," and "From the Diaries of Felix Frankfurter."

Jay Lucker, panelist, is Director of Libraries at the Massachusetts Institute of Technology. After graduating from Columbia University and New York University, he worked with the New York Public Library and then at Princeton University as librarian and educator.

Warren Spurlin, panelist, is Deputy Superintendent of Sarasota County Public Schools in Sarasota, Florida. He has completed 26 years of service in public education; most recently, he was Assistant Superintendent of Curriculum and Instruction. He has completed several degrees including a Ph.D. in education from Wayne University in Detroit, Michigan. Recently he participated in the NIE National Conference on Producer-Educator Perspective on Educational Software. He has written a policy statement on copyright in the schools and inaugurated a staff development program in this area which has drawn national attention.

Harvey Zuckman, moderator, teaches law at Catholic University Columbus School of law, where he serves as Director of the Institute of Communications Law. After working with the U.S. Department of Justice in the civil division, he taught at St. Louis University and served as an adjunct professor of communications law at American University. He was executive producer of the American Law Institute's

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