Organizations in the mass media or communications business are usually engaged in creating, transmitting, or processing information for display via one or more of several possible formats. Let me elaborate a bit on this. The content is the information-the intellectual property in most cases-that is provided by the supplier and received by the user. Information as used here is broadly defined to encompass news, entertainment, music, commentary, advertising, numerical data, narration, and so forth-essentially anything that is transmitted by the design of a sender or at the request of a receiver. Process refers to both the handling and transmitting of this content. Among the processing functions are gathering, creating, and storing information. This would include a newspaper reporter researching and writing an article, storing it on a floppy disc for editing, hyphenating and justification by a computer for typesetting and makeup. Another example would be the activities leading to filming a movie, videotaping a tennis demonstration, or creating and providing an access to a computerized data base. Examples of processing components are the transmission conduits, such as broadcasting, coaxial cable, mail and private parcel delivery, microwave, telephone and all those storage and handling modes that are included by computers, the printing press, and paper. The third component of this scheme is format. This refers to the form in which the content is made available to the user or is handled by a processor. The format may be hard copy, such as printed words or pictures on paper. It may be an electronic visual presentation, such as that created on a video display tube, and that could be words as well as pictures. It might be a mechanical visual presentation, such as that created by projecting movie film. It may be an aural representation, such as the sounds created by a vibrating speaker cone. And in many cases, several formats are combined, as in the case of most of the content that we see on the television set, which is both video and aural, and may include text. Traditionally, the media have been defined primarily by the format, that is, newspaper, book, magazine, radio. More recently, process names have been used to denote the medium, such as cable. Both cable and video cassette, for example, are merely alternative means to broadcasting for delivering content in a video and aural format. Similarly, newspaper publishers may find in the near future that some of what they now put into paper as part of the traditionally printed product may be more efficiently delivered to the video terminals of only those subscribers requesting such information from the publisher's computer, such as classified ads or stock prices, or whatever. The newspaper, therefore, may become a service using in part inon-paper format and in part a video format. Increasingly, data base publishers have found that computer processing and video display of their content is an efficient and financially rewarding, in some cases, method of offering their services-although the content may be the same as which existed previously in the printed format. Determining just what is content is far from clear, as seen in the computer software business. A floppy disc or other computer storage medium might have a program that enables users to create their own content. In that respect, a spread sheet program like VisiCalc is much like a business form. But information, such as an article read via a computer terminal, has more in common with a traditional print magazine. Yet, both are classified today in the current jargon as "software.' Electronic publishing is already a reality. It involves allowing users at home or in the office access to content stored in comput ers. To date, most of this content has been a repackaging of content originally prepared for print. Income received by publishers from electronically distributed content have been mostly considered extra revenue, much as video cassette revenue from motion pictures is still a relatively small portion of that income stream. In the future, we may see an increasing volume of content created for and distributed primarily by electronic means. Among some speculative possibilities that various sources have suggested are some of these: Some day, the newspaper, already processed and stored in computers in the publisher's plant today, could be "downloaded" during the night to storage media of subscribers via telephone or cable lines, instead of "rolling the press." The subscriber then views the newspaper on a portable flat, high resolution screen that could be carried to the porch, taken on the bus, or into the office. Another example: Publishers could mass produce their content in the form of "read only memory," called ROM by the aficionados. These computer chips could store the equivalent of a book or a magazine. They would be sold in retail stores or shipped through the mail by mail order. Another example: Books as well as archival information could be stored on optical video discs, for viewing also on television screens. Another example: It is possible, though still not feasible, to have an ondemand, online video library. That is, the types of video and audio programs and films that today are distributed by cable or cassette, discs or broadcast, could be digitized and stored in a computer, much the way text is stored today. Just as we call up text information on demand, so may the user at home request to see a particular movie or other program. Then, that viewer and only that viewer, can watch the movie, while other viewers are watching any other show they want to. Thus, while today we think of 35 or 54 cable channels being filled simultaneously, in the future, a household might need only 2 or 3 cable channels because they will not have to choose from among the offerings provided by some programer, but view whatever they want to see, whenever they want to see it, from a library of computer-stored video programs. Moreover, once digitized, individuals could create their own programs, by assembling pieces or scenes that producers could provide. For example, they might first select one of several opening scenes, then decide on a comic scene instead of a tragic scene, and so forth. This sort of "create your own programing" is already being offered on some optical video discs. Two more examples: Computers may be programed to do more than just be passive storage and transmission devices. They could receive the downloaded newspaper I described a few minutes ago and be programed to select only those types of articles that the individual subscriber likes to see. For example, the score of a local baseball team, any news about the airline industry, any want ads for used sailboats between 24 and 32 feet, and costing less than $40,000, whatever. One day, we may have computers that can take a written work and create its own original abstract from it. Finally, publishers of reference works, such as encyclopedias, are already providing online access to users with home computers. As telephone transmission speeds get faster, some customers could decide to have the entire encyclopedia downloaded onto their own mass storage media. Then, after the one-time charge for this transmission, they would not have to pay continuing royalties to either the owner of the reference material or the service bureau that provides the computer facility. They could also make electronic copies to sell or just give to friends. What are the implications of this for copyright? The concept of copyright was not practical in a society when memory was the primary repository of records and creativity. Copyright was not enforceable in the pre-Gutenberg world when things were carried up in your head. The modern notion of copyright is largely a function of the technology of the printing press. The printing press made possible centralized control of the production process for written works. In the mid-19th century, a confluence of factors, including the steam-driven rotary press, made possible relatively cheap reproduction of print and led to the democratization of the consumption of intellectual property. Most modern media forms-film, phonograph records, radio, television broadcasting-share with the printing press the mass production and distribution of many identical products, also relatively easily controlled by suppliers of the creative works. Thus, the print notion of copyright was readily transferable to these newer forms. Today, we are looking at a substantial change in the nature of control. Starting with audio tapes and photocopying machines, we have seen a proliferation of inexpensive techniques for democratizing the production of intellectual property. Video tape machines, floppy discs and other forms of computerreadable storage devices are making it easier for users of content to create, store, reproduce, and transmit intellectual property. But instead of making simply a faithful duplicate of the original, computer programs can tinker with the original content, creating an output that is fundamentally different from the content entered into the computer, yet, which was not specifically anticipated by the creator of the algorithms in the computer program. These fundamental changes give rise to questions which may have to be addressed in the reconsideration of the nature of copyright. Among them are: First, how does one measure which source has added what elements to creative work if the digital editing and duplication process leaves no visible trail, unlike penciled marginal notes? Second, how, if at all, can duplication and transmission of electronic works by users in the home or office be measured? Third, how can one tell the difference between a legally authorized copy and a "bootleg" copy, particularly when dealing with textual material that has come from the computer of the publisher to the computer of the user? Fourth, what mechanisms can ascertain that creators of intellectual property be compensated for their contributions without stunting the development of technological tools that are expanding the process and format options available to these creators? Finally, and perhaps most challenging, who is the author of original material created by a computer program, such as an abstract from a longer article? Is it the computer programer? Is it the author of the original article or book? Is it the owner of the computer? Or is it the computer? To make things more complex, what if the programer whose programs create original material such as abstracts, sells or licenses the software to numerous publishers? Presumably, each of these publishers could produce an identical abstract, which in conventional terms we could say is subject to copyright. However, if each of these publishers is using the same computer program to produce a word-for-word identical abstract or creative work, then perhaps the real nature of the copyright is in with the program, the algorithm and not the output of that computer. The challenge for public policymakers is to construct laws and regulations that are flexible enough to respond to very uncertain technological developments and unpredictable market changes. We can be relatively accurate in predicting what the technology already in existence or in laboratories makes possible. But wrong or premature regulation may stifle otherwise useful developments. Waiting too long to correct an inequity may result in the politically expedient necessity of having to grandfather many exceptions. Thank you for the opportunity to participate in these hearings. [The statement of Mr. Compaine follows:] Remarks of Benjamin M. Compaine * before the Subcommittee on Courts, Civil Liberties and the Administration of Justice House Committee on the Judiciary It is my understanding that I was asked to testify today not as an authority on copyright but as a "futurist". Futurist, Instead, I will try to lay out some of the forces and trends put in motion by rapidly changing communications technology and then suggest some of the possible policy implications of these developments. My objective is to provide a context for your subsequent discussions of copyright. I have submitted a formal written statement which I request be included with the record of this hearing. There was, not too long ago, a simpler era for the media industries, when a newspaper was a newspaper and television meant whatever the home receiver was able to pick up from one of three commercial networks. Cable operators merely brought a piece of wire into a home so the video image of what the networks were broadcasting might come in sharp--or come in at all--for any users. By contrast, in the 1980s, participants in the media and allied arenas are faced by a rapid change in technology and by the blurring of the distinction that has characterized the individual media. For Executive Director, Program on Information Resources Policy, Harvard University. The Program is supported by about 120 organizations (list attached as Appendix A). These comments do not necessarily reflect the view of these organizations. |