Advances in digital technology and the rapid development of electronic networks and other communications technologies raise the stakes considerably. Any two-dimensional work can readily be "digitized" -- i.e., translated into a digital code (usually a series of zeros and ones). The work can then be stored and used in that digital form. This dramatically increases: the ease and speed with which a work can be reproduced; the quality of the copies (both the first and the hundredth "generation" are virtually identical); the ability to manipulate and change the work; and the speed with which copies (authorized and unauthorized) can be "delivered" to the public. Works also can be combined easily with other works into a single medium, such as a CD-ROM, which contributes to a blurring of the lines that typically divide types of works and the rights and limitations applicable thereto.

The establishment of high-speed, high-capacity electronic information systems makes it possible for one individual, with a few key strokes, to deliver perfect copies of digitized works to scores of other individuals -- or to upload a copy to a bulletin board or other service where thousands of individuals can download it or print unlimited "hard" copies. The emergence of integrated information technology is dramatically changing, and will continue to change, how people and businesses deal in and with information and entertainment products and services, and how works are created, reproduced, distributed, adapted, displayed, performed, owned, licensed, managed, presented, organized, sold, accessed, used and stored. This leads, understandably, to a call for adaptation of -- or change in -the law.

system. The Act also establishes a royalty system through which importers and manufacturers of digital audio recording devices and digital audio recording media make royalty payments on each device or medium they distribute. Such payments are collected by the Copyright Office and distributed annually to record companies, performers, music publishers and songwriters.

Thomas Jefferson stated:

I am not an advocate for frequent changes in laws
and constitutions. But laws and institutions must
go hand and hand with the progress of the
human mind. As that becomes more developed,
more enlightened, as new discoveries are made,
new truths discovered and manners and opinions
change, with the change of circumstances,
institutions must advance also to keep pace with
the times. We might as well require a man to
wear still the coat which fitted him when a
boy....24

Our task is to determine whether the coat still fits in this new information age. An effective intellectual property regime must (1) ensure that users have access to the broadest feasible variety of works by (2) recognizing the legitimate rights and commercial expectations of persons and entities whose works are used in the NII environment.

For more than two centuries, copyright law, with periodic amendment, has provided protection for an increasing variety of works of authorship. The most recent complete revision of the law -- The Copyright Act of 197625

-

was enacted in response to "significant changes in technology [that had] affected the operation of the copyright law."26 The legislative history of the 1976 Act

24

See Inscription at the Jefferson Memorial, Washington, D.C. As Secretary of State, Thomas Jefferson was the first head of the U.S. Patent Office.

25

The Copyright Act of 1976, as amended, is codified at 17 U.S.C. § 101 et seq. (1988 & Supp. V 1993). Hereinafter, the Act is cited as "17 U.S.C. §

26

See H.R. REP. No. 1476, 94th Cong., 2d Sess. 47 (1976), reprinted in 1976 U.S.C.C.A.N. 5659 (hereinafter HOUSE REPORT) ("During the past half century a wide range of new techniques for capturing and communicating printed matter, visual images, and recorded sounds have come into use, and the increasing use of information storage and retrieval devices, communications satellites, and laser technology promises even greater changes in the near

notes that those changes had "generated new industries and new methods for the reproduction and dissemination of copyrighted works, and the business relations between authors and users [had] evolved new patterns.

1127

We are once again faced with significant changes in technology that upset the balance that currently exists under the Copyright Act. Our goal is to maintain the existing balance.

Some assert that copyright protection should be reduced in the NII environment. The public wants information to be free and unencumbered on the NII, it is argued, and the law should reflect the public interest. Without doubt, this is a valid concern. Information per se should not be protected by copyright law -- nor is it. Facts and ideas from any work of authorship may be freely copied and distributed; the Copyright Act expressly excludes such information from the scope of the protection it accords.28 The copyright law should also serve the public interest -and it does. While, at first blush, it may appear to be in the public interest to reduce the protection granted works and to allow unfettered use by the public, such an analysis is incomplete. Protection of works of authorship provides the stimulus for creativity, thus leading to the availability of works of literature, culture, art and entertainment that the public desires and that form the backbone of our economy and political discourse. If these works are not protected, then the marketplace will not support their creation and dissemination, and the public will not receive the benefit of their existence or be able to have unrestricted use of the ideas and information they convey.

Others assert that technological advances justify reduced protection. Since computer networks now make

future.").

27

See HOUSE REPORT at 47, reprinted in 1976 U.S.C.C.A.N. 5660.

28

See 17 U.S.C. § 102(b); see also discussion infra pp. 32-34.

unauthorized reproduction, adaptation, distribution and other uses of protected works so incredibly easy, it is argued, the law should legitimize those uses or face widespread flouting. This argument is not valid. Technology makes many things possible. Computer networks can be and have been used to embezzle large sums of money and to commit other crimes. Yet, these acts are prohibited by law. Simply because a thing is possible does not mean that it should be condoned.

-

Finally, there are those who argue that intellectual property laws of any country are inapplicable to works on the NII or GII because all activity using these infrastructures takes place in "Cyberspace," a sovereignty unto itself that should be self-governed by its inhabitants, individuals who, it is suggested, will rely on their own ethics or "netiquette" -- to determine what uses of works, if any, are improper. First, this argument relies on the fantasy that users of the Internet, for instance, are somehow transported to "chat rooms" and other locations, such as virtual libraries. While such conceptualization helps to put in material terms what is considered rather abstract, activity on the Internet takes place neither in outer space nor in parallel, virtual locations. Satellite, broadcast, fax and telephone transmissions have not been thought to be outside the jurisdiction of the nations from which or to which they are sent. Computer network transmissions have no distinguishing characteristics warranting such otherworld treatment. Further, such a legal free-for-all would transform the GII into a veritable copyright Dodge City. As enticing as this concept may seem to some users, it would hardly encourage creators to enter its confines.

Nonetheless, content providers are currently experimenting with a number of business models in the networked environment, and it is already clear that a wide variety of such models may coexist. Some content providers will choose not to enforce all or any of their rights;

others may change their business practices. For instance, some newspaper publishers are selling individual articles

using electronic payment mechanisms, in addition to selling subscriptions and individual issues. Some software companies are making their "client" software freely available for individual use in an effort to increase the market share of their "server" software. Some hypermedia magazine publishers on the World Wide Web are choosing to give away their product but charge sponsors for advertising space. A number of information service providers are charging for the use of the search engines that add value to freely available public domain content.

Some content providers will not be motivated by any commercial considerations. For instance, certain scientific communities are working together to create archives of freely available electronic pre-prints on the Internet. The copyright law allows copyright owners to exercise the rights granted to them, to license their rights to others, or to give them away. Those creators who wish to dedicate their works to the public domain may, of course, do so notwithstanding the availability of protection under the Copyright Act. Nothing in the law prevents those who do not wish to claim copyright from waiving their rights and allowing unrestricted reproduction, distribution and other use of their works. Indeed, notices to that effect are not uncommon on the Internet.

The absence on the NII of copyrighted works for which authors do wish to exercise their rights -- fully or to some limited extent under the copyright law, of course, would not necessarily result in its demise. The Internet, for instance, could continue to serve as a communications tool and resource for Government, public domain and works of willing authors. However, unless the framework for legitimate commerce is preserved and adequate protection for copyrighted works is ensured, the vast communications network will not reach its full potential as a true, global marketplace. Copyright protection is not an obstacle in the way of the success of the NII; it is an essential component. Effective copyright protection is a fundamental way to promote the availability of works to the public.