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use, the

Preserving the framework does not require, however, a dramatic increase in authors' rights, such as more limited or no further applicability of the fair use doctrine in the NII environment. Some have argued that because it may now be technically feasible to "meter" each use of a copyrighted work, and to charge a user a fee for the

concept

of fair use has no place in the NII environment. They argue equally that other limitations on rights should be abolished or narrowed for similar reasons. The Working Group believes that weakening copyright owners' rights in the NII is not in the public interest

; nor would a dramatic increase in their rights be justified.

With no more than minor clarification and limited amendment, the Copyright Act will provide the necessary balance of protection of rights -- and limitations on those rights -- to promote the progress of science and the useful arts. Existing copyright law needs only the fine tuning that technological advances necessitate, in order to maintain the balance of the law in the face of onrushing technology. There must be, however, effort in three disciplines -- law, technology and education -- to successfully address the intellectual property issues raised by the development and use of the NII.

29

The Working Group believes that no revision of the patent, trademark or trade secret law is warranted at this time. See discussion infra pp. 155-75, 236-38.

I.

LAW

A. COPYRIGHT

1. PURPOSE OF COPYRIGHT LAW

The Constitution of the United States provides that Congress has the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. "30 The framers of the Constitution did not discuss this clause at any length prior to or after its adoption. The purpose of the clause was described in the Federalist Papers by James Madison:

The utility of this power will scarcely be
questioned. The copyright of authors has been
solemnly adjudged, in Great Britain, to be a right
of common law. The right to useful inventions
seems with equal reason to belong to the
inventors. The public good fully coincides in
both cases with the claims of individuals. 32

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31

On August 18, 1787, James Madison submitted to the delegates to the Constitutional Convention a list of powers to be granted Congress, which included the power "To secure to literary authors their copyrights for a limited time" and "To encourage, by premiums and provisions, the advancement of useful knowledge and discoveries." At the same time, Charles Pinckney submitted a list which included the power "To grant patents for useful inventions" and "To secure to authors exclusive rights for a certain time." On September 5, the clause "To promote the progress of science and the useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries" was agreed to unanimously. On September 17, 1787, the draft was signed by the delegates to the convention with no substantive changes. See Debates on the Adoption of the Federal Constitution as reported by James Madison. The clause was finally ratified in its present form in 1788. George Washington signed the first copyright law on May 31, 1790.

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34

The Constitution outlines both the goal that Congress may try to achieve (to promote the progress of science and useful arts) and the means by which they may accomplish it (by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries).” The Supreme Court has often spoken about the purpose of copyright:

[I]t should not be forgotten that the Framers
intended copyright itself to be the engine of free
expression. By establishing a marketable right to
the use of one's expression, copyright supplies
the economic incentive to create and disseminate
ideas.
We have often recognized the monopoly
privileges that Congress has authorized, while
"intended to motivate the creative activity of
authors and inventors by the provision of a
special reward," are limited in nature and must
ultimately serve the public good."
The primary objective of copyright is not to
reward the labor of authors, but "[t]o promote
the Progress of Science and useful Arts." To this
end, copyright assures authors the right in their
original expression, but encourages others to
build freely upon the ideas and information
conveyed by a work.

36

33

Goldstein v. California, 412 U.S. 546,555 (1973).

34

Harper da Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (hereinafter Harper & Row). See also id. at 546 ("'monopoly created by copyright thus rewards the individual author in order to benefit the public'").

35

Fogerty v. Fantasy, Inc., 114 S. Ct. 1023, 1029 (1994) (quoting Sony, supra note 22, at 429).

36

Feist Publication, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-50 (1991) (citations omitted) (hereinafter Feist).

The economic philosophy behind the
[Constitutional] clause ... is the conviction that
encouragement of individual effort by personal
gain is the best way to advance the public welfare
through the talents of authors and inventors ....
Sacrificial days devoted to such creative activities
deserve rewards commensurate with the services
rendered. 37
The monopoly privileges that Congress may
authorize are neither unlimited nor primarily
designed to provide a special private benefit.
Rather, the limited grant is a means by which an
important public purpose may be achieved. It is
intended to motivate the creative activity of
authors ... by the provision of a special reward,
and to allow the public access to the products of
their genius after the limited period of exclusive
control has expired.
[C]opyright is intended to increase and not to
impede the harvest of knowledge . [T]he
scheme established by the Copyright Act ...
foster[s] the original works that provide the seed
and substance of this harvest. The rights
conferred by copyright are designed to assure
contributors to the store of knowledge a fair
return for their labors.39
The copyright law, like the patent statutes, makes
reward
the

secondary
consideration .... It is said that reward to the

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to

owner

a

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39

Harper & Row, supra note 34, at 545-46 (citing Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)).

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