Infrastructure (NII Advisory Council) was established within the Department of Commerce to advise the Secretary of Commerce on a national strategy for promoting the development of the NII.3

The Working Group on Intellectual Property Rights, which is chaired by Assistant Secretary of Commerce and Commissioner of Patents and Trademarks Bruce A. Lehman, was established within the Information Policy Committee to examine the intellectual property implications of the NII and make recommendations on any appropriate changes to U.S. intellectual property law and policy.+

This Report represents the Working Group's examination and analysis of each of the major areas of intellectual property law, focusing primarily on copyright law and its application and effectiveness in the context of the NII. The approach of this Report is to discuss the application of the existing copyright law and to recommend only those changes that are essential to adapt the law to the needs of the global information society. By providing a

3 See Exec. Order No. 12,864, 3 C.F.R. 634 (1993).

4

In the course of its work, the Working Group identified issues in other areas of jurisprudence, such as defamation and obscenity, which will be considered separately by the Information Policy Committee.

5 The "National Information Infrastructure," as it is discussed in this Report, encompasses digital, interactive services now available, such as the Internet, as well as those contemplated for the future. To make the analyses more concrete, however, the Working Group has, in many instances, evaluated the intellectual property implications of activity on the Internet, the superstructure whose protocols and rules effectively create (or permit the creation of) a "network of networks." This reflects neither an endorsement of the Internet nor a derogation of any other existing or proposed network or service that may be available via the NII, but, rather, an acknowledgment that a currently functioning structure lends itself more readily to legal analysis than a hypothetical construct based on future developments.

6

Because of the legal nature of the subject, this Report uses certain words and phrases that may be unfamiliar to some readers or that do not have their ordinary meaning when used in the context of intellectual property law. The

generalized legal framework, based on the extensive analysis and discussion of the way in which the law has been and should be interpreted, we can lay the groundwork for the rapid and efficient development of the NII.

Το prepare this Report, the Working Group drew upon expertise within the participating departments and agencies of the Federal government. In addition, the Working Group received and considered views of the public, including those of the NII Advisory Council.

The Working Group held a public hearing in November 1993, at which 30 witnesses testified. The Working Group also solicited written comments and received some 70 statements during a public comment period which closed on December 10, 1993. Following its review of the public comments and analysis of the issues, the Working Group released a preliminary draft of its report ("Green Paper") on July 7, 1994.10 The Working Group issued the report in preliminary draft form to ensure broad dissemination and ample opportunity for public comment prior to making final recommendations and issuing this Report. Thousands of copies of the Green Paper were

Working Group has attempted to identify these terms of art and provide their legal definitions. Further, every attempt has been made to present trademarks that appear in the Report with initial capital letters. However, not all terms appearing with initial capital letters in the Report are trademarks. Where a question may exist regarding whether a term may be or is a trademark, the use of such term in the Report does not constitute any position regarding the trademark status of the term.

7

See list of Working Group participants infra Appendix 3.

8

See Request for Comments on Intellectual Property Issues Involved in the National Information Infrastructure Initiative, 58 Fed. Reg. 53,917 (Oct. 19, 1993).

10

See id.

See Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Intellectual Property and the National Information Infrastructure: A Preliminary Draft of the Report of the Working Group on Intellectual Property Rights (July 1994).

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distributed in paper form as well as electronically via the IITF Bulletin Board.11

Following the release of the Green Paper, the Working Group heard testimony from the public in four days of hearings in Chicago, Los Angeles and Washington, D.C., in September 1994. In addition, more than 1,500 pages of written comments on the Green Paper and reply comments were filed, in paper form and through the Internet, by more than 150 individuals and organizations representing more than 425,000 members of the public during the comment period, which extended over four months.13

The Working Group convened a Conference on Fair Use (CONFU) to bring together copyright owner and user interests to discuss fair use issues and, if possible, to develop guidelines for uses of copyrighted works by librarians and educators. Some 60 interest groups are participants in the

11 The IITF Bulletin Board can be accessed through the Internet by pointing the Gopher Client to iitf.doc.gov or by telnet to iitf.doc.gov (log in as gopher). The Bulletin Board is also accessible at 202-501-1920 using a personal computer and a telephone modem.

12 The public hearing in Chicago was held on September 14, 1994, at the University of Chicago. The hearing in Los Angeles was held on September 16, 1994, at the University of California at Los Angeles. The hearings in Washington, D.C., were held on September 22 and 23, 1994, in the Andrew W. Mellon Auditorium. See Notice of Hearings and Request for Comments on Preliminary Draft of the Report of the Working Group on Intellectual Property Rights, 59 Fed. Reg. 42,819 (Aug. 19, 1994). Transcripts of the public hearings may be obtained by writing the U.S. Patent and Trademark Office, Office of Legislative and International Affairs, Box 4, Washington, D.C., 20231. The transcripts are also available on the IITF Bulletin Board. See supra note 11.

13

See Notice of Hearings and Request for Comments on Preliminary Draft of the Report of the Working Group on Intellectual Property Rights, 59 Fed. Reg. 42,819 (Aug. 19, 1994); Extension of Deadline for Comments on Preliminary Draft of the Report of the Working Group on Intellectual Property Rights, 59 Fed. Reg. 50,222 (Oct. 3, 1994). Comments received are available for public inspection at the Scientific and Technical Information Center of the U.S. Patent and Trademark Office, Room 2CO1, Crystal Plaza 34, 2021 Jefferson Davis Highway, Arlington, Virginia, between the hours of 9 a.m. and 4 p.m., Monday through Friday.

Conference and have been meeting regularly since September 1994 in sessions that are open to the public. The Working Group also kicked off a Copyright Awareness Campaign (CAC) in March 1995. Approximately 40 participating individuals and organizations are coordinating their educational efforts and joining with the Working Group and the Department of Education to raise public awareness of copyright. Meetings of the Campaign are also open to the public.

Interested parties had numerous opportunities to submit their views on the intellectual property implications of the development and use of the NII and on the Working Group's Green Paper, including its preliminary findings and recommendations. The open process instituted by the Working Group resulted in a well-developed, voluminous record indicating the views of a wide variety of interested parties, including various electronic industries, service providers, the academic, research, library and legal communities, and individual creators, copyright owners and users, as well as the computer software, motion picture, music, broadcasting, publishing and other information and entertainment industries.

The special intellectual property concerns and issues raised by the development and use of the NII are the subject of this Report.1 It does not, however, provide all of the answers. It may not even present all of the questions. There is much that we do not -- and cannot -now know about how the NII will develop. Technology is advancing at such an incredible pace that issues will certainly continue to arise in the future, perhaps demanding more comprehensive legislation. However, because there is much

14

This Report does not attempt to address all existing intellectual property issues. For instance, current debates over protection of the design of useful articles and whether or to what extent certain aspects of computer programs are or should be protected under copyright law are not covered by this Report. Likewise, certain patent issues, such as pre-grant publication and reexamination, are not addressed.

that we do know, the fact that future developments will raise additional issues not currently ripe should not deter us from addressing those that are.

15

15

In the process of preparing this Report, the Working Group constantly received and evaluated information concerning a large variety of technological and other developments that bear on the NII and intellectual property rights in works distributed thereon. In April 1995, the Working Group was compelled to place the Report in concrete form, and, thus, to stop adjusting the text with respect to just-received news. As a result, the Working Group has elected to: (a) pose in some detail -- but not try to definitively answer certain questions, and (b) not discuss every possible technological development of which it recently became aware. We are confident that the legislative and political processes will offer the opportunity for additional comments from both the U.S. Government and interested parties.