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Very little about copyright is directly in the redistributive arena unless the truism is cited that, in the long run, all policies are redistributive. It could be said, however, that activities that prevent monopoly pricing of copyrighted works are redistributive since prices affect the ultimate consumer. At the same time, it may be noted that, except for anti-monopoly and infringement prosecution activities in the Department of Justice, the only Executive Branch concern with copyright is as a peripheral policy issue that may affect research through the availability of data and scientific journals, and may affect TV viewers in the quality of available programs. There is no administrative "program" about which one could make cost-benefit calculations with concern for objectives achieved in relation to funds spent. Copyright is now primarily a regulatory balancing issue involving producer interests and special classes of users, and is likely to remain so. Congress appears to regard the balancing of equities in copyright as a distinct reserved to itself.
The future cannot be predicted with any certainty but it is possible that additional technological change, coupled with increases in the costs of resources such as raw materials, may bring copyright policymaking more into the redistributive arena. If that occurs, it is likely to be in a context in which copyright is an element of a more consumeroriented issue, such as "public access to information.
6.3 THE IMPACT OF TECHNOLOGICAL CHANGE
It is most interesting that Lowi dates the beginning of the regulatory policy era at approximately the start of growth in innovations of information technology. The effect of new innovations is to make available new opportunities, which means in economic terms, new industries and increases in investment and employment; but which means in political terms, increases in the number of interest groups and the consequences of their activities.
Furthermore, another effect of new innovations is to make ambiguous the definitions of property rights that were perfectly clear before the innovations. As John Dewey stated many years ago,
"Every thinker puts some portion of an apparently stable
Thus, "public performance for profit" has an entirely different meaning after the commencement of commercial broadcasting than before. "Fair use" has an entirely different meaning after the diffusion of high speed photocopying than before; "copy" a different meaning after the invention
; of punch cards and magnetic tape than before.
It seems completely in the spirit of free enterprise for an innovator to attempt to combine a new technology with the new ambiguity or uncertainty it raises in order to develop a new market and a new industry. Should the innovator succeed, a new interest group is formed around the successful technology, but the proliferation of interest groups must generate additional conflict in the contention for the same property right.
Consequently, the nearly inevitable result of the successful introduction of new technology is increased regulation as contenders pursue their rights through the Judiciary and Congress. This is happening with information technology and copyright as it has in other fields. To quote from Professor David Truman in The Governmental Process:
"The causes of this growth [in organized interest groups
Thus, complex ways of using information technology, for example by amplifying distant TV signals and distributing them by cable to viewers, or by abstracting scientific articles, combining them with key words and distributing them to researchers via terminals attached to a computer with a logical query system, must involve complex rules of property rights in a society where such things are important.
By setting priorities that establish the importance of a balance of property rights, rational decisionmakers must then establish a working regulatory system that minimizes transaction costs but allows for the balance of rights established. This may be a complex system of rules, and if the rules appear to be difficult to follow or enforce, perhaps the priorities must be reviewed. Care must be exercised, however, so as not to throw out basic principles simply for the sake of simplification.
6.4 THE PUBLIC INTEREST AND COMPUTER-READABLE WORKS
In proposing recommendations for the application of copyright to computer-readable works, a set of criteria must be used. It seems reasonable to suggest that the overriding criterion must be "the public interest," however, that may be defined.
One aspect of the public interest is how decisionmaking affects the individual citizen. It has been pointed out earlier in this chapter that in the twentieth century, copyright decisionmaking has involved contending interests groups gathered around different functions related to copyrighted works. The individual citizen, in general, has not been directly involved. Such decisionmaking, not involving the public directly but having an ultimate impact, has concerned some observers. The following statement of concern is by Victor Ferkiss in Technological Man: The Myth and the Reality:
"The danger is not that industrialism has destroyed the
Professor David Truman considered the question raised above and concluded that "multiple memberships in potential groups based on widely held and accepted interests"80 prevents the culmination of a situation such as that suggested by Ferkiss. That is, while groups may contend over specific property rights, the members of the groups share common fundamental views that prevent the erosion of individual rights that would have the effect of hurting everyone. Truman calls these shared attituded the "rules of the game" and quotes others as describing them as a "general ideological consensus" and as "a broad body of attitudes and understandings regarding the nature and limits of authority." As a further description, Truman states that ".... the 'rules' would include the value generally attached to the dignity of the individual human being, loosely expressed in terms of 'fair dealing'...."81
For the purposes of proposing recommendations on computer-readable works, this study has enumerated in Section 1.3 those "Findings of Basic Principles" which it conceives to be the applicable "shared attitudes" and "rules of the game. As stated in Section 1.2, these findings are not be be taken as the final, definitive view. Other analyses may reveal different interpretations. Additional contributions to the literature are welcomed.
Walter L. Pforzheimer, "Historical Perspective on Copyright Law and Fair Use" in Lowell H. Hattery and George P. Bush, (eds.) Reprography and Copyright Law, Washington, D.C., American Institute of Biological Sciences, 1964, p. 25.
Emmette S. Redford, American Government and the Economy, New York, The Macmillan Co., 1965, p. 13.
Saxe Commins and Robert N. Linscott (eds.) Man and the State: The Political Philosophers, New York, Random House, Inc., 1947, p. 56.
Walter L. Pforzheimer, op. cit., p.24.
Emmette S. Redford, op. cit., pp. 6, 7.
and Policy Analysis, Chicago, Rand McNally Publishing Co., 1970, p.21. 8
ibid,. p. 21. ibid,. p. 25. 10 Robert M. Hurt and Robert M. Schuchman, "The Economic Rationale of Copyright" in The Economics of Publishing, American Economic Rev.,
May 1966, pp. 421-432. 11
ibid., p. 425.
ibid., p. 429. 13 ibid., p. 429. 14P. L. 94-553, Section 102(a) : Hurt and Schuchman, op. cit., p. 424. Joseph Taubman, "Creation, Copyright and the Constitutional Clause," Bulletin. Copyright Society of the U.S.A. (1959), vol. 6, pp. 163164.
Goldstein, "The Private Consumption of Public Goods: A Comment on Williams & Wilkins Co. v. United States," Bulletin. Copyright Society of the U.S.A. (1974), vol. 21, p. 204.
Association of American Publishers, Inc., "Program for the Provision
, of copies of Technical-Scientific-Medical Journal Articles and for Related Information Service Copies," March 17, 1977, One Park Avenue,
New York, N.Y. 10016 20
National Commission on New Technological Uses of Copyrighted Works Preliminary Report, Oct. 1976, National Technical Information Service, Springfield, Va. 22161, Report No. PB 260373.
Kenneth J. Arrow, "The Organization of Economic Activity: Issues Pertinent to the choice of Market Versus Non-Market Allocation," in
Robert H. Haveman and Julius Margolis (eds.), op. cit., p. 68. 22
Peter 0. Steiner, op. cit., p. 30. 24
Hurt and Schuchman, op. cit., p. 425.
ibid., p. 428. 26
Stephen Breyer, "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs" Harvard Law Review, vol.
84, no. 2, Dec. 1970, pp. 281-351. 27
ibid., p. 348.
Calvin Mooers, "Preventing Software Piracy" COMPUTER, March, 1977,
Edwin Mansfield, Microeconomics: Theory and Applications, Second
Edition, New York, Norton, 1975, p. 164.