August 2002
The long-awaited National Research Council's report, The Digital Dilemma: Intellectual Property in the Information Age, from the Committee on Intellectual Property Rights and the Emerging Information Infrastructure is now available.[1] It is the result of a two year study by the Committee of the NRC's Computer Science and Telecommunications Board. The committee was a diverse group, a microcosm of all of the stakeholders in digital copyright issues. The report raises a number of important concerns and calls for further study and debate in a variety of areas.
The Digital Dilemma recognizes the differences in the analog and digital worlds. Specifically, the increased possibility of access to digital works from many points as opposed to access only where the physical copy is located. In the digital world, distance from the copy becomes irrelevant. Further, one can produce perfect copies from works in digital format. When a user downloads a digital work and prints or makes disk copies, each of these copies is a perfect copy. There is no denigration of quality as occurs with today’s photocopying technology. While accessibility can be increased because of the availability of digital formats, it also makes private copying of these works easier and more difficult to detect. This is a significant problem for the copyright holder. Much of this is well-known in the library community, but this report simply uses these factors as a starting point for discussion.
The Digital Dilemma begins with an excellent review of the views of various stakeholders in copyright. It recognizes that not are only copyright holders' rights important but also those of public libraries, archives, museums and the public at large. Movement from the analog to the digital world raises serious concerns for all of these groups. The debate among these groups is characterized by agreement on some issues, but too often discussions end in acrimony. Perhaps the reason is the conflict in values between the rights' holders and the users of copyrighted works, especially those who advocate public access to information. Copyright owners certainly want to preserve and expand their markets. The report recognizes, however, that not all authors share these same values; for example, academic authors often want wide dissemination of their works and are not so concerned about market protection.
Users of copyrighted works have a different view entirely. Because copyrighted works become part of the social and cultural record of a civilization, public access is especially important to librarians. The licensing of digital resources as opposed to purchase of the work threatens public access, a core value of librarians, and perhaps a core value for the public at large. Not only is public access threatened, but the report raises a concern that public libraries themselves may be at risk.
Information needs to be communicated and shared to be valuable. Certainly, copyright holders deserve fair compensation for their works, but licensing may or may not be fair.
One of the significant differences between analog and digital works is that one can use a non-electronic work without making a copy of that work. If the work is in digital format, this is not true. The way computers function requires making a copy when a work is accessed. Even to view a work on the screen requires the computer to make a copy in RAM so that the work can be viewed.
Copyright law deals with the making of copies. One of the exclusive rights of the copyright holder is the right of reproduction, but fair use and other exemptions to the exclusive rights of the copyright holder sometimes excuse a user's reproduction of a work. The Digital Dilemma suggest that copyright law's focus on making a copy may simply no longer be relevant since access by computers by their nature make copies, but these ephemeral copies are not significant and should not be considered infringing copies. The report suggests that with electronic works, reproduction is not a good predictor of infringement. Instead, the focus should be on the use that will be made of the copy. So, the committee suggests that copyright protection be reexamined to consider how copyright could function without the notion of copying. This is a very creative and powerful suggestion.
There are other issues discussed in the report that are interesting to librarians. For example, The Digital Dilemma calls for publishers to stop making overstatements in their warnings on copyrighted works stating that no reproduction of a particular work may be made at all. The report points out that these statements are inaccurate because of fair use and other exemptions in the Copyright Act. The harm these statements do to users is considerable and they affect the level and content of the debate between the user and the rights holder communities.
Another issue of interest to libraries is the call for education of user communities. The report suggests that an education program for the general public would be of great value if it focuses not only on infringement issues but also on explaining the benefits that copyright law provides to all stakeholders. If users are supposed to comply with the Copyright Act, then the law should be easier to understand and should make more sense than it currently does.
The Digital Dilemma addresses a number of other important matters without reaching a conclusion but suggesting them for further debate and consideration: (1) whether fair use is an affirmative right or a defense to copyright infringement, (2) the lack of preservation of digital works by either publishers or libraries, (3) whether different types of works might be afforded different rights than others, for example, motion pictures might require greater protection than some other categories of works, and (4) whether employing technological protections to these works may be counterproductive and simply encourage users to try to get around these protections. The interaction between intellectual property laws and the First Amendment, contract law, communications policy and the like is also recommended for further study.
The Digital Dilemma is an excellent study which is much more balanced in approach than the White Paper.[2] Librarians in all types of libraries will find it readable and informative. It is an important work for setting the agenda for future discussions on copyright law and policy in the digital age as it recognizes that the issues are not solely legal or economic. There are also important public policy issues at stake.
[1] It is now available in print and on the Internet. See <http://www.nap/edu/>. The report is available from the National Academy Press for $34.36 if purchased via the web.
[2] See INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS (1995).