Questioning the Need For New International Rules On Authors' Rights in Cyberspace

by PAMELA SAMUELSON

How will the availability of information over the Internet affect authors and their readers and publishers? Decisions over access to electronic information are being made on national and international levels with little regard for new technologies and their impact on new markets. New regulations may indeed only restrict access to information and impede the application of new technologies by authors and their audiences. Additionally, these legal solutions may only retard the development of more appropriate models for cyberspace.

Are More Legal Rights Needed To Protect Authors In Cyberspace?
How Urgent Is the Need For National Legislation or an International Treaty on Authors' Rights in Cyberspace?
Who Should Be Involved In Decisionmaking About Authors' Rights in Cyberspace?
Are Nations Willing To Compromise To Facilitate Legal Protection of Authors' Rights in Cyberspace?
Some Concluding Thoughts

No sooner did governments around the world "discover" cyberspace than they became intent on regulating it. One area in which the push for tougher regulations has been especially strong concerns the legal protection of authors' rights in cyberspace. Representatives of the Clinton Administration and of the European Commission have been especially active in lobbying for a new international treaty to strengthen authors' rights in cyberspace.
Very soon a committee of intellectual property experts convened by the World Intellectual Property Organization (WIPO) will announce whether they will propose adoption of treaty language on digital copyright issues submitted by the U. S. or E. C.. as text for a supplemental agreement (known as a "protocol") to the major international copyright treaty, the Berne Convention. A diplomatic conference has been scheduled in December 1996 to consider a Berne Protocol on these issues. Similar legislative initiatives have been underway in a number of countries, including the U. S.
This paper asks several questions about current national and international digital copyright initiatives: (1) Are more legal rights really needed to protect authors' rights in cyberspace? (2) How urgent is the need for an international treaty or national legislation on authors' rights in cyberspace? (3) Who should be involved in the decisionmaking process about authors' rights in cyberspace? (4) Are nations willing to compromise to facilitate an appropriate degree of legal protection of authors' rights in cyberspace?

Underlying current initiatives for extending authors' rights in cyberspace is a well-publicized perception that rights holders currently feel so insecure about copyright protection in cyberspace that they are unwilling to make their works available in digital networked environments. The U. S. Working Group on Intellectual Property Rights of the National Information Infrastructure (NII) Task Force report entitled "Intellectual Property and the National Information Infrastructure" (Sept. 1995; commonly known as "the White Paper") is probably the most widely read document expressing this view. The U. S. White Paper argues for additional legal protection at both national and international levels to overcome this insecurity and provide needed inducements to publish works in cyberspace.
There are several reasons to question the White Paper's assertions. First, it is simply not true that there is no content available in digital networked environments. The World Wide Web and the Internet are replete with sites containing many megabytes of information which site masters wish to share with other people. While much of the information available on the Internet today is free, creative people are managing to find ways to make money even from free distributions of information on the Web. The Hotwired site, for example, makes considerable revenues from advertising. And some electronic publications on the Web are charging fees to users, often by subscription charges. The notion that the existing information infrastructure for digital information is all empty pipeline awaiting content is simply a myth.
Second, even if some content owners may be holding back from distributing content in cyberspace, there may be other reasons than insufficiencies in copyright law to explain this. Print publishers are, for instance, finding it more difficult than they expected to retool both their technological bases and their production processes so they can become effective electronic publishers. New business models for publishing in cyberspace only just beginning to emerge. Everyone is expecting some new models to be wildly successful, but most publishers are content to wait until a more enterprising firm has discerned the best way to make money in cyberspace before they enter this new market.
Also yet to be developed are "microtransaction" systems that will enable transactions for digital content for small amounts of money (i.e., under $US 15) without undue transactions costs. Moreover, until publishers, bankers, and the general public have confidence that a truly secure means of payment for delivery of or access to digital objects has been developed, there may be a limited amount of commerce on the net, whether in digital objects (i.e., content) or in physical goods. Further complicating the development of digital commerce are uncertainties that currently exist about some contract rules for digital objects (e.g., when one orders digital content through cyberspace, is that a "sale" of "goods" or a "licensing" of "intangibles," questions that are significant because different consequences currently flow from these different characterizations).
Third, notwithstanding the earnest efforts of content owners and policy makers to adapt existing legal regimes so that they will protect authors' rights in cyberspace, a growing number of commentators suggest that copyright law may not be able to protect authors' rights in cyberspace, or at least may not be able to do so in the same manner as it has in the physical world. In his book Being Digital, Nicholas Negroponte, head of the Media Lab at the Massachusetts Institute of Technology, has put the point succinctly: shipping bits (that is, works in digital form) is fundamentally different than shipping atoms (that is, tangible embodiments of works, such as books and compact disks). Negroponte is one of a number of technologists who predict a dim future for copyright law. He may, of course, be wrong in asserting that copyright cannot work in cyberspace, but even the U. S. Copyright Office has begun to realize that copyright law may, in time, need to be substantially re-configured to regulate the digital environment in an appropriate way.
Fourth, even assuming that there is some inadequacy in copyright protection in cyberspace, the problem may not be the law as such, but rather difficulties in enforcing legal rights already on the books. At least three factors contribute to difficult enforcement of authors' rights in cyberspace: (1) the ubiquitous availability of technologies that facilitate rapid inexpensive copying and distribution of digital content; (2) the global character of existing digital networks which renders the copyright laws of each nation no more enforceable than its ability to control the availability of its nationals' content on servers outside its borders; and (3) the widespread public perception that private non-commercial copying of protected works is not and should not be illegal. None of these factors will be affected by any legislative expansions of the rights of authors. New legislation, therefore, may have some symbolic value to authors and publishers, but as a substantive matter, it may accomplish next to nothing.
Fifth, any insufficiency in the law or in enforcement of authors' rights in cyberspace may be more than made up for by emerging technological means of protecting digital works. Adoption of technological means to protect works against unauthorized use or to track down infringements may, in fact, mean that authors' rights will become better protected in cyberspace than they have ever been in the physical world. Among the relevant emergent technologies are digital envelopes, encrypted signal streams, software metering schemes, digital watermarks, and copyright management information attached to digital copies of works.
To safeguard technological protection for copyrighted works, the White Paper recommended that Congress make it illegal to make and sell devices, or to offer services, whose primary purpose or effect is to aid in the circumvention of technological protection for works of authorship. The U. S. submission to the WIPO experts proposes a very similar provision for the Berne Protocol. Although the idea behind this proposal may have some merit, the anti-circumvention provision proposed in the White Paper has met with considerable opposition in Congress. Among the concerns of industry opponents is the potential for such a provision to be used to challenge the sale of technologies whose developers had no knowledge or intent that they would be widely used for illicit purposes, even though consumers might choose to use them so. Several organizations have proffered alternative, more narrowly tailored provisions to regulate anti-circumvention technologies, but consensus has not yet emerged about which is the best approach.
Another promising development for the protection of authors' rights in cyberspace is the use of copyright management information (CMI), identifying the author of a work, its publisher, and perhaps conditions of licenses, that would be attached to digital copies of a protected work. There are, however, some reasons to doubt that CMI systems will work as well as many content owners hope. Especially difficult would be the development of a uniform CMI standard throughout the world. Moreover, some have asserted that attaching copyright information to particular copies of a work is a fundamentally flawed approach to managing copyright information in the digital environment. Over time, such information is likely to become false, as when copyrights are transferred from one person to another.
Under the legislation recommended in the White Paper for penalizing those who tamper with CMI or who distribute digital copies with false CMI, and under the U. S. proposal for the Berne Protocol, it would be illegal for a licensee to distribute digital copies that it had previously licensed if the CMI attached to its copies had become false because of a change in copyright ownership, and equally illegal for the licensee to change the copyright information to correct the error. Thus, the White Paper's CMI provision, like its anti-circumvention provision are clearly not ripe enough for adoption as national or international norms.

Bruce Lehman, the Commissioner of the U. S. Patent & Trademark Office who chairs the NII Working Group responsible for the U. S. White Paper, has argued that there is an urgent need for fast action to be taken on the White Paper's proposals to strengthen the rights of authors to meet the challenges of digital technology at both national and international levels.
He had hoped to get fast Congressional action on the White Paper's proposals as a means of demonstrating U. S. leadership in the world intellectual property community on digital copyright issues. If the U. S. Congress had done as he wished and quickly adopted the legislation recommended in the White Paper, it would have helped to persuade other countries to follow the U. S. approach to charting the future of global copyright in the digital domain. This, in turn, would have made it more likely that they would have supported provisions of this sort in the Berne Protocol.
Lehman had some domestic reasons for wanting fast action on the White Paper legislation as well. Quick action by Congress on the White Paper's legislative package might have averted the contentious debate that eventually erupted about how copyright law should be applied in digital networked environments. Quick action would also have improved the chances of the White Paper legislation being enacted as proposed instead of being subjected to amendments that might water down the proposals or being wedded in a bill with provisions rejecting White Paper positions. Had the White Paper legislation passed very quickly in unamended form, this would have made it more likely that courts would view the White Paper as a kind of legislative history of the NII Copyright Act. As a consequence, judges might have been more willing to accept the White Paper's aggressively pro-publisher interpretations of existing law as though Congress had endorsed them in the legislative process.
The longer the NII copyright legislation took to get through Congress, the more likely it was that open-ended policy discussions about copyright in digital networked environments would lead to significant amendments to the White Paper proposals, the addition of other provisions of which Lehman did not approve, and less weight being accorded to the White Paper's interpretations of existing law. And that is exactly what has happened. Too much opposition to the White Paper's proposals arose for to be enacted by the current Congress. Even when reintroduced in the next Congress, it is unlikely that the White Paper legislation will be enacted without significant amendments and additional provisions being part of the package.
Lehman's failure to persuade Congress to enact the White Paper's proposed legislation has not caused him to ease up on his efforts to persuade the international intellectual property community to support inclusion of the White Paper proposals in the Berne Protocol. If anything, they seem to have brought about a redoubling of those efforts. Should the WIPO committee of experts recommend adoption of the White Paper proposals, and should the diplomatic conference agree upon them, he seems to hope that it will become easier to persuade Congress to implement these new international norms, if for no other reason than to affirm U. S. leadership in the world intellectual property community (and avoid the embarrassment that might result if the U. S. decided not to accede to terms of the Berne Protocol for which U. S. negotiators had lobbied).
The message of urgency is a powerful one, but will the sky really fall if the U. S. Congress and attendees of the diplomatic conference on a possible protocol to the Berne Convention do not adopt the White Paper's proposals or other digital copyright initiatives by the end of 1996? The principal reason to be sanguine about the lack of consequences likely to flow from non-adoption is that, as the previous section observed, there are many reasons other than deficiencies in copyright law why the commercial market for digital works has yet to take off.
It is far more urgent to get copyright legislation and treaties right than to act fast on a flawed proposal. The legislative process should continue until members of the public and affected industries have had ample time to make suggestions about how the proposals could be improved. And until there is consensus on a digital copyright agenda in the U. S., the U. S. ought not to be urging adoption of an executive branch agenda in an international treaty.
As difficult as it may be for government bureaucrats to refrain from intrusive regulation when they come upon a relatively unregulated terrain, it may, in truth, make sense to wait to see how markets for digital copies of copyrighted works in cyberspace develop in the next few years. There will be ample opportunity to adopt new legal rules for cyberspace once it becomes more evident what legal rules are needed to avert market failures or other undesirable effects in cyberspace.

Copyright law has historically focused on regulating the activities of businesses that exploit works of authorship, principally the business of printing books. As it has come to apply to a broader array of intellectual works, it has nonetheless remained true to its core focus on regulating commercial exploitations of works in public marketplaces. It has generally not attempted to regulate private non-commercial activities. Under current U. S. copyright law, for example, private performances, displays, and distributions of copyrighted works are beyond the control of copyright owners. Other private non-commercial activities, such as making photocopies or video tapes for home use, are widely believed by the public to be lawful. In its decision in the Sony Betamax case, the U. S. Supreme Court seemed to adopt a similar view when stating that private non-commercial copying should be presumed to be fair use.
As long as the law of copyright largely regulated industry-to-industry relationships - identifying who owned which set of rights that would need to be cleared before some new commercial exploitation of the work could be undertaken - it made sense for policymaking about copyright to be done by highly trained technicians (or, as WIPO calls them, "experts"). Their expertise enabled them to formulate complex statutory provisions specially tailored to the requirements of particular copyright industries (e.g., cable re-transmission of television programming).
Unfortunately, the longtime reliance on experts to formulate copyright policy has made them accustomed to consulting no one but themselves and affected industry groups about whether the copyright legislation they might be about to propose is acceptable to the public or in the public interest. The only groups that have any sustained history of representing the interests of users in copyright policymaking have been library groups, but even they have their own agenda and represent user interests incompletely. Few other organization aim to represent the consuming public on copyright issues, mainly because until now, no such organization seemed to be needed because copyright policy largely ignored individual users. Copyright industry groups, in contrast, are well-organized and have substantial success in making their concerns known to legislators and bureaucrats responsible for copyright policy. Representatives of the U. S. government may have gotten beyond believing that what's good for General Motors is good for the U. S. A., but it has not yet gotten beyond believing that what's good for the Motion Picture Association of America is good for the U. S. A.
However, when policymakers recommend new regulations that will affect private, non-commercial activities of users or redraw the private/public distinction in copyright law, it becomes more desirable - and indeed, necessary - to include representatives of user interests in the policymaking process. The public is more likely to respect an expanded scope of rights for authors in cyberspace if representatives of user interests have participated in negotiations about expansion of those rights and have been persuaded that the expansion is in the public interest. Without widespread public acceptance for a broader scope of rights, it will be difficult, if not impossible, to enforce those rights without costly and intrusive efforts.

Even though the Berne Convention has achieved some harmonization in national copyright laws by virtue of its establishment of minimum standards to become a Berne Union member, it nonetheless defers to national traditions to a considerable degree. Indeed, a principal contribution of Berne to the international norms of copyright has been in persuading countries to agree on the principle of national treatment under which the works of foreign nationals receive the same level of protection as the country accords to its own nationals.
Additional harmonization in the law protecting authors' rights has, of course, been brought about by the Trade-Related Intellectual Property Rights (TRIPS) agreement appended to the General Agreement on Tariffs and Trade (GATT). Under TRIPS, GATT countries are, for example, now bound to protect computer programs as literary works. However, as with Berne, TRIPS actually does very little to reduce substantial disharmonies in the substantive content of national copyright laws.
Until the advent of global digital networked environments, the international arena could tolerate different national copyright traditions. High level harmonization on issues, such as using copyright law to protect computer programs, sufficed to protect exporters of intellectual property products because it outlawed outright "piracy" (i.e., exact copying) by importing nations. National treatment principles meant that exporters would be treated no worse in importing countries than those nations treated their own authors. If exporters decided not to distribute their works in a particular country because of inadequacies in legal protection, they could generally be confident that anti-piracy rules would prevent others from doing so without their permission. When intellectual property disputes involving cross-national conduct occurred, there were also conflict of law rules, based largely on territoriality considerations, with which to resolve the disputes.
Cyberspace, of course, is not as constrained by national boundaries as the physical world. It is as easy for someone in Spain to visit a server in the U. S. or Australia as it is for that person to visit one located in the next room as long as all of the servers are connected to the same network. One important consequence of this is that markets for copyrighted works in digital networked environments will be global in character. However, the globalization of these markets is likely to require some additional harmonization of copyright rules and development of conflict of law rules that do not depend wholly or mainly on territoriality considerations.
Further harmonization of intellectual property rules may be difficult, in part, because of the desire of some countries to preserve their own national copyright traditions. The U. S. White Paper, for example, urged international adoption of a rule to make moral rights of authors waivable by contract. This will likely be unacceptable to some copyright professionals in Europe for whom authors' rights are sacred (or nearly so). If the European Union called for harmonization to force the U. S. to abandon its fair use doctrine, this would likely meet with substantial resistance, if not from the drafters of the White Paper, then from the public at large which tends to support relatively generous application of fair use in cyberspace.
Another reason it may be difficult to harmonize copyright rules on an international scale is that the experts involved with treaty-making about copyright will be reluctant to make treaties that accord with popular conceptions about copyright. Their expertise inclines them toward expansions of authors' rights, not of user rights. If, for example, it could be proven that the vast majority of people in the world think that it is and ought to be legal to make occasional private non-commercial or educational use copies of some kinds of copyrighted works, such as newspaper or scientific articles, would intellectual property experts be willing to make a treaty to this effect. Shouldn't an international legal regime accept consensus views as a given and work to carve out codes of ethics to help people draw appropriate lines between copying that's okay and copying that's not? Wouldn't it make more sense to harmonize on rules that accord with popular conceptions of copyright than to harmonize at very high levels of protection at odds with popular conceptions of what is fair?
I suggest that the law protecting the rights of authors will receive more widespread respect if it accords with the expectations of ordinary people about what copyright is and ought to be. It would be unfortunate indeed if the law protecting authors' rights were to become very strong and rigid, yet widely ignored by the public on an international scale, with results akin to the "prohibition" laws in the United States that for some years prohibited sale, distribution and use of alcoholic beverages. Yet, it may be difficult for negotiators of international copyright treaties to compromise on international norms to bring them into relative accord with public conceptions of what the law is and ought to be.

The biggest challenge that cyberspace poses for authors and publishers is not how to strengthen copyright law, but how to reinvent their business models so that they figure out how to provide content that will interest potential customers on terms that these consumers find acceptable. It may be far more important to protect revenues than to protect bits, although it may take some farsightedness to look beyond very strong encryption as a way to protect copyrighted materials in digital networked environments. And protecting revenues may mean giving away some content in order to attract customers for other content or for services that people interested in such content would find desirable. Digital networked environments will provide authors with many new opportunities to make their works available to the public.
In this new environment, copyright law will likely play a useful, if somewhat minor, role. As consensus emerges about copyright norms for governing cyberspace, there will be ample opportunity to make laws or treaties to implement this consensus. However, even without new legislation or international treaties, copyright law will continue to adapt to new circumstances and be applied to works in the digital environment. Hasty and ill-considered action on flawed initiatives will only make it harder for adapt copyright to the regulation of cyberspace markets.

Pamela Samuelson is professor of Law and of Information Management, University of California at Berkeley.
Email: pam@sims.berkeley.edu
This article is a derivative work of a paper prepared for the International UNESCO Symposium on the Effects of New Technology on Cultural Information, Transmission and Dissemination, the Protection of Authors' Rights and Other Holders of Rights, Cultural Development and Trends in Social Life, Session 2, in Madrid, Spain, March 11-14, 1996. That paper, entitled "Authors' Rights in Cyberspace: Are New International Rules Needed?," will appear in a volume of conference proceedings whose publication is forthcoming.
I wish to acknowledge the contributions of the following people for ideas that are found in this paper: John Perry Barlow, Egbert Dommering, Esther Dyson, Niva Elkin-Koren, Paul Geller, Bernt Hugenholtz, Peter Jaszi, Jessica Litman, and Ejan MacKaay.

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