May 12, 1998


by Andy Oram
American Reporter Correspondent

CAMBRIDGE, MASS.—The tug-of-war over copyright, into which digital media have drawn a number of participants, moved to higher ground last week. A substantially revised bill about copyright was introduced into the Senate, while another bill reached the House floor on a new intellectual property right for information collections (databases).

At one end of the rope are pop music producers, movie studios, and publishers who want to impose criminal punishments on the unauthorized use of copyrighted material. At the same time, they are trying to expand the effective range of what is considered unauthorized. Also lined up on this side are database manufacturers who back the bill on information collections.

Valiantly pulling on the other end, a collection of librarians, educators, scientists, and advocates for consumers (including companies that manufacture videotape equipment) oppose the two bills.

Internet service providers have also expressed fears about the copyright bill, because it could be used to punish them for the transmission of material over their routers and servers. In a last-minute attempt to protect them without sacrificing a jot of the copyright holders’ demands, the sponsors of the bill added some of the most impenetrably complex language I have ever seen.

The effect, I’m assured by ISP representatives, is to preserve the status quo. Service providers will remove infringing material from their servers when its illegal status is brought to their attention, but will not be required to actively monitor users or prove liable for anything beyond their control.

The tug-of-war metaphor, however, does not adequately accommodate the many writers, editors, and creative artists who actually create intellectual property. We want fair compensation for our work but recognize that we need easy access to information for our research. We stand in the middle.

Perhaps we can help the other two sides to see intellectual property as something more subtle than a single-lined fight with two chalk lines to mark the points of victory. A more fruitful analogy might be a fountain that recycles water in order constantly to toss up new streams.

A fountain needs a constant source of new energy in order to produce its plumes; this element of the analogy corresponds to the money with which consumers pay artists, musicians, writers, and their publishers or producers. Weaken the payments too much, and the fountain droops.

But neither can the water be removed from circulation; doing so would cause the plumes to diminish and finally to cease. In intellectual property, the recycling consists of journalists sharing information through fair use, teachers distributing articles to students, scientists drawing information from databases, and artists embedding familiar images in new work. The various bills before Congress threaten each of these everyday activities.

For instance, the copyright bill furnishes encouragement for companies to scramble their content and to give users a license to play it just once. Such technology may be just an annoyance to audiences viewing movies at home, and could thus be justified for the distribution of entertainment. But if applied to academic or journalistic content, it would make serious research much harder. Imagine if you needed to base your assertions on an article you just read, but couldn’t save it for later, or copy portions into a critique, or show it to a colleague.

The technical protection issue is currently just matter for speculation, because the computer industry doesn’t yet have effective digital scrambling technologies. These depend on encryption, which is being held back for other reasons. (The government is afraid that criminals will use it.) Still, even poor encryption would be adequate for suppressing fair use. People might be able to crack it, but the copyright bill makes cracking illegal.

Other sorts of technological measures for protecting copyright are also untested. For instance, a number of companies offer “digital watermarks” that uniquely mark a picture so that the copyright holder can tell whether someone else is using it on the Internet.

But many questions surround these watermarks, which must be tremendously sophisticated in order to be detectable after the image is darkened, lightened, enlarged, shrunk, compressed, or otherwise manipulated in any of the multitudinous techniques used by digital artists. One company has already sheepishly acknowledged that its watermark is lost when an image is turned into a JPEG format, one of the most common used on the Web today.

Furthermore, the use of digital watermarks assumes that the copyright holder trolls the Internet constantly to look for unauthorized uses. How much bandwidth will be consumed by hundreds of thousands of copyright owners checking millions of sites for watermarks? It’s almost certainly more of a burden on the Internet than the search engines that currently index documents; it may well exceed the tremendous burden imposed by “spamming” (unsolicited commercial email).

Also showing the fragility of copyright protection, reports have recently been circulated claiming that the most popular form of audio distribution on the Web, RealAudio, permits users to store material in a digital format.

Thus, pending the creation and deployment of effective technologies, we have time to assess and perhaps reverse the consequences of the copyright bill.

Even more fears are raised by the other bill, the Collections of Information Antipiracy act. It would impose penalties for “substantial” copying from a database. The term is poorly specified, and deliberately so. No researcher would be able to tell in advance whether he or she could be prosecuted for basing research on the results of someone else’s study. The bill was brought to the floor last week but not voted on.

We cannot adequately consider the impact of copyrights and infractions if we restrict ourselves to the United States, or even to other nations who are considering the international copyright treaty from the World Intellectual Property Organization that inspired current bills. The scale of infringement are much higher in underdeveloped countries, particularly in Asia.

Given that the United States government is engaging intensively in negotiations with China, Macao, Singapore, and other Asian countries to cut down on copyright infringement, we can suppose that the bills passed by Congress will be offered as models for other countries.

But the living standard is so much lower in these countries that the standard prices charged for books and journals put them out of most people’s reach. I don’t particularly care if middle-class Chinese have to pay full price for a pop record or movie; that does not affect technological or economic progress. But I do care if students or researchers lack access to the latest research.

Some companies are attacking the pricing problem creatively, finding ways to release their books in their original or translated forms at a price that makes them attractive to middle-class buyers and discourages the purchase of pirated versions. It will benefit the developed countries as well as the developing ones, to encourage the growth of knowledge in a positive manner rather than to punish the illegal pursuit of information.

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