Copyright and Internet
Social Claims and Government's Intervention
 
Yong-Chan Kim
Ph.D. Student
Annenberg Scool for Communication
University of Southern California
12. 1996
Any Comments?: kimyong2@pilot.msu.edu
 
Copyright (c) 1996, 1997 by Yong-Chan Kim, all right reserved 
This paper was originally written under Dr. Tomath Muth at the Michigan State University Fall 1996. 

Introduction

    In February 1993, President Clinton created the Information Infrastructure Task Force (IITF) to assist in the formation and execution of his Administration's "vision" for the National Information Infrastructure (Skier, 1996). The IITF came up with a "controversial" paper - called White Paper -- which suggested the revision of the current U. S. Copyright Act so that it can apply to the digital era. Samuelson (1996) summarized the main agenda of the Paper as:     The White Paper raised very different responses from various interest groups in the country. Even in the industrial sector, each of the business groups was divided according to their different interests. From the public user's perspective, however, serious concerns about privacy right, free speech right, and right of access to information has been raised with the assumption that those rights would be seriously restricted if the Governments proposals were activated. A group of law professors wrote the Clinton Administration concerning that the White Papers could have negative implication for public, journalistic, and scholarly access to information, for free speech, and privacy, from the fact that;     Though the concerns of various stakeholders, especially those that strongly object to their plans, the Clinton Administration tried to legislate what the Paper suggested. Based on this paper, Senators Hatch and Leahy proposed Senate Bill 1284, referred as the National Information Infrastructure Copyright Act, and an identical Bill was introduced in the House (Rafter, 1996). However, such efforts of legislation failed to gain support in Congress earlier in 1996. The debate of '96 version on the revision of the current Copyright Acts for preparing for "the new emerging communication environment," ended up with only small revisions of it (Loundry, 1996).
    Nevertheless, the Clinton Administration did not give up their efforts to pursue "free market" policy in the "cyber-copyright" issue, just moving their focus from the domestic to the global "battlefield"; the Clinton administration proposed three treaties, which relied on the almost same principles as the bills just failed to be passed in the Congress, to the World Intellectual Property Organization (WIPO) Diplomatic Conference, which is now in session.
    It seems that the Clinton Administration is trying to exploit the WIPO as an alternative means to process various domestic social claims about the copyright issues in the Internet. While no treaty would be effective without legislative action, the signature of an international instrument would put enormous pressure on the Congress to harmonize American law and thus to cut short the productive dialogue among all interested parties that have followed the failure of the Administration's initial proposals.
    The results of the debate on the copyright issues will seriously affect social, political, economic, and cultural implications of the Internet and the public usage of it. Considering such significance of the issue of copyright in the Internet, the purpose of the present paper will be to (1) discuss the reason that copyright came to be a site of conflicting social claims as the Internet was introduced; (2) to identify the social claims raised with regard to the issue of copyright in the Internet; (3) to find which "mode of governance (Mosco, 1988)" the U.S. government are relying on to reduce those claims; and (4) to analyze the consequences of the mode of governance the government has introduced. In this short paper, I don't mean to cover the whole technical issues of the U.S. copyright law but only to analyze and criticize the process in which such issues are treated and debated in this country.
    The current paper is based on several basic assumptions. First, copyright policy is constructed through the interplay among various stakeholders who participate in the policy-making process with their own interests (Brock, 1994; Horwitz, 1989). Second, even if various parties participate in the process of policy-making about copyright in the Internet, the direction of the process reflects the power relation in a society (Stone, 1988). Third, the power relation is directed and governed by the intervention of the Government (Mosco, 1988).

Contradictions in Internet and Copyright

    With regard to the issue of copyright in the Internet, lots of social claims have been raised from various interest groups, which is not only due to the economic, educational, and political significance of the issue but also due to contradictory characteristics of both the Internet and copyright.

The Internet, A New Medium? or Just an extension of the Old?

    Internet has been understood as having a potential to change society in a revolutionary way. Negroponte (1996) argued that the background which can realize the potentials of the Internet are already set in the United States. He described the background for the newly emerging media as follows:     The Internet is based on a new mode of communication, usually referred as Computer-Mediated Communication (CMC). The CMC contains the characteristics of both mass and interpersonal communication (Rafaeil, 1988). To put some characteristic of the CMC, it is (1) instantly transmitted; (2) frequently stored for later attention; (3) does not require simultaneous log-on but allows users to contribute commentary sequentially over time; (4) can be sent to one recipient or to a mass mailing list, even on a prearranged schedule (Ferrar, Bruner & Whittenmore, 1993); (5) is a channel for extending text via the computer; (6) occurs in normal time; (7) is asynchronous, unlikely messages which occur in real time (Murray, 1991); and (8) is based on users' participation, which facilitates collaborative action between users (Rafaeli & LaRose, 1993).
    Many people have tried to understand the social, political, cultural, and economic implications of the Internet which has the characteristics as a new mode of communication as explained above. Several notions listed below are just a few of them:  
    The potentials and implications of the "Internet phenomena" have been evaluated in different ways depending on how the new media is understood. In addition, mutually conflicting expectations toward the Internet have emerged in terms of the social, economic, cultural, and political opportunities which it is assumed to provide. At the same time, however, there also have been raised some concerns about whether the current legal system and the political structure have the capacity to deal with problems the Internet might bring about. It still seems that the characteristics of the internet as a new media has not been yet clearly identified in social, political, economic, and cultural senses; hence there is little consensus about whether the current regulation systems such as the First Amendment, privacy, access right etc. as well as copyright can be applied to the Internet; or whether totally new regulation systems based on different assumptions and philosophy than what we have held for "the traditional media" have to be invented for the "new media."

Copyright, Paradoxical Means of Domination over Knowledge

    The concept of copyright seems to have a weak and unstable basis which has always been vulnerable to various social claims. And it looks like that such vulnerability of copyright concept results from (1) a contradiction in the purposes of copyright law; and (2) a unique relation between copyright law and communication technology.
    First, the instability of copyright concept results from the fact that copyright law is supposed to protect and promote two mutually conflicting rights; content creators and content users. Cooter and Ulen (1992) wrote that "without a legal monopoly not enough information will be produced, but with the legal monopoly too little information will be used." The contradiction of copyright law is also well reflected in the Justice Sandra Day O'Conner's 1991 decision (488 US 340,349). She summarized the purpose and balance of copyright regarding to both authors and users:
"the primary objective of copyright is not to reward the labor of authors, but 'to promote the progress of science and useful art.' To this end, copyright assures authors the right to their original express, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. (Chiang & Marks, 1996)"
    From the fact that it is trying to embrace two conflicting interests at the same time, copyright regulation has been a product of political discourse. The US Copyright Act uses such a "political" term as "keeping balance between copyright holders and copyright users." It seems that the Act possesses a useful means to escape from delicate problems: allowing for political intervention.
    Second, copyright law has always been susceptible to the emergence of new communication technology; and which seems to be another factor of the instability of copyright concept. Many scholars argued that, before print culture began, there was no such concept as copyright, indicating that the copyright was a product of print technology (Ong, 1982; Lyman, 1995). Copyright law has continued to be challenged and modified, as new communication technology was developed (Norderhaug & Oberding, 1995). In the same way, the current copyright law, originated in print culture and slightly modified by the emergence of broadcasting media, is being challenged seriously to (re)define itself by the introduction of new digital media such as the Internet.

Ferment in the Field: Several Hot Issues of Copyright in Internet

    If we consider the Internet and copyright together, problems become more complicated since the Internet has formed the environment where anything that can be copyrighted can be digitalized, and anything can be digitalized can be distributed almost instantly around the world. Several fundamental concepts of the current copyright have appeared as controversial since the Internet was introduced.

Authorship and Property

    The emergence of the Internet has challenged the conceptual base of intellectual property. Authorship and property are two examples of them. It is with the print revolution that the expression of ideas can be fixed in the form of printed commodity for the first time, something that could be owned or sold in a mass market. Still, ideas themselves are not property at all unless they are fixed in certain forms; that is, if they are created as part of the process of human communication without a fixed form, they are not protected at all by any copyright law.
    However, as the Internet was introduced, it looks as though the concepts such as authorship and property should be redefined. For the Internet has integrated two different aspects of communication: interpersonal communication and mass communication. In addition, the capacities of the Internet to "intertextualize" and compile information from multiple sources into new product (Norderhaug & Oberding, 1995) also turns authorship and property into controversial concepts.

Principle of Balance

    One of the fundamental issues about the copyright regulation is how to define the principle of balance between authorship and readership in the digital era. This issue, in particular, has been seriously raised since Senate 1996 Bill was proposed. Both Senate's and House Bills have been criticized as breaking up such balance by the groups which belong to the Internet access providers. The Erickson's criticism (1995) is one of the example which shows the concern of the Internet access provider: "Our primary concern about H.R. 2441 in its present form is that it fails to sustain the principle of balance, placing a nearly exclusive emphasis on the protection for copyrighted content, and doing so at the expense of promoting innovation, privacy, education and public information access. "

Transmission

    The Department of Commerce Green Paper, referred to as "Intellectual Property and the National Information Infrastructure" has proposed a new right within copyright, called transmission. The Green Paper defined transmission as to "distribute a reproduction by any device or process whereby a copy or phonorecord of the work is fixed beyond the place from which it was sent" (Green Paper, p.122). That is, the Clinton administration considered transmission right as an analog of copying in the print environment.
    However, there has been a debate on whether a digital transmission is a distribution of a copy to the public. If every digital transmission is defined as including loading of a material on the Internet into RAM, mere browsing can be interpreted as an infringement of copyright law. So many people worried that public access to information would be seriously restricted if the Government's definition of transmission is applied as it is.
    There have been various responses to the Government's definition of transmission. Copyright owners were willing to accept the Government's proposal. They believe that, with the Government's proposal, they will be able to control all performances of copyrighted works, not just the public performances and public displays that the existing law grants to copyright owners. On the other hand, copyright users, especially schools and libraries, argue that it is not appropriate to regard every transmission as regulated by copyright, and the government's idea can restrict seriously the primary purpose of copyright; to promote Sciences and Arts.

Fair Use

    The only mechanism to protect copyright user's right in the Copyright Act has been the sections of Fair Use. Fair Use has been a copyright user's right to use copyrighted materials without permission of copyright holders. Section 110 (5) of the Copyright Act of 1976 says that:
    notwithstanding the copyright holder's exclusive rights, it is not an infringement to "[communicate] a transmissioin embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless a direct charge is made to see or hear the transmission; or the transmission thus received is further transmitted to the public.
    However, a basic problem of the Fair Use right is that it is based on unclear and subjective terms. According to the Copyright Act, Fair Use is determined by (1) the purpose and character of the use (whether such use is of a commercial nature or is for non-profit educational purpose); (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. However, such terms as "purpose of use," "nature of the work," "amount and substantiality of the portion," or "effect of use" are not clearly defined, so every case about Fair Use has to be determined by a subjective decision of court. Worse, it might be more difficult to determine if a particular case is under the Fair Use if we consider the contents transmitted through the Internet.
    Considering the introduction of the Internet, some are arguing that the cases of Fair Use should be expanded since the electronic media environment where "Hyperlinking" and "inlining" are possible. On the other hand, others, most of whom represent the interests of program providers, maintain that Fair Use becomes meaningless in the Internet and should be minimalized or eliminated to protect copyright in digital environment where it is very easy and fast to copy any materials.

Policing; Service Provider Liability

    One of the copyright issues in the Internet, raised by the copyright holders, is the liability of the Internet providers for copyright infringement by their users; they argue that every on-line service provider is already liable for all copyright infringement committed by its users, regardless of whether the service has reason to know about the infringement or takes reasonable steps to ensure that it won't occur (Samuelson, 1996). In other words, the content owners are looking for a certain level of responsibility and participation from access providers to police [copyright] violation (Greenberg, 1996). However, the Internet Access Providers are responding to such request by maintaining that the content providers "want service providers handcuffed to unrealistic policing efforts, while realistically concerned about protection of their works" (Voorhees, 1996).

Stakeholders in the issue of copyright

in Internet and their claims

    With regard to the copyright issues, there are several groups involved, which confront one another. In this section, I will identify those groups because it is an essential work of policy analysis to see how groups coalesce and divide over the copyright issues in Internet depending on how they expect proposals to affect them (Stone, 1988).
    The stakeholders we can assume to be involved in the issue of copyright in the Internet are on-line providers, publishers, artists, writers, libraries, schools, computer software programmers, the Administration, the Congress and public users. Each stakeholder has its own approach to the copyright issues based on its interest. 
 
 
       <Figure 1>
Stakeholders in The Issue of Copyright in The Internet
 

    Even if various stakeholders are involved in the issue of copyright in Internet, the real picture of the field is a battle between two groups: they divide and coalesce into content providers and Internet access providers depending on how they expect the Clinton Administration's proposals regarding the matter of copyright in the Internet to affect them.
    Content providers are those organizations, companies, artists and publishers whose information, products, and works appear on the Internet. They want to get compensated for the display of their works on the Internet. On the other hand, Internet access providers are those who allow people to get to and publish all kinds of materials in the Internet. Those stakeholders are arranged into two lobby groups: CIC representing copyright holders' interests and DFD representing Internet access providers' interests.

Table 1. Two Main Lobby Groups Regarding Copyright Issues in the Internet

CIC 
                                 DFD
  • Association of American Publishers 
  • Association of Independent Television Stations 
  • Association of Test Publishers 
  • Business Software Alliance 
  • Cox Enterprises 
  • Geneal Instrument Corp. 
  • Information Industry Association 
  • Information Technology Industry Council 
  • Interactive Digital Software Association 
  • Magazine Publishers of America 
  • The McGraw-Hill Companies 
  • Microsoft Corp. 
  • Motion Picture Association of America, Inc. 
  • National Cable Television Association 
  • National Cable Television Association 
  • National Music Publishers' Association 
  • Newspaper Association of America 
  • Recording Industry Association of America 
  • Software publishers Association 
  • Time Warner Inc. 
  • Turner Broadcasting System, Inc 
  • West Publishing Company 
  • Viacom Inc. 
  • Amdahl Corp. Inc. 
  • American Committee for Interoperable Systems 
  • American Library Association 
  • Bell Atlantic 
  • British Telecommunications 
  • Bull S.A. 
  • Canadian Association for Interoperable Systems 
  • Computer and Communication Industry Association 
  • European Association of Consumer Electronics Manufacturers 
  • Fujitsu Limited 
  • International Freedom of Library Association and Institutions 
  • MCI Communications Corp. 
  • MFS Telecom 
  • NCR Corp. 
  • Nokia Corp. 
  • Philips International 
  • Prodigy Services Company 
  • Storage Technology Corp. 
  • Sun Microsystems 
  • Supporters f Interoperable Systems in Australia 
  • Telecom Eirean 
  • Telecom Finland LTD 
  • Telecommunication Managers Association 
  • Tele Denmark 
  • Telenor Telia 
  • Infomedia Content Center 
  • The European Electronic Messaging Association 
  • U.S. West 

DFC: Internet Access Provider

    The Digital Future Coalition is a group formed in 1995, to lobby Congress to craft legislation which does not overly limit transmission of information over the Internet. The DFC comprises software and hardware providers, Internet access and service providers, business users, local and long distance telecommunications companies, libraries, and education interests. The groups argue in a November 9, 1995 letter to members of Congress that "increased regulation of information traffic on the Internet could delay or prevent the emergence of new commercial technologies that aid digital information, by giving copyright owners control over data resources. " The concerns and arguments of the Internet access providers represented by the DFC can be summarized as follows:

CIC: Copyright Holders

    The interest and opinions of the Internet program providers are represented by the Creative Incentive Coalition (CIC), which favors tighter copyright controls in order to protect the authors and inventors who place their creations on the Internet. Their primary rationale for the tighter protection of copyrighted materials is the necessity for "sending a message to the creative community that it's worthwhile to enter cyberspace and set up shop and it's worthwhile to invest in research and development to find ways to protect their copyright (Collings, 1996)". In other words, they argue that there will be no incentive to develop new material to sate the appetite of the emerging global-information infrastructure (Lewis, 1996). It looks as though the program providers would like to turn superhighway into "an unregulated electronic tollbooth" (Chester & Wright, 1996).
    What the stakeholders who belong to content providers have in common are that:

Social Claims and Mode of Intervention

    As I discussed before, various social claims have been raised from many stakeholders with regard to the issue of copyright in the Internet. In this section, following Mosco (1988), I will try to identify which mode the U. S. Government has been relying on to process the social claims.
    Mosco (1982) argued that there were four forms of reducing social claims (see Figure 1), which had been used in developed countries: representation, expertise, market, and social control. The stakeholders involved in the debate on the copyright issues have been divided, depending on their understanding of what's the best means to process the social claims and build a consensus in the States:     According to Mosco (1988) there are four types of state intervention in governing social claims; (1) competition; (2) regulation; (3) corporatism; and (4) expert boards. He explained each of these intervention modes as follows:
   
Figure 2.
The Mode of State Intervention (Mosco, 1988)
 
 

    The mode of governance the U.S. government has taken to reduce the social claims about the copyright for the digital age seems to be "competition mode." As a matter of fact, the overall telecommunication policy-making of the Clinton-Gore administration has been based on this competition mode. That is, they relied on market driven governance with getting technical and economic advices from several expertise boards. Figure 3 shows where the U. S. copyright policy-making process is located in the Mosco (1988)'s diagram.
    The mode of the U.S. government employed to intervene in the issue of telecommunication policy, which could be a basis for governmental actions for copyright issues in the Internet, are well presented in the Communication Act 1995 and the Administration's "Next Generation Internet" Initiative Project. The Communication Act of 1995 guarantees that "the eventual information highway based on the interactive tele-computer will be a thoroughly commercial enterprise with profit maximization as its founding principle (McChesney, 1996)".
 
 
 

 
Figure 3
The Intervention Mode of U.S. Government in the Copyright Policy
 

    Before the Presidential Election of this year, The Clinton-Gore Administration announced "the Next Generation Internet" initiative project in which they made clear that the goal of the "information superhighway" was to produce economic benefits:
    The potential economic benefits of this initiatives are enormous. Because the Internet developed in the United States first, American companies have a substantial lead in a variety of information and communications markets. The explosion of the Internet has generated economic growth, high-wage jobs, and a dramatic increase in the number of high-tech start-ups. The next Generation Internet initiative will strengthen America's technological leadership, and create new jobs and new market opportunities (The White Hose, October 10, 1996).
    Copyright policy of the Clinton Administration reflects such overall goals of their telecommunication policy. The 1995 White Paper on Intellectual Property and the National Information Infrastructure represented the Administration's view that telecommunication had to be market-driven and pro-competition:
    Copyright protection is not an obstacle in the way of the success of the NII; it is an essential component. Copyright motivates the creative activity of authors and thereby provides the public with the products of those creators. Effective copyright protection promotes a new Cybermarketplace of ideas, expression and products (White Paper, 1995).
    Lehman, the commissioner of patents and trademarks, also represented the Clinton-Gore Administration's philosophy about the U.S. copyright policy for the digital age. He maintained that:
 

    Clinton administration created several expert committees such as The Information Infrastructure Task Force (IITF), The National Information Infrastructure Advisory Council (NIIAC) and the National Telecommunication and Information Administration (NTIA), which are supposed to make "fundamental decisions about the best use of the market decision (Mosco, 1988)".
    IITF was formed by the White House "to articulate and implement the Administration's vision for the National Information Infrastructure (NII)." The Task Force consists of high-level representatives of the Federal agencies that play a major role in the "development and application and telecommunication technology." It is chaired by Michael Kantor, the Secretary of Commerce. The task force operates under the supervision of the Vhite House Office of Science and Technology Policy and the National Economic Council. It has three Committees such as Telecommunication Policy, Information Policy, and Application and Technology. The task identified nine principles and goals to guild government action:
  • promoting private sector investment
  • Extending the "universal service" concept to ensure that information resources are available to all at affordable prices
  • promoting technologcial innovation and new application
  • promting semaless, interactive, user-driven opertation
  • ensuring information security and network reliability
  • inproving management of the radio frequency spectrum
  • protecting intellectual property rights (IITF, 1996).
    •      NTIA is an agency of the U.S. Department of Commerce, headed by Larry Irving, Assistant Secretary for Communications and Information, and "the president's principal voice on domestic and international telecommunications and information policy-making (NTIA Fact Sheet, May 25, 1995)". NTIA works to spur innovation, encourage competition, create job growth, and provide consumers with more choices and better quality telecommunication and information services and products at lower prices.
        NIIAC is created by executive order at the end of 1993 by President Clinton. It is co-chaired by Denlano E. Lewis, President and Chief Executive Officers of National Public Raido, and Edward R. McCracken, Chairman and Chief Executive Officer of Silicon Graphics. NIIAC has the responsibility of advising the Secretary of Commerce and the Administration on a national strategy for promoting the development of the NII and the Global Information Infrastructure.

    New Mode of Government Intervention

    :International Standard

        Many stakeholders and scholars have criticized U. S. Telecommunication policy such as those regarding copyright issues. Their criticism focuses on the procedure the Clinton Administration takes to deal with those issues. According to McCheeny, professor of University of Wisconsin-Madison, the debate over communication policy in the United States has been restricted to the elite and those with serious financial stakes in the outcome and it has not reflected well on the "caliber of U.S. participatory democracy (McCheny, 1996)".
        McCheny (1996) also criticized the mode of US government's intervention in the telecommunication issues. He maintained that "[the] presupposition of corporate, for-profit control reduces the range of legitimate policy debates to tangential issues." Stine (1996) also criticized the way the U.S. government has dealt with the copyright issues, arguing that the government provided almost no guidance for consumer's rights in copyrighted materials. Greenberg (1996) agreed with McCheny and Stine; he argued that debate on the issue of copyright for the digital age has been restricted to "something more pedestrian - money and who makes it on the internet (Greenberg, 1996)". Samulesen (1996) defined the Clinton Administration's telecommunication policy as an effort to transform "the emerging information superhighway into a publisher-dominated toll road." According to her, the reason the Clinton administration are standing for publishers is to get "campaign contributions."
        The Administration wants to please the copyright industry, especially members of the Hollywood community, who are vital to the president's re-election bid. And what these copyright industries want in return is more legal control than ever before the products they distribute (Samuelson, 1996).
        Though scholar's "harsh" criticisms about the US telecommunication policy-making process, the "Competition" mode of intervention of the US government regarding copyright issues in the Internet doesn't seem to have been successful to reduce a number of social claims. Rather, the government has suffered from a shortcoming which Mosco (1988) described as "excesses of democracy" "excessive expectations" or demand overload."
        The reason for the failure of the U.S. government to process social claims seems to be in the fact that:     It seems that US Administration neglected the importance of public support, only considering legitimacy based on expertness and market-driven opportunities. However, as many admit, the Internet is a pro-democracy medium (McCheny, 1996); that is, a number of the Internet users could be very sensitive to the issue and active to express their opinion.
        The Clinton Administration, failing to use the mode of competition, seems to change their strategy for intervening in the copyright issues; I would call the new mode of intervention as "international standard." As mentioned before, the Administration is, now in Geneva, proposing the treaties based on its previous proposals, rejected in the Congress, about the copyright issues in the Internet. I suppose that the mode of international standard should be employed more than any other modes Mosco (1988) presented as the tendency of global interdependence and significance of international cooperation increase especially in terms of the issue of telecommunication.
     
     
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