Copyright Compliance in the Electronic Age: Conceptual Issues

John R. Garrett

This article focuses on several conceptual and structural issues that are central to copyright compliance in the electronic age. It presumes the development of a national electronic network for storing, organizing, accessing, managing, and charging for information. The article first discusses the implications of constructing a comprehensive electronic "highway," or Digital Library System (DLS), which would link information to the widespread community of users. It then presents the ramifications of a highly decentralized set of subsystems serving rights holders and users, linked by protocols established by the DLS. A discussion of the implications of digital interchangeability for copyright follows. The article ends with an analysis of alternatives to existing intellectual property rights conveyance systems, and concludes that current ownership structures, and systems for conveying rights and royalties, will remain the foundation for copyright in the electronic world.

I t is fascinating and humbl ing to sit outside on a warm spring day and watch a spider build its web. Driven implacably by millions of generations

of spiders before it, their design and building programs embedded in its tiny brain, the spider patiently weaves strand by strand, each strand w e d d e d to the strands surrounding it, each web ideally suited to trap the prey that has fed its forebears.

Unfortunately, no shared genetic message--a t least, none that we can dis- cern--compels us as we wrestle with the complex, interwoven strands that compose the electronic future of information. Instead of the orderly, measured construction that the spider builds, the development of the structures and substructures of a comprehensive national system to deliver technical and scientific information electronically resembles a random collection of baubles, thrown together in a packrat 's nest in the hope that someday, somehow they might come in handy.

We share with the packrat the fa i th--sometimes innocent of k n o w l e d g e - - that it will all come together. We all speculate a good deal about how, when, and in what form it will come together and, most important, about who will be there making money when it does. Those speculations, while stimulating, sometimes resemble too closely a forest listening for a tree to fall in it. Instead of speculating, I would like to look at some of the baubles and think about

John R. Garrett is Director, Information Resources, at the Corporat ion for Nat ional Research Initiatives. He was formerly with the Copyright Clearance Center. Address for correspondence: Corporat ion for National Research Initiatives, 1895 Preston White Drive, Suite 100, Reston, VA 22091.

This article appeared in a slightly different form in the Proceedings of the Twelfth National Online Meeting--1991, and is published here with the permission of Learned Information, Inc., Medford, N.J.

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what they will mean for the evolving systems for conveying information elec- tronically, and for the implications these systems embody for rights holders, users, authorizations, royalties, and copyright. I cannot defend my choice of baubles: like the packrat, I am likely to pick up whichever ones look most enticing at the moment.

Decentra l i zed Structures in a Central ized Env ironment

Dr. Robert E. Kahn of C.N.R.I. likes to draw an analogy between the emerg- ing electronic systems for managing and conveying information (with deference to Bob, hereinafter called the Digital Library System, or DLS) and the nation's highways. Driving north to visit my brother in Vermont a few weeks ago, it never occurred to me that the relative ease of travel was dependent on a long, complex process of generation and integration of highways from community to community, Massachusetts through New Hampshire to Vermont, and back again. Robert Frost did not know or care whether his road less traveled was under town, state, or interstate jurisdiction, and I suspect most of the rest of us don't care either. Why should we? The system functions seamlessly (except for an occasional toll or overzealous state trooper) and transparently to the user: because it is there, and it works, it can safely be ignored.

If we are very fortunate, the comprehensive electronic infrastructure that will link sources of information and users will be as invisible as the national network of highways. This comprehensive system will, at a minimum, need to provide an integrated, comprehensive electronic substratum for information which will be stored in a plethora of individual subsystems; create and main- tain the protocols and common languages that will permit and manage interac- tions among subsystems; and provide a framework for dialogue about the system, and for generating systemwide enhancements and improvements. Models for managing complex systems of this kind already exist in the Internet and elsewhere; they need to be carefully studied for the insights they offer.

Within this structure, a thousand flowers must flourish. Each of these flow- ers represents an electronic environment that includes rules for access, payment and utilization, information authorized by rights holders, and methods for authorized access by users: I refer to them here as subsystems.

I assume that information will be lodged in many different subsystems, all of them competing for information and for users, many of them providing value- added services--or price--in an attempt to differentiate themselves from the competition.

In addition to traditional, text-based information, data stored in the sub- systems and accessible through the DLS will include nontext information (pho- tographs, drawings, illustrations, works of art); streams of numeric data (satel- lite information, cosmological data); digitized sound and moving visual images (videos, movies, music); multidimensional representations of forms or data (e.g., holograms); and the capacity to integrate these data into new representa-

Garrett 15

tions drawn from many different sources (subsystems and rights holders). It will be a cornucopia of information and resources, limited only by the user's ability to know what she is looking for, find it, and pay for it.

The anticipated DLS subsystems will vary along other dimensions as well, including user interfaces permitting authorized access; barriers to use; costs if any, to users; authorized methods for using the information that is available; guarantees, or lack of them, of data origin or integrity; barriers, if any, to the entry of new information into the system (e.g., refereed vs. nonrefereed infor- mation); search models and methods; linkages, if any, to data housed in other subsystems; the capacity, if any, to access information that is not part of the DLS; and a host of other. It is assumed that each subsystem will create its own rules; they will, however, have to conform to the protocols for conversation among subsystems, as established by the operating rules of the DLS.

No single subsystem, or subsystem developer and vendor, would be likely to satisfy all of the varied demands for information and presentation that will arise from users of the DLS. Only many subsystems, created and maintained by individuals and organizations with a sincere desire to profit by providing demanded services, would satisfy the inevitable diversity of information, and of user expectations and needs.

The diversity of subsystems to store and transmit information, and to pro- vide access to users, has deep implications for copyright in the electronic envi- ronment. Clearly, the diversity of uses, structures, users, and fees among sub- systems will require an equivalent diversity in the arrangements between rights holders and subsystem management, and between subsystems and users. At the same time, protocols governing the exchange of information among sub- systems will be required as part of the DLS's overarching responsibilities. In this framework, there will be an important role for packaging and repackaging of rights and royalties, a function which in the print world is served primarily by the Copyright Clearance Center.

How will rights be conveyed, and royalties determined and transmitted, in this highly decentralized information world? Because computers are good at counting things, one obvious alternative is to have the computer keep track of all uses made of a particular piece of information, apply a cost formula, charge the end user, and convey the royalties back to the rights holder.

A transactional fee structure of this kind has apparent benefits. It is clear and, theoretically, simple to manage. Although fees might vary, the basic framework could be applied consistently across subsystems. The system could accommodate a variety of rates and restrictions established by the rights hold- ers of the information in question. And it would permit a measured flow of royalties among subsystems that house the information, and collect royalties from users.

But there are disadvantages to a transactional approach as well. Costs and royalties vary exclusively with use and cannot be predicted in advance--nei- ther by users nor by rights holders. The burden of managing data streams

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governing billions of bits of information passing within and among subsystems could significantly increase costs of operating the DLS, and ultimately affect its usefulness.

Determining what does and does not constitute use, in a transactional envi- ronment, is not a trivial matter either. If I conduct a search and do not find anything, have I used information in the system? What if I learn that no pat- ents exist in a particular area, file a claim, and make a million dollars. Do I owe anyone anything? Whom? For what?

Licensing the use of the information avoids some of these dilemmas, while creating others: the heavy transactional costs are avoided, but the data re- quired to determine fair prices may be lost. Ultimately, I would expect that some combination of license-based and transactional pricing may evolve, but it is still extremely unclear what information, in electronic form, is wor th how much to anyone, and who is prepared to pay how much for it.

N e w Media, N e w Poss ibi l i t ies

Copyright in the world of print is complicated enough. But the issues we face in an electronic environment may make us yearn nostalgically for the good old days when all we had to worry about was photocopies, faxes, and the occasional pirated anthology sold in an off-campus copy shop.

At least in print, we can usually tell an original work from a copy. In addi- tion, the original work defines its own boundaries--cal led covers--which permit us to know fairly certainly where one work ends and another begins. Further- more, it is difficult in print to alter another 's work without her knowing it. And there are well-established rules for stating who owns what rights, and for transferring those rights among rights holders, and from rights holders to users.

These certainties dissipate in an electronic world. While it is in principle possible to build electronic systems that would replicate the safeguards of the world of print, maintaining those barriers against sophisticated electronic as- sault would be costly and, ultimately, self-defeating. It may take some time, but both rights holders and users will need to recognize that electronic access to information represents a paradigmatic shift for all concerned, which will require new ways of thinking about information, use, rights, and royalties.

What new ways of thinking will be required? For one thing, the idea of a work changes fundamental ly in an electronic world. Although the interchange- ability of electronic information is a potential nightmare for rights holders, and a joy for the growing legions of copyright attorneys, it is at the heart of the value-added opportuni ty that electronic information provides for users and, ultimately, for rights holders. Because all digitized information can be l inked to all other digitized information, the opportunit ies for creating new derivative works from existing ones are potentially limitless.

In the research environment, for instance, one can imagine investigators building linked work-products l imning different aspects of their investiga-

Garrett 17

tions, constructed out of the ever-changing flow of information from publica- tions, electronic mail, scribbled notes, telephone conversations, lectures, vid- eos, and data streams available to them through the various subsystems of the DLS.

The original sources of the information included in these work products would be invisible to the researcher, unless desired for annotation or footnot- ing. These work-products would be extensions of each investigator's interests and personality, as individual as the portraits in miniature picture frames on the desk, as accessible to others as each investigator (and, perhaps, her employer) desired. And, given the convenience of electronic document exchange, one researcher's work-products would inevitably find their way into others' sys- tems, evolving into publications and products--in forms and, perhaps, media that will often be entirely different from the works from which they were originally drawn.

Is this a dream world? A recent article entitled "Computer-Created World of 'Virtual Reality' Opening New Vistas to Scientists" discusses the creation of apparent three-dimensional worlds of visual images, sound, and data, which through the use of computer-generated illusion can be entered into and manipulated by investigators and, ultimately, others:

Researchers are experimenting with adding three-dimensional sound and a sense of touch to the virtual worlds. Biochemists who use a 'GROPE' system at the University of North Carolina can see molecules ahead of them in three-dimensional space and, through a hand grip, can get a crude sense of the physical forces that would be generated if the molecules were real.

As the concept of virtual worlds spreads, Mr. [William] Bricken and oth- ers believe it will be accompanied by a new view of electronically stored and communicated information. "In the space around me, there are a dozen or so television channels and hundreds of radio channels and tele- phone conversations on cellular phones," Mr. Bricken says. "Perceptually, they're invisible," he adds, "yet given an instrument, I'm able to make them apparent. What's the word for that place? "1

Call it copyright?

The issues raised by digital interchangeability will only become increasingly complex as the data included in the DLS increase in complexity, volume, and range, and as the capacity for creation, re-creation, modification, and distribu- tion expands. Questions that have never been answered in the print wor ld - - such as whether there is a core unit of a work (word? sentence? paragraph? image?) in which copyright ownership remains embedded forever, like Chomsky's grammar--will need to be debated and resolved.

All approaches--from digital tracking to comprehensive licensing--contain

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both risks and opportunities. But as King Canute learned when he ordered the tide to roll back, stopping or controlling the evolving technologies is not a realistic option. Instead, we will all need to flourish in a world where the illusion of control is replaced by the reality of negotiation,where zero-sums ("I have it, so you can't") are supplanted by both-ands, where the question is not if, but how.

Can Copyright Work? Who Will Own the Rights?

It is possible to design a workable intellectual property rights conveyance system for the digital library that is based upon core copyright principles and obligations, and supports current concepts and practices of intellectual prop- erty ownership. But is it a good idea? Are there better alternatives?

In a recent article, Francis Dummer Fisher of Harvard argues forcefully that the economic relationships governing intellectual property and creativity are poorly understood. The exclusive rights conveyed to creators under the Con- stitution, which are designed to foster creativity, may in his view not be neces- sary to ensure a continuing flow of creative works. Without exclusive rights, Fisher argues, dissemination of information would be easier and cheaper, and potentially important creative work would not necessarily be lost:

Perhaps in the days of electronic technology, our economic system of private property may not work to maximize the social values of expressed ideas. A socialist economic system may beat us in discovering how to appeal to non-monetary incentives for creation and thereby gain a fast and wide dissemination of useful ideas. 2

Supporting this view, Fisher and others have argued that scholarly publish- ers do not pay much in the way of royalties to creators, which suggests that the exclusive rights granted to creators (and assigned to publishers) may not be necessary to foster creativity.

In fact, creators of scientific and technical information, who reside primarily in universities and corporate research and development centers, are directly compensated for their creation in the current system. University personnel are compensated through tenure, salary, and increased status in their scholarly community as a result of citation and other forms of professional recognition. Corporate researchers receive promotions, increased status, salary, and direct financial rewards. In fact, many academics say that they are not concerned about protecting their copyrights, because they have already been compen- sated for their creations through tenure.

For publishers, there is a strange irony in the complaints from university librarians and others about too many journals, with prices too high. New journals are nearly always created as a result of pressure from the academic community, as new domains of study emerge which require outlet through

Garrett 19

publication. And once the journals are in print, the same academics who de- manded them may complain about paying the freight.

Finally, denying exclusive ownership of creations to creators does not re- solve the fundamental questions raised elsewhere in this article. How would decisions be made about how information, no longer controlled exclusively by its creator or her agents, could and could not be used? No matter what system is proposed to supplant existing methods for management and conveyance of rights, some individual or organization would be required to arbitrate and assess the flow of information and rights. Currently, that responsibility falls on rights holders. In Fisher's model, it would appear to become the responsibility of the government. Our experience, like the experience of other nations, sug- gests that government involvement in management of information, as opposed to information policy, can lead toward the unappetizing path of government control.

A related argument involves universities and others seeking to take control of scientific and scholarly publishing. As outlined in a recent Chronicle of Higher Education think-piece by ALA President Richard M. Dougherty, "some univer- sity administrators have urged sweeping reforms. Why shouldn't universities become more active as publishers, printing research that traditionally has ap- peared in scholarly journals? Why shouldn't universities seek to gain control of the copyrights to research produced by faculty members? After all, they reason, why should universities pay twice for the same research? "3

These arguments are closely linked to the question of copyright in the DLS. Electronic access is seen by some in the academic community as an opportu- nity to extend control over the information, since networks linking universities would be a likely mode of electronic distribution. Second, a system ~hat fo- cused copyright ownership in a relatively small number of universities and corporations, instead of dispersing it among many authors and publishers, would assume a fundamentally different character than the current structure. Better? Who knows? If it ain't broke ....

There is ample reason to conclude that current ownership structures, and systems for conveying rights and royalties, will remain the foundation for copyright in the electronic world. Universities have historically had difficulty acting in concert, and there is little reason to think that this is likely to change rapidly. Indeed, Dougherty, in his Chronicle article, shares this view.

Several universities have already attempted to take ownership of patents and copyrights, through faculty contracts or mandatory assignment. These attempts have met with strenuous opposition by some faculty and have not yet been implemented systematically on any U.S. university campus. At one university, for example, "the administration once proposed a new policy gov- erning the ownership of intellectual property. The news spread on the com- puter network, leading to the following message:

20 Publishing Research Quarterly/Winter I991/92

"I cannot resist fanning the flames of discontent. Under the kindest inter- pretation, the motives of the administrat ion were to view the intellectual properties issue as an adversary conflict, and send up a trial balloon tak- ing an extreme hardline stance .... It is also possible that the administrat ion actually means to ram through their policy with minimal notice or com- ment .... I propose we draft a statement .... "

"This message elicted answers from thirty-five people in two days, mobilizing an effective opposition to the administration's policy. "4

Can universities surmount these obstacles, assume ownership of copyrights, and develop their own efficient, time-sensitive journal publishing programs? It would be difficult and costly to replicate the peer review, solicitation, editing, production, and distribution systems evolved by existing publishers. Despite the clamor, it may be a long while before the bauble of university-controlled publication and d isseminat ion- -whether print or e lectronic--becomes a major factor in the rights and royalties world.

Conclusion

The baubles have been displayed and are back in their corners in the nest. Will the nearly seamless web of the national h ighway system be replicated in the electronic world? Or will cacophony reign, in the form of multiple, incom- patible structures, vendors, rights holders, and users, all serving nar row inter- ests, pursuing still narrower goals?

One thing is certain. We will collectively determine the evolution of these new technologies by seizing the opportunit ies they offer for dialogue and mutual accord, or by emphasizing only the apparent risks and increasing con- frontation.

As the author and publisher Benjamin Franklin pointed out at the Constitu- tional Convention, if we don ' t hang together, we will surely hang separately.

Notes

1. Chronicle of Higher Education, March 13, 1991, pp. A6-A13. 2. Change, May/June 1989, pp. 13-21. 3. "Librarians Must Have the Authority to Cancel Subscriptions to Seldom-Used Journals," Chronicle of

Higher Education, January 9, 1991, p. A56. 4. Lee Sproull and Sara Kiesler, Connections: New Ways of Working in the Networked Organization (Cambridge:

MIT Press, 1991), 114.