roundtable: Final Report on Intellectual Property (IITF)
roundtable: Final Report on Intellectual Property (IITF)
Final Report on Intellectual Property (IITF)
W. Curtiss Priest (BMSLIB@mitvma.mit.edu)
Wed, 06 Sep 95 10:13:54 EDT
Message-Id: <9509061416.AA23728@a.cni.org>
Date: Wed, 06 Sep 95 10:13:54 EDT
From: "W. Curtiss Priest" <BMSLIB@mitvma.mit.edu>
Subject: Final Report on Intellectual Property (IITF)
To: Telecommunications Policy Roundtable <ROUNDTABLE@CNI.ORG>,
CITS Commentary
Dr. W. Curtiss Priest, Director
This is an excerpt from a 530K document available via gopher (or web)
at IITF.DOC.GOV under 'HOT OFF THE PRESS'
The Boston Globe (Katherine Thomson, Bloomberg Business News) said
"It [this report] called existing copyright law 'fundamentally
adequate and effective,' yet noted that in a few areas 'it needs
to be amended to take proper account of the current technology.'"
"Bills that include some of the recommendations are pending in both
the House of Representatives and the Senate, and the report includes
a model statute and amendements." (Sept. 6, 1995)
"'This is a 10 on a scale of 1 to 10,' said Ken Wasch, president of
Software Publishers Association in Washington. 'It deals with the two
issues that are most important to us: recognizing a transmission right
and prohibiting interference with copyright management systems,'he said."
In our experience, a red flag goes up whenever industry gives a
10 rating to a government report. Copyright is a balancing act
between holding property and making it available for free speech
and other areas of Fair Use. Also, as Joseph Dionne demonstrated
in a speech before the Industry Information Association 10/27/94
-- industry favors law that protects the current players, and
thus, we should look to see how well this draft encourages "new
entrants" into publishing! How easy is it for a new entrant to
gain rights to make derivative works and at what cost?
Intellectual Property
and the
National Information Infrastructure
The Report of the Working Group on Intellectual
Property Rights
Bruce A. Lehman
Assistant Secretary of Commerce and
Commissioner of Patents and Trademarks
Chair
Information Infrastructure Task Force
Ronald H. Brown
Secretary of Commerce
Chair
Intellectual Property
and the
National Information Infrastructure
The Report of the Working Group on Intellectual
Property Rights
Bruce A. Lehman
Assistant Secretary of Commerce and
Commissioner of Patents and Trademarks
Chair
Information Infrastructure Task Force
Ronald H. Brown
Secretary of Commerce
Chair
September 1995
Single copies of this Report may be obtained,
free of charge, by sending a written request
to:
"Intellectual Property and the
NII"
c/o Terri A. Southwick, Attorney-Advisor
Office of Legislative and
International Affairs
U.S. Patent and Trademark Office
Box 4
Washington, D.C. 20231
Copies will also be available from the IITF
Bulletin Board. The Bulletin Board can be
accessed through the Internet by pointing the
Gopher Client to iitf.doc.gov or by telnet to
iitf.doc.gov (log in as gopher). The
Bulletin Board is also accessible at 202-501-
1920 using a personal computer and a modem.
Library of Congress Cataloging-in-Publication
Data
United States. Information Infrastructure
Task Force. Working Group on Intellectual
Property Rights.
Intellectual Property and the National
Information Infrastructure: The Report of
the Working Group on Intellectual Property
Rights / Bruce A. Lehman, Chair.
1. Intellectual property -- United States.
2. Copyright -- United States.
3. Information superhighway -- United
States. 4. Information technology --
United States. I. Lehman, Bruce A.
II. Title.
KF2979.U55 1995
346.7304'8--dc20
[347.30648]
ISBN 0-9648716-0-1
Table of Contents
INTRODUCTION 1
BACKGROUND 7
I. LAW 19
A. COPYRIGHT 19
1. PURPOSE OF COPYRIGHT LAW 19
2. SUBJECT MATTER AND SCOPE OF PROTECTION
23
A. ELIGIBILITY FOR PROTECTION 23
B. PUBLISHED AND UNPUBLISHED WORKS 28
C. WORKS NOT PROTECTED 32
D. CATEGORIES OF PROTECTIBLE WORKS 35
3. COPYRIGHT OWNERSHIP 45
A. TRANSFER OF OWNERSHIP 47
B. LICENSING 49
C. ON-LINE TRANSACTIONS 53
4. TERM OF PROTECTION 59
5. NOTICE, DEPOSIT AND REGISTRATION 60
6. EXCLUSIVE RIGHTS 63
A. THE RIGHT TO REPRODUCE THE WORK 64
B. THE RIGHT TO PREPARE DERIVATIVE WORKS
66
C. THE RIGHT TO DISTRIBUTE COPIES 67
D. THE RIGHT TO PERFORM THE WORK PUBLICLY
70
E. THE RIGHT TO DISPLAY THE WORK PUBLICLY
72
7. LIMITATIONS ON EXCLUSIVE RIGHTS 73
A. FAIR USE 73
B. LIBRARY EXEMPTIONS 84
C. FIRST SALE DOCTRINE 90
D. EDUCATIONAL USE EXEMPTIONS 95
E. OTHER LIMITATIONS 96
8. COPYRIGHT INFRINGEMENT 100
A. GENERAL 100
B. INFRINGING IMPORTATION 107
C. CONTRIBUTORY AND VICARIOUS LIABILITY
109
D. ON-LINE SERVICE PROVIDER LIABILITY114
E. CIVIL REMEDIES 124
F. CRIMINAL OFFENSES 126
G. DEFENSES 128
9. INTERNATIONAL IMPLICATIONS 130
A. BACKGROUND 130
B. INTERNATIONAL FRAMEWORK 132
C. INTERNATIONAL TREATIES AND AGREEMENTS
135
D. COPYRIGHT COMPARED TO AUTHORS' RIGHTS
139
E. NATIONAL TREATMENT 140
F. PRIVATE COPYING ROYALTY SYSTEMS 144
G. MORAL RIGHTS 145
H. CONFLICT OF LAWS 147
I. HARMONIZATION OF INTERNATIONAL SYSTEMS
147
B. PATENT 155
1. PATENTABILITY DETERMINATIONS 162
2. INFRINGEMENT DETERMINATIONS 165
3. PATENTABILITY OF SOFTWARE 166
C. TRADEMARK 168
D. TRADE SECRET 173
II. TECHNOLOGY 177
A. CONTENT SECURITY AND USER ACCESS NEEDS178
B. THE INTERNET EXPERIENCE 179
C. ACCESS AND USE TECHNOLOGICAL CONTROLS183
1. SERVER AND FILE LEVEL CONTROLS 183
2. ENCRYPTION 185
3. DIGITAL SIGNATURES 187
4. STEGANOGRAPHY 188
D. CONTROLLING USE OF PROTECTED WORKS 189
E. MANAGING RIGHTS IN PROTECTED WORKS 191
F. ENCRYPTION EXPORT CONTROL 194
G. DEVELOPMENT OF STANDARDS 197
III. EDUCATION 201
A. BACKGROUND 201
B. COPYRIGHT AWARENESS CAMPAIGN 203
IV. RECOMMENDATIONS 211
A. COPYRIGHT 211
1. THE TRANSMISSION OF COPIES AND
PHONORECORDS 213
A. THE DISTRIBUTION RIGHT 213
B. RELATED DEFINITIONAL AMENDMENTS 217
C. THE IMPORTATION PROVISIONS 221
2. PUBLIC PERFORMANCE RIGHT FOR SOUND
RECORDINGS 221
3. LIBRARY EXEMPTIONS 225
4. REPRODUCTION FOR THE VISUALLY IMPAIRED
227
5. CRIMINAL OFFENSES 228
6. TECHNOLOGICAL PROTECTION 230
7. COPYRIGHT MANAGEMENT INFORMATION 235
B. PATENT 236
C. TRADEMARK 237
APPENDICES
Introduction
In February 1993, President Clinton formed
the Information Infrastructure Task Force
(IITF) to articulate and implement the
Administration's vision for the National
Information Infrastructure (NII). The IITF
is chaired by Secretary of Commerce Ronald H.
Brown and consists of high-level
representatives of the Federal agencies that
play a role in advancing the development and
application of information technologies.
Guided by the principles for government
action described in NII Agenda for Action1
and GII Agenda for Cooperation,2 the
participating agencies are working with the
private sector, public interest groups,
Congress, and State and local governments to
develop comprehensive telecommunications and
information policies and programs that will
promote the development of the NII and best
meet the country's needs.
To drive these efforts, the IITF is
organized into three committees: the
Telecommunications Policy Committee, which
formulates Administration positions on
relevant telecommunications issues; the
Committee on Applications and Technology,
which coordinates Administration efforts to
develop, demonstrate and promote applications
of information technologies in key areas; and
the Information Policy Committee, which
addresses critical information policy issues
that must be dealt with if the NII is to be
fully deployed and utilized. In addition,
the IITF established a Security Issues Forum
to assess the security needs and concerns of
users, service providers, information
providers, State and local governments and
others. Finally, the U.S. Advisory Council
on the National Information Infrastructure
(NII Advisory Council) was established within
the Department of Commerce to advise the
Secretary of Commerce on a national strategy
for promoting the development of the NII.3
The Working Group on Intellectual Property
Rights, which is chaired by Assistant
Secretary of Commerce and Commissioner of
Patents and Trademarks Bruce A. Lehman, was
established within the Information Policy
Committee to examine the intellectual
property implications of the NII and make
recommendations on any appropriate changes to
U.S. intellectual property law and policy.4
This Report represents the Working Group's
examination and analysis of each of the major
areas of intellectual property law, focusing
primarily on copyright law and its
application and effectiveness in the context
of the NII.5 The approach of this Report is
to discuss the application of the existing
copyright law and to recommend only those
changes that are essential to adapt the law
to the needs of the global information
society.6 By providing a generalized legal
framework, based on the extensive analysis
and discussion of the way in which the law
has been and should be interpreted, we can
lay the groundwork for the rapid and
efficient development of the NII.
To prepare this Report, the Working Group
drew upon expertise within the participating
departments and agencies of the Federal
government.7 In addition, the Working Group
received and considered views of the public,
including those of the NII Advisory Council.
The Working Group held a public hearing in
November 1993, at which 30 witnesses
testified.8 The Working Group also solicited
written comments and received some 70
statements during a public comment period
which closed on December 10, 1993.9
Following its review of the public comments
and analysis of the issues, the Working Group
released a preliminary draft of its report
("Green Paper") on July 7, 1994.10 The
Working Group issued the report in
preliminary draft form to ensure broad
dissemination and ample opportunity for
public comment prior to making final
recommendations and issuing this Report.
Thousands of copies of the Green Paper were
distributed in paper form as well as
electronically via the IITF Bulletin Board.11
Following the release of the Green Paper,
the Working Group heard testimony from the
public in four days of hearings in Chicago,
Los Angeles and Washington, D.C., in
September 1994.12 In addition, more than
1,500 pages of written comments on the Green
Paper and reply comments were filed, in paper
form and through the Internet, by more than
150 individuals and organizations --
representing more than 425,000 members of the
public -- during the comment period, which
extended over four months.13
The Working Group convened a Conference on
Fair Use (CONFU) to bring together copyright
owner and user interests to discuss fair use
issues and, if possible, to develop
guidelines for uses of copyrighted works by
librarians and educators. Some 60 interest
groups are participants in the Conference and
have been meeting regularly since September
1994 in sessions that are open to the public.
The Working Group also kicked off a Copyright
Awareness Campaign (CAC) in March 1995.
Approximately 40 participating individuals
and organizations are coordinating their
educational efforts and joining with the
Working Group and the Department of Education
to raise public awareness of copyright.
Meetings of the Campaign are also open to the
public.
Interested parties had numerous
opportunities to submit their views on the
intellectual property implications of the
development and use of the NII and on the
Working Group's Green Paper, including its
preliminary findings and recommendations.
The open process instituted by the Working
Group resulted in a well-developed,
voluminous record indicating the views of a
wide variety of interested parties, including
various electronic industries, service
providers, the academic, research, library
and legal communities, and individual
creators, copyright owners and users, as well
as the computer software, motion picture,
music, broadcasting, publishing and other
information and entertainment industries.
The special intellectual property concerns
and issues raised by the development and use
of the NII are the subject of this Report.14
It does not, however, provide all of the
answers. It may not even present all of the
questions. There is much that we do not --
and cannot -- now know about how the NII will
develop. Technology is advancing at such an
incredible pace that issues will certainly
continue to arise in the future, perhaps
demanding more comprehensive legislation.
However, because there is much that we do
know, the fact that future developments will
raise additional issues not currently ripe
should not deter us from addressing those
that are.15
_______________________________________________________________________________
| W. Curtiss Priest, Ph.D., Director *********************** |
| Center for Information, Technology, & Society * Improving humanity * |
| * through technology * |
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|+Senior policy & systems analyst, Educational Products Information Exchange |
| (EPIE): over 16,000 K12 educational software products catalogued on CD-ROM |
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