Intellectual property is a subtle and esoteric area of the law that evolves in response to technological change.[4] Copyright law, in particular, responds to technological challenges for authors and copyright owners, from Gutenberg's moveable type printing press to digital audio recorders, and everything in between--photocopiers, radio, television, videocassette recorders, cable television and satellites. The use of computer technology--such as digitization--and communications technology--such as fiber optic cable--has had an enormous impact on the creation, reproduction and dissemination of copyrighted works. The development of the National Information Infrastructure will merge computer and communications technology into an integrated information technology, and will generate both unprecedented challenges and important opportunities for the copyright marketplace.

A national information infrastructure already exists. Telephones, televisions, radios, computers and fax machines are used every day to receive, store, process, perform, display and transmit data, text, voice, sound and images in homes and businesses throughout the country. Fiber optics, wires, cables, switches, routers, microwave networks, satellites and other communications technologies connect telephones to telephones, computers to computers, and fax machines to fax machines. The NII of tomorrow will be much more than these separate communications networks; it will integrate them into an advanced high-speed, interactive, broadband, digital communications system. Computers, telephones, televisions, radios, fax machines, and more will be linked by the NII and will be able to communicate and interact with other computers, telephones, televisions, radios, fax machines and more--all in digital format.[5]

The NII has great potential to increase access to information and entertainment resources that will be delivered quickly and economically anywhere in the country in the blink of an eye. For instance, hundreds of channels of "television" programming, thousands of musical recordings, and literally millions of "magazines" and "books" can be made available to homes and businesses across the United States and, eventually, the world.[6] It can improve the nation's educational and health care systems. It can enhance the ability of U.S. firms to compete and succeed in the global economy, generating more jobs for Americans. New job opportunities can also be created in the processing, organizing, packaging and dissemination of the information and entertainment products flowing through the NII.

Yet, the potential of the NII will not be realized if the information and entertainment products protectible by intellectual property laws are not protected effectively when disseminated via the NII. Owners of intellectual property rights will not be willing to put their interests at risk if appropriate systems--both in the U.S. and internationally--are not in place to permit them to set and enforce the terms and conditions under which their works are made available in the NII environment. Likewise, the public will not use the services available on the NII and generate the market necessary for its success unless access to a wide variety of works is provided under equitable and reasonable terms and conditions, and the integrity of those works is assured. All the computers, telephones, fax machines, scanners, cameras, keyboards, televisions, monitors, printers, switches, routers, wires, cables, networks and satellites in the world will not create a successful NII, if there is not content. What will drive the NII is the content moving through it.

The development of the NII is obviously neither the first nor the last technological challenge to copyright owners' ability to prevent unauthorized uses of their works.[7] For instance, the advent of the photocopying machine caused great apprehension among copyright owners of printed works.[8] But time, cost and quality were on the copyright owner's side. It was, and still is, more efficient and cheaper to buy an extra copy of most books than to photocopy them--and the quality of a book from the original publisher is typically higher than that of a photocopy. The introduction of audio tape recorders also posed problems for copyright owners. But again, the physical attributes of the work made reproductions cheaper, but lower in quality--until, of course, the introduction of digital audio recorders, which reproduce sound recordings both cheaply and with no degradation of sound quality. Congress responded to this threat to sound recordings with enactment of the Audio Home Recording Act of 1992, which combined legal and technological safeguards.[9]

Advances in digital technology and the rapid development of electronic networks and other communications technologies raise the stakes considerably. Any two-dimensional work can readily be "digitized"--i.e., translated into digital code (a series of zeros and ones). The work can then be stored and used in that digital format. This dramatically increases: the ease and speed with which a work can be reproduced; the quality of the copies (both the first and the hundredth "generation"); the ability to manipulate and change the work; and the speed with which copies (authorized and unauthorized) can be "delivered" to the public. Works also can be combined easily with other works into a single medium, such as a CD-ROM, which is causing a blurring of the lines that typically divide types of works.

The establishment of high-speed, high-capacity electronic information systems makes it possible for one individual, with a few key strokes, to deliver perfect copies of digitized works to scores of other individuals--or to upload a copy to a bulletin board or other service where thousands of individuals can download it or print unlimited "hard" copies on paper or disks. The emergence of integrated information technology is dramatically changing, and will continue to change, how people and businesses deal in information and entertainment products and services, and how works are created, owned, distributed, reproduced, displayed, performed, licensed, managed, presented, organized, sold, accessed, used, and stored. This leads, understandably, to a call for change in the law.

Thomas Jefferson stated:

I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand and hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy . . . .[10]

Our task is to determine whether the coat still fits in this new information age.

Our intellectual property regime must (1) recognize the legitimate rights and commercial expectations of persons and entities whose works are used in the NII environment, whether at their instance or without their permission, and (2) ensure that users have access to the broadest feasible variety of works on terms and conditions that, in the language of the Constitution, "promote the progress of science and the useful arts."[11]

For more than two centuries copyright law, with periodic amendment, has provided protection for an increasing variety of works of authorship. The most recent complete revision of the law--The Copyright Act of 1976--was enacted in response to "significant changes in technology [that had] affected the operation of the copyright law."[12] The legislative history of the 1976 Act noted that those changes had "generated new industries and new methods for the reproduction and dissemination of copyrighted works, and the business relations between authors and users have evolved new patterns."[13]

We are once again faced with significant changes in technology, and views on the appropriate response to these changes vary widely. There are some who argue that the Copyright Act is adequate without any modification. Others suggest that a complete overhaul of the intellectual property regime is in order.[14] We believe that with no more than minor clarification and amendment, the Copyright Act, like the Patent Act, will provide the necessary protection of rights--and limitations on those rights--to promote the progress of science and the useful arts. There must be, however, effort in three disciplines--the law, technology and education--to successfully resolve the intellectual property issues raised by the development and use of the NII.

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