The American public has traditionally enjoyed the ability to make convenience and incidental copies of copyrighted works without the necessity of obtaining the prior consent of the owner of the copyright. These traditional "fair use" rights are at the foundation of the receipt and use of information by the American public.
From the college student who photocopies a page from a library book for use in writing a report to the typical television viewer who records a broadcast for viewing at a later time to the prudent home computer owner who makes back-up copies of the information he has lawfully stored on his hard drive, we all depend on the ability to make limited copies of copyrighted material without having to pay a fee or obtain prior approval from the owner of the copyright prior to making the copy.
In fact fair use rights to obtain and use a wide array of information are essential to the exercise of First Amendment rights. The very vibrancy of our democracy is dependent on the information availability and use facilitated by the Fair Use Doctrine.
The time, in my view, has come for the Congress to reaffirm the Fair Use Doctrine and to bolster specific fair use rights which are now at risk.
In 1998, responding to the concerns of copyright owners, Congress passed the Digital Millennium Copyright Act. Its announced purpose was to protect from piracy copyrighted material in an environment which poses special concerns for copyright owners. The copyright owners made the valid point that unlike analog technology in which each successive copy degrades in quality, with digital technology a copy of a copy of a copy contains the same clarity and integrity as the original of the work. They also made the valid point that in the networked environment, perfect copies by the thousands can be sent simultaneously across the globe with a single click of a computer mouse. Copyright owners urged that the Congress provide greater protections to them to guard against piracy of copyrighted works in the digital networked era.
The Digital Millennium Copyright Act is the Congressional response to these realities. There are some who believe that it went too far and that in the extension of new protections to copyright owners that it placed in peril the traditional fair use rights of the users of information.
For example, it creates in Section 1201 (a) a new crime of circumventing a technological protection measure which guards access to a copyrighted work. Under Section 1201, the purpose of the circumvention is immaterial. It is a crime to circumvent a password or other gateway even for the purpose of exercising fair use rights. There is no requirement under Section 1201 that the circumvention be for the purpose of infringing a copyright. Any action of circumvention without the consent of the copyright owner is made criminal by this provision.
Some now foresee a time when through the operation of Section 1201 what is available for free on library shelves today may only be available in the future on a "pay per use" basis. A time will arrive when virtually all new material will be sent to libraries on CD-Roms. That material may easily be guarded by a password, which under the provisions of Section 1201(a) would qualify as a "technological protection measure." In exchange for a fee for each viewing, the password may be used. It would be a simple matter for the creator of the content to impose a requirement that a small fee be paid each time the copyrighted work is accessed by library patrons. Under this scenario, the most recently arrived library material would be available only on a pay per use basis. The student who wants even the most basic access to material to write his term paper would have to pay for each item he reads.
Several members of Congress made the effort in 1998 to limit the new crime under Section 1201 to circumvention for the purpose of infringing the copyright, but the momentum to enact the measure essentially unamended was too strong, and our effort fell short. With a growing realization on the part of the education community and supporters of libraries of the threat to fair use rights which Section 1201 poses, perhaps the time will soon come for a Congressional re-examination of this provision and for the assemblage of a national effort of sufficient size and intensity to enable a much needed modification of the provisions of Section 1201 (a) to occur.
Perhaps the only conduct which should be declared criminal is circumvention for the purpose of infringing the copyright. Perhaps a more limited amendment could be crafted to insure the continued exercise of fair use rights in libraries and in scholastic settings notwithstanding the provisions of Section 1201.
And there are other challenges.
I am concerned about the apparent attempt of some in the content community who are seeking to protect their copyright interests in material contained in digitally broadcast television programs by insisting that the television signal quality be degraded or by insisting on the use of set- top box technology which could potentially prohibit all copying. The reasonable expectations of television viewers to be able to make home recordings of programs for time shifting and other historically accepted purposes are now placed at risk.
There is a way to protect copyrights in digitally broadcast programs and to permit television viewers to make copies of television programs for home use. The model is contained in Section 1201 (k) of the Digital Millennium Copyright Act which was designed for analog television broadcasts.
The Section requires video cassette recorders to respond to Macrovision, a copy prevention technology, and to block copying of rental movies encoded with Macrovision. In exchange for this statutory mandate, viewers are granted the right to make unlimited copies of off-the-air television broadcasts and one copy for time shifting purposes of pay per view movies which may only be purchased at specific times.
Where there is no reasonable expectation of being able to make a copy, such as in the case of a movie rented from a video store, the VCR will block all copying in its response to Macrovision encoding.
This arrangement for the world of analog broadcasts offers a model for resolution of the present debate over how to protect copyrights associated with digital broadcasts. In exchange for a reasonable set of guaranteed home recording rights, along the lines of Section 1201 (k), I am hopeful that an arrangement can be achieved through a negotiated agreement to employ in the video stream watermarks or other encodings which would prevent copying that is inconsistent with the recording rules and to require that recording equipment recognize and respond to the encoding. Such an agreement should extend to all digital TV programming whether it is delivered by cable, satellite or over the air.
The time has come for the motion picture studios to present a proposal along these lines to the manufacturers of recording equipment. There is an urgent need for an agreement which will simultaneously protect copyrights and the home recording rights of television viewers.
In the meantime, I hope that the creative community will not attempt unilateral approaches to protecting content which would either defeat home recording rights or degrade the quality of digital broadcasts.
Congress should also reaffirm fair use principles in other specific areas:
Traditional distance learning applications use broadcast and closed circuit television, and a special copyright exemption accommodates these educational broadcasts. Today, a new era of distance learning has arrived in which personal computers and the Internet are replacing the television set and closed circuit systems as the delivery medium. The copyright exemption should be broadened to include the new technology and to expand to the home the setting in which distance learning can occur.
1. The First Sale Doctrine should be made applicable to on-line sales accompanied by downloads of the purchased material. Under current law, a book or CD purchased in a "bricks and mortar" store can be given to a friend or sold to another person without obtaining the consent of the copyright owner. The key to the permissibility of the transaction is that at any given point in time only one copy of the material is extant. The same principle should apply to material downloaded from the Internet. The technology exists to enable the transfer of a downloaded item to a third party with the simultaneous deletion of the material from the hard drive of the individual who is transferring it. The analogy to the transaction I previously described in the physical world is exact, and the First Sale Doctrine should be extended to apply to the on- line experience with equal force.
2. Given the architecture of the Internet and personal Computers, the simple act of viewing a downloaded image, listening to webcasting, or sending an e-mail message creates an incidental or temporary reproduction, and many consumer electronics products temporarily store bits, representing audio clips or audio visual works in a buffer as part of their normal operation. These temporary copies, which are essential to the operation of digital products and networks, should be made unequivocally lawful under the copyright law.
3. Current law permits a computer user to make back-up copies of software so that the program can be restored in the event of a hard disk crash. But current law does not permit an archival copy to be made of copyrighted data associated with the program. For example, under current law, the software which enables the recording on a hard drive of music lawfully downloaded from the Internet can be archived for back-up purposes. However, the music which was lawfully downloaded cannot be archived. In the event of a hard disk crash, the purchaser of the music would be required to go back to the seller and purchase another copy. The current exemption permitting the archive of software should be expanded to permit the archive of any copyrighted data which is lawfully acquired and is associated with the software.
4. The in store exemption for music sampling should be expanded to cover samples of music which are accessed over the Internet for purposes of determining whether or not to make a purchase of the music. Under the current in store exemption, bricks and mortar stores are able to share with their customers samples of recorded music, and millions of Americans routinely put on headphones in record stores and listen to the music before they purchase it. The same opportunity should be provided for sales accomplished over the Internet. Brief samples of recorded music should be made available without the need to obtain the permission of the owners of the music copyrights.
5. Purchasers of audio CDs should be able to contract with on -line services for the storage of music on the CDs they have purchased which they can access over the Internet at a time and place of their choosing. The misic would be stored in an on-line locker specific to each subscriber. Today, people physically carry their CDs from their home to their car to their office to a friend’s home for the purpose of listening to the music they have purchased. The Internet offers the opportunity for enhanced convenience by enabling people to leave their CDs at home and have access to their music by downstream from an on- line locker at any location where they can obtain Internet access. The owners of music copyrights are fully compensated, in this example, when the individual purchases the CD at the outset. He should then have complete freedom without interference from the copyright owner to access the music on that CD over the Internet at a time and place of his choosing.
This are [sic] some of the steps which taken together would constitute an appropriate reaffirmation of fair use rights for consumers, and I look forward to the time in the very near future when the attention of Congress will turn to the need through these and potentially other steps to create a better balance between the rights of copyright owners and the rights of the users of copyrighted information.