Electronic intellectual property rights

Throughout the time I’ve been groping around cyberspace, an immense, unsolved conundrum has remained at the root of nearly every legal, ethical, governmental, and social vexation to be found in the Virtual World. I refer to the problem of digitized property. The enigma is this: If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving our possession, how can we protect it? How are we going to get paid for the work we do with our minds? And, if we can’t get paid, what will assure the continued creation and distribution of such work?

John Perry Barlow (1994)

Managing intellectual property rights and benefits in the electronic environment are more complex that most countries’ legal systems are currently prepared for. A number of factors are responsible for this challenge:

The aim of researchers and scholars and of the organizations employing them is to advance knowledge and serve the public good. However, many new creations and discoveries result from this work that are subject to, or eligible for, intellectual property protection. The management and ownership of such intellectual property, consistent with the teaching, research, and service missions of universities and other such public institutions are important to both the university and the creator. Such products are also created in the commercial domain. Inventions that pass the standards for uniqueness and utility are generally protected by patents within their country of origin and where ever else the inventor chose to register it. Copyright protection is secured for limited times to authors and inventors allowing the exclusive right to their respective writings and discoveries. These exclusive rights generally include the rights of reproduction, preparation of derivative works, distribution, public performance, and public display.

Those who invest in the creation of a valuable commodity generally do so expecting some recompense for their effort. Intellectual property laws supply the barriers to consumption that intellectual goods lack. Patent, copyright, and trade secret laws create intellectual property rights, imposing legal and financial penalties for appropriating an intellectual good without the owner’s permission. Because the developer of an intellectual good can use the intellectual property right to exclude consumers, the developer can expect a return on his investment, and so the production of valuable and useful intellectual goods is encouraged. These legal barriers will become increasingly important in the context of global computer networks such as the Internet. Burke (1994) elegantly describes the dilemma of balancing private and public interests in the dissemination of intellectual property:

“the legal issues raised by computer networks will be predictable extensions of those raised by print, magnetic, and broadcast media. However, every medium displays its own unique characteristics, requiring some accommodation in the law. In the case of computer networks, such idiosyncrasies will include a subtle but important shift in the pattern of incentives related to proprietary information. Intellectual property laws exist because of the unusual intangible nature of valuable information. Knowledge and information may be created as a pure intellectual good, or embodied to some degree in a physical form, such as text, pictures, or even as a machine. Such intellectual goods may have considerable value, as evidenced by enormous revenues of the motion picture, recording, or computer software industries.”

Copyright

The World Intellectual Property Organization (WIPO) is responsible for the promotion of the protection of intellectual property throughout the world, and is a specialized agency of the United Nations system of organizations. Copyright laws differ among various countries but digital copyright involving international ownership and/or connectivity are ever more common. Thus not only the United States, but much of the world will be affected by the NII enterprise.

Information regarding copyright around the world can be found at the WIPO web site (http://www.wipo.org/), especially the important WIPO World Intellectual Property Organization Diplomatic Conference in Geneva on December 2 to 20, 1996. Both preparatory and final documents can be read at http://lcweb.loc.gov/copyright/wipo/. There is also a comprehensive bibliography of resources, including international references, at the Copyright and Intellectual Property Resources web site compiled by the International Federation of Library Associations and Institutions (IFLA) at http://www.ifla.org/II/cpyright.htm, and at the Compiler Press’ Compleat World Copyright Website at http://www.compilerpress.atfreeweb.com/.

Latin American policies are conspicuously missing from the resource list as there are currently so few existing laws and policies although many countries are creating legal instruments to protect their intellectual property.

In the United States the intellectual property issues in the electronic environment described above resulted in a major revision of copyright laws. In October of 1998 President Clinton signed into law the Digital Millenium Copyright Act of 1998 (DMCA).

Helpful web sites include: US Copyright Office http://lcweb.loc.gov/copyright/ and Title 17 of the United States Code http://www4.law.cornell.edu/uscode/17/index.html and at the National Education Associations site http://www.nea.org/he/abouthe/intelprop.html. A more complete list of sites are also listed in the resource section at the end of the chapter.

Briefly, what did this new law do? Title II of the DMCA created a new section 512 of the Copyright Act, which provides some immunity for Internet service providers (ISPs) if certain conditions are met. The ISP must

Another section, 512(e), created special protection for nonprofit educational ISPs such as universities, for instance, when a faculty member or graduate student employee infringes a copyright in the course of “performing a teaching or research function.”

The conditions attached to this special protection are that:

1. The faculty member or graduate student employee’s infringing activities do not involve providing online access to instructional materials required or recommended for a course taught at the institution by the employee within the preceding three years (i.e. the work must be fresh)

2. The institution within the preceding three years received no more than two notifications of claimed infringement by the employee

3. The institution provides all users with information describing and promoting compliance with copyright. With respect to this last item, the legislative history makes it clear that an ISP may comply by providing access to guidelines or other materials prepared by the Register of Copyrights.

The DMCA includes an ongoing process. Section 403 requires that the Copyright Office consult with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives. The Office then has to submit to the US Congress no later than April 28, 1999, recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the interests of users. Such recommendations may include legislative changes.

Linking web sites and copyright

The issue of linking web sites to form a permanent collection of ideas, concepts, principles, and the like, involves unusual copyright issues. Hillis (1998) provides an excellent discussion about the legal issues of, mostly US, Internet linking. This topic is too complex to do justice to it here.

Distance education

The creation of distance learning courses is subject to the same copyright laws as any other work, however, distance education forces transformational changes on higher education and the intellectual property issues may not be controlled by the traditional structures or providers of education services or by traditional academic policies. As well, the technology used to create, record and transmit distance learning materials present new challenges. Capone (1999) states that

“The explosion of distance learning programs is changing not only the fundamental paradigms of how higher education is delivered, but also the traditional notions of how courses are created and owned. Traditionally, institutions of higher education have relinquished to their faculties any claim to the intellectual property rights in course materials (usually textbooks) created on campus. This has been done partly as an incentive and partly because the economic value of those rights has generally been small [but] Unlike traditional courses, distance learning offerings require a much greater investment of institutional resources and, like patentable inventions, bear a much greater market potential. For this reason, institutions of higher education are beginning to reevaluate their copyright policies, and a new debate between faculty and administration is taking shape.”

The strategy of many universities is to educate faculty about the issues and to write polices and contracts that answer the questions that faculty and libraries have. Excellent discussions are provided by the American Council on Education (2000) and the American Association of University Professors (1997). Examples of policies can be found at http://www.uncg.edu/tlc/ip.html, at the Distance Education Clearinghouse’s section on intellectual property http://www.uwex.edu/disted/intprop.html and the excellent site of the American Distance Education Consortium http://www.adec.edu/user/copyright.html.