SCN: Copyright

[Steve]

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(Atlantic Monthly)---P. Bernt Hugenholtz is the co-director of the Institute for 
Information Law at the University of Amsterdam and head of the Intellectual 
Property Task Force of the Legal Advisory Board of the European 
Commission. 

Since receiving his law degree at the University of Groningen, Hugenholtz 
has written numerous books, studies, and articles on a range of topics 
involving copyright and information technology, notably on the protection of 
computer software and databases, and copyright problems relating to the 
Internet and the emerging networked world. Although he is a strong 
advocate of copyright, Hugenholtz in recent years has warned that efforts to 
protect copyright on the Internet are going too far too fast. In an e-mail 
exchange, The Atlantic Monthly's Charles C. Mann asked him to describe 
what worried him.


CCM:  You've described how the "fear and greed" of copyright holders and 
content users are interacting to push publishers to impose ever more 
restrictions on the freedom of readers and listeners and to push users to 
copy ever more material without paying for it. What consequences are you 
most worried about?  


(PBH):  I'm not worried about rightsholders enforcing copyright against 
pirates or other unauthorized users, either online or offline. Taking down 
Web sites containing illegal MP3s or other pirated content is a perfectly 
legitimate thing to do. I'm not even worried about enjoining Napster or 
similar intermediaries from being instrumental in the mass-scale swapping 
of illegal content. In fact, the Napster injunction came as no surprise to me.  

What does worry me is the ongoing tendency of copyright to proliferate, to 
become overprotective. In the old days of analog media (say, five years 
ago) the copyright monopoly was limited to acts of exploitation -- book 
publishing, public performance, broadcasting, etc. In the digital 
environment, because acts of usage necessarily involve some sort of 
digital copying, the monopoly has expanded to include every conceivable 
act of transmitting, viewing, receiving, or simply using a copyrighted work. 
In the old days, reading a book and listening to music were irrelevant acts 
(from a copyright perspective). In the digital environment, this has changed 
fundamentally -- and in so doing the balance between copyright and 
freedom of expression and information is undermined.  

And there's more reason for concern. The potential of using "code" 
(information technology) and contracts as substitutes or add-ons to 
copyright threatens to further erode existing freedoms. In a nightmare 
scenario, conditions of use preprogrammed into information products will 
largely determine what end users may or may not do. Even if, for example, 
the law would recognize a right to use samples of a musical work for the 
purpose of quotation or criticism, the code/contract layer would effectively 
prevent such legitimate use. If this scenario becomes reality, not only will 
all forms of piracy be eradicated, but what little is left of freedom of 
expression will be as well. It is one of the great challenges of modern-day 
copyright law not to throw away the baby with the bathwater.  


CCM:  You're saying that because reading something online or playing a 
music or video file necessarily involves making copies on a computer's 
hard disk and in its RAM that suddenly laws about copyright come into play 
when you're simply reading or listening -- a situation that would have been 
unimaginable before. 

Similarly, you're arguing that the kind of click-on licenses customary in the 
online world have worrisome implications, because the licenses may, for 
instance, prohibit people from sharing or lending digital texts and 
recordings in the way that they now can share or lend books and compact 
discs. 

But what is the legal basis for such fears? In the United States, for instance, 
people have rights to "fair use" that are provided by federal law. Wouldn't 
those rights simply override the restrictions imposed by click-on licenses? 
Wouldn't I more or less automatically have the right to make the digital 
copies necessary to read an online book I lawfully purchased or borrowed?  


PBH:  The relationship between copyright exemptions (such as fair use) and 
contract law is a very difficult, and as yet largely unresolved, legal issue. 
The copyright laws do not tell us whether it is possible to "contract around" 
(i.e., override by license) the user freedoms the copyright laws provide.  

Various legal doctrines may play a role. First, preemption: federal statutes 
may not be undermined by state law. Since copyright law in the U.S. is a 
federal prerogative, and contract law is largely a matter for the states, you 
could argue that federal copyright exemptions prevail, by definition, over 
the more restrictive terms of a state license. Second, fundamental rights or 
public interest considerations: one might argue that certain user freedoms 
reflect fundamental freedoms or other values of such general public interest 
that they may not be "contracted away." This has been expressly 
recognized in the otherwise rather "license-friendly" Uniform Computer 
Information Transactions Act (UCITA) [which is presently under 
consideration in many state legislatures in the U.S.]. Freedom of speech is 
an example of such a fundamental freedom. I think we would all agree that a 
license preventing users from reviewing or criticizing an information 
product would be invalid.  

Still, there's nothing in the Copyright Act to indicate that exemptions are 
indeed mandatory, not merely default rules. The European directives on 
computer programs and databases are unique in that they do provide for a 
set of non-overridable user freedoms, such as the right to make back-up 
copies, to study and even reverse engineer a program, etc. From a user's 
perspective Belgium is paradise; here, due to a recent amendment that 
went largely unnoticed, all copyright limitations are declared mandatory.  


CCM:  I didn't know that. In this country the Digital Millennium Copyright Act 
(DMCA) prohibits people from going around "technological measures" that 
publishers take to protect their copyrights. Many free-speech activists 
believe that this will inhibit people's freedom -- they point to the current 
DeCSS litigation, in which some volunteer programmers tried to make 
software to play their lawfully acquired DVDs on their computers and were 
sued by the motion picture studios. (The plaintiffs use the Linux operating 
system, which doesn't have any DVD software, so they were trying to write 
their own.) Does the Belgian law mean that you simply can't prohibit certain 
user freedoms? What would that mean for the DMCA? Can Americans go to 
Belgium to ignore it?  


PBH:  I'm not advocating the Belgian solution as a model. In fact, I don't 
believe all exemptions should be made non-overridable. For example, 
under existing U.S. copyright law many bars and restaurants are exempted 
from paying royalties for music performed (over the radio) on their premises 
-- a typical example of an exemption which was lobbied into the Copyright 
Act by a powerful pressure group. What if a restaurant owner would 
voluntarily agree to pay royalties, say, as part of a larger licensing package 
that would involve other uses as well? I don't see why such an agreement 
would have to be invalid.  

The point is: some exemptions are more important than others. Depending 
on the rationale of a particular exemption, it may or may not be overridable. 
 
Also, making all copyright exemptions non-overridable wouldn't solve all 
our free-speech concerns. We would still be faced with the threat of "code" 
(technological measures) preventing users from performing acts of 
legitimate use, or invoking copyright exemptions in practice. The code 
versus exemptions debate is at the heart of the DMCA controversy.  

A similar debate is currently heating up in Europe in the context of the 
forthcoming European Copyright Directive. According to the latest draft, 
which was adopted by the Member States in June but still awaits approval 
by the European Parliament, [European Union] member states may take 
certain pro-active measures if it turns out technological measures would 
prevent legitimate users from invoking copyright exemptions. What 
measures, the Directive doesn't tell us. Perhaps publishers will be 
compelled to deposit unencrypted copies of technologically protected works 
at national libraries or archives for public inspection. Maybe publishers will 
have to supply unencrypted copies on demand of legitimate users. We'll 
have to see how the member states will implement the directive in the 
years to come.   

Copyright 2000 by The Atlantic Monthly Company.





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