WORKING DRAFT

 This working draft is being circulated for comment as the University prepares for the 105th Congress. Comments should be addressed to martha.winnacker@ucop.edu

Context 

Introduction 

Over the past two years, much thinking about the networked information age has focused on revising intellectual property regimes to regulate technological capabilities that did not exist when current laws were drafted. In the political arena, the Commerce Department issued a White Paper that became the basis for proposed copyright legislation and for proposed new international treaty language. Contrary to initial expectations--and contrary to the claims of its authors that the proposed legislation represented mere technical adjustments to copyright law--these efforts proved to be so contentious that the bills died in committee. At this writing, the treaty language remains pending, and it is anticipated that new copyright bills will be introduced into the next Congress. Before grappling with detailed legislative language, the University of California seeks to articulate a set of broad principles that can be used to guide institutional positioning in the political arena by providing a set of standards against which to evaluate legislative proposals.

 A University perspective

 The core mission of the University of California is to foster the creation and dissemination of knowledge through research, teaching, and public service. To accomplish this task, it is essential that: 

• scholarly communication be rich, multi-directional, and rapid; and that 
• the cumulative documentary record be widely and continuously accessible for reference and use.

These requirements have been well served by the Constitutional balance between private rights and the public good that underlies intellectual property law: "The Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;..." This authority is based on the utilitarian notion that "Authors and Inventors" will be more likely to make their "Writings and Discoveries" public if others are prevented from appropriating their products and thereby depriving them of compensation for their efforts. The alternative is the protection of proprietary information as trade secrets, held under lock and key and prevented from circulation beyond a limited circle of "need to know" initiates--a notion that is incompatible with optimal scholarly communication. Although they derive from the same Constitutional clause, copyright, patent, and trademark are governed by separate bodies of Federal law; trade secrets are left to state statutes. The principles under development here apply to copyright and proposed new protections modeled on copyright. 

Because academic institutions are engaged in the full spectrum of activities regulated by the laws governing copyright and related intellectual properties, they must be sensitive to the balance of interests embodied in them. For example, academic institutions continually broker compromises among faculty, external sponsors, and data seekers over the speed and scope of publication, the deposit of data in archives accessible to others, and the assignment of rights to intellectual properties resulting from research. Such compromises recognize that scholarly communication is promoted by support for research but that sponsors, researchers, and a variety of third parties may have conflicting--and legitimate--needs for publication or protection of results. They also illustrate how critical the balance is for the academic mission.

 As they revolutionize the means by which information is recorded, disseminated, accessed, and stored, digital technologies are eliminating the technical limits that have supplemented the legal framework of balance between ownership and public dissemination: Unlimited technological capacity to disseminate by transmission in ways that can violate the rights of copyright holders confronts equally unlimited technological capacity to prevent works from being used in ways contemplated by law. Carried to its logical extreme, either trend would destroy the balance with results that would likely undermine core academic functions as well as radically transforming the information marketplace.  

Scholarly communication

 Scholarly communication includes: exchange of cutting-edge discoveries and works-in-progress among scholars; publication of new and synthetic works for the broad academic community; dissemination of new and existing knowledge to students through teaching; establishment of repositories to enable handing knowledge down from generation to generation; and transmission of knowledge beyond the academy to the public. It requires the ability to cite and quote the work of others, regardless of format: whereas quotations from text can be manually transcribed, quotations from digital objects may require machine mediation. Scholarly communication involves individuals, academic departments and research units, libraries, archives, university presses, commercial publishers, external research sponsors, academic and industrial software developers and others.  

Because it carries information that ranges from complex graphical and sound data to plain text and must reach an audience that ranges from Nobel scientists to freshmen in remedial courses, scholarly communication must include the full range of content and take place in all media. It must flow back and forth between all of its participants and be capable of moving rapidly enough to contribute to the evolution of understanding and knowledge. It must not be overwhelmed by a permissions system so burdensome that it makes such movement impossible.

 Scholarly communication is based on an ethic of authorship that both compels publication and condemns plagiarism. It demands accurate attribution and respect for the integrity of works while asserting the importance of evaluating and interrogating sources for cumulative advance of knowledge. By promoting trust between authors, owners, and users, adherence to this ethic facilitates the rapid and broad dissemination of information. Academic institutions have developed organizational structures that insulate faculty and students--the core, but not the only, participants in scholarly communication--from direct dependence on economic returns from specific intellectual properties. Instead, they rely first on institutional rewards for their cumulative success in creation and dissemination. The institutions, however, function as both owners and consumers of the intellectual properties that circulate in the process of scholarly communication.

 The documentary record

 New knowledge cannot be created without extensive reference to work already done by others and to the accumulated records of human and natural phenomena. Nor can the accumulated collective knowledge of a society be transmitted intact to succeeding generations without its preservation and organization. Academic libraries and related collecting entities play crucial roles as custodians of the public domain of knowledge and must continue to do so in order to carry out core academic missions. Faced with an exponential increase in the rate at which documentation is growing, libraries and other collecting entities increasingly seek to exploit the unprecedented storage capacities of digital media. Yet the challenge is not merely to find more efficient storage media: increased data creation and storage capacities generate new pressures on systems for preservation and organization.  

Although the functionalities of digital technologies will continue to give rise to practices and relationships that bear little resemblance to those surrounding print, neither novel arrangements nor enhanced capabilities should obscure the fundamental continuity of purpose underlying preservation and organization. The requirements of the academic mission and the accumulation of a cultural heritage do not cease when information and documentation cease to have commercial value and pass out of the marketplace. Hence, relations among copyright holders, academe, and the law must reflect the needs of the future as well as the present and should acknowledge the added value to society of preservation and of well-ordered systems for navigating information.

 Approaches to change

 The University urges that changes in the law be carefully crafted to enhance rather than impede the rich and timely circulation of information as well as its preservation and organization. The University recognizes the difficulty of prescribing a priori practices for  

• digital environment in which commercial and academic practice is still experimental and fluid;
• works as different as software, research reports, textbooks, and fine art;
• a volatile set of technologies for protection, dissemination, and tracking whose implications are often not clear; and
• a wide variety of formats and media.

As a research institution whose faculty work on the frontiers of technological, economic, and legal knowledge, the University of California seeks opportunities for experimentation with new institutional arrangements for managing the dissemination and preservation of knowledge contained in copyrighted and public-domain works. It seeks a legislative and economic environment that fosters collaboration and a search for consensus rather than confrontation and litigation.

Principles 

The University of California approaches pending changes in copyright and neighboring intellectual property law with the overriding conviction that it is in the interest of the evolving U.S. information society that the legal environment foster rather than disrupt the balance between private intellectual property owners and the public good that is embodied in current law.

 1. Copyright law provisions for digital works should maintain a balance between the interests of copyright owners and the public that is equivalent to that embodied in current statute. The existing legal balance is consonant with the academic ethic of responsible use of intellectual properties, promotes the free exchange of ideas, and protects the economic interests of copyright holders.

Intellectual property is a significant form of social capital, whose growth depends on its circulation, exploitation, and use. As a major arena in which intellectual property is created and disseminated, academic institutions have nurtured a non-market ethic of intellectual property based on  

• respect for the rights of creators and copyright owners;
• accurate attribution and respect for integrity; 
• guarantees of preservation; and  
• promotion of dissemination and access.

This ethic complements the provisions of copyright law, which provide one form of protection for certain kinds of intellectual properties and a framework for their dissemination that encompasses all sectors of society, including both market and non-market transactions.  

Existing copyright law recognizes the tension between the needs of society and the rights of creators by permitting a defense against charges of infringement on the grounds of fair use of copyrighted works for non-commercial educational and research purposes. It also affirmatively permits libraries to reproduce copyrighted works under certain conditions for preservation and archiving purposes, and it permits specified activities on behalf of the blind. Equivalent qualification of owners' rights should be extended into the digital environment with appropriate safeguards against abuse. 

• These principles should be independent of particular technologies. Current statutory language embodies some of them in detailed prescriptions for specific practices in the print, tape, and broadcast environment. These are based on the print context in which the same object--a copy--is used to store, distribute, and use a work, and the simultaneous performance of more than one function (e.g., storage and distribution) requires the creation of more than one copy. In the digital environment, storage, distribution, and use are accomplished by algorithms instead of copies, and practices sanctioned by law in the paper environment may have significant unintended consequences. Accordingly, legislative efforts to extend print practices into the digital environment should focus on objectives rather than on strictly analogous practices.

2. Copyright law should foster the maintenance of a viable economic framework of relations between owners and users of copyrighted works. 

The rich and timely circulation of information--regardless of whether it is contained in physical or electronic media--underlies the academic mission. It depends upon a viable publishing industry to promote communication across institutional and disciplinary boundaries and upon a sustainable library system to store, preserve, organize and provide access to information.  

• To this end, the University supports the use of copyright ownership to enable publishers and creators to secure reasonable returns on investments in intellectual products and sustain their enterprise.  
• Copyright law should encourage a reasonable balance between the cost of permission seeking and the use for which permission is sought. 
• The University opposes extensions of copyright protection that would suppress fair competition or allow monopolies to prevent users from accessing and using information in an economical and convenient form.  
• Under existing law, the doctrine of first sale permits the legal purchaser of a copy of a work to dispose of it in any way the purchaser wishes, including reselling, lending, or giving it to others. The ability of libraries to lend is based on this doctrine. Because digital works can be instantly reproduced and transmitted--e.g., by posting on a Web site for browsing--while an "original copy" is retained, many copyright owners fear that extension of first sale rights into the digital environment will destroy their markets. Some have sought to protect their products by asserting that they are licensed rather than sold and that they can be used only as the license prescribes. Concerned that license restrictions will prohibit the digital equivalent of examining the contents of or borrowing a book or journal without purchase, some libraries argue that a digital first sale equivalent is essential to the teaching and research enterprise. Emerging technologies not yet in the commercial marketplace may provide means of simulating first sale conditions with "envelope" or "lockbox" software, but it is not yet possible to predict whether they can be applied in desirable ways that are acceptable to consumers. Debate over whether and how the first sale doctrine should be applied to digital works is ongoing. Its resolution is likely to involve a complex combination of technical, legal, and business measures.

3. Copyright laws should encourage enhanced ease of compliance rather than increasingly punitive enforcement measures. 

The law should create an environment that provides incentives for simplified rights clearance and payment while preserving the principle of fair use contained in current law. Burdensome and inconclusive permissions systems may stifle dissemination of copyrighted works or encourage widespread violation of the law, as may undue constriction of fair use exemptions. In extending copyright law and practice to the digital environment, care should be taken that the creation of new rights does not become a disincentive to the circulation of information.  

• Copyright law should provide a framework for voluntary contractual agreements that both provide fair returns to copyright owners and create incentives for broad dissemination of information. The law should not permit such contracts to abrogate fundamental legal guarantees, however. 
• The law should permit the fair use defense in a contractual environment while encouraging the application of fair use principles to digital works in a manner that maintains respect for the rights of copyright owners consistent with the provisions of current statute. 
• The development and use of automated rights tracking, security technologies, and licensing mechanisms may reduce incentives for many kinds of infringement while simultaneously facilitating enhanced access to copyrighted works of others. Copyright law should encourage such innovations.  
• Careful consideration should be given to the advantages and disadvantages of compulsory licensing schemes which require copyright owners to permit certain kinds of uses of their properties and automatically collect fees to pay for such use. Compulsory licensing provisions are already in effect for the broadcast of audio recordings of music. Broader application of this concept has not been thoroughly discussed, and it is premature to advocate for or against such a system for digital works.

4. Copyright law should promote the maintenance of a robust public domain for intellectual properties as a necessary condition for maintaining our intellectual and cultural heritage. 

The public domain is an intellectual commons that is the essential foundation for an informed and participatory society. It is critical for education, research, and the creation of new knowledge. With copyright terms extending for periods that can exceed 100 years (life of the author plus 50 years), the digital format in which a work is first fixed is likely to become obsolete long before the copyright expires. Security technologies used to protect copyrighted works from unauthorized use will exacerbate this danger if provision is not made for "unlocking" the work at the appropriate time. 

• Copyright law should assure that new technologies do not impede the passage of works into the public domain as contemplated by current law.
• Information created by governments and public agencies should reside in the public domain as they do under current law. 
• Privately created works that have passed a certain age should reside in the public domain as they do under current law. 
• Copyright terms should expire on dates that are certain and easy to determine.  
• Copyright law should facilitate preservation and migration to new media as technologies change. The University encourages a distinction between activities necessary for preservation and storage and activities to provide access to copyrighted works. Because technology evolves rapidly, the statutes and regulations governing preservation and storage should be flexible enough to apply to successive generations of technology.

5. Facts should be treated as belonging to the public domain as they are under current law. 

The academic mission requires that all who are engaged in it be able to examine and analyze facts without restriction. Legislative measures to protect the legitimate interests of database creators should rest on the presumption that facts cannot be treated as property.

6. Copyright law should assure that respect for personal privacy is incorporated into access and rights management systems. 

Academic freedom and the Constitutional guarantees of freedom of thought, association, and speech require that individual privacy be respected. In the print environment, individuals may examine works in libraries and examine and purchase them in sales outlets without leaving records of their identities. The University urges that legislation be crafted to assure that the rights of individuals to access copyrighted works without recording personal identities are comparably protected in the digital environment.

7. Copyright law should uphold the principle that liability for infringing activity rests with the infringing party rather than with third parties. Institutions should accept responsibility for acts undertaken at their behest by individuals but should not be held liable for the acts of individuals--whether or not associated with the institution--acting independently. This principle is an essential underpinning for academic freedom.  

The creation and dissemination of knowledge depends on a community of individuals who develop their own scholarly investigations and syntheses. As a condition for sustaining such a community, the University upholds the tenets of academic freedom, including freedom of speech and rejection of prior restraint. The University opposes copyright legislation that would make institutions liable for the acts of individuals acting on their own initiative or would impose prior censorship. Copyright enforcement provisions should uphold principles of due process in determining whether specific allegations of infringement are valid. The University accepts responsibility for establishing policies and creating a climate in which all those who use its facilities and resources use copyrighted materials appropriately.

8. Academic institutions should foster a climate of institutional respect for intellectual property rights by providing appropriate information to all members of the academic community and assuring that appropriate resources are available for clearing rights attached to materials to be used by the institution, e.g., in support of distance learning.  

As creators and repositories of vast amounts of intellectual property, academic institutions have both a responsibility and a need to assure that their own institutional practices conform to the requirements of intellectual property law and that their constituencies are well informed about their responsibilities. Institutional practices should set high standards for compliance and can serve as an educational tool for heightening the consciousness of individuals within the academic community of what the law demands. Assurance that institutional practices are fully aligned with legal requirements will strengthen the position of academic entities in negotiating legislative and contractual conditions.

9. New rights and protections should be created cautiously and only so far as experience proves necessary to meet the Constitutional provision for a limited monopoly to promote the "Progress of Science and useful Arts."  

Sui generis protections should be considered with extreme care and only after an adequate body of case law has accumulated to define the dimensions of what is at stake. Extension of copyright to new classes of works should be regarded with skepticism until it is demonstrated that the extension affirms the traditional balance between owners and users, and care should be taken to consider whether other bodies of law might be more appropriate vehicles for the protection sought and what the consequences of such applications might be. Complex and high-stake issues are raised by the recent extension of patent law protections to software and genetic sequences.

10. Copyright enforcement provisions should not hinder research simply because the products of a line of inquiry might be used in support of infringing activity. 

While the law should provide penalties for acts of infringement, attempts to criminalize the possession or acquisition of technologies or devices that might be used for illegal purposes will sweep with too broad a broom. Both applied and basic research related to encryption technologies and computer science may require that researchers be able to obtain state-of-the-art devices in order to participate in the creation of new knowledge. Moreover. decryption technologies may be necessary to place works in the public domain at the expiration of copyrights. Legal sanctions should be reserved for those activities that violate or directly support violation of the law.