The Legal Foundation for Electronic Information: How Will It Affect Scientists?

by Ronald Wigington

This is an attempt to understand and explain the principles, intricacies, status, and trends of the legal foundation affecting electronically networked information as they will affect natural scientists in their work. It is not intended as a comprehensive legal analysis. For an extensive treatment of legal issues see the 1997 National Research Council study.[1]

Twenty years is long enough for many things to change dramatically. We cannot be assured that a basis that can be described today will be valid over that period, considering technological matters, economic conditions or geopolitics. We certainly can anticipate many improvements in things we now know about, but it is much more difficult to anticipate "sea change" effects that may have more impact on us than an extrapolation of visible trends.

What does seem clear, however, is that, over the next 20 years, the dominance of electronic forms and methods will become complete for exchange and use of scientific and technical information.

A primary contributor to this trend is the Internet and its evolution or successors, and the Internet is changing from an institutionally-supported science and computer technology tool, which enhances and accelerates the ability to carry out scholarly work, to a commercial marketplace. The relatively uninhibited, self-regulated, institutionally-funded environment that its creators and early participants enjoyed, which fostered innovation and enabled change to occur rapidly, was limited by computer power, communication data rates, information storage hardware, and computer program capabilities, not ownership, legal requirements or direct use charges. The motivations were primarily intellectual achievements, not financial considerations.

As the legal foundation is being extended to this electronically networked environment, many scientists and engineers regard the emerging legal restrictions on, and the accompanying cost of, access and use of information as impediments to their work, inhibiting the pursuit of knowledge and its benefit to society. They and the research library community regard the high prices demanded for access to research information, mostly supplied by the scientists themselves, as both financially impractical and irritating. At the same time, publishers, database builders, and online service providers see these changing conditions as serious threats to their sources of revenue, which enable them to collect, organize, and distribute information and provide services.

The legal foundation and the economic framework are intertwined. The greatest impact of the development of the legal foundation on scientific information will be economic effects -- who pays, how much, and for what.

General Considerations

As scientists' working environment changes from paper-based to electronic networks, their freedom to work with retrieved information as they have with paper is under attack; also, the opportunity to exploit the new environment to facilitate scientific work is threatened. In the electronic environment, it is even more necessary to find, select, copy, compare, edit, and merge information from many sources in order to augment and improve the efficiency of human mental processes that can result from the envisioned electronic environments. Simply using the electronic medium for access and transfer alone, continuing to operate only in an electronic analog of the traditional methods, is not a true "transition from paper." Regarding temporary storage or selective copying for personal and other uses, traditionally regarded as "Fair Use," making copies requiring specific authorization and payment is a severe limitation and has nothing to do with piracy and commercial re-exploitation of information assembled and organized by a database builder. Well-established scientists' habits in using preprints and reprints and ad hoc communications with colleagues will be expected to continue, and improved means for doing that via electronic networks are being demanded.

Fair Use also has its limits, since some means must exist for paying to exchange and access scientific information. In many scientific subdisciplines, there are few, other than the relevant scientific users and their employers, available to contribute funds to support publication and information services.

Technology change and court decisions have weakened traditional protections for intellectual property; new legislation is being sought to encourage and protect ventures that are based on intellectual property and seek financial return in providing information and information access services. While the improving information technology opens the way for new businesses and services, it also makes piracy much easier. Compounding this, a US Supreme Court decision in 1991 ("Feist"[2]) undercut previous protection for most computer databases.

However, the impact of the evolving law of cyberspace goes far beyond just intellectual property; it permeates all the facets of business and life that electronic information is increasingly affecting -- including freedom of speech and expression, privacy, pornography and obscenity, contracts, licenses, liability, defamation, harassment, and taxability. The specific legal foundation for the publication of and access to scientific research information must be interpreted in this broader context. With a fixation only on science and on copyright matters, with a lack of awareness of other aspects, surprises will occur that lead to destructive situations. With full awareness of this limitation, this paper focuses on the copyright situation because it is now at the center of many scientists' attention.

Michael Dertouzos, the Director of the MIT Laboratory for Computer Science, has described his vision for the future of information technology and how it will affect our lives.[3] Dertouzos uses the term "Information Marketplace" to designate "the collection of people, computers, communications, software, and services that will be engaged in the intra-organizational and interpersonal information transactions of the future."[4] In this he includes "electronic commerce," which deals both with the trading of physical goods, aided by electronics (the far larger part), and goods and services that are themselves information. Dertouzos estimates the latter to be no more than 5% of the total and, thus, only a minute portion of the Information Marketplace. If his estimate is near accurate, this underscores the weakness of leverage that scientists have on the general legal framework for information in the marketplace, since scientific information is only a small fraction of the 5% of the total information.

Dertouzos believes that "There is no fundamental facet of the Information Marketplace that calls for major changes in our current laws and regulations, including government rights and individual rights. The main reason is the immutability of human nature."[5] It is not that the new mechanisms implemented by information technology are themselves the fundamental problem, but that they are such powerful amplifiers of human both "goodness and badness." The new information technology is so adept at bridging distance, shortening time scales for actions, surmounting previous physical impediments (e.g., information reproduction and distribution technology), and changing the economic balances, that humans and their institutions find new opportunities to exhibit both their good and bad characteristics.

Dealing with these matters on a worldwide basis is necessary because geography and national borders are largely irrelevant for the electronic network marketplace. National laws on these matters differ among nations, making the legal status not only unclear but very complex, slow to establish, and difficult to enforce. Much depends on treaties among nations that govern trade. Furthermore, private enterprise and competitive markets are being introduced globally into activities once centrally planned, administered, and institutionally subsidized, including many things once done as a "public good."

Financial incentives are effective and helpful in improving production efficiency and response to customer demand, but something more is needed for the scientific communication marketplace. For such activities, it is not clear that buyer decisions, directly connected to a short term benefit to the buyer, will alone provide the completeness of coverage and long term continuity necessary to ensure the quality and availability of past results of science as a base for future progress.

Facets of the Law in Cyberspace

Information products and services will be impacted by all facets of the law. From the great many examples that have been documented recently, a few examples are mentioned below to illustrate the range and variety of active and potential legal issues relating to electronic information.

One copyright issue that illustrates the dangers that publishers see in recent trends is the decision in the Hyperlaw v. West Publishing copyright case, delivered by the US District Court of New York in May 1997. While this case involves printed compilations as source material, rather than computer-form material, it illustrates the danger. Hyperlaw, a CD-ROM publisher, will ultimately scan 75% of the cases in West's law books as partial input to create a collection of recent Supreme Court and Circuit Court of Appeals decisions hyperlinked to previous decisions. Because each item ("fact") is not copyrightable nor is the West compilation (under the Feist decision), the Court ruled that Hyperlaw did not violate any copyright. Subsequently, a Federal Appeals Court upheld the ruling, which also included approving the use of West's pagination system as a means of reference to the rulings without explanatory headnotes.[7] West may further appeal to the U. S. Supreme Court.

An example in which common sense seems to have been abandoned concerning copyright violations, was an attempt by ASCAP (American Society of Composers, Authors, and Publishers) to charge the Girl Scouts royalties for singing songs and dancing around the campfire because such events constitute public performances of copyrighted material[8]. Eventually, with considerable embarrassment, ASCAP abandoned the attempt.

An aspect of the legal foundation that has very significant importance for the electronic environment relates to contracts and licenses used to regulate information commerce. A major controversy is the conflict between copyright and licenses, and legislation has been proposed to establish that licenses may be no more restrictive in use of information than whatever is allowed under copyright. In some cases, information suppliers have used licenses instead of copyright to protect databases because copyright was not adequate (many years before Feist).

As M. Ethan Katasch noted in Law in a Digital World (1995), "Contracts are a means of using information to create and structure relationships." Print on paper has played a significant role in how parties to the information in the contract create and structure relationships. Yet, "according to contract law, the piece of paper is only the evidence of the contract, the actual contract being the 'meeting of the minds' that was reached before the document was drafted."[9] Licenses establishing an ongoing relationship as the element of value are appropriate to a hypertext world -- they do not constitute transfer of title or ownership.[10]

We should note software "shrink wrap licenses" as a response to the new environment. The act of opening the package constitutes agreement to the terms of use. Similarly, interactive acceptance of a "conditions" statement, while logging on to an online resource or installing a program, is an attempt to document the "meeting of the minds" between user and host system that constitutes a "contract." A "yes" (y) or "accept" (a) answer indicating agreement to displayed conditions of use is required in order to continue with and complete the process. Such methods for implementing licenses are being challenged, as shown in Pro-CD v. Zeidenberg, 86 F. 3d. 1447 (7th Cir. 1996).[11] Although reversed by the Court of Appeals for the Seventh Circuit, the District Court, among other rulings in the case, held "that the shrink-wrap license was ineffective." According to the District Court, "since a contract includes only those terms to which the parties have agreed, the defendant could not possibly have agreed to the 'hidden' terms contained only on the inside of the box at the time of purchase." Moreover, the District Court held that "even if the shrink-wrap license was a contract, its enforcement was preempted by section 301 of the federal Copyright Act, since the subject matter was within the general scope of copyright and the contract purported to create rights equivalent to copyright rights." "Not all circuits have yet ruled on the contract/copyright preemption issue; some have found, in particular circumstances, that shrink wrap agreements are not enforceable."

Another example illustrates that "our sense of what 'publication' means is bound to change."[12] On Monday, 24 March 1997, McGraw Hill was sued by Julian Robertson, founder of the Tiger Management Hedge Fund, for libel, alleged to be committed in the Business Week issue that appeared on the newsstand on 22 March 1996 (cover date 1 April 1996). This just made the statute of limitations deadline of a year and a day (the weekend excluded). However, the article became available a day earlier on America Online, and McGraw Hill initiated a motion in late October 1997 to dismiss the suit because the posting on AOL was the actual date of publication, and the lawsuit was too late.[13] In December 1997, a settlement was reached without payment of any damages, and the suit was withdrawn.[14]

An example of defamation is the "Barschall case," Gordon and Beech v. American Institute of Physics and the American Physical Society. Although it arose in the print world, it previews what will happen in the future in the electronic network world. The Barschall case is well documented and available on the Internet.[15] In summary, the Gordon and Breach Publishing Group (G&B) sued the American Institute of Physics (AIP) and the American Physical Society (APS) for libel in September 1993 over statements made in 1986, initially in a paper by Henry Barschall, "The Cost of Physics Journals," Physics Today, December, 1986, in subsequent papers extending the initial analysis, and in public use of the results in promoting AIP and APS journals. Barschall claimed the AIP/APS journals were far more cost effective and urged physicists not to publish in the more expensive journals. After unsuccessful lawsuits by G&B against AIP/APS in France, Germany, and Switzerland, on 23 September 1993, a suit was filed in the United States District Court, citing false advertising, violating the Lanham Act. In 1997, the Court ruled in favor of AIP/APS in this case, deciding essentially that they did not misrepresent anything, their methodology was valid, and the original Barschall articles were First Amendment-protected speech.

America Online won an injunction against Cyber Promotions in Philadelphia for sending unsolicited e-mail ("spam") to AOL customers.[16] The controversy between AOL and Cyber Promotions included electronic warfare between the two. Cyber had used fake addresses to avoid the overload caused by undeliverable E-mail being returned; the result was that AOL was bombarded with them. AOL retaliated by gathering all the returned messages together and in one burst sent them all to Cyber Promotions, overloading their computer system.[17] Apex Global Internet Services dropped Cyber Promotions from its service for spamming. Cyber Promotions sued for breach of contract[18]. A legal setback for Cyber Promotions occurred in the settlement of a lawsuit by EarthLink Network, Inc., which included a promise to stop spamming and also a payment of $2 million by Cyber Promotions to EarthLink.[19] Generally, spamming is being outlawed.

An attack on privacy is illustrated by an incident in 1997.[20] In part, the report stated: "In what has been described as a legal first, the Ventura County Star was subpoenaed by defense lawyers in a murder case for information about people who have used the newspaper's Internet site. ... "The subpoena, which asks for unpublished e-mail and demographics of people who participated in an online survey about the case, explores new territory between legal protections for the media and a defendant's right to a fair trial ... "

On 11 April 1997, in a court in London, a plaintiff was given permission to serve a Notice of Injunction by E-mail to prevent defamatory material from being placed on the Internet.[21] As a result of the injunction, the threat was withdrawn and the danger averted. As it turned out, with the order not being contested, it was not necessary to settle what national/international law governed, where geographically the defamatory material would have been considered to be published, where the threat was made, etc.

Peter Brown states, "One of the most visible issues presented by the Internet is the conflict between the current system of domain name registration and the rights of trademark holders. This has caused disputes between trademark holders, registrants of domain names, and the entity that administers the domain name assignment system ... Disputes over registration of known trademarks as domain names have escalated in the past several years."[22]

One indicator of the battles over taxation of the electronic information marketplace is a report from the 1997 Congress of Cities.[23] The report states that "The Clinton administration and the Republican US Congress support federal action that would block state and local taxation of electronic commerce." Subsequently, this issue came before the 1998 National Governor's Conference, and it continued to have Administration support to ban state taxation of commerce on the Internet beyond that covered by existing laws.[24] Enacted in the 105th Congress was a three year moratorium on any new state taxation on commerce conducted over the Internet.[25]

Gambling via the Internet exploited the loophole left by the weakness of laws addressing it. At least 120 Internet sites for gambling of all types appeared from 1994 to early 1998, mostly from sites outside the US. Transparent international boundaries compound the complexity of dealing with it. Also involved is the right of Indian tribes to run gambling operations on their reservations, the first example being an electronic lottery site set up by a tribe in Idaho.[26] On 23 July 1998, the US Senate approved a broad ban on Internet gambling, with no exception for Indian tribes, by means of an amendment to a major funding bill for Fiscal Year 1999. By then the number of sites had grown to approximately 175.[27] The approach is to fine and jail both the gamblers and the gambling operators. Serious problems with enforcement were predicted.

With special emphasis on advertising, a report of the Practicing Law Institute comments, "The brave new world of the Internet is pushing the regulatory capabilities of the law to its boundaries and, perhaps, beyond."[28] The report gives an extensive list of cases relating to many aspects of the law that will affect the Internet. Included are Trademark Law, False Advertising and Unfair Competition Law, Copyright Infringement, Defamation Law, Right of Publicity, Search and Seizure Law, and laws relating to Music Over the Internet. Additional relevant areas of the law were listed for which examples are not given are Right of Privacy, Breach of Contract (e.g., breach of dealer agreement containing territorial restrictions), and Pornography statutes.

The History of Copyright and Its Basis in Economic Philosophy

The Constitution of the United States (1787) recognizes the importance of information in the sciences and arts in Article I, Section 8, by giving Congress the 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." From this short and deceptively simple statement of rights and powers, an elaborate structure of Patents, Copyrights, and Trademark law has been developed in the US over more than 200 years, and this law is the foundation for a sector of commerce having enormous economic impact. These laws have been coordinated with the laws of other nations by means of conventions and treaties among the developed nations of the world.

The US copyright law,[29] its last major revision in 1976, and the Berne Convention,[30] which the US joined in 1989, constitute the prevailing US legal framework in this area. Incremental specialized changes are legislated each year; 28 of them passed since 1976.[31]

The Encyclopedia of the American Constitution comments, concerning the intellectual property clause: "Because there is no record of any debate on this clause at the Constitutional Convention of 1787, and mention of it in The Federalist is perfunctory, the meaning of the clause must be found in case law." For example, "The economic philosophy behind the clause ... [is] ... the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors ... (Mazer v. Stein, Supreme Court, 1954)."[32]

It is probably no coincidence that the US Constitution of 1787 adopted the position that the public interest would be best served by supporting the creators of intellectual property in furthering their own self interest because it was in 1776 that Adam Smith published An Inquiry into the Nature and Causes of the Wealth of Nations. Smith's book is credited with establishing the field of economics and provides the rationale underlying capitalism and its reliance on the actions of private parties pursuing the accumulation of wealth. Later economists have extended and applied these principles, with one of the results being the present emphasis on the "free market,"[34] but the fundamentals others have built on originated with Adam Smith.

Smith is most famous for his "invisible hand" principle: [In the pursuit of self interest an individual is] "... led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for society that it [the public interest end] was no part of it [the individual's intention]. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it."

We should note that Smith said "frequently promotes," not always. Present day behavior, driven by a self-benefit motive, with an extremely narrow view concentrating on financial return and a short horizon, can also lead to actions that ultimately are counterproductive for society.

Failure of self-interest to optimize social value is represented by a classic problem, first explained in 1832 by William Forster Lloyd of Oxford University. This is "The Tragedy of the Commons," in which exploitation of a public resource, driven by individual self interest and unchecked by negative consequences impacting directly on that individual, leads inevitably to destruction of the resource.[35] It has been demonstrated in the real world by common grazing lands, from which it gets its name, by fish and whale population in the sea, by the decline of bison and elephant herds, by atmospheric and water pollution, etc. Information is different in that it is a non-depletable resource, once it has been collected and put into a form available for use; but totally financially-centered decisions can have a destructive effect on what information actually becomes available. Thus, the "tragedy of the scientific information common" is due to the unregulated destruction of the sources of revenue from a limited market that are needed to build the resource.

Thus, financial self-interest alone is not always enough for advancing the public benefit, and self-interest should not be only financial. In the future, it will be a necessary condition, but not a sufficient one, to assure the appropriate availability of scientific information.

If the legal framework enables and permits certain financial objectives to injure the public benefit, then it has failed in its fundamental objective, undercutting the original reason for creating intellectual property, as stated in the Constitution.

Adapting Copyright to the Electronic Environment

The real basis for copyright now and in the past has been the fixing of information in a tangible medium or means of expression. Ideas cannot be copyrighted. Facts are ideas. It is the way that facts are represented, arranged, and explained that leads to original authorship. Letting the organization and arrangement of information be the basis for intellectual property worked fairly well in the paper world with its natural, physically enforced boundaries that inhibited reuse without significant added labor and materials. These impediments to copying and reuse are easily breached in the electronic world.[36] The electronic network environment will require moving away from the tangible medium aspect to depend on the means of expression -- which means for recorded information, wording, formatting instructions, information organization, etc., while still preserving the principle that ideas cannot be copyrighted.

Although the most recent US law (1976) attempted to anticipate information media other than printed, there are serious gaps and inadequacies for dealing with information in the electronically networked environment. The Committee on New Technological Uses of copyrighted works (CONTU) was appointed to consider the extensions of the copyright law to computer-related forms, with specific emphasis on computer programs. The 1976 law went into effect on 1 January 1978. However, it did not deal with computer databases, which continued at that time to be treated as literary works.

A US Supreme Court decision in 1991 ("Feist") raised the standard of copyrightability to require originality, not just so-called "sweat of the brow" effort, as a prime requirement.[37] This undercut intellectual property protection for many computer databases and has led to efforts to provide this protection by other means. Because of this decision, treating a database as a literary work became not effective for most databases because the decision fundamentally altered what constitutes an original work of authorship.

The European Commission issued a Directive on the Legal Protection of Databases in 1996, which had been in work for several years.[38] This Directive extended intellectual property protection to electronic databases that are not copyrightable under current interpretations of the law (especially after Feist). It affected the reciprocity of protection for databases between the US and Europe, starting at the beginning of 1998.

Another more obscure European Union directive, 95/46--written 3 years ago, effective 25 October 1998 in 15 nations--"bars the export of data on any person without prior permission from the person for all the potential uses of that information and without prior approval from his government." So far, it has been implemented only in Sweden, Greece, and Italy.[39] The Europeans have been talking about personal privacy data and attempting to limit such "Transborder Data Flow" for a long time -- at least as long as the initial discussions that led to the database protection European Directive that the US tried to emulate in 1998.

While this is in a non-science context, other than for author-related information--e.g., affiliations, addresses, where work was performed, etc., which are staples of author indexes and other "locator" information--it illustrates a potentially destructive approach in information control that could seriously impact the electronically networked world. Even if science information is not involved directly, the destructive impact of the present form of this directive on networking could be serious, and that would cause indirect damage to science interests as well.

The World Intellectual Property Organization (WIPO) held a Diplomatic Conference on Certain Copyright and Neighboring Rights Questions in December 1996 to consider new treaties affecting database protection and other matters.[40] Two of these treaties were approved and implemented for the US by the 105th Congress. A third treaty, modeled after the European Directive on database protection, failed to be approved.

The US is trying to respond with new legislation to upgrade the existing intellectual property legal framework to be adequate for information in electronic networks, including reacting to the EU Database Directive and the WIPO treaties. Considerable activity in the 105th Congress dealt with attempts to bring copyright into the electronic and digital age and to provide a basis for protecting uncopyrightable databases without destroying the ability to use them.[41] However, this is still very much a work in progress, and new developments make any comment likely to be anachronistic in some respect. Although there was some relevant legislation passed by the 105th Congress and signed by the President, a satisfactory legal foundation for the electronically networked environment was not completed by the 105th Congress in 1998.

Whatever is passed during any Congress is certain to be challenged through litigation in some respects as the details are worked out. There is no reason to expect that the pattern of the past of incremental development, by legislation and litigation of copyright doctrine through reaction to specific situations, by correction of unintended side effects, and by response to special interests, should suddenly change.

The European Union continues to examine the revolution that electronic networking enables and has recently (7 October 1998) published a study called CONDRINET — CONtent and Commerce DRIven Strategies in Global NETworks.[42] The study analyzes how a broad range of businesses have benefited from network commerce and examines the critical roles of the information content and the content industry within the network economy. The larger financial, social, and political issues helping to shape the network economy are examined, including how legal and regulatory frameworks provide both preconditions and constraints for the evolution of network commerce and how tax policy will affect the venture capital environment. While there is really nothing fundamentally new in the results and recommendations of this report, it is well-written and worth heeding because it represents the vigor and tenacity with which the European Union continues to initiate change in this area; that change has global impact.

Fair Use—the Key Issue

Fair Use, as a modification of "Author Rights" for the Public Benefit, is a departure from the pure economic philosophy expressed by the Supreme Court in 1954.[43] (See comments earlier in the section on "The History of Copyright and Basis in Economic Philosophy.") This doctrine, as a limitation on the copyright of the owner, was developed through 50 years of court rulings. It was first given legislative status in section 107 of the revised copyright law of 1976. Up to now, the doctrine has developed from cases involving photocopying, but the statements in section 107 were not intended to be limited to photocopying alone. Applicability to other media and means of reproduction was intended. Section 107 opens with the words:

"... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means [specified in section 106[44] , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

No real definition of the concept has ever been stated. Fair Use is an "equitable rule of reason"; each case must be decided on its own merits according to the following specified factors:

• The purpose and nature of the use - such as, commercial or nonprofit education;
• The nature of the copyrighted work;
• The amount and substantiality of the part copied relative to the work as a whole; and
• The effect of the use on the potential market or value of the work.

Selective copying and extracting by scientists in the performance of their research has long been widely practiced and tolerated. Such practices are generally regarded by scientists and other persons doing scholarly work to be an essential part of gathering, organizing, and assimilating information used in doing research of any kind for any purpose and to be a fair use. Moreover, the advancement of science and the useful application of the results of scientific research have long been regarded as in the public interest. However, "systematic copying" for distribution in a company[45] and preparation of course packs for educators to provide to classes[46] have been challenged and found to be violations of copyright. Posting of papers by their authors on web sites and other "informal" electronic communication media, which facilitates uses otherwise regarded as "fair" (at least by the scientists), is regarded by many publishers as a violation of copyright, now routinely assigned by the author to the publisher, and accommodation of that practice is controversial. (See the chapter by Martin Blume in this book.)

The situation with Fair Use is so murky that the Copyright office of the Library of Congress advises:[47]

"When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of "fair use" would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered 'fair' nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney."

Only recently have some countries of the world started to establish intellectual property protection. The leading example is China, which, in the past, had extensive government-sanctioned copying, without compensation, of publications and other intellectual property from outside China. Scientific publications from the US and other countries were extensively copied for distribution to educational and scientific institutions. China revised its copyright law in 1992 after trade-based pressure in 1991 from the United States.[48] While China subsequently issued regulations to implement these laws, enforcement to stop piracy of intellectual property remains a current controversy. Yet another threat of import duties on a broad list of items imported to the US from China was necessary again in 1996 under the "Special 301" provisions of the US Trade Law.[49]

Positions of Various Stakeholders

The International Council of Scientific Unions has strongly advocated that the availability of data from scientific research be unrestricted. Its General Assembly passed the following resolution in 1996: "Noting that there may be constraints on the free flow of scientific data and information, imposed on grounds of national security, confidentiality, commercial value, copyright, or historical disciplinary practice; Recommends as a general policy the fundamental principle of full and open exchange of data and information for scientific and educational purposes."[50]

Similarly, the US science perspective on HR2652 of the 105th Congress, Collections of Information Antipiracy Act, with specific attention on data for scientific and engineering research, was covered by William. A. Wulf, President, National Academy of Engineering and Vice Chairman, National Research Council, in a hearing on that bill in October 1997. He stated: "The worldwide trend to impose strong economic and legal restrictions on the conditions of availability and use of data endangers the research enterprise, and hence the innovation system. It is imperative to consider carefully the underlying rationale and potential impacts of any changes to intellectual property law concerning database protection, to our research and education base, our innovation system, and hence to our whole economy. ... freedom of inquiry, the open availability of scientific data, and the open publication of results are cornerstones of the research enterprise that US law and tradition have long upheld."[51]

In consideration of new legislation in this area, Wulf recommended guidance, summarized as follows:

• Evidence is lacking that the existing protections are not adequate, and a thorough analysis of impact on the economy is necessary.
• The potential costs and benefits to all parties and to society of any specific legislation must be considered.
• The research, education, library, and other public interest access to and use of databases must be preserved at least at its present level.
• "the research and educational communities must continue to participate fully in the relevant deliberations."

The library community was very active in 1997 and 1998 in providing input to Congress on pending legislation. On matters relating to copyright and intellectual property, a statement on 5 June 1998 summarized their position on certain pending legislation at that time.[52] Support was expressed for HR3048, the Boucher/Campbell Digital Era Copyright Enhancement Act, which in the view of libraries would maintain balance in the Copyright Act while fully protecting fair use, digital preservation, library lending, distance learning, and access to the technology needed to engage in such activities. They also supported amendments by Rep. Rick Boucher (D-VA) to HR2281, legislation to implement the WIPO Copyright Treaty, particularly changes to the bill designed to protect and enable fair use -- and other critical exceptions to proprietors' rights -- in the digital environment. They further urged the Senate to support, in any conference convened regarding WIPO Copyright Treaty implementing legislation (e.g., S2037 and HR2281), any library-endorsed changes which would protect and enable fair use -- and other critical exceptions to proprietors' rights -- in the digital environment.

In general the library community opposed any action in the 105th Congress on new "database protection" legislation, particularly HR2652 as adopted by the House. In their view, At that time, they believed that these protections would damage education and research, and restrict the use of many scientific and other databases now in the public domain.

Communications to the library community on these matters are provided in the Net newsletter, American Library Association Washington Office Newsline (ALAWON).[53]

In a white paper on 9 December 1997, the National Federation of Abstracting and Information Services (NFAIS) stated:[54]

"the electronic dissemination of scholarly information ... offers great promise, [and] it has also created a great challenge for authors, publishers, and users of scientific, technical, medical and other research-based information. The difficulties are demonstrated by recent, and often abortive, efforts of legislative bodies, international agencies, and various groups to agree to a set of rules that should govern the use and reuse of scholarly information in an electronic environment. Most groups today agree that the challenge is inherently one of balancing the rights of those who have invested in making scholarly content available in a useful form with the rights of those who need to make use of the content."

The Information Industry Association (IIA), in testimony on HR2652, the Collections of Information Antipiracy Act, to the House Subcommittee on Courts and Intellectual Property, urged Congress on 12 February 1998 to pass a law to protect databases in order to assure the continued general availability of information that is essential to the lives and livelihoods of millions around the world.[55] IIA pointed out that the US database industry faces the threat of piracy and unfair competition from Europe because of the European Union's Database Directive that went into effect on January 1, 1998. US-produced databases have no protection in Europe because the US offers no "comparable protection" for EU database producers. The IIA prefers a sui generis approach similar to the protections of the European Directive.

The American Association of Publishers (AAP) gave very strong support for new legislation to provide protection for the publishing industry in the electronic age.[56] The importance of the publishing industry to the US economy and the need to protect it against piracy were emphasized. Earlier, in testimony to Congress, support for enactment of H.R.2281 without amendment was urged, and Congress was advised to reject the "baseless criticism and extraneous proposals directed at HR2281 by a coalition of library, educational, scholarly and consumer groups."[57] With respect to fair use the AAP position was that "The fair use doctrine gives researchers, teachers, students, library users, and others a limited privilege to copy works (and exercise other exclusive rights) without the permission of the copyright owner. It has always been applied on a case-by-case basis, using criteria set out in the Copyright Act, and it will be applied in exactly the same way once this legislation is enacted."

Also, the AAP has taken a very strong position against proposals to limit the use of licenses in controlling the uses of copyrighted and uncopyrighted information. AAP states, "some users of information—including representatives of the library, educational and scientific research communities—fear that the routine use of such licensing agreements and technological measures could override 'fair use' and other limitations on the exclusive rights of copyright holders under the Copyright Act, thus disturbing the balance that the US Constitution and the US Congress have established between the interests of information producers and information users."[58] AAP goes on to say "While there may be some potential for abuse, the expressed fears regarding licensing are groundless."

Testimony by Marybeth Peters of the US Copyright Office supported HR2652 as a good and constructive first step in addressing the shortcomings in the current state of the law. The statement recognized both the need for protection of the investment to make databases available and the risk of overprotection impeding the development of knowledge, technology, and culture. The Copyright Office statement also advocates overturning the effect of the Feist Supreme Court decision to restore the general level of protection that was available prior to that time. The statement notes that there has already been an erosion of incentives necessary for producers to make the necessary investment to introduce new databases. An excellent tutorial as a foundation for considering legislation for the protection of databases by the 105th Congress was prepared by the US Copyright Office in August 1997.[59] The Executive Summary of that report is substantive and readable.

Results of the 105th Congress

Included in the massive omnibus package enacted at the end of the 105th Congress were several bills dealing with intellectual property and other Internet-related matters that had been introduced in this session. The House approved the omnibus package on 20 October 1998, the Senate on 21 October. The President signed the bill on 21 October (now P.L. 105-277).

• Digital Millenium Copyright Act - The Copyright Act was updated by the final version of HR2281 (P.L. 105-304) for the digital environment, and US law was adjusted to satisfy the requirements of the new WIPO treaties negotiated in Geneva in December 1996. The bill included prohibitions on circumvention of access protection technologies, deferring implementation until a review and assessment of the impact on intended non-infringing uses and establishing a continuing periodic (3 year) reassessment. Limits on liability of online service providers for the acts of their users and limitations on criminal penalties and civil fines on nonprofit libraries, archives, and educational institutions were included. The Fair Use doctrine was supported for the digital environment. Digital preservation was also supported as a non-infringing activity.
  
  
• Copyright term Extension Act - A 20-year extension of the current life-plus-50-year copyright term (S505) was established by P.L. 105-298. The measure retains a limited exception for libraries, archives and non-profit educational institutions crafted in intense negotiations last year.
  
  
• Internet Tax Freedom Act - This act provides a three-year moratorium on state or local taxation of the Internet. A "harmful to minors" provision denies this moratorium to those commercial providers who "knowingly and with knowledge of the character of the material" make material "harmful to minors" available to minors.
  
  
• Child Online Protection Act -A revised version of HR3783 to prohibit the commercial distribution on the web to minors of material that is "harmful to minors" was included. The American Civil Liberties Union, with other plaintiffs, has filed suit to challenge this measure.
  
  
• Children's Online Privacy Protection Act - An amended version of the Children's Online Privacy Protection Act, S2326, was included, with revisions to respond to concerns expressed by ALA and others that the bill would interfere with children's access to information on the Internet. The bill imposes controls on personally identifiable information about children given to commercial web sites; however, nonprofit organizations are excluded from the scope of the bill.
  
  
• Next Generation Internet Research Act - HR3332, the Next Generation Internet Research Act of 1998, was signed by the President on October 28 (now P.L. 105-305). The law amends the High Performance Computing Act to authorize, for two years, research and development of advanced communication technology that will provide a basis for the Internet of the future.[60]

Other bills dealing with related interests were dropped:

• Database Protection Bill - Conferees agreed to drop the Collections of Information Anti-Piracy Act from HR2281, the WIPO treaties bill. This was a highly controversial bill that pitted publishers and database suppliers against libraries, scientists, educators, and many information users. Key legislators promised that the issue would be an early agenda item in the new Congress in 1999.
  
  
• Filtering and Blocking Software Requirements - The omnibus package contains no requirements to have libraries or schools install and use filtering and blocking software as a condition of receiving federal funds or the e-rate (reduced fees for telecommunications services and Internet access for certain applications).
  
  
• E-Rate Discounts for Libraries and Schools - No further slowdowns or requirements were imposed by Congress.[60]

The implementation of the two international copyright treaties adopted WIPO almost two years ago was hailed by the US publishing industry as "a BIG win" because of the importance of the WIPO treaties for "encouraging the growth of electronic commerce and making the Internet a safe place to do business."[61]

For database producers and other electronic information providers the final legislation accomplishes two important things: 1) it explicitly extends copyright protection to the electronic, networked environment; and 2) it limits the liability of online service providers for copyright infringements that occur over their networks. At the same time several provisions preserve for libraries, scientists, and educators practices that have traditionally been regarded in the public interest.

According to the Digital Future Coalition, "This legislation is a substantial victory for both the creators and consumers of intellectual property because it provides meaningful protection while recognizing the traditional balance between owners' rights and the privileges of legitimate users."[62]

Dropping of the database provisions in the Millennium Copyright Act, which might have granted special protection to digital collections of factual information, was regarded in divergent ways by the various interests. The controversy and conflict on these matters will continue in the 106th Congress in January 1999. The lack of action so far puts the US at odds with the European Directive, which grants protection of databases only in the European Union for those countries with reciprocal legislation.

Financial Support for the Public Interest

As we contemplate the economic philosophy that should affect the legal foundation for scientific information, an economic concept that is relevant is that of a "public good." It is generally accepted that scientific research has strong public-good attributes in that, for one aspect, the knowledge produced by such research traditionally has been freely available to all (nonexcludability). That knowledge comes from and affects a global community as scientific information is created and disseminated. Secondly, as with all information, using a copy of scientific information does not deplete it (nondepletability). These two characteristics are typical of a product or service that is produced or consumed collectively rather than privately and is thus defined as a "public good."[63] The economically efficient price for such a good is zero or very low, but private enterprise cannot be expected to supply that product without sufficient revenue to produce it.

We do not argue that privatization should be avoided for science information and research support facilities and services, even if it could be. However, we cannot simply depend upon "economic Darwinism" (a phrase that some economists find pejorative) to fulfill the scientists' needs. The legal framework must establish and discipline the information marketplace in a way to deal with the narrow, specialized, scientific subdisciplines for which, due to market fragmentation, there is a lack of effective competition or there is insufficient market size potential to cause either a classical demand-pull or a "new market" supply-push rise. Also, we must be alert for any means/ends conflict in which the zeal to make money undercuts serving the public interest.

In this respect, a front page report in the Wall Street Journal [64] criticized "the Idolatry of the Market" and reported that the early stirrings of a backlash are in sight. Many examples were cited, but a major one that illustrates the public concerns is the impact of profit-dominated decision-making on health care, such as in for-profit hospitals and HMOs. While, in these days of triumphant capitalism, it is heresy to ask whether the privatization trend is going too far, an important issue is whether the "public interest coincides with the private interest," and, if not, what steps are necessary to ensure that the public interest is properly served?

Some government funding of science-related data and information continues, such as by the National Science Foundation and the National Institute of Standards and Technology (NIST), and as results from government-sponsored scientific projects. But the distribution and use of that information has, over the past three decades, been increasingly pushed into the commercial marketplace.

An example of a new kind of public funding mechanism (an example not necessarily advocated) is illustrated in The Schools and Libraries Universal Service Program, which was established as part of the Telecommunications Act of 1996 with the express purpose of providing affordable access to the Internet for all eligible schools and libraries, particularly those in rural and inner-city areas. Originally funded at up to $2.25 billion annually, although later reduced, the program will provide discounts of 20% to 90% on telecommunications services, Internet access and internal connections.[65]

Funding for the universal service discounts comes from the telecommunications industry, in an "Information Age" update to the time-honored concept of universal service developed early in the founding of the national telephone system. The cost of doing this will be borne by a charge on all telephone bills. In the preparations for implementation, this was controversial. When it became broadly visible to the public in late 1997, some labeled the plan to raise telecommunication prices for this purpose "stealth taxation." The debate intensified as the plan was implemented in 1998 and the program was delayed and reduced, but it was not canceled.

Significant financial support of present Internet information services is now coming from advertising, which is a time-honored means of supporting, wholly or in part, various items of public interest. Internet advertising revenue reached $906 million in 1997, triple that in 1996,[66] and its increase continues to soar.

Most newspapers and TV broadcasting, from a business perspective, are really in the advertising business, not principally the news reporting or entertainment businesses. Fortunately, there has been a strong journalistic tradition that has maintained editorial independence (most of the time) in news reporting, and commercial considerations have not distorted that situation too much in the past. However, in 1998, several instances of the negative impact on the integrity of news coverage, due to the intense competition relating to ratings and consequently advertising revenue, came to light. The situation was strongly criticized by Hugh Sidley, Walter Cronkite, and Robert McNeil, all distinguished print and broadcast journalists, saying that "avarice drives the news industry these days."[67] An example relating to TV entertainment was reported in the Wall Street Journal where it was observed that new executives in television networks "have a lack of interest in programming and news content" and are "pushing out many of the old guard in order to emphasize new business development and the bottom line," in order to respond to the competition from the TV cable industry for advertising.[68]

The principal challenge, in extending and adjusting the intellectual property legal framework to the electronic environment, is to ensure that the public benefit is served well, balancing the interests of the parties affected, as we depend upon private parties (persons and organizations) to provide benefit to all of society through their own self interest and suitable, common actions.

What Should We Expect in 20 Years?

Scientists will have to use whatever evolves in the broad context for electronic networks.

With respect to technology, little needs to be said. Improvement in information technology performance and prices continues at a great pace. Capabilities available in 20 years will be as astounding as seen from today as today's capabilities are as seen from the perspective of 20 years ago.[69] We can even anticipate that the PC, as we know it today, will have been superseded to much the same extent that the PC displaced the computing facilit