Contents

Intellectual Property and Long-Term Protection of the Public Domain
A Vital Issue for Today and for the Future
Who Are the Key Players?
MacArthur Grantmaking
A Closing Thought

 

Intellectual Property and the Long-Term Protection of the Public Domain

The fact that you are reading this on your computer is a small illustration of the revolution that has taken place in the way that information is shared around the world. What used to take days, weeks, or even months to move through traditional channels of communication is now shared in seconds—or less—and at almost no cost. It is a change that has taken place in a breathtakingly short period of time. The Internet and other electronic tools make possible the easy, inexpensive, and rapid exchange—as well as more stringent monitoring and control—of information. The technology being used to move words, sounds, and images has developed much faster than the laws, regulations, and accepted practices that give shape to the ways in which that information is used.

In this edition of our electronic newsletter we discuss an initiative of the MacArthur Foundation called “Intellectual Property and the Long-Term Protection of the Public Domain.” Its intent is simple. We seek to contribute to development of a new set of boundaries for intellectual property rights and protections in the digital era that balances the needs of creators, the owners of what is created, and the public. Copyright, patent, and trademark laws continue to be important in a digital environment, but new ways of accessing and sharing information must be considered to attain the goal of balance. To date we have supported 18 organizations and made grants totaling more than $10 million to advance these efforts.

When we started this work we envisioned a five-year effort. But the results have been so encouraging and the need so substantial that it has been extended for another three.

I hope you enjoy learning about this aspect of our work and that you will share your thoughts about it with me.

Jonathan F. Fanton
President
The John D. and Catherine T. MacArthur Foundation

 

A Vital Issue for Today and for the Future

The Internet and other electronic tools make it extraordinarily easy to exchange, spread, and obtain information at very low cost and at very high speed.

Anyone who has done a search on Google, or thought for a moment about the astonishing amount of music that can be carried in an iPod, has sensed the change—especially those who can recall when a fax machine was considered transformative technology.

Consumers have taken advantage of the new technology to share, create, and re-create digital information. Unfortunately, whether they knew it or not, they were often equally quick to break the laws that govern how information can be used. Music, images, and data are all created by someone, and as creators they have rights. Yet the framers of the Constitution realized that scientific and cultural progress depends on the ability of the public to use creative products.

The U.S. Constitution combined with past and present intellectual property laws, policies, and standards, including those affecting copyright, patent, and trademark, have traditionally sought to meet two sometimes contradictory needs:

  • To provide an incentive to the creators of scientific, literary, cultural, and artistic work to be productive.
  • To provide the public the right to use creative products in order to build new scientific, literary, and other advancements.

    The issues under discussion in the digital world of today are rooted in laws that go back to the earliest days of publishing. 

Consider, for example, how the development of music would be stifled if musicians were not able to build on the work of those who came before them. Or how the progress of discovery would be slowed if scientists were not able to use data generated by others. People on both sides of the equation—and the public at large—have important interests

As the digital environment evolves, it is important that a new balance among these interests be found.

In earlier times, when technology was developing at a much slower pace, change and adjustment of the laws governing the use of information were more or less in balance. In fact, copyright, patent, and trademark laws were mostly used to regulate industry – not the behavior of consumers. Today consumers are using electronic information in new and innovative ways while commercial interests are moving to protect themselves in ways that, if successful, could severely limit the public’s right to obtain and use information, not only now, but for many years into the future.

Here are just a few of the things at stake in this swift-moving arena:

  • The publics’ right to fair use of copyright-protected information.
  • Access to databases and information from scientific studies, especially those that are publicly funded.
  • The ability to add and draw information from the public domain, primarily the Internet.
  • The ability to freely increase the amount of information in the public domain.

ORPHAN WORKS

Only a very small set of materials retain monetary value to their creators after a few years. Countless written works and much recorded music and film no longer have commercial value and could readily be made available to the public using digital technologies. Yet it is often difficult or even impossible to find the copyright owner to secure permission to use the work. Proposals are being made to require some affirmative action – say payment of $1 – to maintain copyright protection after a particular period of time (14 years has been proposed).

The U.S. Copyright Office, at the urging of members of the Senate and House Judiciary Committees, is “examining” orphan works, providing the opportunity for more vigorous discussion about this issue. This process could lead to some affirmative measures for bringing orphan works more readily into the public domain. MacArthur grantees, including the Electronic Frontier Foundation, the American Library Association, the Center for Democracy and Technology, Public Knowledge, Duke University, and others, have been actively encouraging such a process and are participating in the discussion.

 

 

Who Are the Key Players?

In recent years public interest and consumer groups have taken up this issue and, with grant support from MacArthur and a small number of other foundations such as the Rockefeller and Ford foundations and the Open Society Institute, have managed, in a very short time, to bring their points of view to the debate.

At the same time, commercial interests, especially those representing publishers, the music recording industry, and the movie industry, have worked hard to strengthen domestic and international laws protecting intellectual property.


PUBLIC INTEREST AND CONSUMER GROUPS
Given the small size of the field and the need to move quickly, the public interest groups involved in the digital debate have proved to be very agile. Their areas of work include:

Two organizations that are working on new models for providing information in the digital arena, with an eye toward helping people declare their work is publicly available, are Creative Commons and the >Berkman Center for Internet and Society.

Organizations that bring key constituencies into the work include the American Library Association, the Digital Future Coalition, the American Association for the Advancement of Science, and the and the National Academy of Sciences.

In May, the U.S. Appeals Court for the District of Columbia Circuit Court struck down a Federal Communications Commission order on what is called the “broadcast flag.” It is a digital marker sent through digital TV signals controlling how a program can be used after it is received. The FCC had ordered makers of computers and other consumer electronics equipment to install software that would read and obey the broadcast flag. Foundation grantees, led by Public Knowledge and including Electronic Frontier Foundation, the American Library Association, and others argued successfully that the FCC did not have the authority to mandate these devices. Their concern is that the flag could be used to block video information that should be legally available to TV viewers. (It is an indication of the value of organizations serving as a watchdog for the public interest in the rapidly developing world of digital media.) Congress is currently considering a bill that would give the FCC the authority to implement the broadcast flag.

 

COMMERCIAL INTERESTS
These organizations, which include the Motion Picture Association of America, the Recording Industry Association of America, and the Association of American Publishers, have been central in the debate. They understandably cite the need to protect the interests of their members in the digital environment.

These groups and others have been successful in lengthening the period of copyright protection, patenting software and business practices, and requiring technological locks on certain types of equipment. They have sought—successfully in Europe but not yet in the United States—to privatize databases, including those developed with public funds. Each of these were—and are—matters of considerable controversy.

Recent legislation has substantially reduced the percentage of new materials entering the public domain in the U.S. Revisions to the copyright law passed in 1977 (to “harmonize” with the Berne Convention) ended the requirement that materials be registered in order to obtain copyright protection — instead providing copyright to all works fixed in a tangible medium such as film, paper, or magnetic tape. A series of laws also substantially extended the term of copyright protection from the original 14 years that was included in the Constitution to the life of the creator plus 70 years. At the time of the most recent copyright extension, some works that were already in the public domain returned to copyright protection. Together, these measures significantly slow down the rate at which new works enter the public domain.

 

 

MacArthur Grantmaking—Goals and Strategy

The overall goal of the Foundation’s initiative is to help ensure that any new set of intellectual property laws, policies, and practices that evolves in the digital era adequately reflects the needs of the public to advance common goals in education, science, and culture.

Public needs include:

  • Maintaining and expanding a vital public domain that allows information, ideas, and other cultural products to be shared with limited or no controls and at a reasonable cost. This includes the developing as well as the developed world.

A Foundation-funded project of the American Library Association is “Copyright: A Librarian’s Guide.” This comprehensive and lively publication is being widely circulated among librarians at schools, public libraries, and colleges and universities nationwide. It stresses the breadth and flexibility of copyright law and will likely become the definitive work on this topic for the library community.

  • Continued “fair use” of copyright-protected materials for such traditional purposes as education, parody, and critical review, as well as for new uses such as “remixing” in art and film.

 

  • Ensuring that future innovations in development and use of technology are not precluded by intellectual property limitations.

 

A Foundation-funded project of the American Library Association is “Copyright: A Librarian’s Guide.” This comprehensive and lively publication is being widely circulated among librarians at schools, public libraries, and colleges and universities nationwide. It stresses the breadth and flexibility of copyright law and will likely become the definitive work on this topic for the library community.

The Foundation is making grants in four areas relating to the initiative on Intellectual Property and the Long-Term Protection of the Digital Domain.

1) POLICY ANALYSIS AND TARGETED PUBLIC EDUCATION IN THE UNITED STATES
As new laws, rules, regulations, and treaties are proposed, it is important to understand their potential impact on the public interest and the balance between protection for content owners and public use. While the Foundation and those whose work it supports believe in the value of copyright laws and do not in any way condone their violation, they do not believe that the public domain or long-held rights of “fair use” should be given up in an effort to reduce digital copyright violations to zero. They seek approaches that balance copyright protection and the public domain. Grants are designed to help bring public attention to positive alternatives to overly protectionist legislation and regulation.

2) INTERNATIONAL POLICY ANALYSIS AND CITIZEN PARTICIPATION
International agreements can often drive domestic policy, and vice versa. When the U.S. signs a treaty with other countries, it must sometimes enact national laws in order to meet the terms of the treaty. So the Foundation provides grant support for organizations working to promote the public domain, fair use, and protection for future innovation at the international level as well as in the United States. It has been difficult for nongovernmental organizations to attend, monitor, and intervene in international discussions because of the cost of travel, the private nature of the talks, or shifting agendas. A few organizations, such as the World Intellectual Property Organization, the Hague Convention, and the World Trade Organization, are central to shaping international agreements in the digital arena, so the Foundation has made a special effort to support the participation of nongovernmental organizations in meetings of these groups. With MacArthur support, the American Library Association, for example, is participating as a member of the U.S. delegation of the Organization for Economic Cooperation and Development, which contributes to WTO negotiations. It is a member of the U.S. delegation to the Hague Convention. And it is on an experts committee assembled by the U.S. Department of Commerce to advise the process of the Free Trade Agreement of the Americas.

3) NEW APPROACHES TO PROTECTING THE RIGHTS OF CREATORS AND THE PUBLIC
A balanced approach to intellectual property in the digital age will probably require new types of institutions or ownership structures; a new approach to rewarding invention that directly affects public well-being; and perhaps the invention of a new kind of public domain. The Foundation is providing grant support to organizations that are developing and testing alternative ways to approach intellectual property in the digital environment.

Creative Commons provides authors, artists, and others with an alternative to full copyright protection. The organization offers creators of intellectual property a choice of several licenses under current copyright law that allow their materials to enter the public domain with specific restrictions. The Creative Commons model has been adapted to 70 countries and 14 languages.

 

4) SEIZING OPPORTUNITIES
A great deal of work in this rapidly evolving field involves reacting to the initiatives of others or being in a position to take advantage of unexpected opportunities. Such matters do not always fall into the three main categories of support. The Foundation anticipates, for example, that research proposals are likely to be developed on topics that have yet to become part of the mainstream debate. It is also likely that opportunities to support work that intersects with other Foundation interests will emerge. One such example is work being done at American University in a collaboration between an intellectual property lawyer and a film professor to resolve some of the intellectual property problems faced by documentary filmmakers. New ways to address rights issues will help those who receive support from MacArthur to produce such films.

The rate of technological change in the United States and throughout the world is unprecedented. People have access to information and entertainment that is virtually unlimited. Access has moved much more quickly than the laws and norms that should put that access into a reasonable and well-understood framework, one that protects the rights of owners yet does not hinder innovation and creativity. Important work is being done to reestablish that balance. The public interest in the digital domain is an important issue, well worth the attention of the organizations involved and the foundations and others that support them.

 

A Closing Thought

The rate of technological change in the United States and throughout the world is unprecedented. People have access to information and entertainment that is virtually unlimited. Access has moved much more quickly than the laws and norms that should put that access into a reasonable and well-understood framework, one that protects the rights of owners yet does not hinder innovation and creativity. Important work is being done to reestablish that balance. The public interest in the digital domain is an important issue, well worth the attention of the organizations involved and the foundations and others that support them.

Media, Media, Technology