INTERVIEW:
Question 1
What can you say with regard to the distribution of digital media in a material form and
in a non-material form like a network from a legal point of view?
Answer
Your question is a very interesting one and one that is at the core of the United
States efforts to reassess what changes are necessary in our own domestic copyright law in
order to deal with the challenges of digital technology. It has been clear for nearly a
century that under domestic and international copyright law that owners of copyright have
the right to control the distribution of their works in physical media. We examine the
kinds of transactions that are happening on commercial on-line services and on the
Internet, which is at this point a not-for-charge user service, and have come to the
conclusion that a great deal of the activity in which the user of that service at the end
of the transmission receives a physical copy of the work is very much akin to distribution
in the physical and material world. As a consequence, the United States White Paper on
copyright in the international infrastructure, at least in early September, and
implementing legislation that has subsequently been introduced in the United States
Congress recommends a change in the US copyright law to make clearer the distribution of
copies CDs, DAT tapes etc., can occur by transmission in a network environment and,
therefore, this is a very important development in clarification to assure under our own
law. More recently, we have through the auspices of the World Intellectual Property
Organisation and on-going multilateral talks on the development of a protocol to the Bern
Convention and the new instrument protection of sound producers and performers have
submitted to the participants in that WIPO exercise that consideration is warranted of the
same type of clarification in the context of the Bern instrument calling for new
instrument discussions. In other words, we have asked the international community to
consider assuring the right of distribution by transmission or an equivalent of that
right, that is, to ensure that rights owners and creators will have the exclusive right to
control the distribution and dissemination of their works over networks.
Question 2
Copyright law as a concept has been questioned recently. What is your point of view?
Answer
There are some parties in the United States and around the world who suggest that digital
is different than the physical world and as a consequence the old standards, the copyright
law itself should be viewed as a dinosaur of the physical world; the virtual world will
require something else. The United States government, and many in the US private sector
copyright communities believe that this a premature judgement. Digital is different but
it's not that different. The copyright law has always responded to technological change.
The copyright law itself was in response to the development of the printing press. New
kinds of works have always been added to copyright and the means of dissemination have
always been added to copyright over. When, for example, cinematographic works came into
existence those were added to the body of works protected under copyright law. This
history of accommodation to technological change has given policy makers and industries
that rely on copyright some sense of, if you will, the block on which their church is
built, that is, the copyright law, the investment rests on the foundation of the copyright
law and it is to some extent arrogant for people who don't participate in the industries
that are built on the copyright law to come at this problem by saying we should throw the
baby out with the bath water and start over. In our country, the motion picture industry,
the computer software industry, the sound recording industry, the book publishing
industry, the music industry are all built on copyright protection. It takes an enormous
investment made with a high level of risk to develop and release a new motion picture or a
new computer program. The level of investment that goes into developing for example
Windows 95 is only made possible because Microsoft and other software developers have the
assurance of the copyright law as their basis of protection against those who would be
otherwise be able to free ride on their efforts. So I think that we disavow complete
revisionism and resort to another legal regime. We believe that an incremental approach
that looks at adjusting the copyright law to deal with the new technologies is the more
prudent way to go, for the benefit not only of the producers of works but also consumers
and users of works who will not have new works to enjoy if corporations feel that they
risk too much and, therefore, avoid making an investment in the creation of new
educational and entertainment products.
Question 3
Now that the technology is moving ahead even faster than it used to in the past Do you
think that the legislator will still be able to keep up with this change?
Answer
We hope so. In the United States we have had experience with delaying response to
technological change and we had two very different examples of efforts to keep up with
technological change. One example is the study that went into the protection of computer
programs. The United States began looking far earlier than many countries did, in the late
60s, early 70s into the protection of computer software and had in place by the early
1980s a comprehensive regime for the copyright protection of software. I think that the
vitality and vibrancy of our domestic software industry is a result of that, the ability
of that industry to grow in a legal environment in which there was some protection for
their risk in investment.Another side of that was more cautious and plodding way in which
the United States came at problems with reprographic uses of works which is to say
photocopying and at home taping of TV and motion pictures. Our response there has been
piecemeal, essentially letting the problem get away from us. By the time legislation was
put in place, it was a Band-Aid on the situation. And I think those two very different
experiences have taught our own congress or policy makers that it is best to try to ride,
to stay as much on the crest of the wave as you can. That is why the Clinton
administration 2 years ago initiated the process of studying the relationship between the
copyright law and the national information infrastructure and released this report at a
time when there is a great deal of interest in the Internet. People and businesses have
not established around, shall we say, bad practices; the expectations to be able to
infringe have not been able to take hold and so it becomes the task of the legislator to
address these problems before you come against such a severe wall of resistance from
people who have entrenched personal or financial interests and exploited works without
authorisation.It has been very gratifying to see that when the United States came with its
white paper in hand to the WIPO meeting on the Bern Protocol in early September of this
year that the vast majority of states, not only the industrialised states but also many
developing countries saw a value in moving international deliberations they had, at a
relatively rapid speed, for standard progress in the development of international
treaties. There was consensus evident in that meeting in September that was affirmed by
the government bodies of the WIPO, that dealing with digital issues as well as some other
more traditional issues in the context of the Bern Protocol on new instruments should move
forward as rapidly as the development of the context would permit and even allowing for
the convening of a diplomatic conference within the next calendar year. This to us was
quite gratifying and we think that it will be in the interest not only of countries that
are net producers of copyright works but of the population all over the world who will be
able to take advantage of new works and new avenues for their dissemination.
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