Information has come to play an increasingly important role in our lives, both at work and at home, yet knowledge of intellectual property law, which provides the basic ground rules for accessing and using information, is neither widespread nor well appreciated. With the emergence of the information infrastructure into everyday life, the opportunity to copy information has increased enormously. The development of the World Wide Web has led to an exponential growth in the volume of digital information available, and the significance of information to the national economy continues to climb, with a frantic pace of exploration in new forms of information businesses. Yet the population of both information consumers and information producers is not particularly well informed about the rules that currently guide the handling of this valuable commodity.
The discussions in Chapters 4 and 5 suggest that there is a substantial amount of infringement of intellectual property rights. This infringement is not only significant economically; it also reflects a mind-set that could, in the long term, ultimately be destructive to the prosperity of an information economy. Some of this infringement no doubt occurs because people do not understand the basic tenets of intellectual property (IP) law. Copyright education could help correct this problem.
Other infringements are carried out by people who know at some level that their activities are unlawful, but have not thought about the
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Page 304 Appendix F Copyright Education Why is Copyright Education Needed? Information has come to play an increasingly important role in our lives, both at work and at home, yet knowledge of intellectual property law, which provides the basic ground rules for accessing and using information, is neither widespread nor well appreciated. With the emergence of the information infrastructure into everyday life, the opportunity to copy information has increased enormously. The development of the World Wide Web has led to an exponential growth in the volume of digital information available, and the significance of information to the national economy continues to climb, with a frantic pace of exploration in new forms of information businesses. Yet the population of both information consumers and information producers is not particularly well informed about the rules that currently guide the handling of this valuable commodity. The discussions in Chapters 4 and 5 suggest that there is a substantial amount of infringement of intellectual property rights. This infringement is not only significant economically; it also reflects a mind-set that could, in the long term, ultimately be destructive to the prosperity of an information economy. Some of this infringement no doubt occurs because people do not understand the basic tenets of intellectual property (IP) law. Copyright education could help correct this problem. Other infringements are carried out by people who know at some level that their activities are unlawful, but have not thought about the
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Page 305 long-term consequences of weak respect for intellectual property rights. Education may assist here as well. Others might be persuaded to curb infringing activities if copyright education led to increased social or peer sanctions against infringement. Even modest results would be useful: It would be a step in the right direction if people started thinking about the legality of their actions before making unauthorized copies of protected works. However, the committee is not suggesting that copyright education is likely to influence directly the behavior of commercial pirates, who understand that their behavior is illegal. Finally, although the committee concludes that copyright education would be widely beneficial, this specific recommendation is targeted to the United States. What Should Copyright Education Include? Because people tend to obey laws that they understand and think fundamentally fair and sound, copyright education should be based on the fundamental fairness and soundness of intellectual property law. A program of copyright education should describe the core goal of IP lawthe improvement of society through advancement of knowledge by encouraging the creation and distribution of a wide array of works. The program should point out that, in the long term, all IP becomes a part of the shared heritage, universally available. In addition, the program should describe the basic means for achieving this goaltime-limited monopoliesand the rationale for providing them (i.e., as a way to provide an incentive to creators, yet ensure that all the fruits of their efforts are eventually disseminated widely). The educational program must communicate these points in a direct, jargon-free manner. Although intellectual property in general and digital IP in particular are fraught with controversy, several basic principles can be communicated usefully with clear-cut examples. For instance, the basic exclusive rights of copyright, such as reproduction, sale, and public performance, make it clear that reproducing and distributing complete copies of a work (e.g., a computer program) is illegal, even if it is only one copy that is given free to a friend. The program should also note that ease of copying or the risks of detection do not affect the legality of an infringing act, and should perhaps emphasize the role of ethics rather than punishment. The program should also describe the limits on IP rights by including an introduction to fair use and other limiting principles of copyright and describing their role in accomplishing the larger purpose of the law. The program should acknowledge that fair uses can be made of copyrighted works but that not all private, noncommercial copies are fair uses. An additional focus may be provided by the common myths and
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Page 306 misconceptions about intellectual property1 and information generally. For example, people may commonly distinguish between theft of tangible property, which deprives the owner of his or her rightful possession of the property, and appropriation of IP, which enables another person to consume the work even if not depriving the owner of his or her rightful use. The program should stress the concept that harm occurs in both situations, even if the harm from copyright infringement is more intangible. Individual acts of infringement mount up; they matter. Some of them represent lost sales; others represent a kind of unjust enrichment of the consumer. The appeal should be to fairness. Copyright education should be aimed at more than deterring infringement, by attempting, in addition, to illustrate how intellectual property law provides benefits to anyone seeking to contribute to the information age. To Whom Should Copyright Education be Directed? Designing an education campaign to appeal to the right audiences is difficult without empirical data about who is infringing and why, and about what people generally know and don't know about copyright. The lack of such data motivates the suggestion of researching public knowledge about and attitudes toward copyright. Although some appropriate target audiences are fairly obvious (e.g., students), more information about these audiences and their views is a crucial foundation for an effective program. Education should go beyond the circle of likely infringers and encompass individuals who have some influence over potential infringers or who are part of the culture that tolerates infringing acts (see Box F.1). Who Should Fund or Conduct Copyright Education? Disagreement is likely on the issues of funding copyright education and choosing the appropriate venue for such education. Some constituencies would like to require schools to include a module on copyright in every grade, from kindergarten through postgraduate work (see, for example, the white paper Intellectual Property and the National Information Infrastructure (IITF, 1995)). Others have doubts about the appropriateness of such an extensive campaign. One concern is that a federal government requirement for copyright education in schools would raise the issues of whether federal funds should be allocated for such a purpose and whether 1See Chapter 4 for a discussion that includes numerous examples.
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Page 307 BOX F.1 Would Instructors Benefit from Copyright Education? One reviewer of this report suggested that educators, too, need copyright education, became at times they encourage students to do things that are questionable regarding copyright It is not uncommon for professors, including law professors, to assign article readings to their students and let them know that the articles may be found in journals in the library or that a copy of each article may be found on reserve in the library. Photocopying machines are made readily available in the library or in the school hallways. For the professor to duplicate course packets without permission of each and every publisher would be deemed in violation of agreements developed among the publishers and the library community. However, for a professor to encourage each student to acquire their own copies seems to skirt the legal issue. The professor can always argue that he or she assumed that students would legally acquire copies, and yet knows that each student will not ask the publisher for permission to make a personal copy. There is always the additional argument that a personal copy could be construed as fair use . . . even though hundreds of personal copies are being made for a single class. The same reviewer also provided some insight into one rationale for infringement in the scientific community, suggesting that: Scientists are often forced to give up exclusive copyright in their works (and sometimes pay page charges) in order to have their articles published in the lead[ing] journals. This is particularly true at the beginning of a scientific career> since they no longer have copyright, researchers are legally obligated to ask publishers for permission to distribute [photo]copies of their authored articles to their own students and to their close research associates, as well as to distribute the articles of their close associates. The pricing structure that seems to maximize profits for scientific publishers is one in which journals are acquired by only a segment of elite academic libraries that can afford them. As a result, many academic scientists and researchers don't have convenient access to many of the journals they publish in (particularly those professors just beginning to build their careers at mid-level or poorer universities) and certainly not to those journals peripheral to their primary areas of interest. Therefore many scientists knowingly breach the letter of the 'law' because of their disagreement with the monopolistic practices being imposed. There is strong feeling in the academic community that publishers are using heavy handed practices and are not playing fair (text box continued on next page)
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Page 308 (text box continued from previous page) BOX F.1 Continued The committee does not endorse a particular view on this issue or the specific comments of this reviewer. However, the two examples are useful in illustrating the question of whether the issue is ignorance of copyright law, or a deliberate violation of the law that is believed to be justified because of the purpose of the infringement or the perceived unfairness of the marketplace. the federal government should encourage specific content to be included in curricula (which is traditionally determined at the local level). Having the federal government pay for the campaign would raise concerns, because it would likely be seen as a subsidy of the information industries.2 Why should taxpayers grant such a subsidy? Other government-funded public education campaigns are motivated by issues of public health and safety, which are clearly not at issue here. There are, however, precedents for industry organizations to undertake mass media campaigns designed to educate people about the consequences of their actions. For example, the ''Buy American Goods" campaign some years ago was funded by labor organizations and sought to protect American jobs by making people more aware of the consequences of buying foreign-made goods. Raising consciousness about the overall impact of individual decisions may be a plausible approach, one in keeping with previous industry-supported campaigns.3 Although information industry organizations probably should continue their educational campaigns in the mass media, the reach of these campaigns may not be sufficient. One way to extend the reach of such a campaign may be to establish a copyright education program using both private and public funds, at a nonprofit, unbiased institution, which could assist organizations in promoting copyright education at the local level. This approach would have several benefits, including encouraging 2However, this concern is not shared worldwide. For example, Hong Kong's government announced a major campaign to educate people about IP rights infringement. Hong Kong leader Tung Chee-hwa said during a July 1999 trip to the United States that fears of unchecked piracy remained the biggest obstacle to investment in the territory, notorious for its trade in pirated CDs and copycat products (Reuters, 1999). 3The Business Software Alliance has an ongoing campaign that includes spot radio announcements, aimed primarily at software users in institutional environments (in both the public and private sector). The Recording Industry Association of America has a campaign aimed at a younger audience; its "Byte Me" Web site is an effort to stem the distribution of illegal copies of popular music in MP3 format.
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Page 309 grassroots efforts to promote respect for copyright. Because they could be tailored to address the needs and concerns of the communities they serve, grassroots programs might have a greater chance of success than mass media or other national campaigns. Grassroots programs may also be more credible to their constituencies than self-serving industry-initiated efforts. The committee does not recommend making copyright education mandatory. Some schools may choose voluntarily to integrate copyright education into their curriculum, perhaps as a component of lessons on personal ethics. Students may be able to understand copyright principles better through examples that connect directly to their everyday life, such as considering how they would feel if a story they had written was published by someone else in a school newspaper without crediting them as the author. Because copyright education will be a new subject for schools, appropriate teaching materials may be lacking. In that case, some governmental funding, perhaps even at the federal level, could be used to support development of materials or guidelines for instruction. The National Science Foundation (NSF), for example, has a Science Education program that sometimes convenes panels of experts to provide teaching guidelines to assist in better science education for school curricula. Perhaps a comparable though smaller-scale effort (not necessarily by NSF) could be undertaken to develop appropriate guidelines for teaching about copyright. Copyright education need not be pursued in isolation. A typical user of digital IP on the information infrastructure should have familiarity not only with copyright issues but also with topics such as "netiquette," spamming, and privacy, as well as an understanding of how to use the technology itself. Copyright education might profitably be conducted as a component of larger efforts in information technology literacy.4 Some Cautionary Notes Copyright education must be planned with care; otherwise, it may easily prove ineffective or even backfire. One danger is oversimplifying the message, as was done, for example, in Intellectual Property and the National Information Infrastructure (IITF, 1995), which anticipated teaching kindergarten students to think of IP as property just like the toys they play with. Oversimplified messages about copyright will obscure the genuine and legitimate debate about how far copyright law extends, for example, 4See Being Fluent with Information Technology (CSTB, 1999a) for an extended discussion of these issues.
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Page 310 in the regulation of private-use copying. In the copyright area, a difference may exist between the law as it appears on the books and the law as it is actually carried out, akin to the laws pertaining to speed limits. In addition, one size does not fit all in copyright education. The unauthorized copying of entertainment works may be judged differently than the unauthorized copying of certain educational materials, particularly when specific purposes and other factors are weighed in the mix. Even entertainment works are not immune from fair uses being made of them as suggested by the Supreme Court's decisions in Sony Betamax (off-the-air videotaping as fair use) and Campbell v. Acuff-Rose (rap parody of a Roy Orbison song as fair use).5,6 Finally, a copyright campaign using heavy-handed, preachy, antipiracy rhetoric may backfire because it insults the public, rather than appealing to people's better judgment. Some lessons from prohibition in the early 20th century should be remembered: Heavy-handed rhetoric and enforcement practices bred less respect for the law, not more, and left people feeling justified in flouting the law. 5Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). 6Campbell v. Acuff-Rose Music, 114 S.Ct. 1164 (1994).