Page 34

an online textbook. Someone knowledgeable in the field covered by the textbook may, on reading the text, decide that there is a better order of presentation of the material and might indicate that by establishing a set of hyperlinks that effectively reorganize the book.15 Is the set of links a derivative work?

In a similar vein, a practice on the Web known as "framing" has raised a number of IP-related questions, particularly in the commercial context. Framing refers to one Web page presenting information from another. When both pages are the work of the same author, no issue arises. Questions arise when the framed page is the work of a different author and when the information on that page is presented in less than its entirety (e.g., without advertisements that originally appeared there, or stripped of information identifying the author). In that case have the first author's rights been infringed by the second author's adaptation?

In the music world, the ease of searching, indexing, and reproducing digital information has led to enormous growth in sampling—the reuse of segments of previous works—leading to questions of intellectual property infringement and fair use.

From the early days of the software market to the present, commercial distribution of digital information typically has been through the use of licenses rather than by sale. Packaged software traditionally has had a shrink-wrap license, an agreement that purportedly goes into effect upon opening the (shrink-wrapped) package. More recently, a wide variety of digital information is being marketed on the Web with what are sometimes whimsically called "click-wrap" licenses, an agreement presented on the screen and "agreed to" by the click of a mouse. Negotiated licenses are also used to clarify the terms governing access to large databases.

The difference between selling a work and licensing it is significant. The sale of a physical copy of a work has been the dominant model for transferring IP to the consumer for more than 200 years. Sales involve the complete transfer of ownership rights in the copy. Copyright law explicitly anticipates the sale of intellectual property products and, by the "first-sale rule," constrains a copyright holder's rights in copies of the work that have been sold. For example, the purchaser is free to lend, rent, or resell

(footnote continued from previous page)

sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a derivative work.

15This tactic is not new, having been used for some years in educational "course packs" like the electronic field trips offered by the Colonial Williamsburg Foundation.