Patrice A. Lyons
Law Offices of Patrice Lyons, Chartered
D-Lib Magazine, October 1995
There has been much discussion of the application of "intellectual property" law, in particular, copyright, to the evolving national information infrastructure, and its extension on a global basis. But consideration of the interplay between copyright and communications law has been largely overlooked. This has been -- and will continue to be -- an area that requires careful analysis as works protected under copyright are converted to various digital formats, and works are increasingly expressed directly in digital form. Where interactive access to such works is widely available over distributed communications pathways having computational capabilities, the need for a framework under communications law assumes increasing importance. Work going forward on the development of an architecture for access to digital objects is a major step toward providing a useful basis on which such new services may grow and flourish.
An architecture is being developed as part of the Computer Science Technical Reports (CS-TR) project organized by the Corporation for National Research Initiatives, and sponsored by the Advanced Research Projects Agency, in which information in the form of "digital objects" is stored, accessed, disseminated and managed. Fundamental aspects of the infrastructure were described in a paper by Robert Kahn and Robert Wilensky (CNRI.dlib/tn95-01). In this context, the term "digital object" is defined simply as a set of sequences of bits, including a unique identifier for the object called a "handle." A digital object may be based on or incorporate information in which copyright, patent, mask work, trade secret, or other rights or interests may be claimed, although this need not always be the case.
Digital objects may be deposited and stored in a network-based server called a "repository" for possible subsequent access. These repositories may be operated in a variety of ways, spanning the range from individual storage depots to bulletin boards to broadcast stations on the net. From a copyright perspective, it is important to stress that a "handle" identifies a particular digital format in which a work may be fixed, and not the work itself. For a given work, there may be several handles (or unique identifiers) assigned depending on the context. For example, a work may be given a handle for its Postscript representation, a second handle for the Word Perfect version, and a third handle for Group IV Facsimile.
For commercial enterprise to take full advantage of the national information infrastructure, and its extension on a global basis, it is helpful to separate out the need for clearance of any copyrights or other rights or interests that may be claimed in connection with the contents of digital objects from compliance with procedures for accessing digital objects, which are viewed as packages that incorporate and identify contents. In the physical world, various package delivery companies like UPS or Federal Express need not obtain permission from a copyright owner or other owner of rights in the contents to move a physical package from one place to another. Another transport example involves a common carrier moving bits from one location to another, without knowledge of the contents of the bits.
In the case of transport by a communications facility, a dual level of authorization is often required: one covered by the communications law (this came up recently in the context of North American Free Trade Agreement [NAFTA] where provision was made for what are termed program-carrying signals), and one applying to any contents of the signals that may be subject to copyright or other rights. For example, in the broadcast industry, retransmission consent is viewed as a separate (albeit connected) level of authorization from clearance of any copyright rights of reproduction, performance or display. This dual level of authorization would be helpful in connection with the concept of access to information in various digital formats. Apart from the licensing of any rights and interests in the contents under copyright or other bodies of law, digital objects and the legal framework under communications law that regulates access to such objects should be addressed, together with consideration of the technical aspects of an information infrastructure.
Let us consider briefly the legal underpinnings for a business strategy that might be developed. Conventional communications law focuses generally on the unauthorized interception and further communication of a program-carrying signal. For example, section 325(a) of the Communications Act of 1934 states in part: "nor shall any broadcasting station rebroadcast the program or any part thereof of another broadcasting station without the express authority of the originating station." The Federal Communications Commission has construed section 325(a) as requiring consent of the station whose signal is rebroadcast even in those cases where property rights in the program material may rest elsewhere.
The latest chapter in communications policy granting rights to broadcasters is the new section 325(b) of the 1992 Cable Act, which for the first time grants broadcast stations the right to withhold consent from carriage of their signals by cable systems. This is not a copyright right, but rather a communicator's right, which is separate from any copyright claims in any underlying works. As noted in the legislative history of the 1992 Act: "Congress created a new communications right in the broadcaster's signal, completely separate from the programming contained in the signal. Congress made clear that copyright applies to the programming and is thus distinct from signal retransmission rights" (Broadcast Signal Carriage Issues, 8 FCC Rcd. 2965, para. 173 ). In other words, there is a right at the "package" or program-carrying signal level.
Perhaps the most important section of the communications law that cuts across all delivery media (except broadcasting) is section 705. Section 705 precludes the interception and divulgence of radio and wire communications not generally available to the public. Section 705 was called into play in the interactive communications services world in the case of Telerate Systems, Inc. v. Caro, 689 F.Supp. 221 (S.D.N.Y. 1988). Telerate, a provider of financial market data available through a dial-up service, sought a preliminary injunction against a company that had developed a computer interface that allowed authorized Telerate subscribers to manipulate the Telerate data in an enhanced fashion. The court granted Telerate's preliminary injunction request on a variety of grounds. In particular, the court found that Telerate had demonstrated a high degree of likelihood of prevailing on the merits of its section 705 claim.
The court found that there had been an interception of a transmission not intended for the public and that there had been a "publication" of such transmission. The problem with the Telerate case, however, is that, in fact, the subscribers had paid for the transmission of the data, but Telerate, through contract, was attempting to limit their use and manipulation of such data by limiting the hardware and software that could be utilized to massage the data. The acts of rebroadcast, or interception and divulgence, that are currently regulated for the broadcast and cable industries, fit uneasily as a basis for developing any business which relies on digital communications. The provision and facilitation of access to repositories of computer programs or computer databases, or some combination thereof, will be a fundamental element in future business plans. Instead of passively receiving information, customers will want to tailor the information they receive to their individual requirements.
A useful step in this direction is the development of a legal framework under the communications law for the provision of access to digital objects that may be stored in repositories, whether the repositories are maintained by what are now labelled as libraries, broadcast stations, cable systems, telephone companies, book, music, software, database or CD-ROM publishers, information service providers, or others. Repositories may also be made available by corporations in other sectors such as manufacturing, and the implications for flexible production practices hold great promise because of the need to share designs and other manufacturing information. It should even be possible for an individual to allow access to a personal repository of information under agreed terms and conditions. In this context, the notion of "access to perform stated operations on a set of sequences of bits" is a potentially important new addition to the provision of communications services that appears to fit comfortably in the context of communications law; and, the rules governing this interactive access, including provision for the dissemination of the results of such access, should be articulated within the framework of that body of law.
A report that discusses this proposal in more detail, co-authored by Ms. Lyons and James E. Dunstan, Partner, Haley, Bader & Potts, is scheduled for publication in October 1995 by New York University School of Law in the 1994 Annual Survey of American Law.