THE PUBLIC INTEREST IN COPYRIGHT: PAST, PRESENT, AND FUTURE

Saturday, May 4, 1996
9:00 a.m. - 5:00 p.m.
Krutch Theater, The Clark Kerr Campus, University of California, Berkeley



Join publishers, scholars, educators, librarians, legal practioners, historians, and creators of copyrightable works to help develop a vision of the public interest in copyright in a digital age. Conference participants will analyze copyright in historical, present and future contexts to determine how the public interest can become an integral part of the NII White Paper and recent copyright legislation debates. One of the major thrusts will be to emphasize the value of a utilitarian balance of private and public goods as the more productive area for discussion and resolution of copyright issues.

Detailed Panel Information.


Opening Remarks - Kathleen Vanden Heuvel



Speakers

Peter M.C. Choy Counsel, Sun Microsystems
Esther Dyson President, EDventure Holdings
Carla Hesse Professor of History, University of California, Berkeley
Joel Linzner Attorney, Townsend and Townsend and Crew
Clifford Lynch Director, Library Automation, University of California
John Nash Director of Publishing, Matthew Bender Company
Paul Evan Peters Executive Director, the Coaltion for Networked Information
Monroe Price Professor of Law, Benjamin Cardozo Law School, Yeshiva University
Mark Rose Professor of English, University of California, Santa Barbara
Pamela Samuelson Professor of Law, Cornell University
Jonathan Tasini President, National Writers Union
Hal Varian Dean, School of Information Management and Systems, University of California, Berkeley


University Sponsors

The School of Information Management and Systems, University of California, Berkeley The Librarians Association of the University of California, Berkeley
The Doreen B. Townsend Center for the Humanities Boalt Hall School of Law
The University Library UC Extension
Alumni Association of the School of Information Management and Systems University of California Office of the President



Corporate & Law Firm Sponsors

Apple Computer
Sun Microsystems
Townsend and Townsend and Crew



Opening Remarks

Kathleen Vanden Heuvel

Deputy Director of the Law Library at UC Berkeley, Boalt Hall & Chair of the Librarians Association of the University of California, Berkeley Division.

These days, everyone acknowledges the revolution in information access and delivery. Electronic information has changed the way we live, the way we work , the way we solve problems and at a basal level, it has changed the way we think. The technocowboys see the release from the tethers of time and space as a good in itself and seem relieved to have a new frontier in which they can go where no man has gone before.

Although many librarians are as adept in their use of technology as the technocowboys, they are often perceived as resistant to change. I think this is because librarians tend not to be awed by the magnitude of technological discoveries. We spend our days grappling with organizational and retrieval systems that only hint at the richness of the information they purport to categorize and find. To us the question "what is information" never has an obvious answer. We struggle to create a coherent context for information, not as scholars do, by producing articles and books, but by creating an environment in which we draw attention to the subtle, often fragile connections between and among various pieces of data. While we are excited about the power and potential of the internet, to us it is still a blunderbuss.

For so many years the protection of the 'public interest' in access to information has rested with a few institutions, such as libraries, museums, universities, and public broadcasting. Traditionally librarians have perceived the public interest in copyright primarily in terms of the equitable doctrine of fair use and section 108 of the copyright act, on which we have relied heavily. Because librarians are surrounded by the collective knowledge of multiple generations, librarians are seldom persuaded that original ideas spring full blown from the heads of geniuses; as Maurice Sendak says, the essential element of the creative process is finding the right thing to steal. Our job is to create an environment in which the creative process can flourish, where this so-called stealing can be directed, controlled, and turned into inspiration. In a digital world, however, copying and sampling is so incredibly easy-- the fear of what might transpire if copyright owners don't find either direct or collateral ways of cutting off fair use is sending lawyers, business folks and legislators into a tizzy. And the fear that we will lose the defense of fair use is sending us into a tizzy as well.

Although librarians had been an integral part of the information delivery in the United States for about 100 years, libraries and librarians are NOT at the forefront of the new wave of information management. Our squishy-headed need for public financing has been mocked and derided on talk radio and in university and corporate administrator's offices. Because of our association with books and buildings, many assumed we are not savvy about cyberspace. And then there was the issue of time and space constraints: as one of my students recently put it, there are two things wrong with libraries: one, you have to go to them and that's a lot of bother, and two, you have to share with other people, and that's even a bigger bother. Not only have librarians increasingly found themselves at odds with the commercialization of traditional information sources, it has also become clear that many library users would prefer to pay for access rather than to come to a communal space and share communally owned books.

But while we are not at the forefront, the changes that are occurring in the way information is owned, sold and delivered, and the changes that the NII White Paper suggest, are having an enormous, institutional impact on libraries and librarians. In just a few years time have been faced with multiple issues that seemed to undermine our very existence. To name just a few:

  1. massive increased in the cost of information, with no increases in our book budgets
  2. massive increases in our and our users' need for computer equipment with no budget to pay for this equipment
  3. enormous increase in use of the internet, but a spectacular lack of ability on the part of our users to discriminate/determine validity of the information, which means far more time on our part trying to identify the authority/value of information
  4. increase in the licensing approach to information delivery, but no real market operating, so licensing costs aren't predictable/reasonable, much of the time

In the past few years librarians have found themselves isolated within our universities and corporations. Our vision of the public interest, whether written broadly as in a large public institution such as Berkeley, or more narrowly (though no less importantly) at corporations and law firm libraries, no longer seemed viable. Discussion about the issues of public interest and information access and delivery was taking place among the librarians at the University of California, Berkeley, where we considered it to be the number 1 issue of our profession. But the idea for this conference was not born until librarians began discussing their concerns with scholars at the Townsend Center for the Humanities. There we discovered a growing interest in among scholars in the intersection of public interest and ownership of information. It was a wonderful opportunity for building coalitions and creating a new vision of what the public interest in information access might mean in a digital age.

Librarians know that we can't hold back commercial interests in information or business takeovers of traditional information sources, and indeed we have and will continue to benefit from many of these changes. We are in no particular position to make determinations about what's right or wrong, and have no interest in taking a moral high ground on issues of the public interest in copyright. Unlike some of our faculty colleagues, we do not think that we can copy anything we want so long as it's for educational use. Nor do we think that all information should be free and unconstrained. We do, however, want to be a voice for balance, and to join with other voices who share a sense that giving weight to the public interest in copyright is not simply a mushy-headed indication that our hearts are in the right place, but a recognition that a healthy society needs both constraints and flexibility in its protection of its members' creative output.

Even in (perhaps especially in) a revolution, there is need for a stabilizing influence on change. Librarians may not have a lot of political clout, but we do have the institutional infrastructure that can help us all through the information transformation.

In order to develop a more dynamic way of understanding what the public interest might mean, we asked a lot of questions: What is the current reality in copyright law and how does it affect/protect the public interest? What is the history of the protection of ideas? What does authorship mean in a digital, multi-media age? What does authorship mean in an age of corporate ownership of creative output (we own your dreams); what reasons, other than profit, might a person have for publishing? What about technology for tracking people's information use in an electronic environment--how does that effect fair use? Do publishers want fair use to survive? Where does the public interest reside in cyberspace and can it be leveraged in an information marketplace? Who will pay for the public interest? Will public sharing of information survive libraries that are not physical spaces? Does the act of copying in and of itself destroy the value of a copyrighted work? How do we balance equitable principles with private ownership? As communal space contracts, how will the public interest thrive?

These are questions for at least a dozen conferences, but we couldn't wait for them all to happen. The questions seemed too urgent, our interest too strong. And so, in a brief six hours we will hear from an amazing group of speakers, who will discuss their visions of how the public interest and copyright have intersected, and what the future might bring. We are here today to listen and to discover that concern for the public interest is alive and well. Perhaps someday, in order to defend the public interest, we will have to come together and agree as to precisely what we mean by it. But for now, I hope we will find stimulation in the differences of perception and understanding.

It is with great pleasure that the Librarians Association of the University of California Berkeley, along with our co-sponsors, present The Public Interest in Copyright.


PANEL I

AUTHORSHIP AND THE MODES OF PRODUCTION

Moderator: Geoff Nunberg Xerox Parc
Participants: Joel Linzner Attorney, Townsend and Townsend and Crew
Mark Rose Professor of English, University of California, Santa Barbara
"When is an Author?"
Peter Choy Counsel, Sun Microsystems
Jonathan Tasini President, National Writers Union
"Electronic Or Print, The Question Is Still About Power"

PANEL II

PUBLICATION AND THE MODES OF CONSUMPTION

Moderator: Karen Coyle Technical Specialist, Library Automation, University of California
Participants: Paul Evan Peters Chair, Coalition for Networked Information
"Looking Back On Copyright From Alternative Futures Of Information Access And Use"
John Nash Director of Publishing, Matthew Bender Company
"Trends in Electronic Legal Publishing Property Rights"
Clifford Lynch Director of Library Automation, University of California
"Copyright License and Management Technologies"
Hal Varian Dean, School of Information & Management Systems
"Some Economic Considerations For Digital Intellectual Property"

PANEL III

THE PUBLIC INTEREST AND THE MODES OF COMMUNICATION

Moderator: Robert Post Professor, Boalt Hall School of Law, University of California, Berkeley
Participants: Carla Hesse Professor of History, University of California, Berkeley
"Cultural Infrastructure and the Public Good in the Digital Age"
Pamela Samuelson Professor of Law, Cornell University
"Maintaining a Balanced Copyright Policy In Digital Networked Environments"
Monroe Price Professor of Law, Benjamin Cardozo Law School, Yeshiva University
"Open And Closed Terrains Of Speech"
Esther Dyson President, EDventure Holdings

Contact information:

Kathleen Vanden Heuvel
Boalt Hall Law Library
510 643 9147
kvandenh@boalt.berkeley.edu
Michael Levy
Boalt Hall Law Library
510 643 4025
levym@boalt.berkeley.edu
Please send inquires about this Web Site to gwachob@www.law.berkeley.edu
Last Updated 5/7/96/