Re: AAP Position on Copyright and Scanning -- from Willis Ware

[David Farber <farber () central cis upenn edu>]

Date: Mon, 29 Aug 94 10:29:24 PDT
From: "Willis H. Ware" <Willis_Ware () rand org>



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Folder: YES

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Dave:


This scanning and dissem business is a very complicated and intricate
discussion; do you want your list into it?


There are several points that can be made:


    1.  Introduction of new technology almost always induces
dislocations in traditional ways of doing things, in job availability,
in management/union relations, in patterns of cash flow, etc.  So long
as a transition plan is agreed upon by the interested parties and
usually, enough time is allowed for conversion, things seems to work
out; e.g., the switch from hardtype to electronic publishing in regard
to the union representing linotypers.


    2.  The publishing industry has been tardy in changing its
dissemination modes, its pricing structure, and its traditional
attitudes to accommodate the diffusion of electronic methods.


    3.  The legal community has likewise been exceptionally tardy, if
not delinquent, in understanding the issue.  My view is that until the
lawyers understand the distinction between [1] information and [2] the
representation of information, the copyright laws will never do the
proper job for the future.  When one hears complaints about
infringing, it is exactly because the copyright laws protect the
representation [e.g., the magazine, the book, the newspaper] and not
the information content therein.


    4.  The bottom line is cash revenue; in a real sense "infringing"
equates to loss of revenue.  If it were not so, you would hear little
complaining about infringement.  The problem is not new; a recent
similar instance was "how to reimburse musical artists for their
creative intellectual property as exemplified by an audio recording --
the so-called residuals issue.


    5.  The world is going to stumble along making ad hoc arrangements
to accommodate old traditions, old positions, old revenue-producing
arrangements, etc. until we get copyright laws properly framed AND the
publishers of intellectual property understand how to market in the
new environment.  The shrink-wrap industry, and maybe the CDROM
industry, is probably closest in having converted to a contemporary
marketing posture.


As I said above, it's a complicated business and I'm not sure that I
take the AAP position as completely valid.  My library is allowed to
make a fair-use copy of copyrighted stuff and I could in turn make
photocopies for others.  BUT the library puts a stamp in the first
copy saying that it is copyrighted material, and while this could be
removed by white-out or other schemes, at least there is some effort
to identify a fair-use copy.  It leads one to ponder how to bind such
a fair-use label to an electronic copy!  Maybe if one could, or would
do that, some of the abuse of fair-use doctrine would go away.


                                                Willis


PS - Just for information.  The big data vendors [WestLaw, Dialog,
Lexis/Nexis] are in for major dislocations also.  Some of them have
had sweetheart deals with government agencies to have exclusive access
to public records.  As these contracts are expiring, folks are
objecting to this preemption of access to materials that were paid for
by tax revenues.  One is seeing it in states [California has been through
part of it] and at federal level; e.g., the intent of DOJ to
re-establish an arrangement that as existed with Westlaw for many years
is being hotly contested.