April 10, 1994

Rewarding Authorship in Cyberspace
Is Intellectual Property the Answer or the Problem?

By: David R. Johnson

        The National Information Infrastructure Advisory Committee has a special
subcommittee on protection of intellectual property rights. Assistant Attorney
General Anne Bingaman will propose guidelines regarding preservation of
intellectual property, consistently with antitrust laws, on the information
superhighway -- noting in her announcement how important intellectual property
protection is to eliciting authorship.

       An MIT student is arrested for hosting a computer bulletin board that allowed
users to copy software.  A Florida sysop is held liable for users' actions in
uploading Playboy photos without his knowledge.  Everywhere we turn, there are
stern warnings that the new ease of making electronic copies will destroy
incentives for the creation of new works -- and, therefore, that the network will
destroy culture as we know it unless strong new measures are taken to enforce
copyright and patent laws.

        Let me try to make the contrary case: the case that intellectual property law
is creating serious problems and that we need to find ways to weaken our current
protections dramatically for intellectual property, at least insofar as these
protections apply to short electronic works in the form of text exchanged over
the networks.

        I will limit my argument to short text works, for the moment, but IP law is
causing problems in lots of different areas.  The complexity of assembling diverse
copyrighted materials of all types is inhibiting the creation of multi-media
works (without corresponding positive benefits).  Claims by West Publishing
Company to "own" the copyright to the page numbers in their compilations of
court cases are inhibiting the electronic publication of the law in counterproductive
ways (without producing any offsetting useful effects). The rise of serious
prospects for patenting software and protecting functional "interface" features
with copyright is stunting the growth of a creative new industry.

        The most striking contrast between copyright and common sense now
concerns its application to short text messages exchanged via electronic networks. 
The new Berne convention doctrines providing that every e-mail message is
automatically copyrighted, without the benefit even of a notice, combined with
suggestions that copyright compliance must be vigorously enforced by system
operators at their own peril chills the kinds of free-wheeling discussions and
message-forwarding essential to development of our new electronic global dialog.

        When our culture was an oral one, the key form of "copying" was
story-telling. No one "owned" the story -- but good storytellers could make a living
because not everyone had the skills to practice their art.  When the printing press
made it easier to distribute permanent copies, the state intervened to create
artificial monopolies by creating a new "ownership" law. But the best protections
of authors' and publishers' prerogatives stemmed from the cost of a press and the
difficulty and cost of copying as compared to the relatively low cost of buying an
authorized copy. Now that it's so easy and cheap to make an electronic copy, all
the pressure is placed on the legal scheme. Yet the rise in unauthorized copying
may be not so much a sign of declining morality as a signal that the new medium
should be treated differently from the old.

        In a brilliant article in _Wired_ magazine, John Perry Barlow suggests that an
increase in electronic copying will not destroy culture as we know it -- because we
will revert to arts that are more like story telling and live performance. I agree
that our bards will still make a living, because they will, uniquely, give great e-mail.
We can reward those who create great works online by paying to listen to them in
a timely fashion, -- without worrying that those sitting attentively around the
electronic campfire may retell the tale to others. There is an incentive to pay to get
the next day's story -- and the interactive and iterative character of the medium
makes it matter whether you are receiving the message directly from the author or
indirectly from a member of the author's audience.

        I think this is all great news -- unless the law screws things up. It means that
the works easiest to protect and charge for in cyberspace will be those that are
truly interactive -- those that demand the presence of the author in a capacity
allowing give and take.