INTELLECTUAL PROPERTY RIGHTS ISSUES

BACKGROUND. The arena of copyright policy has been growing increasingly murky as rapidly changing information and communications technologies collide with copyright law and its delicate balance between traditional proprietary interests and user access. New media and combinations of media are emerging. New markets are being developed that blur distinctions between content developers and content providers. New and changed user communities are evolving, such as the extension of classroom and campus to distance education activities. Digital libraries extend the definition of libraries beyond location-bound functions. Some of these new media, markets, and users require intellectual property protection; some depend on access to copyrighted material. Most continue to need a balance between protection and access.

Changes in copyright law or re-interpretation of the statutes could significantly affect the Internet's functioning in expediting technology transfer. Such changes could also affect the network infrastructure itself, as well as federally supported activities such as research and education and library development. The emerging high-tech industries and many of the user communities are under-represented in the current debates. Yet their expertise will be most crucial in identifying and evaluating policy options.

Copyright policy should be consistent with the growth of the technological infrastructure. There is as yet incomplete understanding of how to achieve the multiple objectives in copyright law (especially protecting proprietor interests while encouraging use of copyrighted material) in the electronic environment.

The FNCAC focus in this area will emphasize the relationship between network architecture and intellectual property issues and interpretations of or proposed changes to copyright law. As an example of an IP issue that is a network infrastructure issue, the CIX report for October 1995 noted that CIX staff and general counsel had visited Commissioner Lehman (Trademark and Patents Office), Mike Nelson (White House) and Ed Damich (Senate, Chief Intellectual Property Counsel) to convey online service provider concerns with the proposed legislation based on the recommendations of the recent "White Paper". The CIX "recommended that because of the massive volume of traffic associated with messaging/news/web traffic that ISPs be treated as passive carriers' since ISPs do not look at or modify the contents of the traffic they are carrying. This position is somewhat in contrast to that described by the Department of Commerce's Intellectual Property and National Information Infrastructure (NII)' report which specifically cited the logistically favorable position ISPs have with respect to monitoring and enforcing copyright. We described how this is not the case."

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