We have been ‘entering the information age’ for a several decades now. One would think that the ramifications of this new age have long since been evaluated. But some of the legal and societial implications of this transformation have only recently been seriously addressed.
The most important of these issues is the price of information. How much should we pay, and how should we pay it, to read a novel, to listen to music, to look up an address, to use a word processor, or to view a satellite image? In addition how accessible should that information be, regardless of price?
These are not new questions. For hundreds of years, every conceivable answer to the questions have been tried. The answers have typically implemented using copyright laws that vary from making all information free to giving the creators of information total control. Current copyright laws are somewhere between these two extremes. They do a fairly good job of balancing the interests of the creators of information with that of the consumers of that information.
The new information technology has disrupted that balance. For the first time, anyone can make perfect copies of any information, trivially and without cost. This capability has spawned what I would term an overreaction from the information creator community. An example of this overreaction is the ‘Collections of Information Antipiracy Act’, which if passed will seriously damage not only the free flow of information, but also, to some people’s surprise, American industry as a whole.
To make this point, some definitions are in order. The easiest way to define information (or synonomously, data) is something that can be expressed digitally, as ones and zeros. For example, text, books, music, pictures, scientific measurements, computer programs, movies, and so on can all be expressed digitally. All are information.
As a counter-example, an automobile cannot be expressed as just ones and zeros. It is a physical thing, not disembodied information. Note, however, that the specifications of that automobile can be expressed digitally.
Here we will be mostly concerned with a subset of information that is referred to as intellectual property. Intellectual property is information that had been created by someone, and is owned by someone. Publishers or authors typically own the rights to books, music, movies, and so on. Note that the creator and the owner of the intellectual property are not necessarily the same entities: authors can sell the rights to their works to publishers, for example.
Intellectual property is protected by an armada of copyright, patent, and trademark law. Intellectual property can be bought and sold. Pure information has no such protection. It is for the most part free to all. Therefore, defining what is intellectual property, and what is just information, is the crux of the issue, and the core of the debate over the ‘Collections of Information Antipiracy Act’.
By definition, intellectual property has to be created. In 1991, the Supreme Court reiterated that a mere fact is not intellectual property. You can copyright an article, but you cannot copyright your measurements.
Keeping facts out of copyright is a very good thing. Scientific research can operate effectively only in an environment where technical data is shared openly and freely. Imagine the situation if this was not the case: you could be sued for using the temperature readings in Duluth, because someone else had slapped a copyright notice on their measurements.
The proposed Act does not copyright facts, but it does the next best thing: it proposes to allow the copyright of collections of facts. Perhaps a single temperature measurement would not be copyrightable. However, a book of temperature measurements, with the new law, would be copyrightable.
The proposed Act is being sold as contributing to American industry. More and more effort is being spent in creating these collections, or databases, of information. Think for example of the databases that combine phonebooks from across the country into a unified directory. The creators of these databases say they need incentive to continue producing these collections, and that incentive is copyright protection.
Needless to say, the academic community is not happy with this proposal. The act would give protection to a vast amount of data that is currently in the public domain. The distinction between facts and collections of facts in the Act is so ill defined that it may very well give defacto protection to mere facts. It opens up universities to vastly increased liability for use of data.
Many people view this debate as one where industry is on one side and academia is on the other. That supporting the free exchange of information would hurt industry, and cost jobs. Our view is that this is not correct. In many ways, the Act hurts industry more than it helps it. For every company selling collections of fact, there are several others that make money off of those very same facts.
For example, my own company, Fortner Software LLC, sells tools that make it easy for people to view and analyze technical data such as satellite images from remote sensing satellites. The market for our software exists because NASA makes its remote sensing data available to all. If that data was proprietary, the number of people that would access that data would be vastly smaller, and the market for our software would dry up. As another example, the people trying to make money off of unified phone directories themselves depend on the free availability of phone information from across the country.
In general, the availability of a large amount of freely available data not only energizes research and development, but also makes possible the creation of whole industries for processing, managing, and analyzing that data. Pulling much of this data out of the public domain would damage or destroy many of these emerging industries.
Our country and our government has a history of increasing our country’s competitiveness by making new resources available to all, and thereby creating new markets. Examples would include the interstate highway system, the federal airport and airspace system, and more recently, the internet itself. Would the internet had changed our world if users had to pay for every packet sent? Obviously not.
The balance needs to be restored. The rights of the authors of information needs to be maintained, to continue to encourage the creation of that information. On the other hand, the free availability of a large body of information is just as important, to maintain not only our excellence in scientific research, but also to foster new markets that depend on that information.
This is not a small issue. Today, over four hundred billion dollars of the country’s gross national product (GMP) is copyrighted information. This number, in both absolute and relative terms, is growing much larger every year. A bad decision on this issue today will have vast consequences in the days to come. After all, information is our future.
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