Use of a computer to view, read, reread, hear or otherwise experience a work in Digital Form requires reproducing that work in a Computer’s Memory. Such reproduction infringes on the Copyright Holder’s Exclusive Control Over Reproduction. This, following the White Paper’s treatment of the situation, would require one to have a Statutory Privilege or Permission to use such Digital Works.
Those opposed to the White Paper see such a position as impeding the public’s rights under the Fair Use and First Sale Doctrines. Also, such a position is argued to be against one of the policies underlying copyright -- to preserve rights to the authors of statutorily protected works (Constitution 1, 8, [8]) in order to encourage dissemination thereof (public dissemination, until recently, was required for copyright protection) so that the public is able to read, view and listen to them so that they may learn from them and build upon their teachings.
Under the Fair Use Doctrine, copyrighted works may be copied and distributed for educational use etc. (see outline)
Under the First Sale Doctrine, once a copyrighted work is purchased, the purchaser may do basically whatever he wishes with that particular copy. He may sell it, give it to a friend, share the information therein with others etc., provided that he does not copy it and distribute those copies.
Those who support liability free dissemination of protected works on the internet believe that such dissemination should be viewed as falling within these Doctrines and the underlying policy driving copyright law. It is argued that viewing copyrights in the context of Reproduction Rights is an outdated concept which only worked when it was implemented because, at the time of creating our copyright laws, reproduction was quite difficult with the existing technology and was most often a Commercial Act. At that time, measuring compensation by Reproduction encouraged authors to create without unduly interfering with the public’s opportunities to read, learn, share and improve upon their creations.
With the emergence of a NII, digital reproduction is a necessary and unavoidable act in practicing these public rights which are arguably part of the trade off in copyright protection.
Standing on the premise that a copyright holder’s rights should not be viewed in terms of Reproduction, Litman urges an Economic Viewpoint "recasting copyright as an Exclusive Right of Commercial Exploitation." Recognizing an exclusive right to commercial exploitation would allow Recovery for Infringement when:
(1) someone uses a protected work to try and make money, without the copyright holder’s permission, or
(2) when someone creates a large scale interference with the copyright holder’s opportunities to make money with the protected work.
Note: We would no longer look at an alleged infringer’s acts per se, as we would under the copyright acts which define certain acts (i.e. copying, distributing etc.) as infringements. Using an Economic Viewpoint, we would look to the Effects of the alleged infringer’s acts.
Discussion Issues:
2. Would the common one-time infringer (guy who installs his buddy’s copy of Quake 2 onto his hard drive) fall within the Economic Viewpoint’s definition of infringement?
3. One must realize that ditching the statutory definitions of infringement for a Right of Commercial Exploitation approach would require the courts to redefine infringement through a Common Law Process. This would introduce uncertainty. Regardless, is such a view reasonable?
4. Adding to the discussion question above, can it really be said that following the statutory definitions of infringement provides certainty in any given case? In digital reproduction cases?
5. Is it wise to apply rules made way before the appearance and even the possible conception of digital reproduction to a situation of copyright infringement by way of digital reproduction, or is the proposed common law approach better in that we can create law in cases of first impression when confronted with new technology?
6. Interest in copyright law was commonly present only in copyright stakeholders and lawyers. However, the general public now arguably has a growing interest in copyright law do to the possibilities presented by the NII and the proposed treatment of digital reproduction situations. Can it be said that the common law approach is therefore desirable because: (1) the general public would help form the common law through their service as jurors, (2) possible stakeholder bias could be countered by the public’s involvement, and (3) the public could integrate emerging social norms as to the understanding of copyright rights into the common law?
(2) The Commercial Exploitation approach should be followed?
(3) Any other ideas?