James M. Bower Project Manager, Director's Office Getty Art History Information Program jbower@getty.edu INTELLECTUAL PROPERTY AND THE INFORMATION INFRASTRUCTURE As the race to implement the National Information Infrastructure heats up, conflicting positions on intellectual property, copyright, and fair use are being staked out by librarians, publishers, academics, and government bureaucrats. Surely all parties would agree, however, that whatever new framework for intellectual property emerges from the debate should not stifle the very creativity that the infrastructure is intended to foster. For the arts and humanities, the impediments to creating a society that "promotes life-long learning, public life and the cultural life of our communities" caused by the traditional framework for intellectual property are especially acute. This forward-thinking vision, projected by the Clinton Administration in its "Agenda for Action," has already faltered over numerous obstacles presented by the corpus of U.S. copyright law and its interpretation. Three of the NII benefits cited in the"Agenda" will illustrate this point. 1. "The best schools, teachers, and courses would be available to all students, without regard to geography, distance, resources, or disability." Tighter copyright restrictions on materials used in education constitute a direct threat to the scenarios for distance learning that are fundamental to the NII vision. If the best art history professor in the world can only deliver her lectures as unillustrated text, because she can't secure the permissions necessary to display over the network the slides of artworks that her college has painstakingly accumulated, distance learning will be severely handicapped. There is already a chilling effect of self-censorship at work in the nation's universities, where legal counsels have undermined existing rights and denied proper fair use of materials out of a blanket fear of liability and litigation. 2. "People could live almost anywhere they wanted, without foregoing opportunities for useful and fulfilling employment, by 'telecommuting' to their offices through an electronic highway." Telecommuting may not be an option if your job depends heavily upon using the resources of a library at your place of employment. Copyright law does not presently permit -- let alone encourage -- the widespread conversion of text and image resources to electronic form for use over networks. Unless this situation changes, your ability to access, manipulate, and transform the raw materials of your work may be severely restricted. This problem is compounded for the humanities and historians of every discipline, which rely most heavily on older information, for which the tangle of copyrighted-vs.-public domain text and images is practically impenetrable. This is especially true for materials on the cusp of transition from the contemporary to the historical record. 3. "Services that ... respond to ... important social needs could be available on-line, without waiting in line, when and where you needed them." One such important social need is the advancement of visual and cultural literacy. Responding to this need, the arts and humanities allow us to study, understand, and interpret contemporary culture -- everything from rap music to advertisements for Gap jeans. This is precisely the material that commercial interests aggressively seek to protect as it enters the digital domain. Under current copyright guidelines, however, artists seeking to synthesize and reflect the culture around them by appropriating cultural imagery face severe limitations on their artistic expression. More insidious is the profound, cumulative ignorance of contemporary culture that will develop as teachers are barred access to and use of the materials that form the fabric of contemporary life. In scholarship and in any interpretation of popular culture, distortions will result if only the earliest materials, unambiguously in the public domain, are reproduced because of the litigious fog surrounding contemporary materials. The traditional legal framework for intellectual property does not work with digital technology. The law's attempts to balance the rights of creators with the rights of society have been traditionally dependent on manifestations of intellectual property that were physically distinct and immutable, such as books. The resulting dichotomy between an idea and its tangible expression has provided the very basis for copyright law, until digital technology began to blur this convenient distinction. Historically, it has taken as many resources to infringe on a copyright as it has to produce works legitimately; bringing a book -- or software, or knock-off Chanel t-shirts -- to market required production machinery and distribution channels devoted to delivering the physical object to its consumer, regardless of whether the copies were sanctioned with a license. In cyberspace, however, the rules are different. We all tap into the same distribution channel (the global information infrastructure), and we each have the necessary production machinery on our desktop. The capability to infringe on the copyright of any intellectual property expressed in a digital medium is now ubiquitous, thanks to the spread of computing machinery. The dual capacity of computers, both to produce and disseminate intellectual property, and to access and consume digital information, makes them simultaneously onramps and offramps on the information highway. For intellectual property to flourish in the digital environment, copyright law must also serve two roles: it must enable unhindered transmission of ideas and forms through computer networks, while recognizing the property of the individual or corporate creator. Our task must be to ensure that copyright law continues to function as a system of traffic controls that allow the free flow of information, while protecting our precious cargo to its final destination. ============================== Although only recently invited to co-host the topic of "Intellectual Property," in offering for consideration this summary of views in our community we hope that we have listened well to the interests of our partners and collaborators. Special thanks to Christine Sundt (University of Oregon) and Leila Kinney (Massachusetts Institute of Technology), representing respectively the Committee on Intellectual Property Rights and the Committee on Electronic Information of the College Art Association, for their valuable input. James M. Bower Project Manager, Director's Office Getty Art History Information Program