The intellectual property debate ties itself in knots

Legislation and intellectual property laws have not evolved fast enough to keep up with the digital world, where original works can be copied, manipulated and distributed — without loss of quality — more easily than ever before. How do we protect creative rights holders while satisfying content-hungry, interactive media producers? And without dramatic modifications in our current legislation, are we heading for a digital free-for-all where access to content equals ownership?

These are some of the difficult questions panelists faced during the “Protecting and Valuing Intellectual Property” session at this year’s Digital World. They are the same questions asked of panelists the year before, and the year before that.

MAYBE IT WILL GO AWAY

To date, there are no answers — only hotly disputed opinions among the legal community, and stony silences between rights holders and producers in this new medium. Legislators appear to be playing a game of “If I ignore it, maybe it will go away.”

The painful truth is that there’s no consensus on these critical issues, yet the crux of this new industry rests on solving them. As panelist John Perry Barlow, cofounder of the Electronic Frontier Foundation, says, “The principal reason there aren’t a lot of good multimedia titles is that it’s almost impossible to get rich imagery, and to track it legally and to figure out who owns it and what your responsibilities are to that person if you are going to make commercial use of those images. It’s a vast gray area. And we are not even at a good beginning to figure out how to protect the work that we do with our mind if we don’t have the bottles to put it in.”

A system irretrievably broken. Barlow, who owns the copyright on many Grateful Dead songs and was the only individual rights holder on the five-person panel, proposed a “wait and see approach,” discouraging the use of yesterday’s laws when dealing with today’s technology. “The system we have right now,” he says, “is irretrievably broken for dealing with the world we are about to enter.”

Barlow asked for a show of hands for how many people in the Digital World audience pirated — i.e., stole — software. A surprising number confessed. That, he said, was a perfect example of how badly the law is equipped to deal with the problems posed by digital technology, and as a model for where we are heading if we try to stay within the current legal confines of intellectual property laws, which were exacted in 1791. “The law will sooner or later fail, but it will be expensive along the way.”

To avoid that expense when dealing with copyrighted digital content, Barlow suggests that the law take a hands-off approach to allow similar social practices to develop — with the end goal not of supporting piracy, but of finding a practical way of dealing with it.

“It took many thousands of years of nonlegal property exchange and ownership before we started to develop a concept of property law and contract law,” says Barlow. “Obviously we don’t have a thousand years to develop the social contract for intellectual property in cyberspace, but we don’t want to do it right away either. We want to wait and see what established practice is.”

SKIP THE UTOPIAN APPROACH

None of the other four panelists, agree with Barlow’s utopian approach. All of them believe too much time and money, and too many people’s livelihoods, are entangled in the current structure.

Panelist David Nimmer, intellectual property lawyer extraordinaire, did agree with Barlow that the “law is not progressing toward multimedia.” And in fact, he says, it will not. “I don’t think we have the prospect for realizing … legislative reform,” says Nimmer. What we must count on instead, he says, is “lawyers working together within the existing constraints to reach contracts, to reach [agreement on] licenses, somehow to oil the wheels — creaky though they may be. We have to be creative outside the realm of traditional litigation and legislation.”

Nimmer, along with several other panelists, encouraged rights holders such as musicians, writers and movie makers to band together and license their works on a collective basis. He cited Picture Network International (formerly Electric Book, a company founded by National Geographic photographer Nathan Benn) as an example of a potential new paradigm — an online library, archive and clearing house of commercial, digitized photographs.

YOU CAN’T CURE YOUTH

For Barbara Zimmerman, founder and president of the independent rights clearance service BZ/Rights & Permissions, Inc., all this legal crying is no more than the growing pains of a new medium. Multimedia is just one more medium, like a book or a cassette tape, and rights holders will “learn to ‘do’ digital” the same as they learned to sell licenses to the cable and home video markets. “The main disease [of digital media] is it’s very early, and no one can cure that,” says Zimmerman. “You have to grow up to be 20.”

In the meantime, she emphasizes, deals are being made. Companies, including Philips, Warner New Media and The Voyager Company, are producing digital media titles that include copyrighted material. And most megacontent companies, including Random House and Warner Bros., are exploring this new venue. Warner Bros., for example, is trying to set up an experimental license agreement for digital media for its recordings. “They have to go to every recording artist and ask if they will permit Warner to license this way,” she says. “If the artists approve, they are going to license. But it will probably be months before this process is finished.”

However, Zimmerman says other traditional content houses — she specifically cites Harcourt Brace Jovanovitch — are just saying no to the new medium. This attitude, she says, makes it very hard to communicate the technology’s potential to artists under their umbrellas.

YOU HAVE TO PAY TO PLAY

Bruce Polichar, chairman of the Interactive Multimedia Association’s intellectual property task force, and an intellectual property lawyer who has represented the rights of creative people in the film, music and home video industry for 25 years, believes that naivetĂŠ on the part of digital media producers stymies the market. “There is a lot of conflict in the multimedia industry about valuing intellectual property. We want content without compensation,” he explains.

“People and companies who are in the business of generating original, created things that we place value on earn their livelihood from this process. If we intend to have them involved in a dynamic way in building this industry we can’t just ignore that,” Polichar says. “Writers, directors and artists who make their living at this have to make their living at this. And I don’t think that digital technology eliminates that social reality.”

Polichar thinks it is essential that creators become involved in discussions about brass-tacks compensation issues. “If we do they will have a better understanding of what we are trying to accomplish,” he says. “Then, it will be that much easier to evolve deal structures that on the one hand give us the latitude to get a fledgling industry off the ground, while at the same time offer them a promise of a reward for riding this out. We need to attract rights owners.”

TOO MANY ROADBLOCKS

It’s not easy to attract rights owners, even if you are a big player with cash. Lester Greenman, director of legal and business affairs for Sony Electronic Publishing, said he has hit roadblock after roadblock in his quest for content. “If I could find someone even to tell me what’s easy to get and what’s hard to get, I’m sure I could do what I need to,” he says. “But I can’t find anyone to tell me that much.”

‘There is a lot of conflict in the multimedia industry about valuing intellectual property. We want content without compensation.’

Zimmerman suggests people interested in producing interactive media titles for the commercial market explore three options. The first and easiest in terms of intellectual property laws, but perhaps the most difficult in terms of a producer’s time and budget, is for artists to create their own content. The second is to find out what can be used for free that’s in the public domain. Lastly, Zimmerman suggests that those who need to acquire copyrighted material come to the business table prepared to pay for the original work and with a proposal about how to compensate the owner fairly.

The issues discussed onstage only scratched the surface of what an incredible rat’s nest the copyright issue is becoming in a digital world. Much was left out of the discussion, for sake of time: image manipulation, encryption, tracking content electronically, U.S. law versus the rest of the world regarding “mutilation” of existing artistic works (as in colorization), and the concept of “fair use.” Although it seems unfortunate that such critical issues must rely on the judgment of a terribly flawed legal system as their “trial by fire,” it is most likely that it will be the courts — and not the artists who flourish or perish by the fruits of their labors — that will decide.

Janice Maloney