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GOVERNMENT'S ROLE: STRIKING A BALANCE IN THE PUBLIC INTEREST

The final panelist, Dorothy Schrader, General Counsel of Copyrights for Legal Affairs of the U.S. Copyright Office, discussed the government's formidable task: that of striking an appropriate balance between authors, publishers, and libraries. Ms. Schrader offered observations to spark discussion and dialogue among the relevant groups.

To the extent that technology deprives authors of the right to control the use of their work and access to it, Ms. Schrader stated that technology skews the balance between the right for fair compensation and the public's right to receive the benefits of creativity. Technology makes infringements of copyright less visible and, therefore, more difficult to detect and measure. Since production mechanisms for new works are inexpensive, infringement activities are becoming more numerous and less noticeable. It may be many years before copyright owners decide to sue, and only if there is a marked change in the revenues produced by the infringement. Verbatim copying of works makes the user a publisher.

Copyright is designed to encourage creation and maximize public availability of literary, artistic, and musical works. Traditionally, courts have been hesitant to define the scope of intellectual property rights when new technology alters markets.

Ms. Schrader asked what the proper role of fair use is in this information age. With publication costs increasing and copying cost decreasing, electronic media can provide superior search, access, and copying potential. Home creation and copying, nonetheless, create problems in surveillance of fair use, especially when privacy issues also come to bear on the issue.

Discussing the fair use section of the U.S. Copyright Law (section 107), Ms. Schrader stated that although the four factors are nearly equal in weight, the fourth factor, effect on marketing, tends to be the single most important one. Whether new technology like on-demand electronic publishing actually intensifies the fair use conflict is debatable. She believes that fair use applies to electronic dissemination and that, as different technologies surface, fair use considerations can be developed to provide balance.

Ms. Schrader next suggested ways to enforce proprietary rights when technology makes this task more difficult. These solutions were:

Ms. Schrader believes fair use, born in the age of the printing press, is alive and relevant in the electronic age. In her opinion, appropriate legislation will stimulate the optimum quantity and quality of new works while, at the same time, facilitate wide dissemination at reasonable cost to the public. Works are not created in a vacuum, usually they require substantial financial support either at the point of inspiration or marketing. Although governments have provided patronage or subsidy to encourage creation and dissemination, she believes that for the past 200 years copyright proved a better answer.

Copyright is not obsolete. It provides an appropriate level of protection for the fruits of intellectual creativity as expressed in art, literature, music, and information works. Legislative protection is already available to electronic means of expression and distribution, although in the end it may be necessary to adopt several solutions to create these protections. Additionally, publishers may resort to anti-copying technology. Publishers and libraries may give access to clients through copyright fees paid by the alternative user, the amount reflecting an adjustment for fair use copying and access. Centralized clearance mechanisms will sometimes provide an avenue for copying and paying for copyright fees. Fair use guidelines might be agreed on by representatives of authors, publishers, and libraries. New blanket licensing arrangements could be established. Finally, additional legislation may be necessary, but there can be amendments to the copyright law only if a consensus is reached among authors, publishers, librarians, and the public itself.