Why do Contracts or Licenses (Rather Than Copyright) Govern Electronic Content?

Society now faces what seems to be a powerful competitor for copyright's influence over the marketplace of cultural products, one that carries its own assumptions about what intellectual property is, how it is to be used, how it can be controlled, and what economic order can emerge as a result.

For convenience's sake, the codification of intellectual property is assigned to the early eighteenth century. That time period is when the evolving notion of copyright was enacted into law, shaping a marketplace for cultural products unlike any seen before. In that eighteenth-century form, copyright legislation depended in three ways on the technologies of the time:

1. The power of copyright was already being affirmed through the development of high-speed printing presses that increased the printer's at-risk capital investment and greatly multiplied the number of copies of a given original that could be produced (and thus lowered the selling price).

2. An author could begin to realize financial rewards through signing over copyright to a publisher. Owning the copyright meant that the publisher, who had assumed the expense and risk of publication, stood to gain a substantial portion of the publication revenue.

3. Punishment for breaking the law (i.e., printing illegal copies) was feasible, for the ability to escape detection was relatively slight. The visibility and the capital costs of establishing and operating a printing press meant that those who used such presses to violate copyright were liable to confiscatory punishment at least commensurate with the injury done by the crime itself.

In the 1970s, technology advances produced the photocopier, an invention that empowered the user to produce multiple copies cheaply and comparatively unnoticed. In the 1980s, the fax machine took the world by storm, multiplying copies

and speeding up their distribution. Computer networking technology of the 1990s marries the convenience, affordability, and ease of distribution, eclipsing the power of all previous technologies. We can attribute the exponential increase in electronic content, at least indirectly, to the current inhabitants of the White House. The Clinton-Gore campaign of 1992 introduced the Internet to the general public, and this administration has been passionately committed to rapid development of the National Information Infrastructure (NII) and determined to advance the electronic marketplace. Part of that commitment arises from national leaders' unwavering faith that electronic networks create an environment and a set of instruments vital to the overall economic growth of the United States.

While copyright (that is, the notion that creative works can be owned) is still and probably always will be recognized as a fundamental principle by most players in the information chain, many believe that its currently articulated "rules" do not effectively address either the technical capabilities or reader needs of a high-speed information distribution age. It could be argued (and many educators do) that the nineteenth-and twentieth-century drafters of copyright law intended to lay down societally beneficial and, by extension, technologically neutral principles about intellectual property ownership and copying,^[2] but in fact Thomas Jefferson knew nothing of photocopiers, and the legislators who crafted the 1976 Copyright Act of the United States knew nothing of computer networks. Had they even begun to imagine such things, the law might have been written differently-and in fact the case can be made that it should now be written differently.^[3] So to many people, the gulf between copyright laws or treaties and the universe that those laws ought to address today feels vast and deep. Therefore, instead of relying on national copyright law, surrounding case law, international treaties, and prevailing practice to govern information transactions for electronic information, copyright holders have turned to contracts (or licenses, as they are more commonly called in the library world) as the mechanism for defining the owner, user, and uses of any given piece of information.

That is, the license-contract is invoked because the prospective deal is for both parties a substantial transaction (in cash or in consequence). The new atmosphere creates a new kind of marketplace or a market for a new kind of product, and neither the selling nor the buying parties are sure of the other or of their position visà-vis the law and the courts. Publishers come to the table with real anxieties that their products may be abused by promiscuous reproduction of a sort that ultimately saps their product's marketability, while libraries are fearful that restrictions on permitted uses will mean less usable or more expensive products.

In short, what licensing agreements have in common with the copyright regime is that both accept the fundamental idea of the nature of intellectual property-that even when intangible, it can be owned. Where they differ is in the vehicle by which they seek to balance creators', producers', and users' rights and to regulate the economy that springs up around those rights. Copyright represents a set of general regulations negotiated through statutory enactment. Licenses, on the

other hand, represent a market-driven approach to this regulation through deals struck between buyers and sellers.