Why is copyright law so invisible? One important reason is that at least in the print world, this law has so successfully been incorporated into our daily lives that we just don't see it anymore. It conforms quite well with our behavior. When you buy a book or a magazine, you know you can not only use it yourself, but you can also share it with other people. You are probably also among the people who believe that it's OK to make some private, non-commercial copies (a poem from a book, an article from a magazine). You know you can go to a library and borrow books from it. You can sing a copyrighted song in the shower or invite some friends over to play music in your garage. And in none of these cases is it any of the copyright owner's business what you do. These activities are private and noncommercial in character, and copyright in the print world simply hasn't regulated these kinds of activities at all. Copyright has focused on regulating public and commercial activities, such as sponsoring a concert at which copyrighted music might be played.

However, some special characteristics of information in digital form upset the old rules and understandings. It turns out that it is impossible to use, access, read, browse, or transmit information in digital form without making some temporary copies of it in the random access memory of a computer. Copyright law has never conferred on copyright owners the right to control reading or use of a copyrighted work. Yet, when works are in digital form, suddenly, copyright owners think they do and should have the right to control all reproductions of their works, and this means they now think they have the right to control uses and reading of works. The prototypical right that copyright owners have, after all, is the right to control reproductions of their work. Reproduction of works in copies was a very successful bottleneck in the print world. However, it doesn't turn out to be a very useful bottleneck in the digital world because everything's a reproduction, and so it seems like we need to create some new distinctions if there is going to continue to be a balance between the rights of authors/publishers and those of users of information.

In addition, when information is available in digital-networked environments, suddenly people engage in acts that they think of as private and non-commercial that publishers and authors may well perceive to be competitively harmful republications of the work. Say, for example, you post your favorite poem on your personal Web site. You may think this is just like pasting a photocopy of the poem on the door to your dorm room. But an author or a publisher of that particular poem will consider you a competitive publisher of the poem on the Web. After all, anyone with access to the Web can read the poem on your Web site (even if very few people actually do this).

There are also many uses of works in digital form that involve temporary copies in private, non-commercial settings that some publishers foresee will be their primary new market. Most ordinary folk think that private non-commercial copying is OK, but some publishers view this as very troublesome because it threatens to take away an entire new market in distribution of copies to individual users on a pay-per-use basis.

Libraries also become threatening to publishers. Consider this: If the Library of Congress could post a copy of a book in digital form into a worldwide accessible digital library, just like a copy of the printed book might be available on the shelves in the Library of Congress, the Library of Congress would essentially foreclose the entire world market for digital copies the work. Or at least that's what some publishers think.

So we have a status quo in copyright that is deeply upset by digital information. The question is what to do. There are two very extreme ways of responding to the upset status quo. One is to assert, as John Perry Barlow is sometimes wont to do, that information wants to be free, copyright is dead, and any effort to try to apply copyright law in the digital environment is like trying to rearrange the deck chairs on the Titanic and doomed to failure. The other is to say that digital information is so leaky that it needs to be tightly locked up in technological prisons in order to protect the copyright owner's interests. Under the most extreme version of this regime, every access, every use must be paid for, every temporary copy must be controlled by the copyright owner, there's no fair use, there's no room for private non-commercial copying, there's no private sharing, and libraries may even become illegal because publishers have decided to license users on per-use basis. Some rights holders even think they should be able to monitor everything you read and how long you read it, and then make profiles of your reading habits, which they could use not only for their internal marketing purposes but also sell to other publishers. And if you try either to disable the monitoring of your reading habits or circumvent the technical locks to make a fair use, some publishers think you should go to jail. Some legislative proposals would make such acts a felony. The Clinton Administration's White Paper on Intellectual Property and the National Information Infrastructure (September 1995) embraced the second extreme view.

Surely there is some middle ground between these extreme positions that we might explore. One way to search for this middle grounds is to try to imagine what kind of copyright policy would exist in an information society in which you and I would like to live. This is a challenging project, and it's something that I certainly can't do alone. It's something that, collectively, we need to try to do. Part of the impetus for me to engage in this kind of inquiry was realizing that a major reason that I reacted very negatively to the Clinton Administration's white paper was that I didn't think I'd want to live in the kind of information society it depicted. So I said to myself, well, OK, Pam, if you don't like what Bruce Lehman did, maybe you should try to design a better one to displace it.

The project of designing a copyright policy for an information society in which it would be good to live is a big project that will take some time. But it is possible to do it. Those of you interested in this concept should go to my Web site, which has a link to the syllabus for a course I taught with Peter Lyman (formerly the university librarian at UC-Berkeley) on intellectual property and the information society. I obviously can't talk about that very much today, but let me sort of tell you a few things about what such an information society might be like.

One thing I want in an information society I'd like to live in-and I suspect many of you in the audience would agree-is a society with lots of creative authors, scholars, and researchers in it. I'd want them to be speaking on and researching myriad diverse subjects, and I'd want to see a robust marketplace of ideas. Some part of that robust market would involve commercial exchanges, and others would be, as today, components of gift communities. One of the main reasons why we should continue to value copyright in the digital environment is because copyright has been very successful in promoting a wide range of expression of all sorts of ideas. Authors need some way to get compensation if they're going to be able to continue to devote much of their lives to this activity, and copyright is a way of ensuring that authors who want to commercialize their works can do so.

But authors also need to be able to make fair uses of copyrighted works. Authors frequently quote from pre-existing works in order, for example, to create new works. They may quote in order to criticize a work or parody it. Authors also need to engage in some private non-commercial sharing of information. They also need a vital public domain. That is, they need to be able to draw upon works the copyright of which has expired and draw information from those works still in copyright. These are lifeblood issues for the authorship process. This suggests that if we want lots of artistic and literary works in an information society in which we want to live, then we need to make sure that we're not in fact killing off fair use, as I think the Clinton Administration's white paper attempted to do. And we should oppose legislation such as the Collections of Information Anti-Piracy Act, which the House of Representatives just passed, which would have created a new form of intellectual property right in information (that is, in the data in compilations). These are two very concrete actions that flow from deciding that a rich body of artistic and literary works should be part of an information society.

There are other sources on which to draw besides one's own values in deciding that authors are important for an information-rich, democratic society, including, significantly, the U.S. Constitution. For those of you who aren't as familiar as most intellectual property lawyers with Article 1, Section 8, Clause 8, let me tell you what it says. It's the part of the Constitution that says that Congress is empowered to grant rights to authors and inventors in order to promote the progress of science, by which they meant knowledge, and the useful arts, by which they meant technological innovation.

These constitutional values of promoting knowledge and promoting innovation are very much part of our copyright tradition. They are also very much part of widely held values in the U.S. Because of this, these values need to continue to inform our information policy. Some of legislative and policy proposals made recently to deal with digital information have, quite frankly, lost sight of those constitutional values. If we want to make sure that U.S. copyright policy is tailored to promoting these constitutional values, then it's up to us to take action to support their preservation. We can't just expect publishers to cave in because we don't want them to win. We should, however, take heart from the work done by economists who've studied intellectual property. That learning tells us that just as it's undesirable to underprotect intellectual creations (what many publishers are worried about), because that will lead to underinvestment in the creation of those new works, it's also undesirable to overprotect creations, which stifles innovation, stifles the sharing of knowledge, and stifles follow-on creativity. So we've got to get the balance right, both from an economic standpoint and from the standpoint of being in an information society where we still have the values of free speech as part of our information policy. Thank you very much.