PROPERTY, PROPRIETY
AND THE THREAT TO PUBLIC ACCESS:

KEYNOTE PRESENTATION
AT THE ROUNDTABLE ON INTERNET COPYRIGHT:
PROBLEMATICS OF THE EU DIRECTIVE AND MAI

Paul Sturges

Loughborough University, UK

PUBLIC ACCESS TO THE INTERNET

Just as public libraries make a crucial contribution to democratic society by providing access to information that is free to the user, electronic public access points perform an identical function for networked information resources. Thus any threat to this access is of great concern to information professionals. Such threats do exist and professional awareness of their development is vital. The Internet is at one and the same time the subject of heated controversy, the battlefield for powerful competing interests, and an engine by which aspects of society are being subtly transformed.

Whilst it could be argued that the chief interest of the Internet is the way in which it brings world information and communication resources into the home, it is in fact still only a minority of homes which have Internet connection, even in the richest and most technically sophisticated countries. Any claim to democratic access depends on public access points. True public access points, free to the users, can be found in public libraries, telecentres, and information centres of various kinds. Cyber cafes provide access at a charge to the user. Also various specialised libraries, museums and archives provide access for specific purposes, as do schools colleges and universities. In all of these specialised institutions, access does tend to take on some generalised aspects, even though that is not their true purpose. In this range of provision, libraries are particularly important, because of the freedom-oriented ethos that inspires them.

Threats to access in general, and public access in particular, take two main forms: moral and commercial. The moral anxiety, amounting to panic proportions, chiefly concerns allegedly harmful Internet content, particularly pornography, hate speech, and material on drugs, weapons, etc. The commercial anxiety is that of holders of intellectual property rights, concerned to protect and exploit these rights in a medium in which an anti-state, anti-corporation ethos is widespread. The chief players include: governments with political and economic motives to assert control over media, particularly media which transcend the limitations of national borders; corporations building up control across the spectrum of media and acquiring rights to content; and a mixture of pressure groups, professional organisations, small companies and individuals who believe in an unregulated Internet for one reason or another.


INTELLECTUAL PROPERTY

The original institution of copyright is attributed to the desire of governments to stimulate the creation of knowledge products for the public benefit. This is done by offering some combination of fortune (economic rights) and fame (moral rights) to the creator. It is important to remember that both of these matter. Intellectual property is more than just a commodity to its users, and, arguably to a majority of its creators. Recognition of their creativity and protection of their creations is highly important to individual creators, and it also matters to governments as the guardians of national cultures. However, it has to be recognised that the Anglo-American emphasis on economic rights is the motor driving world trends in intellectual property. Here, one of the paradoxes in this debate can be observed. Access to digitised intellectual property in a networked environment is presented by the rights holders and their representatives as a threat to property. It can equally be seen as a means of reinforcing their control of rights since in this medium, the user does not purchase a permanent copy of a product in physical form (book, tape, etc.) but can be charged for limited and transient access only. The potential implications in terms of difficulty and cost for an institution providing public access are obvious.

The Draft European Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society seeks to 'encourage creativity and investment within the EU, both of which are crucial for job creation and long term competitiveness.' The linking of creativity and investment in this way is superficially persuasive, but it should be asked if they are actually best encouraged by the same measures. It is arguably the availability of means to facilitate and disseminate works which encourages creativity, whilst investment is encouraged by the ability to control these means. Whilst the draft directive allows member states to provide certain exemption for libraries in relation to digitised works, it does not grant them the right of communication/ making available, on the grounds that this is fundamentally different from lending the physical book. Displaying an electronic resource on a screen, as part of a communication to the public, would require a specific licensing agreement. Browsing, digital copies for private study or preservation, access to a digitised service for remote users, would all be constrained in the same way. This would represent a limitation to public access of the severest kind.

Taken by itself this is disturbing enough, but it is the way this tendency to enhance the power of rights holders interacts with other tendencies that is even more disturbing. The negotiations with in the OECD for a Multilateral Agreement on Investments (MAI), although aborted by the French government during October 1998, represent a broader trend in the global business environment that presents a significant threat to public access. The negotiations were little publicised, to the extent that the British journalist Matthew Engel called them 'One of those many subjects I have been meaning to worry about just as soon as I have the time.' The MAI proposals were intended to eliminate most barriers to international trade by the removal of restrictions on the movement of capital, provision for equal treatment of foreign firms in most economic sectors, and allowing firms to sue foreign governments before an international mediation panel. Precedents from the (very similar) North American Free Trade Agreement (NAFTA) suggested that this would undermine national regulatory systems in a way that could threaten public access both in a library and a networked environment. The major corporations, with their great holdings of intellectual property rights in information and cultural content, would effectively be able to dictate the terms of access in national jurisdictions.


MORAL AND ETHICAL CONCERNS

The other main strand of threats to access arises from the widespread concern over 'harmful' Internet content. Parallel with this also run concerns with privacy in networked communication, the security of Internet commercial transactions, the authenticity of information on the Internet, and others. It has been the moral outrage over the Internet availability of pornography, and child pornography in particular, which has produced the most serious of these threats. In the USA the Clinton government actually passed a Communications Decency Act (CDA) in 1996 that would have prevented the use of 'an interactive computer service' to 'send' or 'display' any 'patently offensive' material to a person under 18. The US Supreme Court declared the CDA unconstitutional in 1997, but there is still much legislative activity at both state and federal level directed towards Internet restriction. Mandatory software filtering and blocking of Internet content is likely to become law in several jurisdictions, including the European Union, and very strong restriction is practiced in a number of countries, particularly in the Far East.

All of this may seem rather separate from the restrictions to public access on commercial grounds already discussed. However, the two do interact in a somewhat paradoxical way. On the one hand, the moral panic over Internet pornography is also very much a media panic, with newspapers, television and radio, most of which form parts of major media conglomerates, pressing the case that something needs to be done. Governments are urged to take control and to assert their responsibility for what passes through the communications media. On the other hand, although the commercially-owned media's campaign against 'Internet anarchy' focuses on pornography, this same pornography is arguably the chief motor for the commercialisation of the Internet. The so-called 'adult business' on the Internet is likely to generate revenue of £350 million this year. There is also a case for saying that the development of technology like Internet chat, online video, multi-server Web hosting systems and others, has been inspired and funded by the global appetite for pornography. So when a powerful Minister in the British government like Peter Mandelson suggests he will press for legislation that will 'liberate electronic commerce and make it safer' he is effectively proposing a balance between commercial and governmental interests. How such a balance could reconcile Internet commerce, with its reliance on the 'adult', and government with its need to demonstrate an Internet fit to be used by innocent children is hard to see. One prediction that might not be far amiss, is that it probably would not work at all well in the interests of public access.


RESPONSES FROM THE LIBRARY COMMUNITY

There have been a number of vocal and effective campaigns launched by representative bodies from the library community in response to the developments outlined here. The American Library Association takes pride of place because of its major role in the campaign that led to the defeat of the CDA. Its work in defending intellectual freedom has also included excellent positive work in promoting high quality Internet sites for children's use. EBLIDA is campaigning very articulately against the potential restrictions to access implicit and explicit in the EU draft harmonisation Directive, and puts the case for adequate exceptions to permit good public access. The Canadian Library Association, at the prompting of the British Columbia Library Association, initiated a campaign against the MAI (based on experience of the effects of NAFTA). The Library Association (UK) has issued a new document during 1998 on Intellectual Freedom and Censorship. There is also a significant set of developments in the International Federation of Library Associations (IFLA), where a new committee on Freedom of Access to Information and Freedom of Expression (FAIFE), supported by a professional office, has been set up to monitor and act on freedom issues.

There is clearly a need for vigilance and well-coordinated action if public access to networked information is to be protected, and, indeed, enhanced. Librarians and their allies seem very small and weak in the face of the other players in the global Internet struggle. This makes it even more important that strong alliances are formed to campaign in this area. The example of the coalition which defeated the CDA is instructive since it included not only librarians, booksellers, publishers, journalists, other freedom of expression campaigning bodies, but representatives of the information services industry. The interests of librarians and other information professionals, on the one hand, and the creators of intellectual property, the publishers and collecting societies on the other, might seem to be divided by measures to strengthen intellectual property rights on the Internet. At a purely commercial level this might have some truth in it. However, in terms of their mutual interest in the fostering of creativity and the spreading of truthful information, a divide is less obvious. By focusing on what they have in common there is definitely a good basis for effective campaigning to preserve public access.