B
B
BACKUP COPIES
It is not clear whether consumers of a copyrighted work have the right to make at least one backup or archival copy of the work, so that they will still have access to the work if the original is damaged or destroyed. One view is that such a right was recognized by the decision in Recording Industry Association of America v. Diamond Multimedia Systems, which recognized the permissibility of copying for space-shifting purposes. On the other hand, the court in United States v. Elcom held that “there is as yet no generally recognized right to make a copy of a protected work, regardless of its format, for personal noncommercial use” (203 F. Supp. 2d at 1135).
If such a general right exists, it would be an exception to the exclusive right to make or authorize copies granted to the copyright holder by 17 U.S.C. § 106(1). Any right to make backup copies is itself limited by other statutes. The anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) effectively outlaw the making of backup copies of copy-protected works, especially DVDs. However, analog backup copies may still be made, although they will be inferior in quality to the original. Attempts by content-industry lobbyists to obtain legislation requiring all analog video recorders to be equipped with devices capable of recognizing, and perhaps refusing to copy, protected digital works might cut off this option in the future, though.
The right to make backup copies of computer programs, however, is more definite. Such copies may be made provided “that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful” (17 U.S.C. § 117(a)(2)). This right, too, has limits; while a consumer may be permitted to make backup copies of programs, the sale of devices capable of making such copies—but more likely to be used for copyright infringement—may be prohibited as contributory infringement (Atari, 747 F.2d 1422).
Title I of the DMCA directed the National Telecommunications and Information Administration (NTIA) of the Department of Commerce to undertake a study of Section 117 and the making of backup copies of computer programs. The NTIA reported that the DMCA’s protection of technological protective measures from circumvention might interfere with the making of archival copies authorized by section 117. A greater worry was that section 117 was out of date; it bore no relation to current practice. Most system administrators and many home users backed up their systems periodically by making a copy of everything on the system. This took time and storage media space, but required little human effort; the backup could be set to take place automatically at a time when no one needed to use the system. This process involved copying copyrighted material other than computer programs, and was thus not authorized by section 117. However, it would be costly, time-consuming, and inefficient to go through each file on a system and identify it as a program or nonprogram file before backing up the system. It would be even more costly, time-consuming, and inefficient to go through each file on each tape, backup, and delete any program files for which a license might have expired. The report observed that “there is a fundamental mismatch between accepted, prudent practices among most system administrators and other users, on the one hand, and section 117 on the other. As a consequence, few adhere to the law” (NTIA Report 2001). While the NTIA found no harm as a result of this noncompliance, it was concerned about the mismatch between law and reality, and recommended that the law be amended to “create a new archival exemption that provides expressly that backup copies may not be distributed” (NTIA Report 2001). No such legislative action has yet been taken, however, and the mismatch persists.
Statutes
• Copyright Act of 1976, 17 U.S.C. §§ 106, 117
• Digital Millennium Copyright Act, 17 U.S.C. § 1201
Cases
Federal Appellate Courts
• Apple Inc. v. Psystar Corp., 658 F.3d 1150 (9th Cir. 2011)
• Atari v. JS & A, 747 F.2d 1422 (Fed. Cir. 1984)
• Krause v. Titleserv, Inc., 402 F.3d 119 (2d Cir. 2005)
• Recording Industry Association of America v. Diamond Multimedia Systems, Inc., 180 F.3d 1072 (9th Cir. 1999)
Federal Trial Courts
• Realnetworks, Inc. v. DVD Copy Control Association, No. C 08–458 MHP, 2010 U.S. Dist. LEXIS 1433 (N.D. Cal. 2010)
• United States v. Elcom, Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002)
Report
• United States Copyright Office, DMCA Section 104 Report, A Report of the Register of Copyrights Pursuant to §104 of the Digital Millennium Copyright Act (August 2001)
See also Analog Recording; Copyright; Copyright Infringement; Digital Millennium Copyright Act, Title I; Digital Rights Management; Fair Use (Copyright); First Sale
BERNE CONVENTION
The Berne Convention for the Protection of Literary and Artistic Works, an international copyright treaty, was adopted in 1886. Copyrights, like all intellectual property rights, are territorial in nature; they provide the holder of the right with a monopoly for a limited time and within the territory of the sovereign granting the right. In the days before the Berne Convention, states were under no general obligation to recognize within their own territories copyrights granted by other sovereigns. This meant that a book copyrighted in France or the United Kingdom could be, and often was, reproduced without permission and without payment of royalties in other countries, such as the United States. Writers and publishers of the nineteenth century found the situation unacceptable; colonialism had spread European languages around the world, so that the works of British, French, and Spanish authors found a ready market abroad, but those authors received few or no royalties from those overseas sales. To address this situation European writers under the leadership of Victor Hugo, the author of The Hunchback of Notre Dame and Les Miserables, founded the Association Littéraire et Artistique Internationale (ALAI) in 1878. A central purpose of the ALAI was the adoption of an international copyright convention; this purpose was achieved eight years later with the adoption of the Berne Convention (ALAI History).
Since its initial adoption, the Berne Convention has been modified, adjusted, revised, or otherwise revisited several times: in 1896, 1908, 1914, 1928, 1948, 1967, 1971, and 1979. The Convention is nearly universal: 165 countries are parties. This universality was not achieved overnight, however; several major countries have become parties only recently, notably the United States in 1988, China in 1992, and Russia in 1995. (Neither the Soviet Union nor the government of Taiwan, formerly recognized by the United States and many other countries as the government of China, had been parties to the Convention.) New parties continue to be added: the Convention entered into force for Laos on March 14, 2012.
For over a century after the adoption of the Berne Convention, the United States was not a party, largely because U.S. copyright law diverged significantly from the Berne Convention norm. The growth of the (mostly pre-electronic) global information economy during this time, however, made it increasingly desirable for the United States to secure foreign protection of its copyrights and to protect the copyrights of foreign authors within its territory. To this end, the United States entered into multiple bilateral copyright agreements and two major multilateral agreements, the Buenos Aires Convention in 1911 and the Universal Copyright Convention (U.C.C.) in 1955.
The Buenos Aires Convention governed copyright relations between the United States and most of the countries of Latin America until the early 1960s, at which point most of its members had become parties to the U.C.C., although Colombia only became a party in 1976, Bolivia in 1989, and Uruguay in 1993. Honduras never became a party to the U.C.C., but became a party to the Berne Convention in 1990. The Buenos Aires Convention, although still technically in force, is insignificant today, as all of its parties are now parties to the U.C.C., the Berne Convention, or both. It is chiefly of interest as the source of a historical oddity: it is the reason for the words “all rights reserved” almost invariably, and unnecessarily, included on copyrighted works published in the United States. These words were necessary to claim certain rights under the Buenos Aires Convention, but are unnecessary under either the U.C.C. or the Berne Convention.
The U.C.C. came into existence largely as a result of Congressional failure to reform the Copyright Act of 1909. Inconsistencies between the 1909 Act and the Berne Convention made it impossible for the United States to become a party to the Berne Convention; the U.C.C. was developed as an alternative. Because many of the states with which the United States wished to enter into agreement were already parties to the Berne Convention, the U.C.C. includes a Berne Safeguard Clause (UCC 1971, art. XVII(1)). This clause provides that no country that is a party to the Berne Convention may denounce that convention and choose instead to rely on the U.C.C. in copyright matters relating to other parties to the Berne Convention.
Although 100 states are now parties to the U.C.C., the United States and most other U.C.C. parties are also parties to the Berne Convention, so the U.C.C. is nearly as unimportant in modern practice as the Buenos Aires Convention. The U.C.C. may, however, continue to govern such copyright matters as exist between the United States and the one country—Cambodia—that is a party to the U.C.C. but not to the Berne Convention. (Cambodia and the United States are both members of the World Trade Organization (WTO) as well, which has its own intellectual property treaty.) And like the Buenos Aires Convention before it, the U.C.C. has left its mark on copyright notices: the familiar “©” symbol on copyright notices is sufficient to satisfy U.C.C. registration requirements for works published outside the territory of the contracting state (UCC 1971, art. III(1)).
Even as the Berne Convention achieves universality, it in turn is being either supplemented or supplanted by the World Intellectual Property Organization (WIPO) Copyright Treaty and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Eighty-nine countries are parties to the WIPO Copyright Treaty, a special agreement within the meaning of Article 20 of the Berne Convention; the WIPO Copyright Treaty may be viewed as supplementing the Berne Convention. And all of the 157 members of the WTO are parties to TRIPS, although for some newer developing country members its provisions have not yet fully come into effect. TRIPS may be viewed as an alternative approach, outside the WIPO framework, but this analysis is weakened by the near-universality of both treaties. About a dozen countries, plus Taiwan (as Chinese Taipei), Hong Kong, and Macau, are parties to TRIPS but not to the Berne Convention; about two dozen are parties to Berne but not to TRIPS. Several countries are parties to neither; many of these countries are very small (Nauru, Palau, San Marino), experiencing difficulties (Afghanistan, Somalia), recently emerged (Kosovo, South Sudan), or subject to a combination of these factors.
The leisurely evolution of international copyright law for over a century has been replaced by a sense of urgency. Content owners believe that a truly universal copyright regime is necessary to protect their rights. In the age of the Internet, countries once deemed unimportant because of their small size, linguistic or geographical isolation, or limited publishing industry now have the same potential as sources of copyright violation as much larger countries. These previously ignored countries now have the potential to become havens for copyright infringement, and infringing material posted on servers in those countries can be accessed by users anywhere in the world.
The Berne Convention remains the world’s most comprehensive copyright agreement. The central obligation it imposes on its parties is to provide national treatment: each state that is a party to the Convention will accord the same recognition of copyright in works authored by nationals of other parties that it would accord to works by its own nationals. Under the Berne Convention, copyright in any qualifying work is automatic; neither registration nor notice on the face of the document is required. The “©” symbol is not required, nor are the words “copyright” and “all rights reserved.”
Despite the alterations made to United States copyright law in order to allow the United States to join the Berne Convention, some differences persist. Article 2, for example, defines “literary and artistic works” covered under the Convention as including
every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science (Berne Convention, art. 2(1)).
This definition is both less concise and possibly less comprehensive than the U.S. Copyright Act’s “original works of authorship fixed in any tangible medium of expression.” The Copyright Act also includes a list of copyrightable subject matter that, again, is not co-extensive with the Berne list. Works of authorship under the Copyright Act include:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works (17 U.S.C. § 102(a)).
The Copyright Act’s definition is open-ended. (Computer programs are specifically made copyrightable by section 117 of the Act.) And unlike the Convention, the Copyright Act requires fixation in a tangible medium. The Berne Convention, however, takes into account that among its parties, which include nearly all of the countries in the world, there may be differences; Article 2(2) provides that “countries of the Union [may] prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.”
Article 3 of the Convention provides that the Convention protects not only nationals of the countries that are parties, but nationals of other countries that are not parties, if the works of those nationals are published in the territory of a party either prior to or simultaneously with publication outside the Union established by the Berne Convention, consisting of all the countries that are parties. This, during the time before the United States was not a party to the Convention, gave rise to another oddity: simultaneous publication in Canada. There may, of course, be sound business reasons for publishing a book or other work simultaneously in the United States and Canada, rather than simply shipping copies of the book printed in the United States to Canada (or, in the case of Canadian books, vice versa). But in the six decades between 1928, when Canada became a party, and 1988, when the United States did, U.S. publishers who could afford to do so published simultaneously in the territory of a Berne Convention party, typically Canada, in order to secure international rights under the Berne Convention.
The point of greatest continuing divergence between the Berne Convention and U.S. law is in the area of moral rights. The most widely recognized moral rights, in copyright law, are the right not to have one’s work mutilated or distorted, the right to be acknowledged as the author of the work, and the right to determine when and in what fashion the work shall be presented to the public. These rights are called, respectively, the rights of integrity, paternity, and disclosure. Some legal systems may also recognize a right to recall the work even after disclosure; this is the right of withdrawal.
U.S. law has historically been unreceptive to moral rights, both because copyright is viewed as a purely economic right and because of the potential for conflict with the First Amendment. In contrast, Article 6bis of the Berne Convention provides that “[i]ndependently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” The United States has enacted a moral rights statute, the Visual Artists’ Rights Act (VARA), but its coverage is less broad than the international norm (17 U.S.C. § 106A). Some states have also enacted moral rights statutes, some of them broader than VARA, but these may be preempted by VARA and the Copyright Act.
A major obstacle to U.S. adoption of the Berne Convention was the term of copyright protection. Article 7 of the Convention provides minimum terms for various types of works; for most works by individual authors the minimum term is the lifetime of the author plus 50 years. The Copyright Act of 1976 brought U.S. law into compliance with this standard.
Article 8 gives authors the exclusive right to authorize and make translations. Article 9 gives them the core right of the bundle of rights described by the term “copyright”: the exclusive right to make or authorize reproductions of copyrighted work, subject to narrowly defined exceptions. This right is detailed in the following articles, and Article 10 describes one of the exceptions: “utilization . . . compatible with fair practice,” or fair use.
The duration of copyright had been perhaps the biggest stumbling block to U.S. adoption of the Berne Convention, but other obstacles had to be removed, including U.S. notice and registration requirements. Article 15 of the Convention provides that the only formality necessary for copyright protection is that the author’s name or clearly identifiable pseudonym “appear on the work in the usual manner.” If the pseudonym does not clearly identify the author, “the publisher whose name appears on the work shall, in the absence of proof to the contrary, be deemed to represent the author.” And party states may, by domestic law, designate a competent authority to represent the rights of unknown authors (Berne Convention art. 15).
Article 16 of the Convention provides for seizure of infringing copies of protected works, while Article 20 permits the parties to “enter into special agreements among themselves” granting rights more extensive than those granted by the Berne Convention; the WIPO Copyright Treaty is one such agreement. In the early 1990s the countries of the European Union agreed to a longer term of copyright protection, and the United States followed suit, albeit without any formal agreement, with the Sonny Bono Copyright Term Extension Act in 1998.
Since 1967, the Berne Convention has been administered by WIPO. It is also linked to TRIPS: members of the WTO are required by TRIPS to accept almost all of the conditions of the Berne Convention even if they are not already Berne Convention parties (TRIPS art. 9). Through TRIPS, the WTO’s dispute resolution procedure may also provide a forum for actions to enforce portions of the Berne Convention. The United States found itself defending an action in this forum in 2000, albeit an action based on Berne Convention terms incorporated directly into TRIPS. The European Union claimed that the United States had violated Article 13 of TRIPS, which incorporates the Berne Convention’s constraints on exceptions to exclusive rights under national law: “Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.” The WTO’s dispute resolution body agreed with the European Union that U.S. law failed to provide adequate protection for copyright holders with regard to performance or display of nondramatic musical works. In other words, despite the continuing trend toward greater copyright protection and the shrinking of the fair use and other exceptions, U.S. law still provided less copyright protection in this area than the international standard.
Treaties
• Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, April 15, 1994, 33 I.L.M. 81 (1994)
• Buenos Aires Convention, August 20, 1910, 38 Stat. 1785, 155 L.N.T.S. 179
• Convention Concerning the Creation of an International Union for the Protection of Literary and Artistic Works (Berne Convention), September 9, 1886, as last revised at Paris, July 24, 1971 (amended 1979), 25 U.S.T. 1341, 828 U.N.T.S. 221
• Universal Copyright Convention, September 6, 1952, 6 U.S.T. 2731, revised at Paris July 24, 1971, 25 U.S.T. 1341
• WIPO Copyright Treaty, December 20, 1996, 36 I.L.M. 65 (1997)
• WIPO Performance and Phonograms Treaty, December 20, 1996, 36 I.L.M. 76 (1997)
European Union Directive
• Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the Term of Protection of Copyright and Certain Related Rights, 2006 O.J. (L 372) 12–18
WTO Case
• Report of the WTO Panel, United States: Section 110(5) of the U.S. Copyright Act, WT/DS160/R, June 15, 2000
Statutes
• Copyright Act of 1976, 17 U.S.C. §§ 101–1332
• Sonny Bono Copyright Term Extension Act, Pub. L. 105–298, 112 Stat. 2827 (1998) (amending and codified at 17 U.S.C. §§ 101, 108, 110, 201, 301–304, 512)
• Visual Artists Rights Act, 17 U.S.C. § 106A
Case
• Golan v. Holder, 609 F.3d 1076 (10th Cir. 2010)
See also Copyright; Copyright Infringement; Digital Millennium Copyright Act, Title I; International Copyright Protection; Moral Rights; Public Domain; Sonny Bono Copyright Term Extension Act; TRIPS (Copyright); Universal Copyright Convention; WIPO; WIPO Copyright Treaty; WIPO Performance and Phonograms Treaty
Sources and Further Reading
“Who Are We,” Association Littéraire et Artistique Internationale, available at http://alaiorg.vincelette.net/index.php?option=com_content&task=view&id=76&Itemid=60 (visited September 24, 2012)
Anthony D’Amato & Doris Estelle Long, eds., International Intellectual Property Anthology (Cincinnati, OH: Anderson Publishing, 1996)
Daniel Gervais, “Golan v. Holder: A Look at the Constraints Imposed by the Berne Convention,” 64 Vanderbilt Law Review 147 (2011)
Paul Goldstein & Bernt Hugenholtz, International Copyright: Principles, Law, and Practice (Oxford, UK: Oxford University Press, 3d ed. 2012)
Eddan Katz & Ramesh Subramanian, eds., The Global Flow of Information: Legal, Social, and Cultural Perspectives (New York and London: New York University Press, 2011)
Makeen Fouad Makeen, Copyright in a Global Information Society: The Scope of Copyright Protection under International, US, UK, and French Law (New York: Aspen, 2001)
Sam Ricketson & Jane Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (Oxford, UK: Oxford University Press, 2d ed. 2006)
Susan K. Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge, UK: Cambridge University Press, 2003)
Martin Senftleben, Copyright, Limitations and the Three-Step Test: An Analysis of the Three-Step Test in International and EC Copyright Law (New York: Aspen, 2004)
BITTORRENT
See File-Sharing and the Courts (Attempts to Control Technology)
BLACKBERRY
See Mobile Device
BLOCKING AND FILTERING SOFTWARE
See Children’s Internet Protection Act
BOTNET
See Zombie
BRANDJACKING
See Cybersquatting
BROADBAND
Broadband Internet access is notionally Internet access at a higher speed than the maximum speed available through a dial-up connection, 56,000 bits per second, although in general the term is reserved for access at a speed of 512,000 bits per second or higher. Broadband access is either wired or wireless. Wired broadband is available through dedicated Internet lines, as well as through existing telephone and cable lines. Broadband signals can also be transmitted through power lines; this tends to be more useful with a single building than between buildings, because of the problem of sending a signal between lines at different voltage levels. Wireless broadband is either local, via a router usually connected to wired broadband access, or long-distance, most often through a cell phone network or, more expensively, through a satellite network. Of the other existing technologies, one that shows promise for the future in the United States is the use of “white space” television bandwidth left empty by the transition to digital television in 2009. Local wireless broadband is fairly inexpensive to install and maintain, and is provided as a perk to customers of many businesses; in some cities it is a free public service.
Existing telephone lines can be used to provide Digital Subscriber Line (DSL) broadband access; existing cable television lines can be used for Internet access via a cable modem. From the point of view of most consumers, DSL and cable modem broadband access, the two most popular forms of broadband access, are roughly equivalent. The Federal Communications Commission (FCC), however, treats cable and telephone lines differently; consequently, the two forms of broadband access also receive different regulatory treatment.
The disparate regulatory treatment of cable and DSL broadband services has given rise to controversy; the greater popularity and availability of cable modem services has been blamed on regulatory obstacles placed in the path of DSL operators, and the FCC has been criticized for encouraging the unnecessary development of parallel infrastructure rather than guaranteeing competitive access to that infrastructure (Hundt 2004, 239). The FCC regulatory framework provides for different treatment of three categories of information transmission services: information services, cable services, and telecommunications services. Whether cable broadband should be treated as a “cable service” like cable television, or an “information service”—treated much more liberally—has been the subject of considerable litigation. In 2000 the Court of Appeals for the Ninth Circuit had held, in AT&T Corp. v. City of Portland, that cable broadband service is not a “cable service” within the meaning of the Communications Act; this prevented local governments from regulating cable modem services through their franchising authority, greatly liberalizing the market for cable modem services and contributing to the growth of the industry (216 F.3d at 871). In 2002 the FCC ruled that cable modem services were information services, not cable services or telecommunications services (17 F.C.C.R. at 4819). The FCC’s ruling resulted in challenges raised by at least seven petitions in federal courts. The challenges raised several objections, not so much to the classification of cable modem services alone, but to the disparate treatment of cable and DSL services. The various petitions urged that cable modem service should have received a dual classification as either an information service and a cable service or as an information service and a telecommunications service, or that DSL service should also have been classified as an information service (Brand X, 345 F.3d at 1127). The various petitions were brought together before the Ninth Circuit Court of Appeals in Brand X Internet Services v. FCC, in which the Ninth Circuit upheld the FCC’s ruling classifying cable modem services as information services, but vacated the portion of the ruling stating that cable modem services were not also telecommunication services (345 F.3d at 1132). In 2005 the Supreme Court finally resolved the matter in National Cable & Telecommunications Association v. Brand X Internet Services, upholding the FCC’s classification of broadband cable modem service as an “information service” but not a “telecommunications service,” despite the different treatment of DSL (broadband over phone lines) service (545 U.S. at 984–1001).
Although the Supreme Court’s ruling on the issue should be the last word, technological, economic and social changes are making the FCC’s distinction increasingly obsolete. Most households in the United States and throughout the developed world have potential broadband access through at least three networks: cable, phone lines, and wireless phone networks. Satellite access, although less widely used, is universally available. All of these can not only serve as information networks, but can also transmit telephone calls and be used to watch television shows and movies. Creating different rules for different infrastructure made more sense when each was linked to a particular type of content; now that all networks can be used for all forms of content, the distinction seems artificial.
However, the Supreme Court’s holding does not establish a final rule on the matter; it is not the function of the Supreme Court to regulate telecommunications. Rather, the Court upheld the rule made by the FCC; nothing in the holding prevents the FCC from making a different rule in light of subsequent changes.
Statute
• Telecommunications Act of 1996, 47 U.S.C. §§ 151 et seq. (1996)
Cases
• AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000)
• Brand X Internet Services v. FCC, 345 F.3d 1120 (9th Cir. 2003), reversed and remanded sub nom, National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005)
Agency Decision
• In re Inquiry Concerning High-Speed Access to the Internet over Cable and Other Facilities, 17 F.C.C. Rcd. 4798, 2002 WL 407567 (2002)
See also Broadband; Cable; Federal Communications Commission; Federal Trade Commission; Internet; Net Neutrality
Sources and Further Reading
Christian R. Eriksen, “Cable Broadband: Did the Ninth Circuit Beat the FCC to the Punch in Last Mile Regulation?” 6 Tulane Journal of Technology and Intellectual Property 283 (2004)
Reed Hundt, “The Ineluctable Modality of Broadband,” 21 Yale Journal on Regulation 239 (2004)
Mark A. Lemley & Lawrence Lessig, “The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era,” 48 UCLA Law Review 925 (2001)
David P. Manni, “National Cable & Telecommunications Ass’n v. Brand X Internet Services: A War of Words, the Effect of Classifying Cable Modem Service as an Information Service,” 13 Villanova Sports and Entertainment Law Journal 353 (2006)
Kim Maxwell, Residential Broadband: An Insider’s Guide to the Battle for the Last Mile (New York: John Wiley & Sons 1998)
“Municipal Broadband: The Need for Speed,” The Economist, August 11, 2012, at 26
“Polynesians Get Free Wireless Web,” BBC News (June 26, 2003), available at http://news.bbc.co.uk/1/hi/technology/3020158.stm (visited January 28, 2013)
Roderick W. Smith, Broadband Internet Connections: A User’s Guide to DSL and Cable (Boston, MA: Addison-Wesley Publishing Company, 2002)
James B. Speta, “Handicapping the Race for the Last Mile? A Critique of Open Access Rules for Broadband Platforms,” 17 Yale Journal on Regulation 39 (2000)
BUDAPEST OPEN ACCESS INITIATIVE
Academic articles, as original works of authorship fixed in a tangible medium of expression, are protected by copyright, yet the copyright in these articles is generally of little or no monetary value. The authors publish the articles for the purpose of sharing the results of their research with other scholars; they receive no payment for the articles. Locating the copyright holder for an academic article is not always easy; in the case of a deceased copyright holder or an institution that no longer exists, it can be nearly impossible. The right holder might be the author, the journal in which the work was published, the university or university press that published it, the university or other institution that employed the author at the time the article was written, the foundation or other donor that provided a grant that made the article possible, or some other person. Even when the copyright holder can be located, permission to reprint may be unavailable; a small academic journal may arbitrarily refuse permission to reprint part of a work or may demand an unrealistic fee.
In theory, the Internet should simplify increased sharing of academic work. Yet often attempts to reprint or otherwise share academic work founder—even when the author wants the work to be shared—because of the complexities of copyright law. A system designed to protect valuable property rights in books, movies, songs, and other commercial works is overkill when applied to works written for free and published to an audience of a few hundred readers.
One attempt to address this problem is the Budapest Open Access Initiative. The Open Society Institute (OSI) created the Budapest Open Access Initiative in 2002. The Initiative grew out of OSI’s December 2001 meeting in Budapest, thus its name; OSI is the central administrative entity of the Soros Foundations network. The Initiative’s goal is, as the title implies, open access: “free and unrestricted availability” of works that “scholars give to the world without expectation of payment.” This goal is to be achieved by two mechanisms: open-access journals and self-archiving.
Open-access journals are journals that do not “invoke copyright to restrict access. . . . Instead they will use copyright and other tools to ensure permanent open access to all the articles they publish. Because price is a barrier to access, these new journals will not charge subscription or access fees” (Budapest Open Access Initiative 2002). This does not mean that the journals will not restrict their content; the journals will apply their own peer review or other standards in deciding what to publish.
Self-archiving is the depositing of articles in open-access electronic archives. The goal of the Initiative is to preserve the author’s moral rights of integrity and paternity while taking away the economic right to control reproduction of the material:
There are many degrees and kinds of wider and easier access to this literature. By ‘open access’ to this literature, we mean its free availability on the public Internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the Internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited (Budapest Open Access Initiative 2002).