Contractual and Technological Regulation of Information Access

David A. Rice


Copyright protects computer programs and audio visual works, and provides limited protection to data compilations. The European Union Data Protection Directive and proposed United States legislation call for database protection beyond that ordinarily provided by copyright. Although expanding, these protections are limited and are becoming secondary to the use of contract and technology as means for regulating use of computer programs and information access and use. This shift from dependence on copyright and related law to reliance on contractual and technological protections has direct consequences that raise important information society policy and ethics issues.

Software publishers first licensed the use of copies instead of selling them in order to create anti-copying use restrictions. This originated at a time when copyright protection for computer programs was uncertain. When copyright protection was recognized, contractual use and transfer restrictions came to be used more as means to differentiate, and thereby price discriminate between, user markets rather than as a substitute for copyright protection. Electronic information content providers, however, seized upon copy use licensing as a means to protect uncopyrightable but readily reproducible content, and also to price discriminate.

The enforceability of these terms when used in standard form contracts has been the subject of great debate and differences of view in the courts in the United States and other countries. In the United States, proposed Uniform Commercial Code Article 2B: Computer Information Transactions*** adopts the license paradigm, validates shrink-wrap, click-wrap and other standard form licenses, and generally makes their term enforceable. Contemporaneous initiatives have sought to create copyright-based or sui generis database protection. Among the most important products of the effort are the Trade-Related Aspects of Intellectual Property Rights (TRIPS) annex to the Uruguay Round of the GATT negotiations and certain provisions of the Digital Millenium Copyright Act enacted by the U.S. Congress in 1998.

Electronic publication and dissemination of information is furthered by legal recognition of contractual and technological protection against unauthorized reproduction or distribution. They encourage commercial investment in the publication and distribution of computer programs, multimedia works, and database products. Their use as means for price discrimination provides a basis for making information products more widely available by charging different prices to occasional, or noncommercial users, than to commercial users. Universal access limitations are thereby reduced.

Still, technological and contractual protection primarily serve the interests of commercial publishers, not authors. Historically, market failure in the case of inventions and creative works is a widely recognized basis for state creation of intellectual property rights. Even so, intellectual property law limits the rights it creates. In contrast, contractual and technological regulation of access and use are subject to only limitations that others can create by bargain, or that legal institutions impose.

This paper identifies social costs that may result from strengthening legal support for contractual and technological regulation of information access and use. Examples include compromise of public and university library, museum, and other institutions service as historical and cultural archives. Licensing, and restricting, use of CD-ROM and on-line databases regulates users opportunities to read, record, and use information. Contractual or technological creation of temporal limits on database or multimedia product use, and requiring payment of a license renewal fees, make collection items transient rather than archival.

Broader social, cultural, and economic policy issues are identified and opened for consideration. For example, price and other terms governing access to and use of digitally stored and disseminated historical and cultural text, data, images, or sounds of ones own heritage may be set by a distant commercial entity. Commercial marketability of digital representations of cultural traditions, knowledge and heritage increasingly may influence social and natural science field research priorities. Marketing and other commercialization considerations (or values) may influence decisions about what is, and is not, selected for digital electronic dissemination, virtual representation, and preservation in the archive of education, edutainment and entertainment products.

Posing these questions is not meant to suggest their answers. In deed, no single paper can adequately explore or fully dimension the identified issues, let alone others that demand the attention of the public and of public policy decisionmakers. It is important, however, to identify and promote consideration of potential social costs of otherwise readily apparent benefits. The authors aim is to significantly contribute to that necessary endeavor.