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In our panel discussions, presentations, and chats over lunch, we have heard intellectual property rights in a digital age discussed from three points of view. There are the creators, self-described on occasion as the "road kill on the information superhighway." There are the presenters, the distributors of content through publications, museums, narrowcast and broadcast media, who told us the great risks they have to take and the high cost of getting the arts to a public market. And then we heard, especially at lunch from Ernest Boyer, a passionate plea to consider the third party, the ultimate consumers, including teachers and the students, and their needs for access and equity, for the selection and integration of knowledge, and for credible sources of art and culture.
All agree that the well established relationships among those three essential groups of players are being changed by the new technologies. The old rules of the game are not working in the presence of flawless digital reproduction and massive global data transfer by individuals.
My own observation, which is not original, is it's too late to put the genie back in the bottle. The relationships among creators, presenters, and consumers of art and culture are never going to go back to the way they were. Our task now is to come up with new relationships within which we can all work.
Each of the three groups has very real needs. The artist has to eat in order to continue the process of creation. The presenter has to get products to market and make money on them. The consumer has to have affordable, convenient access to authentic, reliable information and cultural expression.
What new relationships can provide for the dissemination of the arts and meet the needs of all three parties to the cultural connection? During our discussions I heard five proposals, and I'll try to summarize each of them briefly.
The first was what might be called the royal patronage solution. And in fact, that is a major way the arts were supported some centuries ago. The king selected and fed the court artist, who produced works of art, which were then owned by the crown. The crown, at its pleasure, could provide access to the works for large or small audiences. There are various benevolent versions of the royal patronage scheme around today. The National Endowment for the Arts is something like a royal patron, as is the private foundation which makes a grant to an artist to create and present a work. So is the magazine publisher, described by Frank Bennack, who pays a flat fee up front for total ownership of an essay.
The second scheme is what I'll call the loss leader. This method is informed by the belief that the new mass media are never as good as the real thing -- the actual real painting, the real play on the stage, the real opera. But by offering glimpses of art as a "loss leader," by putting it out there even for free, we can create an audience willing to pay money to see the real thing. These stimulated consumers will visit and pay for real museums and theaters in their home towns. The loss leader version assumes that the free, digital versions of art will be recognized by consumers as of lower value than the complete real thing.
Examples cited of the loss leader scheme working were an author letting his short story go into public domain on the Internet, but keeping the printed book of ten short stories for distribution through the older, more easily controlled and remunerated channels. Another example was the internationally used software program, MOSAIC, which has been available for several years as "freeware." Now there is a company selling its version of the program. The company is succeeding because of the perceived value they have added to the free version of the program. The commercial version of MOSAIC has a nice package, many convenience features, instruction books, and telephone support, none of which are available with the free version, which nevertheless acted as a loss leader for the commercial transaction.
The third solution might be called the statistical fix. Harry Saint introduced this concept. It is similar to the mechanism used by network television to set advertising rates, based on the Nielsen surveys. ASCAP uses a statistical sampling method for compensating song writers. Works of intellectual property distributed through such channels as the Internet could be monitored by statistical sampling, and from as few as a hundred or a thousand recorded accesses, a clearing house service could decide what the total usage is likely to have been. On that basis, the service could reward the creators and presenters from a pot of money collected from major players who benefit from keeping the arts alive.
Can such a scheme work in the commercial world? Barbara Ringer described the half-billion dollars in checks that the Library of Congress wrote recently to reimburse creators and presenters under a statistical- sample-governed agreement to cover home videotaping.
The fourth scheme, which my science colleague, Joël de Rosnay, described, is the pure technological fix. Computer technology provides possibility of including in every digital file of text, sound, or image a "public-private key coding," a sort of electronic signature, which could be used as part of a global automatic billing scheme. Every access or use of a digital file would result in an automatic debit of a preset amount to the consumer's credit card account, and a credit to the creators' and presenters' accounts. Like the statistical fix, the technological fix requires global acceptance of the particular scheme used, and a means of enforcing that scheme.
The fifth (and least studied) scheme is the shareware solution. It relies on an ethical commitment by a significant number of participants. This scheme makes electronic forms of art available to everybody for free, and asks consumers to make voluntary payments for what they use. This scheme has actually been working as a means of providing computer software.
There is an Association of Shareware Professionals. Some of the most popular programs in the world are shareware programs, like PKZIP, the leading data file compression program. You can obtain copies free and legally from the Internet, from local bulletin boards, and from friends. The first time you run any shareware program, you are reminded by a message on the screen that this is a copyrighted program and that, while it may be distributed freely, you are expected to send a check for $49.95 (or whatever) to the publisher if you like and use the program. Dozens of software authors and smaller publishers are getting checks from thousands of people for shareware. Would this scheme work for mass-market music, or feature-length videos?
These various schemes involve very different mixtures of technology, cooperation, and trust on the part of individuals, corporations, and our social structures. As we learned from the day's discussions, especially this afternoon, there is a wide range of opinions on how much we can rely on technology, and how much trust we are prepared to place in our institutions and our fellow citizens. Are we prepared to tolerate some risk? Accept some loss of control and some cheating? How much enlightened self- interest do we believe the benefits of the new technologies can engender?
I've offered my extraction of five solutions from our hours of discussion, and there may be other solutions presented which I missed. I think an interesting point is that in each solution I've heard the constraints of economy, law, and technology fall far short of suggesting a workable system. All of these solutions, to some extent, require an adjustment to the social contract as well, a new combination of trust and cooperation, in order to create a new, mutually rewarding relationship among creators, presenters, and consumers.
We will be taking a risk by trying any one of these schemes, or a mixture of schemes tailored to different combinations of art, media, and audience. But we must act soon if we are to maximize the promise of the new technologies. The technologies are here, and they are being used, for better and for worse, by creators, presenters, and consumers to carry out the commerce of culture. I think we can improve both the quality and quantity of that commerce. But to do that we will need to invest in new relationships, and be ready to fix them as they break.