Rules of the Road

Rules of the road are needed to protect intellectual property, privacy, and security. As many more people join electronic networks, privacy and security will need to improve. The content and communication that move over the Superhighway are created, stored, and used in vast quantities.

Intellectual Property

The evolving Information Superhighway presents valuable new opportunities both for creators and copyright owners and for the general public. Creators and copyright owners will be able to authorize the marketing and dissemination of their works to a broader audience, thereby potentially increasing the financial and other incentives for future creation. The public will have more convenient access to an increased number and variety of works. At the same time, however, the use of the Information Superhighway poses new legal and practical challenges in balancing the interests of owners and users of copyrighted works in a changing technological environment, ensuring an adequate level of protection to encourage owners to make their works available on the Information Superhighway while permitting appropriate access to those works. Any changes to the copyright laws should be made carefully to preserve this balance.

The Council's fundamental intellectual property principles pertaining to copyright law and related rights are intended to provide guidance in enhancing these opportunities and meeting these challenges. The Council also presents its action recommendations in this section.

Principles of Intellectual Property

  1. The ultimate purpose of intellectual property protection in the Information Superhighway, as elsewhere, is to expand the pool of information and knowledge available to society as a whole by rewarding creators with exclusive rights to their works. Therefore, adequate and effective protection of intellectual property is essential in order for the Information Superhighway to develop successfully.

  2. The importance to society of both copyright and patent protection was recognized by the framers of the United States Constitution. The guiding principle of U.S. copyright law is "to promote the progress of science and useful arts, by securing for limited times to authors . . . the exclusive right to their . . . writings." Copyright law is an important means by which this public policy goal is achieved, spurring creativity in a free market economy while encouraging the interchange of ideas and information.

  3. Existing U.S. copyright law applies to uses of works on the Information Superhighway and will cover most of the issues that can currently be anticipated. However, some amendments and clarification may be advisable in order to ensure adequate and effective protection in light of changing technologies. Such legislative changes should not be made precipitously, without a full and fair airing of issues.

  4. Copyright laws should be forward-looking and flexible enough to adapt to incremental changes in technology without the need for frequent statutory amendment.

  5. Intellectual property laws, and effective legal means of enforcing those laws, must keep pace with technological developments.

  6. Existing rights of creators and copyright owners whose works are used on the Information Superhighway should not be diminished or weakened. The law should seek to preserve and promote the ability of creators and copyright owners to exercise all of the rights in the group of rights that make up a copyright, whether separately or in combination.

  7. The doctrine of fair use, as incorporated in the Copyright Act and developed by the courts, should apply in the Information Superhighway environment. The context of the new technology should not diminish or weaken the ability to make fair use of copyrighted works.

  8. Exemptions and limitations on copyright rights, such as those under current law for the benefit of nonprofit and educational uses, should also apply to the extent appropriate in the evolving Information Superhighway environment.

  9. The Information Superhighway must provide the opportunity, through reasonable technological means, for owners of rights to control, identify, monitor, and be compensated for uses, and for users of works easily to seek permission and make payments.

  10. The basic principle of copyright licensing should be free market transactions, involving negotiation between rightsholders and users of works. The role of the government should be to establish a legal framework in which private parties can operate to license and enforce rights. The law should allow flexibility in the development of appropriate forms of voluntary licensing.

  11. Public education about the meaning and importance of intellectual property, including the fair use doctrine, is critical to successful implementation of the Information Superhighway.

  12. Domestic intellectual property law should be consistent with U.S. treaty obligations.

  13. It is essential to provide meaningful incentives for the creation and dissemination of works in the Global Information Infrastructure (GII), while ensuring adequate access to those works. Accordingly, the U.S. must strive to have other countries accept similar fundamental principles.

  14. The U.S. should seek harmonization of national intellectual property laws and regulations applicable to the GII environment to the extent consistent with U.S. interests, and should support the principle of national treatment for all rights granted by such laws.

Action Recommendations for Intellectual Property

  1. All levels of government should promote ongoing public education about the meaning and importance of intellectual property, including copyrights and the fair use doctrine.

  2. The Federal Government should strive to have other countries implement consistent, effective, and appropriate policies and protections for intellectual property in the digital environment.

Privacy and Security

Privacy is a cherished American value. In designing the technological infrastructure and the policy environment for the Information Superhighway, the United States is establishing the framework for indvidual, social, economic, and political life in the 21st century. It is important that fundamental American values -- including protection of privacy, freedom of speech and association, freedom from discrimination, and protection of property rights -- be comprehensively and consistently considered in the Information Superhighway. These values are not absolute, and need to be addressed in the context of the public interest. The application of privacy principles may differ according to the type of information being considered and the nature of the relationship between providers and users.

This section presents definitions of privacy and security, sets forth principles of privacy and security, and suggests action recommendations.

Definitions

Throughout this report, personally identifiable information refers to any information that could be readily associated with the individual to whom it pertains. Personally identifiable information for the purposes of these principles does not include information that is maintained as a public record, or that an individual publicly releases, intends for public dissemination, or should reasonably understand may become public.

In policy discussions, privacy is frequently coupled with confidentiality and security. Although the terms are interrelated, it is important that the meaning of each be understood independently. Information privacy is the ability of an individual to control the use and dissemination of information that relates to himself or herself. Confidentiality is a tool for protecting privacy. Sensitive information is accorded a confidential status that mandates specific controls, including strict limitations on access and disclosure, that must be adhered to by those handling the information. Security is the totality of safeguards in a computer-based information system. Security protects both the system and the information contained within it from unauthorized access and misuse, and accidental damage. Security consists of hardware, software, personnel policies, information management policies, and disaster preparedness.

Informed consent has two components. First, it requires that the individual be provided full information on the uses and disclosures of personally identifiable information. Second, it requires that individuals be provided a mechanism through which they can choose whether or not to agree to unrelated uses and additional disclosures of personally identifiable information. Unrelated use, for the purpose of these principles, means use or dissemination that is either not incident to the ordinary and acknowledged course of business of the recordkeeper or not compatible with the relationship in which the information was obtained. A variety of mechanisms for effecting this choice may be employed within different relationships between individuals and public and private entities. Informed consent is a broad term that can be implemented in a number of ways; it does not demand that the consent be express, rather it requires that the individual be given, in advance, the information necessary to decide whether or not to agree to subsequent disclosures and additional uses of personally identifiable information. In some instances, if the individual has not exercised an option to object, then consent can be inferred.

Developing and deploying an effective Information Superhighway requires adhering to the Council's privacy- and security-related principles.

Principles of Privacy and Security

  1. For the potential of the Information Superhighway to be realized, personal privacy -- including information, transactions, and communications -- must be protected in the design, management, and use of the Information Superhighway. Autonomy and individual choice are fostered by ensuring privacy and by requiring informed consent prior to the use of personally identifiable information on the Information Superhighway.

  2. Protection of privacy is crucial to encouraging free speech and free association on the Information Superhighway; however, such protections are not absolute and must continue to be balanced, where appropriate, by concepts of legal accountability and First Amendment rights.

  3. To achieve its full potential, the Information Superhighway must incorporate technical, legal, and self-regulatory means to protect personal privacy. The privacy of communications, information, and transactions must be protected to engender public confidence in the use of the Information Superhighway. For instance, people should be able to encrypt all lawful communications, information, and transactions on the Information Superhighway. Networkwide and system-specific security systems that ensure confidentiality, integrity, and privacy should be incorporated into the design of the Information Superhighway. In an interactive electronic environment, transactional information should be afforded a high level of protection.

  4. Existing constitutional and statutory limitations on access to information, communications, and transactions such as requirements for warrants and subpoenas, should not be diminished or weakened and should keep pace with technological developments. Privacy protections should be consistent across technologies, and should be technology neutral.

  5. At a minimum, existing rights to review personally identifiable information and the means to challenge and correct inaccurate information should be extended into the Information Superhighway.

  6. Individuals should be informed, in advance, of other uses and disclosures of personally identifiable information provided by the individual or generated by transactions, to which that person is a party, on the Information Superhighway. Personally identifiable information about an individual provided or generated for one purpose should not be used for an unrelated purpose or disclosed to another party without the informed consent of the individual except as provided under existing law.

  7. Data integrity -- including accuracy, relevance, and timeliness of personally identifiable information -- must be paramount on the Information Superhighway. Users of the Information Superhighway, including providers of services and products on the Information Superhighway, should establish ways of ensuring data integrity, such as audit trails and means of providing authentication.

  8. The use of a personal identification system administered by any government should not be developed as a condition for participation in the Information Superhighway.

  9. Subject to public policies intended to secure and maintain the integrity and enforceability of rights and protections under U.S. laws -- such as those concerning intellectual property, defamation, child pornography, harassment, and mail fraud -- spheres for anonymous communication should be permitted on the Information Superhighway. Those who operate, facilitate, or are otherwise responsible for such spheres must adequately address the sometimes conflicting demands and values of anonymity, on the one hand, and accountability, on the other.

  10. Collectors and users of personally identifiable information on the Information Superhighway should provide timely and effective notice of their privacy and related security practices.

  11. Public education about the Information Superhighway and its potential effect on individual privacy is critical to the success of the Information Superhighway and should be provided.

  12. Aggrieved individuals should have available to them effective remedies to ensure that privacy and related security rights and laws are enforced on the Information Superhighway, and those who use the remedies should not be subject to retaliatory actions.

  13. The content and enforcement of privacy policy on the Information Superhighway should be consistent. A process for overseeing the development, implementation, and enforcement of privacy policy on the Information Superhighway should be established. Such process should receive input from all levels of government and the private sector.

Action Recommendations for Privacy, Security, and Free Speech

Privacy
  1. The government should follow through on privacy policy issues with the initial task of reviewing existing laws and practices to implement the Council's privacy principles and the recommendations of the IITF Privacy Working Group.

Security

  1. The Federal Government should encourage private sector awareness of security issues, initiate a public-private security consultation process, and foster mechanisms to promote private accountability for proper use of security measures.

  2. The Federal Government should not inhibit the development and deployment of encryption by the private sector.

Free Speech

  1. The government should not be in the business of regulating content on the Information Superhighway. It should defer to the use of privately provided filtering, reviewing, and rating mechanisms and parental supervision as the best means of preventing access by minors to inappropriate materials.

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