Intellectual Property Symposium of the Americas
September 11-12, 2000

ARLIS/NA Public Policy Committee members Barbara Rockenbach and Roger Lawson attended this symposium sponsored by the US Patent and Trademark Office and held in Crystal City, Virginia. Documentation from the symposium, including session summaries, will be available at the ARLIS/NA Annual Conference in Los Angeles next March.
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Monday, September 11, 2000 (Barbara Rockenbach)

The opening plenary session was on "E-Commerce and Other Strategies for Turning Intellectual Property Protection into Investment Opportunities." According to NUA, as of February 2000 there are 135.06 million Internet users in the United States and Canada combined. In the following areas, however, the numbers are not as impressive: Europe 71.99; Asia/Pacific 54.0; Latin America 8.79; Africa 2.46.

These statistics were presented in a business context, and therefore indicated the countries where there was less opportunity for investment, or less chance of "exploiting intellectual property." For museums and art libraries these statistics tell us more about access and audience, than about investment opportunities. For American museums mounting content on the web, access is increased for some, but perhaps not the extent we imagine. 

Anthony Lupo, a lawyer from the firm Arent, Fox, Kintner, Plotkin, and Kahn, offered the following reasons for protecting intellectual property from a business standpoint:
-- effective IP and e-commerce laws encourage exploitation of IP and technology (attract research and development)
-- laws encourage investment (money becomes available for exploitation of IP)
-- laws bring revenues into the treasury

The second session, Intellectual Property Rights and the Internet: Digital Distribution and the Technological Threat to Intellectual Property, concentrated mainly on the music industry and intellectual property. The focus was heavily on Canada and Latin America in this session, but one important U.S. development as discussed the U.S. Digital Millennium Copyright Act.

The Digital Millennium Copyright Act (DMCA) was enacted in late 1998. The DMCA amends the U.S. Copyright Act in a number of respects. In particular the DMCA adds section 512 to the Copyright Act, which is a complex provision that limits the liability for copyright infringement of an Internet Service Provider. The section limits the liability of an ISP for direct, vicarious, and contributory infringement of copyright for network communications; for transient and intermediate reproduction as a result of caching; for intermediate and other reproduction as a result of the storage of works by a subscriber using the ISP's; for linking to other sites; and for disabling of removing access. To benefit from the limitation of liability an ISP must meet three conditions. These conditions are: first establish a policy for terminating access for its subscribers that are repeat infringers, secondly to inform its subscribers of such policy, and thirdly to refrain from interfering with standard technological measures. The limitation of liability of ISP's under the DMCA seeks both to encourage ISP's to expand the use of the Internet in an environment in which their potential copyright liability can be managed and to protect the interests of copyright owners from losing control over their works in the electronic environment.

The final relevant session of the day was entitled "Copyright and the WIPO Treaties: Protecting Content on the Internet." After negotiations from November 1991 to December 1996, two new treaties were concluded at the World Intellectual Property Organization (WIPO): the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The focus of these treaties is on copyright and the digital age. 

Briefly, the WCT protects literary and artistic works such as books, computer programs, music, photography, paintings, sculpture and films. The WPPT protects the rights of the producers of phonograms or sound recordings (e.g., records, cassettes, CDs, as well as the rights of performers whose performances are fixed in sound recordings.

The present state of these treaties is: 30 countries must ratify both the WCT and the WPPT before they enter into force. As of the end of 1999, the WCT had been ratified by 12 countries and the WPPT by 11. The WIPO website (www.wipo.int) contains regularly updated information on the latest number of ratifications.

In the context of developing countries, the impact of WIPO is significant. Content equals economic wealth, therefore artists and content creators in developing countries are using the Internet for international exposure. Because of this international copyright policies need to be put into place quickly to protect this content as well as encourage the creation of more content. A legal environment needs to be established to protect against piracy, and there must be public education on the importance of copyright and intellectual property treaties.  

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Tuesday, September 12, 2000 (Roger Lawson)

The symposium's sessions on Tuesday included four plenary round table discussions and two breakout round table discussions. Of primary interest was breakout roundtable H, entitled "Technology Transfers and the Ins and Outs of Licensing." Moderated by Martin J. Adelman, Professor of Law and director of George Washington University's Intellectual Property Law Program, the session featured three speakers. Susan Mann discussed the Internet's impact on dissemination of music recordings. She outlined recent cases against MP3 and Napster, pointing out that before the Internet, licensing agreements could be clear about defining content owners and users; Web technology diffuses the location of the content and the user transaction to the point where jurisdiction becomes irrelevant. Mann also commented on the impact of the Uniform Computer Information Transactions Act (UCITA) to favor rights of ownership over access. By placing computer information transactions on contractual terms, UCITA would severely limit uses currently permitted under copyright law and void provisions for fair use.

Kathryn Barrett Park discussed licensing from the standpoint of trademark owners, drawing upon her experience as senior intellectual property counsel for the National Basketball Association Properties, Inc. and more recently as trademark counsel for General Electric. 

Lesley Ellen Harris, a barrister and solicitor based in Canada and the United States and specializing in copyright, licensing, and e-commerce, reviewed the basic characteristics and common pitfalls of licensing agreements, especially for database access and software use by non-profit organizations such as libraries and archives. Harris maintains a Web site (www.copyrightlaws.com) with links to resources on the subject.

Harris highlighted the wide variance in the content and scope of licensing agreements -- there are no industry or legal standards. Licensing agreements are individual arrangements between the owner and user describing the terms and conditions under which access or information is obtained and used. Individual terms and conditions may be altered by mutual consent. Although this flexibility can be advantageous in addressing the special needs of a particular user audience, it means that each point must be reviewed by both parties, a time-consuming and expensive process that is frequently assumed by staff unfamiliar with legal terminology. This can create ambiguities and make the user more vulnerable to charges of violation resulting in denial of access or litigation. 

Rights of content users may be limited in small but significant ways. For example, the authorized user may be allowed to download and view the information, but not to print or email the information; he or she may be able to print the information, but not more than one copy. The definition of an "authorized user" must also be clearly defined. The content provider's definition may be too narrow, to include staff but exclude visiting professors or guest lecturers. "On-site" access may mean just that, preventing an otherwise authorized user to obtain access from a remote location. Most licensing agreements ultimately place a heavy burden on the content user to monitor access and to certify that the content owner does in fact possess the rights to the content itself.

The issue of perpetual access to digital content (e.g., electronic journals) was also considered. There is still little consistency in providing access retrospectively to information rightfully acquired as part of a licensing agreement ("back issues"), designating the party responsible for creating digital archives, or specifying the format of the archival versions themselves. The last point ventures into preservation issues that are beyond the scope of the present topic, but it should be considered when evaluating the long-term cost and utility of licensing agreements.

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