FYI-
Cross-posted to ARLIS/NA and VRA from cni-copyright
listserv:

As many of you are aware, numerous international
treaties have been under discussion for the past few
years which could impact American intellectual
property law, especially fair use and first sale
doctrines.  Currently the Hgue Convention on
Jurisdiction and Foreign Judgments in Civil and
Commercial Matters is under way. The following letter,
from the American Library Association to the U.S.
delegation to the Hague Convention, is the clearest
explanation I have seen to date on the primary
concerns of the library and educational communities
to the proposed treaty.
Maryly Snow
Chair, VRA Intellectural Property Rights Committee
Member, ARLIS/NA Public Policy Committee
[log in to unmask]


-------- Original Message --------
Subject: American Library Association letter on Hague Convention
Date: Fri, 08 Jun 2001 15:34:04 -0700
From: James Love <[log in to unmask]>
Reply-To: [log in to unmask]
To: Multiple recipients of list <[log in to unmask]>

This is a letter sent by Fred Weingarten and Miriam M. Nisbet of the
American Library Assocation (ALA), to the head of the US
delegation to
the Hague Convention on Jurisdiction.   Jamie

June 4, 2001  [by fax and e-mail to Mr. Kovar in The Hague]

Mr. Jeffrey Kovar
Assistant Legal Advisor for Private International Law
U.S. Department of State
2430 E Street, NW
Suite 203, South Building
Washington, DC, 20037-2851

Dear Mr. Kovar:

Re: draft Hague Convention on Jurisdiction and
Foreign Judgments in Civil and Commercial Matters

The American Library Association ("ALA") appreciates the hard
work of
the U.S. delegation to the Hague Conference in fostering understanding
and discussion of the complex issues associated with the current draft
of the convention on jurisdiction and enforcement.  We appreciate the
openness of the delegation to hearing from the various U.S. stakeholders
and believe that the public meetings and roundtable discussions
over the
past several months have been very beneficial to those who have concerns
about the draft convention.  Hopefully, the meetings have proved
to be
helpful to the U.S. delegation as well.

As you begin the deliberations at the next diplomatic conference
on the
draft convention in The Hague this week, we ask that the delegation
continue to take into consideration the concerns of the U.S. library
community.  As it happens, ALA's Annual Conference takes place
almost at
the same time (June 15-20), during which its governing committees and
its Council will likely consider a formal resolution on the draft Hague
convention.

ALA is a nonprofit educational organization of approximately 61,000
librarians, library educators, information specialists, library
trustees, and friends of libraries representing public, school,
academic, state, and specialized libraries. ALA is dedicated to the
improvement of library and information services and the public's right
to a free and open information society.  In addition to ALA, the various
libraries in this country (and in some cases, in other countries) are
represented by the other four major national library
associations, with
which ALA works closely:  Association of Research Libraries, American
Association of Law Libraries, Special Libraries Association, and Medical
Library Association.

The library community has a huge stake in the outcome of the
deliberations on jurisdictional matters, particularly those concerning
contracts and intellectual property rights.  We believe that our
concerns are shared by many other educational, research, and cultural
organizations Mwith whom we collaborate regularly on information policy
issues. We further believe that, even at this late date, the U.S.
delegation would benefit from a representative of these public interest
information institutions and we ask that you consider taking that step.

1.  Our libraries and educational institutions have embraced
technological advances and are a significant element in the United
States' electronic commerce.  We not only provide patrons with
computerized access to electronic information products and
services, we
also use software to run our internal operations.  As a result,
we are
among the largest consumers of software.  In addition to expenditures
for hardware, software, network support and equipment, and
personnel, we
are also the largest consumers of fee-based electronic services and
databases.  The nation's public, academic, medical, special and
government libraries expend hundreds of millions of dollars in
fees each
year for databases and electronic library materials.  These purchases
are utilized across the entire academic and library enterprise,
affecting payroll operations; safety, health and environmental programs;
accounting systems; and more.

Libraries negotiate contracts for goods and services every day.  In
doing so, we are able to ensure that the contract terms to which we
agree will take into account our mission to the public as well as our
business and institutional needs, and that those terms comply
with other
legal requirements (e.g., state legal requirements for state
institutions).  Increasingly, though, contracts for information goods
and services are non-negotiated instruments, and we expect this
trend to
continue. The growing use of non-negotiated contracts presents serious
issues for libraries, one that could be greatly exacerbated by
the Hague
agreement as currently drafted.

In that regard, Article 4 of the current draft treaty would make "choice
of court" provisions enforceable without exception, including those
provisions contained in non-negotiated contracts (such as
shrink-wrap or
click-on contracts).   Our concerns with enforcing terms in
non-negotiated contracts that are contrary to public policy extend
beyond the choice-of-court issues, but we confine our comments
here to
the manifest unfairness of allowing one party to a contract to mandate,
with no opportunity for negotiation, which court shall have jurisdiction
to hear and settle disputes between the parties.  The current
Article 4
by its very terms implies an "agreement" between the parties, whereas
non-negotiated shrink-wrap or click-on contracts allow no opportunity
for a "meeting of the minds" -- long considered to be an essential
element of a contract.

We have suggested a revision to Article 4 that would make it
clear that
such choice of court clauses in non-negotiated contracts with certain
institutions would not be automatically enforced, along the following
lines:

Agreements conferring jurisdiction and similar clauses in non-negotiated
contracts with non-profit, non-commercial organizations, including
non-profit libraries, archives, and educational institutions,
shall be
without effect.

If such an express embodiment of public policy is not acceptable, then
we urge that the U.S. delegation consider at least revising
Article 4 to
include language that would except the automatic enforcement of
court-of-court provisions where the agreement "has been obtained
by an
abuse of economic power or other unfair means."

2.  Access to information is essential not only to research and
educational institutions, but also to our citizenry at large.
The role
of libraries in the dissemination and preservation of information
in our
society and our culture -- indeed, throughout the world -- is directly
and critically affected by today's economic and technological
developments.  We are being challenged in new ways to ensure the balance
in law and public policy between protecting intellectual property and
providing access to it.  In this regard, we are concerned that
the draft
Convention, with its rules regarding forum selection, could subject
Internet users in the United States to intellectual property
infringement in other countries for activities that are lawful in the
U.S.  For example, users could be sued for engaging in conduct falling
within the fair use doctrine, codified at 17 U.S.C. Section 107, or
conduct that would be protected by our First Amendment.   Such judgments
would have to be enforced by U.S. courts under the Convention as
it now
stands.

We are aware that the U.S. Delegation has taken the position that the
above result would be no different under the draft convention
than it is
now, i.e., that U.S. courts would ordinarily enforce such judgments
today. (And that is the reverse situation -- getting foreign
courts to
enforce our court judgments -- that is sought, in part, to be
remedied.)  Even conceding that probability, one cannot disregard the
practical, and perhaps dispositive, effect of the treaty, if
signed, on
the ability of our courts to refuse enforcement.  The only
grounds then
available for an American court to refuse would be Article 28(f).
 That
provision allows a court of a member country to refuse to enforce a
judgment if recognition of the judgment "would be manifestly
incompatible with the is public policy" of the enforcing state.  Surely
Article 28(f) must be viewed as an extraordinary "out," lest the U.S.
lose the benefit of the treaty in ensuring enforcement of our court
judgments.  As such, we suggest that it is far better to ensure
that the
convention does not put our courts in that extremely difficult
situation.

These and numerous other problems that have been identified in the
course of recent discussions about the draft convention have led
to a
debate over whether copyright cases and other intellectual property
matters should be taken out of the draft convention altogether.
ALA is
not yet able to take a position on that issue at the moment, but
it is
clear that it would be in the public interest for the U.S.
delegation to
promote continued discussion of these issues among the various
stakeholders.

Finally, there have been many issues raised on behalf of consumer
protection groups which have studied the draft convention.  Those
concerns,
which ALA shares, need not be addressed here, as they are being ably
aired by others.  As with the other issues discussed above, we believe
that there must be continued public discussion, as has occurred
over the
past six months, in order for the U.S. community and the U.S. delegation
to be fully informed.

Sincerely,



Frederick W. Weingarten, Director
ALA Office for Information Technology Policy
(202) 628-8421
Fax (202) 628-8424
[log in to unmask]


Miriam M. Nisbet, Legislative Counsel
ALA Office of Government Relations
(202) 628-8410 or 800-941-8478
Fax (202) 628-8419
[log in to unmask]
American Library Association
1301 Pennsylvania Ave. NW - # 403
Washington, D.C.  20004-1701
_______________________________________________
Hague-jur-commercial-law mailing list
[log in to unmask]
http://lists.essential.org/mailman/listinfo/hague-jur-commercial-law

__________________________________________________________________
Mail submissions to [log in to unmask]
Administrative matters (file requests, subscription requests, etc)
        to [log in to unmask]
ARLIS-L Archives and subscription maintenance:
       http://lsv.uky.edu/archives/arlis-l.html
Questions may be addressed to list owner (Kerri Scannell) at: [log in to unmask]