----------------------------Original message----------------------------
Forwarded from the NINCH list.
Judy
---------- Forwarded Message
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From: David Green, INTERNET:[log in to unmask]
TO: Multiple recipients of list, INTERNET:[log in to unmask]
DATE: 10/25/96 3:19 PM
RE: DFC Proposed Revisions to WIPO Treaty Language
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MEMO: ALL NINCH Members
SUBJECT: REVISED LANGUAGE PROPOSED FOR
INTERNATIONAL COPYRIGHT TREATIES
DATE: October 25, 1996
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There have been further developments in the U.S.
Administration's intentions to incorporate its "digital agenda"
within three draft treaties, or "Basic Proposals," to be considered by
delegates of the World Intellectual Property Organization at a
Diplomatic Conference scheduled December 2-20, 1996.
As discussed in the NINCH Newsletter # 2 (www-
ninch.cni.org/News/Newsletter2.html#UNBALANCED), the
position of the Digital Future Coalition (www.ari.net/dfc/),
NINCH's principal instrument for following and influencing
developments in this arena, has been to encourage the
Administration and other delegates to the conference to postpone
consideration of controversial digital elements as "no domestic or
international consensus on how best to modify U.S. or
international law in order to maximize the potential of cyberspace
is in place."
To be clear: the fear of many is that an international agreement will
be forged in Geneva on matters still unresolved in the proposed
NII Copyright Protection Act, stalled in Congress this last session,
and that this will be used to pressure domestic agreement.
Since August 30, when language for the three treaties was released,
the White House has asked the Digital Future Coalition for specific
changes in the language of the treaties. As the DFC was getting little
serious response to its "negative" position of advocating deferral, it
has produced such revisions and asked for the concurrence of its
members.
Details of the revisions are included in the attached memo from
the DFC. I am endeavoring in this preamble to give some
summary and contextual introduction to this document.
Of the three treaties:
* one is to protect non-copyrightable databases under a new kind of
intellectual property concept--here DFC's position is still to defer
consideration until this has been debated in the U.S. (See NINCH
Newsletter # 2 for an introduction to this proposal www-
ninch.cni.org/News/Newsletter2.html#New Database Bill)
* one calls for a new copyright treaty to supplement the Berne
Convention's protection of literary and artistic works
* the third is the "new instrument" to create stronger protection for
sound recordings.
The last two include many provisions unrelated to networked
technology but do also contain elements of the U.S.'s "digital
agenda."
There are principally four articles of concern for each of which DFC
has produced revisions:
*Article 7 ("Scope of the Right of Reproduction") treating the
necessary ephemeral copying onto RAM for electronic
transmission as a "reproduction" subject to copyright control
*Article 10 ("Right of Communication") expanding copyright such
that any on-line service provider would be directly liable for any
subscriber's misconduct
*Article 12 ("Limitations and Exceptions") undermines many of
the exceptions granted under Sections 107-119 of the U.S. Copyright
Act and may especially call for a much narrower application of Fair
Use.
*Article 13 ("Obligations Concerning Technological Measures")
would restrict copying currently permitted by law (e.g. making
lawful archival copies for a library) by making manufacturers of
anti-circumvention devices liable for any illegal use of those
devices.
Essentially, all the revised language included in the memo below is
in keeping with the domestic language previously submitted by
DFC. The only exception, according to DFC, is with this last Article
13, which is the result of a new accord between the American
Committee on Interoperable Systems and the Home Recording
Rights Association (both DFC members) and the Motion Picture
Industries Association and members of the Creative Coalition.
I have signed NINCH's name to this language: let me know if
there is any disagreement.
Please note that the full text of the Basic Proposals are available at
the Library of Congress web site
(lcweb.loc.gov/copyright/wipo.html).
Please also note that the Patent and Trademark Office, the lead
agency representing the U.S. at the World Intellectual Property
Organization, has announced a public hearing on November 12 on
the "Basic Proposals" and has set November 22 as a deadline for
written comments on those proposals. (The notice for this process
can be found at www.ari.net/dfc/intl/notice.htm).
DFC is at pains to point out that the language in the suggested
revisions is in accordance with its domestic positions on service
provider liability, fair use, first sale, anti-circumvention and other
issues.
Please let me know your thoughts on these matters.
David
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APPEAL TO THE DFC MEMBERSHIP
IMMEDIATE ACTION URGENTLY REQUIRED!
The White House has asked the Digital Future Coalition to
suggest specific revisions to the language of certain draft international
treaties which could dramatically effect the balance of interests in
cyberspace. A group representing various DFC constituencies has
produced a set of proposed revisions. For reasons to be described
below, we think that it is important that these proposals should be
adopted, as soon as possible, as an "official" DFC policy position. As
you know, DFC has always developed such positions through
exhaustive consultation of the entire membership. We know this is a
long message, and that the subject is a complicated one. But the
proposals are actually quite straightforward, and we've done
everything we can to put them in a useful context. So we hope you
will take the time to review and respond to them at your earliest
convenience. If the DFC is to continue to be effective, it is critical that
you should be involved in helping to develop our positions on the
international issues.
This message is designed, in part, to provide those DFC
members who could not attend the Annual Meeting on October 11 some
of the same information about the international situation which came up
in our discussion there. In what follows, we first outline some of the
background for the draft treaties that will be considered at a World
Intellectual Property Organization Diplomatic Conference this December.
Then we provide a brief "sectional analysis" of the troubling features of
the draft treaties. Following that, there is a discussion of why it is
important for the DFC to articulate detailed alternatives to the language
of the draft treaties, and this leads into the specific proposed revisions
themselves (with annotations). Finally, there is a brief concluding
discussion.
Here, we want to emphasize that the revisions to the draft
treaties which you are being asked to endorse do not represent new
substantive DFC positions. Rather, they are an attempt to translate our
existing positions on domestic legislation into the terminology of
international agreements. Because the proposals are designed to track
the substance existing DFC positions in all respects, we do not believe
that they should be generally controversial within the DFC. If time
permitted, we would await an affirmative response from all DFC member
organizations before forwarding the proposals to the White House on
behalf on the coalition. But the process is moving too quickly. If your
organization has not been heard from by 10:00 A.M. on Friday, October
25, we will assume -- provisionally -- that you do not object to the
proposals going forward; of course, you would be free to reject them,
in whole or part, at any future time. Between now and Friday, we will
be making aggressive efforts to contact you and learn your views.
THE STORY SO FAR
Since its beginnings, the DFC has been tracking the progress
of proposals to regulate the networked digital information environment
at the international level. Our first letter to Congress, back on November
9, noted that the Administration's White Paper was designed as a
blueprint for new international agreements as well as for revisions to
our Copyright Act; at that time, we urged the "Congress should not let
this international agenda determine the shape of domestic international
property legislation." Since then, we have repeatedly made the point
that for the U.S. to promote the White Paper-based "digital agenda" at
meetings of the World Intellectual Property Organization in Geneva,
before consensus has been achieved on a balanced legislative
approach here at home, is truly to put "the cart before the horse."
As you know, the 104th Congress has ended without the
enactment of the NII Copyright Protection Act of 1995 -- something for
which DFC can take a measure of credit. However, the effort to
provide new international norms for intellectual property in cyberspace
continues unabated. A more detailed analysis of the background and
current position of the international negotiations can be found through
the DFC website, under the "International Issues" heading. Here, it is
enough to note that a Diplomatic Conference is scheduled for December
2-20, 1996, and it is the official position of the United States (and other
governments with whom the Administration is cooperating) that the goal
of the conference is to reach cloture on a new treaty or treaties,
including items related to the digital agenda.
THE AGENDA OF THE DIPLOMATIC CONFERENCE
Specifically, the delegates will be discussing three "Basic
Proposals" drafted by the Chairman of the W.I.P.O. Committees of
Experts which have been meeting to lay the groundwork for the
Diplomatic Convention. Though these documents are far too voluminous
to be attached here, they can be easily accessed through the DFC
website, via the link to the World Intellectual Property Organization under
the "International Issues" heading. One of these proposals is for a
treaty to protect non-copyrightable databases under a new kind of
intellectual property regime; as to it, DFC has taken the position that
without regard the merits of the proposals, it is premature to consider at
December's meeting, before there has been any significant domestic
debate in the United States. The other two proposals, one for a new
copyright treaty that would supplement the Berne Convention, and the
other for a so-called "new instrument" to create stronger international
protection for sound records, contain many provisions which are
unrelated to digital information technology. Each of them, however, also
incorporates elements of the "digital agenda" originally put forward by
the U.S. This is where our concerns lie. For if these elements of the
basic proposals become international law, and the treaties containing
them are signed and ratified in this country, the Congress' ability to find
a balanced solution to the problem of copyright in the networked
information environment may be seriously compromised.
ANALYSIS OF IMPACT OF CHAIRMAN'S PROPOSAL
Thus, for example, the "Basic Proposals" include provisions
which deal in problematic ways with many of the issues that have been
of concern to the DFC and its members where the domestic legislation is
concerned. And like the U.S. legislation, they fail to deal with others
issues that the DFC has regarded as equally important. What follows is
an informal analysis of the "Basic Proposal" for the new copyright
treaty, prepared by Jonathan Band of Morrison & Foerster. (We note
that the "new instrument" relating to sound recordings includes virtually
identical language):
On August 30, the Chairman of the Committees of Experts on a
Possible Protocol to the Berne Convention, Jukka Liedes, released his
basic proposal for the substantive provisions of three treaties to be
considered at a diplomatic conference this December. If adopted, the
proposed provisions of two of these treaties, one relating to the
protection of literary and artistic works, the other relating to databases,
will inhibit the use of information in the next century and thereby stunt
the growth of the information infrastructure. Additionally, they would
require sweeping changes to U.S. law.
? Article 7 would inhibit browsing on the World Wide Web. Article 7
requires signatories to treat temporary copies, such as the ephemeral
random access memory (RAM) copies made in servers as a piece of
information moves through the Internet, as a "reproduction" that could
violate the exclusive reproduction right. While paragraph 2 of Article 7
would permit individual countries to fashion exceptions to the
reproduction right "where the reproduction is of a transient or incidental
nature," that would require an affirmative act of legislation. Moreover,
the networked nature of the information infrastructure means that the
most restrictive set of national laws would govern the conduct on the
entire infrastructure.
? Article 10 would substantially expand the exposure of online service
providers. Article 10 creates a new exclusive right of communication to
the public, which appears to be broader than either the distribution right
or public performance right now granted by the U.S. Copyright Act. This
new right, when combined with Article 7's treatment of RAM copies as
reproductions, significantly increases the likelihood that an online
service provider would be found directly liable for a subscriber's
infringement.
? Article 12 would undermine many of the exceptions created by
Congress in Sections 107-119 of the U.S. Copyright Act. The first
paragraph of Article 12 commendably permits exceptions to the new
exclusive rights created by this treaty. The second paragraph of Article
12, however, limits exceptions now permitted under the Berne
Convention to "certain special cases which do not conflict with the
normal exploitation of the work and do not unreasonably prejudice the
legitimate interests of the author." While this language is similar to that
of Article 13 of GATT-TRIPS, the Chairman's notes concerning Article
12(2) state that it is intended to limit the applicability in the digital
environment of "minor reservations" now permitted under the Berne
Convention. Thus, it is far from clear that exceptions such as Section
110 of the U.S. Copyright Act, which permits distance learning and
performance of music in religious ceremonies, would survive this
standard as interpreted by the Chairman. Similarly, this standard may
require a narrower application of the fair use doctrine with respect to
both commercial and non-commercial uses.
? Article 13 would restrict copying permitted by law. Article 13 corrects
some of the flaws contained in earlier draft provisions relating to
technological protection, but contains a new flaw. Article 13 would
impose liability on the manufacturer of devices that circumvent copy
protection systems if the manufacturer had reason to know that just one
out of a thousand devices he produced would be used to make
unlawful copies. Thus, if a manufacturer develops a device that
enables libraries to circumvent copy-protection systems for purposes of
making lawful archival copies, the manufacturer would be liable if a
court ruled that the manufacturer should have expected that at least one
librarian would also use the device to make infringing copies.
Additionally, Article 13 is replete with ambiguous terms because it
attempts to regulate technology which is not yet in existence.
Although the Chairman's proposal for a treaty relating to literary
and artistic works contains many troubling provisions, it also contains
numerous provisions which should be codified in treaty form. Article 4
concerning computer programs, for example, represents a significant
improvement over earlier drafts, and is ready for immediate adoption.
Similarly, Article 5 concerning original databases could be adopted
without amendment.
THE DFC'S OPPORTUNITIES
To date, our only organizational position on the upcoming
international negotiations is that the controversial provisions relating to
the "digital agenda" should be deferred as premature. As DFC members
in Washington have worked to influence the position of the
Administration, however, it has become increasingly clear that this
"negative" position is not one which policy-makers are inclined to view
seriously, taken alone.
Just as they DFC's views began to be given weight in
Congress after we proposed specific amendments to the NII Copyright
Protection Act which were designed to accommodate the concerns of
our membership, so we have an opportunity now to make our views on
the international situation count -- if we can translate those views into
specific proposals for treaty language. Otherwise, we are likely to be
marginalized in the intense discussions of the U.S. negotiating position
which are sure to precede the departure of the U.S. delegation for
Geneva in December.
Specifically, we have the following opportunities to affect the
policy process:
-- Within the White House, the National Economic Council has undertaken
a comprehensive review of the U.S. position on international intellectual
property issues relating to networked digital technology.
-- The Patent and Trademark Office, the lead agency in the U.S. W.I.P.O.
delegation, had announced a public hearing on November 12 on the
"Basic Proposals" and has set November 22 as a deadline for written
comments on those proposals. The Federal Register notice for this
process can be found at the DFC website.
But we will not be able to capitalize on these opportunities
unless we have specific proposals to offer. Nor will we be able to
respond to various informal requests for DFC positions on the "Basic
Proposals" which we have received from other agencies. Although
some of the suggestions for revision prepared by the DFC "drafting
group" have been shared informally with the NEC and the PTO, as the
work on individuals within DFC rather than as positions of the
organization, it is clear that until they have received the endorsement of
the organization, the proposals -- and DFC itself -- will not be taken
seriously.
SUGGESTED REVISIONS TO THE BASIC PROPOSAL FOR A NEW
COPYRIGHT TREATY
What follows is the result of the work of the DFC "drafting
group ," and they relate specifically to the "Basic Proposal" for a new
copyright treaty. Of course, we also would be making equivalent
suggestions for revision of the parts of "Basic Proposal" for a "new
instrument" which deal with the "digital agenda." The proposed
language below would substitute for that now included in the relevant
articles of the "Basic Proposals." The accompanying notes are a part of
the potential DFC position for which this message seeks your approval:
Article 7
Scope of the Right of Reproduction
(1) The exclusive right accorded to authors of literary and artistic
works in Article 9(1) of the Berne Convention of authorizing the
reproduction of their works shall include direct and indirect reproduction
of their works, whether permanent or temporary, in any manner or form.
(2) Contracting Parties shall in their national legislation create an
exception or limitation to the right of reproduction in cases where a
temporary reproduction has the sole purpose of making the work
perceptible or where the reproduction is of a transient or incidental
nature.
Notes:
Paragraph (2) has been revised to assure consistent
international legal treatment for certain temporary reproductions that
occur in the course of ordinary usage of electronic devices. Because
such activities occur with respect to the operation of networks and
devices intended to be used in a global market setting, a uniform level of
protection for such uses is necessary and desirable; otherwise, the
possible imposition of liability in certain countries effectively could
prevent such activities in every country connected to the network. The
revisions to the text make clear that national legislation can secure the
legal status of such temporary storage by creating exceptions or
limitations to the general right of reproduction, but that the legitimate
status of such reproductions must be secured.
Electronic devices, including telecommunications products,
computers, audio and video recorders, compact disc players and
televisions, typically include some form of memory device that is used in
the course of transmitting, displaying, performing or using a copy or
transmission of a copyrighted work. For example, "browsing" on the
Internet and the loading of computer programs cause reproductions to
be made in the random access memory of the computer. Portable
compact disc players may store temporarily in memory a few seconds
of the signal from a disc. Temporary storage also occurs in the memory
circuits of broadcast and telecommunications equipment, in the course
of communicating signals transmitted by others. Such reproduction is
integral to the ordinary operation of the devices and networks, and the
transmission and authorized usage of the copyrighted material.
In addition, the final clauses of the original text have been
deleted. Requiring that the exempt reproduction must take place "in the
course of use of the work that is authorized by the author or permitted
by law" could impose liability upon third parties or innocent recipients
that passively carry or receive infringing transmissions originated by
others, and Congress would be prohibited from exempting these
activities. Thus, this language preserves the ability of Congress to
fashion appropriate exemptions for OSP's.
Article 10
Right of Communication
(1) Without prejudice to the rights provided for in Articles 11(1)(ii),
11 bis(1)(I), 11ter(1)(ii), 14(1)(I) and 14bis(1) of the Berne Convention,
authors of literary and artistic works shall enjoy the exclusive right of
authorizing any communication to the public of their works, including the
making available to the public of their works, by wire or wireless means,
in such a way that members of the public may access these works
from a place and at a time individually chosen by them.
(2) National legislation of a Contracting Party may provide that the
right provided for in paragraph (1) does not apply to the communication
to a specific individual of a copy of any work after the lawful acquisition
of a copy of that work by the person making that communication,
provided that in the case of works in digital format, the copy in the
possession of the person making of the communication shall be erased
or deleted substantially contemporaneously with the communication.
(3) In connection with the right provided in paragraph (1), Contracting
Parties shall, in their national legislation, make adequate and appropriate
provisions to limit the liability of persons who, in the course of business,
operate or provide access to digital information networks.
Notes:
Paragraph (2) has been revised so as to provide for
exhaustion of the communication right under specific circumstances, so
as to preserve the ability to dispose or transfer copies lawfully acquired
by electronic means. As copies of works are distributed commercially
through electronic communications, the ability to transfer or resell those
copies by electronic communication will become increasingly important.
This paragraph (2) therefore provides for the exhaustion of the
communication right with respect to subsequent transfers, on condition
that the transferor's copy of the work is erased or deleted
contemporaneous with, or within a short time after, the transmission of
a copy to the transferee. The paragraph also limits this right to the
transfer to a specific individual, and so would not affect the liability of
any individual for posting such copies generally on an electronic bulletin
board, newsgroup or the like.
Paragraph (3) reflects the fact that there has been substantial
progress toward resolving this issue in the U.S., and that a resolution of
the outstanding controversies is expected in 1997. There seems to be
some consensus that limitations on liability are required, though not yet
on the precise form they should take. It is not clear that -- absent
special provisions in any international agreements providing for the
functional equivalent of a "transmission right" -- such limitations would
be permissible. And it is important, from the standpoint of U.S. national
interest, that other countries should follow our lead in this matter;
otherwise, U.S. access providers may find themselves liable under the
unreasonable national laws of other states. Hence, this language,
which is mandatory in its general command, but non-specific as to the
exact form that national laws should take.
Article 12
Limitations and Exceptions
(1) Contracting Parties may, in their national legislation, provide or
limitations of or exceptions to the rights granted to authors of literary
and artistic works under this Treaty in certain special cases that do not
conflict with the normal exploitation of the work and do not
unreasonably prejudice the legitimate interests of the author.
(2) Contracting Parties may, when applying the Berne Convention,
provide for limitations of or exceptions to rights granted therein to
certain special cases which do not conflict with the normal exploitation
of the work and do not unreasonably prejudice the legitimate interests of
the author.
Notes:
The word "only," to describe the cases in which limitations or
exceptions may be provided, has been deleted from paragraph (1). The
word "only" does not appear in Article 9(2) of the Berne Convention, the
provision upon which this paragraph has been modeled. Inclusion of
the word "only" may imply incorrectly that the scope of permissible
limitations or exceptions is narrower than under Article 9(2).
Paragraph (2) has been changed to be more consistent with
the wording of Paragraph (1) and Article 9(2) of the Berne Convention.
The existing Berne Convention text (Paris 1971) provides specific
limitations and exceptions in particular cases. The prior language might
have implied that such existing limitations and exceptions were to be
applied in a more restrictive manner, with uncertain consequences. The
wording proposed above allows contracting parties sufficient flexibility
to apply new imitations or exceptions in a consistent manner, no matter
the version of the Berne Convention to which the parties have acceded.
Article 13
Obligations concerning Technological Measures
(1) Contracting Parties shall provide adequate, effective and
appropriate legal protections to enable rights holders to use
technological measures so as to limit access to and subsequent
copying of works only to users authorized by the right holder or the
law.
(2) Such protections shall include adequate, effective and
appropriate remedies, constituting a deterrent and a sufficient sanction,
against unjustified interference with or circumvention
of such measures, including means (a) for suppressing services
provided to circumvent such measures and (b) for controlling traffic in
devices provided to circumvent such measures, but
shall not impede either the manufacture or sale of devices that have
substantial lawful uses or the lawful use of subject matter that is in the
public domain.
Notes:
This Article has been redrafted in a manner that gives strong
protection to copyright owners without interfering with lawful devices
or lawful uses. The concept of technological measures is intended to
apply to a broad range of copyrighted works, protective technologies
and devices that are capable of performing and copying such works.
Dedicated effort and great expertise has been devoted to the
development of a more specific provision, but such efforts have failed
to produce a single standard of liability that equitably satisfies all
interests, including the public interest. Therefore, the proposal sets
forth a broad obligation and leaves to the national legislatures decisions
as to the adequate, appropriate and effective means of implementation.
Works delivered by cable, satellite, network and magnetic and
optical disc media increasingly are being protected against unlawful
access by means such as scrambling, encryption, software envelopes
or password protection. The proposed text addresses this most
pressing problem for the present and future, namely, the prevention of
unlawful access to copyrighted works and the subsequent copying
thereof in contravention of technologies employed by the copyright
owner. Because such technologies are well defined and controlled by
the right holder, a legal provision that addresses these technologies
poses little or no risk of imposing liability for inadvertent acts or of
imposing undue design constraints on hardware manufacturers and
software developers.
The proposal also obligates parties to enact measures against
circumvention of or interference with the technologies without
justification. It would not, however, preclude unauthorized
circumvention or interference for lawful purposes. The proposal further
requires adoption of sufficient sanctions against the providing of
circumvention services for unlawful purposes, and against the use of
devices in the course of unlawful circumvention.
The last clause of paragraph (b) of the proposal essentially is
taken from paragraph 13.05 the Explanatory Notes to the original Article
13 written by Chairman Liedes, with one amendment. The word
"substantial" was inserted to modify "lawful uses" for two reasons.
First, because the lawful uses must be "substantial," manufacturers
cannot avoid liability by demonstrating sham or make-weight uses.
Second, the requirement of "substantial" uses was intended to be
consistent with the standards of contributory copyright and patent
infringement liability with respect to the manufacture and sale of staple
articles of commerce under United States law.
*****
THE EFFECT OF THE SUGGESTED REVISIONS
As you can see, the goal of the suggested revisions is to
ensure that the goals to which the DFC is committed in its domestic
positions could still be accomplished, through legislation in future
sessions of the U.S. Congress, despite the conclusion of any new
treaties under W.I.P.O. auspices. Again, we would stress that the
drafters have striven to make sure that these international proposals are
fully consistent with DFC's domestic positions on service provider
liability, fair use, first sale, anti-circumvention, and other issues.
Although the proposals are not intended to commit the DFC or any of its
members to new substantive positions, they would be an invaluable tool
for helping to make sure that the DFC's existing positions are heard and
given serious attention in a variety of new forums.
PROCEDURES FOR REVIEW AND APPROVAL
Again, please make time to review the language proposed in
this message. Feel free to call the DFC office at (202)628-6048 or
e-mail [log in to unmask] with any questions -- Ephraim Cohen will relay
them to the member of the "drafting group" most able to address them.
Or, if you find the proposals satisfactory, please let Ephraim know by
the same means. On Wednesday and Thursday, Ephraim will be polling
those members not yet heard from. The sooner we can announce an
official DFC position on these international issues, the better. So please
let us know as soon as possible if you can lend your support. Again,
we hope to hear from every DFC member organization, but if your
organization has not been heard from by 10:00 A.M. on Friday, October
25, we will assume that you do not object to the proposals going
forward as DFC positions. Thank you for your participation in this
important coalition activity.
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