----------------------------Original message----------------------------
Forwarded from the NINCH list.
Judy
---------- Forwarded Message ----------
From: David Green, INTERNET:[log in to unmask]
TO: Multiple recipients of list, INTERNET:[log in to unmask]
DATE: 1/18/97 11:01 AM
RE: WIPO AND BEYOND
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NINCH BULLETIN
January 18, 1997
LEGISLATIVE MOVEMENTS--Part One
I am sending this memo on two related government-affairs issues to
members in two parts, and including a summary of both parts at the
outset. I should like the ADVOCACY Working Group to particularly
take note of these issues insofar as they will bear on our discussions.
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SUMMARY
I COPYRIGHT: WIPO AND BEYOND
Ironically, the WIPO Copyright Treaty (with its important
accompanying "Agreed Statements") that emerged from Geneva is far
closer to the balanced document (with its recognition of the importance
of continuing fair use) that the cultural community wanted than the
more aggressive treaty the Administration expected. Many hope that
the Treaty will form the basis for new domestic copyright legislation.
Beyond ratification, the implementation legislation putting the Treaty
into effect together with accompanying commentary, will be critical
and could provide a better base for domestic copyright legislation than
last year's bill. Additional copyright-related issues to be concerned
about are the "sui generis" database proposal and, especially important
for this community, the relationship between copyright law and
licensing/contracts.
II IRA MAGAZINER & "A FRAMEWORK FOR GLOBAL
ELECTRONIC COMMERCE"
The Senior Advisor to the President for Policy Development has been
helping coordinate a more cohesive White House approach towards
the Internet. This is principally taking the form of a policy paper on
commerce and the Internet: "A Framework for Global Electronic
Commerce." Intellectual Property has an important place here and
Magaziner and the administration is admitting shifting its position and
invites commentary from this community. Some urge that in the
"Framework's" proposal for a Uniform Commercial Code
consideration should be given to the copyright law versus "shrink-
wrap" licensing issue, in which law could be pre-empted by contracts.
The paper is available at
<http://www.iitf.nist.gov/electronic_commerce.htm>. Public
comments welcome by Thursday January 23.
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I COPYRIGHT: WIPO AND BEYOND
As you have seen from the American Library Association's
Washington Office Online newsrelease forwarded to you earlier this
week, ALA has reported on the results and early imagined implications
of the WIPO Treaties. There is a certain irony about the fact that the
Administration, having failed to win the legislation it wanted
domestically with the NII Copyright Protection Act, and believing it
could obtain what it wanted through the WIPO process, is now facing a
Treaty that is far more balanced with respect to the rights of copyright
holders and the rights of users.
Both WIPO treaties, together with the important "Agreed Statements"
are available on the NINCH Web Site <http://www-
ninch.cni.org/NEWS/NEWS.HTML#WIPO>
Particular points worth noting.
A. BALANCE
The Preamble of the "Copyright" Treaty pointedly recognizes the
importance of balance between owners and users, which the proposed
treaty did not: "Recognizing the need to maintain a balance between
the rights of authors and the larger public interest, particularly
education, research and access to information, as reflected in the Berne
Convention...." (See the Preamble on the NINCH Web Site at
<http://www-ninch.cni.org/WIPO1.html#Preamble>).
B. TEMPORARY COPYING
The rather illogical and unrealistic language giving copyright holders
rights over the necessary temporary copies made onto computers'
memories in the process of transmitting information across the
Internet was deleted.
C. FAIR USE & OTHER LIMITATIONS
While the proposed treaty suggested fair use might be limited in the
digital environment, the final treaty, in the important Article 10
<http://www-ninch.cni.org/WIPO1.html#10> confirmed that current
limitations can continue into the future. The Conference also issued a
unanimous (or "agreed") statement that new exceptions and
limitations could be created in response to the needs of users of digital
technology: "Similarly, these provisions should be understood to
permit Contracting Parties to devise new exceptions and limitations
that are appropriate in the digital network environment." (Agreed
Statement on Article 10:
<http://www.wipo.org/eng/diplconf/distrib/96dc.htm>.)
D. CIRCUMVENTION
The fierce language of the proposal prohibiting any device designed to
circumvent copyright protection was replaced with language
emphasizing the general obligation to protect effective technologies
against the act of circumvention for unlawful purposes. Thus, the
treaties no longer threaten devices that can be used for lawful purposes
such as fair use, archiving or use of materials in the public domain.
E. LIABILITY
While the Proposal called for every party involved in communicating
intellectual property liable for any infringement, the final treaty's Right
of Communication to the Public (Article 8) has to be read in
conjunction with a the Agreed Statement on Article 8 that "the mere
provision of physical facilities for enabling or making a
communication does not in itself amount to communication within
the meaning of this Treaty."
F. RIGHTS MANAGEMENT INFORMATION
The proposal to penalize any alteration of rights management
information (codes that identify copyright owners, authors, etc.) for any
purpose whatsoever, including cataloguing or other library
organization for retrieval, was softened so as to allow such procedures.
NEXT STEPS
The treaties must now be ratified in the United States by a two-thirds
vote in the Senate but then will need implementing legislation in both
chambers of Congress.
Many in the community now believe that the copyright Treaty,
government comments on the treaties and the implementing
legislation required to put to translate it into domestic law, will
provide a far more promising scenario than any attempt to revive last
year's"NII Copyright Protection Act."
The legislative timetable for copyright is currently unclear. Both the
House and Senate are adjourned until January 21. After meeting on
January 21, the House will adjourn until February 4. It appears that the
Senate will be in session from January 21 until mid-February before
taking another recess. There are still a number of contentious issues
from the last session that were unresolved, such as the scope of "on
line service provider" liability and how best to foster "distance
education."
IMPORTANT NEW ISSUES
Whatever scenario evolves it will be a far more complex one than that
of last session. Apart from the "sui generis" database issue (a new form
of non-copyright protection proposed for compilations of information--
including public domain information) a most important issue to be
adopted for consideration by the Digital Future Coalition is the
increasing issue of the tension between copyright law and "shrink-
wrap" and other licensing contracts.
The important issue here for this community is the possibility that
electronic licensing agreements could limit a licensee's ability to make
"fair use" or other exempt secondary uses of licensed works. I predict
that this will become of increasing importance during 1997.
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