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----------------------------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: 10/25/96 3:19 PM RE: DFC Proposed Revisions to WIPO Treaty Language =================================================================== MEMO: ALL NINCH Members SUBJECT: REVISED LANGUAGE PROPOSED FOR INTERNATIONAL COPYRIGHT TREATIES DATE: October 25, 1996 ================================================================ 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 --============_-1365850546==_============ Content-Type: text/plain; name="DFC_Request"; charset="us-ascii" Content-Disposition: attachment; filename="DFC_Request" ===================================================== 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.