Intellectual property in digital age

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Subject: WIPO Conference - Press Briefing

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Info-Policy-Notes - A newsletter available from listproc@tap.org
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INFORMATION POLICY NOTES
December 5, 1996

The World Intellectual Property Organization (WIPO) is meeting from December 2 to 20 on three treaties that would greatly restrict the public's rights to use information. The following is the annoucement for a press briefing I gave on the treaties at the United Nations, in Geneva, thrusday, December 5, 1996. IMHO, the briefing went well. jamie

James Love, Director, Consumer Project on Technology Center for Study of Responsive Law, Washington, DC In Geneva, until Sunday, at 734-9813; thereafter 01.202.387.8030

Intellectual Property is the "capital stock" of the next century, and the rules are important -- too important to decide in a hastily convened conference such as this WIPO meeting. The WIPO delegates are being asked to ratify proposals for every country, which have never been tried in any country.

The U.S. Government, a major force pushing for the treaties, hasn't moved the Internet copyright legislation out of a single Congressional Committee yet, due to strong domestic opposition from a wide coalition of data users and computer companies. The U.S. Congress has never held a public hearing on the database proposal, and almost no one in the U.S. government has a clue what it actually does. In Europe, no country has yet found a way to implement the EU database directive, without causing a meltdown in their domestic information industry.

The three proposals being considered at the WIPO meetings would severely restrict the public's traditional rights to use information. In countless areas of controversy, they resolve thorny questions about user rights against the users, and in favor of the new supercharged "right-owners."

The treaties are so poorly conceived as to raise questions about the competence of the drafters. People are alarmed that the drafters do not understand computers or the Internet. No one who used and understood the Internet would propose strict rules making RAM and temporary cache copies of documents a presumed infringement of copyright. No one who understands the information industry would propose the sweeping new property rights on facts and other public domain information (So broad that daily newspapers would have to obtain a license to report the box scores from sporting events). No one who considers privacy important would have proposed strict liability for Internet Service Providers (which would predictably lead to very intrusive surveillance of Internet transmissions). The early "anti-circumvention" provisions of the treaty were so extreme that they would have made general purpose personal computers illegal. Errors of these magnitude reflect a lack of understanding about the very technology the WIPO delegates are being asked to regulate.

The Conference organizers are deliberately misleading the public about the status of copyright law on the Internet. Some press briefings imply that without the treaties, rampant infringements of copyrighted works would be legal. This is patently false. Courts routinely hear cases about the application of current copyright laws on the Internet. New issues are raised, and these issues are resolved through normal court processes. These treaties are not designed to bring copyright to the Internet. They are designed to change copyright law, and to create very restrictive rules for the use of information.

Reports on the Internet about the WIPO proceeding illustrate the hypocrisy of the meeting. Faxed copies of news stories about the conference from the New York Times, the Los Angles Times, the Financial Times and other newspapers are widely distributed at the same WIPO meeting where delegates seek to make similar "fair use" transmissions on the Internet illegal. Last month I asked a U.S. State Department official, who was standing at a xerox machine, making a copy of an article on the Treaty, how long the State Department could function if it didn't routinely engage in endless coping and faxing of copyrighted materials from U.S. and foreign sources.

News reporters are typically surrounded by stacks of faxes and xerox copies of copyrighted materials, which are circulated without permissions from copyright owners. These are mostly considered "fair uses" of copyrighted materials, and not infringements. A zero tolerance for unauthorized use of copyrighted materials would be a disaster for news reporting, and for most research and management activities.

Do we really want to live in a world where governments from the U.S. to Burma insist on precise paper trails of who receives, forwards and shares information with whom?

The existing frameworks for copyright law in most countries is surprisingly robust to changes in technologies, and provides a much better framework than the untested and unbalanced treaties considered at this diplomatic conference.

These and other issues will are being discussed.

APPENDIX A

Examples of groups opposing one or more of the WIPO Treaties

Sun Computers

3Com
STATS, Inc. (Sports Statistics)
The American Committee for Interoperable Systems (ACIS)
Home Recording Rights Coalition (Consumer Electronics)
Ad Hoc Copyright Coalition (Telecom and Computer)
The U.S. National Academy of Sciences
The U.S. National Academy of Engineering
The U.S. Institute of Medicine
American Association for the Advance of Science (AAAS
American Library Association
Digital Futures Coalition
National Writers Union (U.S.A.)
Electronic Frontier Foundation (EFF)
Electronic Privacy Information Center (EPIC)
Computer Professionals for Social Responsibility
Union for the Public Domain (UDC)
Consumer Project on Technology
Genealogists Against the WIPO Treaties (GAWT)
Appendix B - Unauthorized Copying

It isn't that the Internet has led to large scale unauthorized reproductions of copyrighted materials -- that happens every day off the Internet. It is simply that the Internet makes it extremely easy to detect unauthorized reproduction of works. For examples, thousands of persons make unauthorized copies of cartoons with xerox machines or for overhead slides, to decorate offices or assist in presentations. But when a few individuals post unauthorized copies of Far Side Cartoons on their personal Web pages, the New York Times reports this in a page one story as evidence that the Internet needs to be regulated. It is only that the Internet makes such unauthorized uses very transparent - and hence, easy to police. The daily examples of unauthorized reproductions of copyrighted works (much of this appropriate and legal under current fair use doctrine) OFF the Internet exceed that occurring ON the Internet by staggering margins. What is important to police are inappropriate uses of copyrighted materials, and the current copyright law provides ample tools to accomplish this task.

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Date: Tue, 10 Dec 1996 13:25:42 -0500

Sender: Digital Libraries Research mailing list

Subject: ALA Calls for Caution at WIPO copyright negotiations

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ALAWON                                        Volume 5, Number 86
ISSN 1069-7799                                   December 9, 1996
American Library Association Washington Office Newsline

In this issue: (86 lines)

AMERICA'S LIBRARIES CALL FOR CAUTION AT THE INTERNATIONAL COPYRIGHT NEGOTIATIONS FOR THE DIGITAL AGE

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AMERICA'S LIBRARIES CALL FOR CAUTION AT THE INTERNATIONAL COPYRIGHT NEGOTIATIONS FOR THE DIGITAL AGE

Before international copyright negotiations at the World Intellectual Property Organization (WIPO) began December 2, America's five major library associations urged U.S. delegates to reconsider their positions and not to negotiate on issues on which there is no consensus.

The five associations--the Association of Research Libraries, the American Library Association, the Association of Law Libraries, the Medical Library Association and the Special Libraries Association--cited the lack of domestic consensus on how to update copyright laws for the digital age, the economic harm the proposals could impose on communities, the monopolies on currently accessible information that could be created by the database proposal and the potential these proposals pose to thwart the advancement of the Global Information Infrastructure (GII) as reasons to refrain from negotiating treaties with the current proposals.

According to the associations' letter to John Gibbons, assistant for science and technology to President Clinton, "The challenges to intellectual property law which such a proposal would facilitate are so sweeping that the U.S. delegation's support for the Draft Treaty [on Intellectual Property in Respect to Databases] should be withdrawn until a complete and thorough national discussion of the merits and/or drawbacks of any related intellectual property proposal are carefully debated and considered." The library associations also said that proposals relating to database protection received no domestic hearing before being presented to WIPO last May.

"Digital technology is crucial to the future of education and commerce," said Carol Henderson, Executive Director of the American Library Association's Washington Office, "It is critically important that we take the time to develop policies which will benefit both private and public sectors."

As drafted, the proposals would inhibit browsing on the World Wide Web; significantly increase exposure of online service providers--including libraries--to copyright infringement liability; restricting copying currently permitted by law and impose liability on manufacturers of lawful machines that can be used for illegal copying (e.g. personal computers and VCRs); potentially undermine the Fair Use doctrine and related exceptions created by Congress in support of education and library activities and undermine the long standing U.S. tradition of protect content, not facts.

"It is appropriate for the U.S. to actively participate in the WIPO discussions," said Duane Webster, Executive Director of the Association of Research Libraries, "but negotiating treaties on issues on which there is no domestic consensus should be avoided, especially when the issues are so vital to the nation's cultural and economic future."

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Contributors:                                  Carol C. Henderson
                                                     Adam Eisgrau
                                                   Deirdre Herman
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