harmful WIPO proposals


Subject: harmful WIPO proposals
From: Emanuella Giavarra (ecup.secr@dial.pipex.com)
Date: ke 24 heinä  1996 - 01:08:31 EEST


Dear ecup-list subscribers,

I would like to discuss with you the harmful proposals issued by the European
Community and its member States to the WIPO Committee of Experts on a
possible Protocol to the Berne Convention on 22-24 May 1996 in Geneva.

For a year everybody knew more or less what the new Berne Protocol would
contain, but suddenly at the last Expert Committee meeting before the
adoption of the Berne Protocol, the USA and the European Communities
issued new proposals to the Berne Protocol.
 
The proposals are addressed to the Right of reproduction, Right of
communication to the public and Technical Protection Devices.

For the Right of reproduction the European Communities and its members
proposes that

" the permanent or temporary storage of a protected work in any electronic
medium constitutes a reproduction within the meaning of article 9(1) of the
Berne Convention. This includes acts such as uploading and downloading of a
work to or from the memory of a computer."

This means that a library has to ask permission for the storage of an electronic
work, but also for sending an article by fax.

For the Right of communication to the public it has been proposed that

"authors of literary and artistic works shall enjoy the exclusive right of
authorising 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.”

This means that the remote viewing of an literary work will be subject to
authorisation from the rightholders. The user rights under copyright do not
apply for the Right of communication to the public. The user rights only apply
for the Right of reproduction.

Fortunately many representatives at the meeting on 22-24 May thought that
these proposals were too far reaching or should need more discussion in the
Expert Committee. It was agreed that the Chairman of the WIPO Expert
Committee (Jukka Liedes of Finland) will on or about 1st August send his
draft proposal for the Berne Protocol to the countries and on or about 1
September to the non-governmental organisations. Between September
and December many governments will organise consultation meetings on
the Berne Protocol. The adoption of the Berne Protocol will be at the
Diplomatic Conference on 2-20 December 1996.

An active national lobby should start once the draft proposal is known. I look
forward to your comments on these proposals and ideas for amendments in
the text of the European Community.

I have enclosed the official text of the proposals in this message.

Best wishes,
Emanuella Giavarra
Moderator
------------------------------------------------------------------------
WIPO/BCP/CE/VII/1-INR/CE/VI/1ORIGINAL:
 DATE: May 20, 1996
WORLD INTELLECTUAL PROPERTY ORGANIZATION
GENEVA

COMMITTEE OF EXPERTS ON A POSSIBLE PROTOCOL TO THE
BERNE CONVENTION, Seventh Session

COMMITTEE OF EXPERTS ON A POSSIBLE INSTRUMENT FOR
THE PROTECTION OF THE RIGHTS OF PERFORMERS AND
PRODUCERS OF PHONOGRAMS

Sixth Session
Geneva, May 22 to 24, 1996

PROPOSALS OF THE EUROPEAN COMMUNITY AND ITS
MEMBER STATES

In view of the Seventh Session of the Committee of Experts on a Possible
Protocol to the Berne Convention and the Sixth Session of the Committee of
Experts on a Possible New Instrument for the Protection of Performers and
Producers of Phonograms which will take place in Geneva from 22 to 24 May
1996, the European Community and its Member States would like to submit
the following proposals:
 .
Proposals as regards the Protocol to the Berne Convention:
          I. Right of reproduction;
         II. Right of communication to the Public;
        III. Technical Protection Devices.
.
Proposals as regards the New Instrument for the Protection of Performers and
Producers of Phonograms:
          I. Right of reproduction;
         II. Right of Communication to the Public;
        III. Technical Protection Devices.

Submission to WIPO in view of the Seventh Session of the Committee of
Experts on a Possible Protocol to the Berne Convention and the Sixth Session
of the Committee of Experts on a Possible New Instrument for the Protection
of Performers and Producers of Phonograms.
(Geneva, May 22-24, 1996)

        
The present submission of the European Community and its Member States is
being made in connection with the work of the Committees of Experts of the
World Intellectual Property Organization on a Possible Protocol to the Berne
Convention and a Possible New Instrument for the Protection of Performers
and Producers of Phonograms.

On the occasion of the last two Sessions of both Committees of Experts
(Geneva, 4 to 8 and 12 September 1995 and 1 to 9 February 1996
respectively), the European Community and its Member States have submitted
several proposals1 for the consideration of the Committees of Experts. These
proposals cover a number of the points being discussed in the context of the
Berne Protocol and the New Instrument as well as the possible international
agreement on the sui generis protection of databases.

On the specific issue of the impact of new technologies on authors’ rights and
neighbouring rights the European Community and its Member States have
made contributions to the debates which have taken place in the previous
Committees of Experts, however, no specific written submission has been
made so far.

Specific proposals of the European Community and its Member States
concerning the impact of new technologies on authors’ rights and neighbouring
rights are contained in the annex. These proposals are intended to
complement the previous submissions made to the Committees of Experts.

In this context the European Community and its Member States consider that
the question of the impact of new technologies on Article 3(3) of the Berne
Convention could be examined.

The European Community and its Member States consider that, as regards the
rights proposed with respect to the Protocol to the Berne Convention,
Contracting Parties should be able to apply certain limitations and exceptions
traditionally considered acceptable under the Berne Convention. It is also
considered that as regards exceptions and limitations to the rights to be
included in the New Instrument a proposal on this issue should go along the
lines of Article 15 of the Rome Convention.

The attached proposals will be further elaborated upon at the next Session of
the Committees of Experts. They are without prejudice to the final views the
European Community and its Member States might adopt on this matter in the
future in the light of further developments on the discussions.

Proposals as regards the Protocol to the Berne Convention:

I. Right of reproduction

Existing treaty language in the Berne Convention (Article 9) should not be
modified. The following points should be included in the “Records of the
Conference”/”General Report”:

“Contracting parties confirm that the permanent or temporary storage of a
protected work in any electronic medium constitutes a reproduction within the
meaning of article 9(1) of the Berne Convention. This includes acts such as
uploading and downloading of a work to or from the memory of a computer.”

II. Right of communication to the public

Contracting Parties agree that:

“Without prejudice to the rights provided for in articles 11, 11bis, 11ter, 14
and 14bis of the Berne Convention, authors of literary and artistic works shall
enjoy the exclusive right of authorising 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.”

III. Technical Protection Devices

“Contracting Parties shall make unlawful, and provide for appropriate
remedies against, the manufacture, distribution and possession for commercial
purposes of any device, means or product, by any person knowing or having
reasonable grounds to know that its primary purpose or primary effect is to
remove, deactivate or circumvent, without authority, any process, mechanism
or system which is designed to prevent or inhibit the infringement of any of the
rights under the Berne Convention or this Protocol.

“Contracting Parties shall make unlawful, and provide for appropriate
remedies against, the offer or performance of any commercial service, by any
person knowing or having reasonable grounds to know that its primary
purpose or primary effect is to remove, deactivate, or circumvent, without
authority any process, any mechanism or system which is designed to prevent
or inhibit the infringement of any of the rights under the Berne Convention or
this Protocol.”

Proposals as regards the New Instrument for the Protection of Performers and
Producers of Phonograms.

I. Reproduction:

(i)“Performers shall enjoy the exclusive right to authorise the direct or indirect
reproduction of a fixation of their performances, in any manner or form.”

The following points should be included in the “Records of the
Conference”/”General Report”:

“Contracting parties confirm that the permanent or temporary storage of a
protected fixed performance in any electronic medium constitutes a
reproduction. This includes acts such as uploading and downloading of a fixed
performance to or from the memory of a computer.”

(ii) “Producers of Phonograms shall enjoy the exclusive right to authorise the
direct or indirect reproduction of their phonograms, in any manner or form.”

The following points should be included in the “Records of the
Conference”/”General Report”:

“Contracting Parties confirm that the permanent or temporary storage of a
protected phonogram in any electronic medium constitutes a reproduction.
This includes acts such as uploading and downloading of a phonogram to or
from the memory of a computer.”

II. Right of communication to the public

The proposal regarding the communication to the public and broadcasting
rights made by the European Community and its Member States (document
INR/CE/V/2 dated 20 November 1995) should be completed with the
following provision:

(i) “Performers shall enjoy the exclusive right to authorise the making available
to the public of fixations of their performances, by wire or wireless means, in
such a way that members of the public may access these fixed performances
from a place and at a time individually chosen by them.”

(ii) “Producers of phonograms shall enjoy the exclusive right to authorise the
making available to the public of their phonograms, by wire or wireless means,
in such a way that members of the public may access these phonograms from
a place and at a time individually chosen by them.”

 III. Technical Protection Devices

“Contracting Parties shall make unlawful, and provide for appropriate
remedies against, the manufacture, distribution and possession for commercial
purposes of any device, means or product, by any person knowing or having
reasonable grounds to know that its primary purpose or primary effect is to
remove, deactivate or circumvent, without authority, any process, mechanism
or system which is designed to prevent or inhibit the infringement of any of the
rights under this Instrument.

(end of document)
Contracting Parties shall make unlawful, and provide for appropriate remedies
against, the offer or performance of any commercial service, by any person
knowing or having reasonable grounds to know that its primary purpose or
primary effect is to remove, deactivate, or circumvent, without authority any
process, mechanism or system which is designed to prevent or inhibit the
infringement of any of the rights under this Instrument.”



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