Berne Protocol, Beware!


Subject: Berne Protocol, Beware!
From: jamie wodetzki (jwodetzk@nla.gov.au)
Date: la 20 helmi  1971 - 14:10:59 EET


On Tue, 23 Jul 96 Emanuella Giavarra wrote:

> 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...

> 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."

Then, on Thu, 25 Jul 1996 Sandy Norman wrote:

> The EC proposal that the existing treaty language in Art 9 not be
> modified does not harm the user community as it will still allow
> exceptions under national laws. Article 9(2) presumably stays. The fact
> that permanent and temporary storage should constitute an act of
> reproduction is more worrying. As Emanuella says, this would affect the
> sending of faxes and downloading before printing etc.

My comments:

No matter how sneaky the EC tries to be, it is attempting to put one over
the user community. Whether it fiddles with the text of Art 9 in Berne or
simply puts a statement in the official report, it is trying to say that
all forms of storage, no matter how ephemeral, short-lived, temporary,
immaterial or whatever, are 'reproductions' for copyright purposes. This
is a terrible idea. It is also an idea they are trying to sneak through
by calling it a 'clarification', which it is not. In many jurisdictions,
it is far from clear that all RAM copies are 'reproductions' for copyright
purposes, and for good reason.

Simply to enter a library and view a work on screen, a work would need
to be loaded into RAM (hey presto, a copy!). To listen to a CD, a few
seconds of the work is buffered onto a RAM chip to ensure unbroken play
(hey presto, another copy!). An electronic agent roams the network
'reading' texts to decide what you might be interested in, and in order
to assess them holds the works briefly in RAM (hey presto, more copies!).

Sandy goes on:

> However, ... the EC clarified their position by saying that, although
> temporary storage was an act of reproduction, their proposal did not
> necessarily require that it be SUBJECT to the right of reproduction. The
> exceptions of Art 9(2) would continue to apply.

I am completely at a loss to understand what the EC means by saying that
storage in RAM would not be 'subject to' the right of reproduction. Maybe
I'm missing something, but this strikes me as an attempt to confuse the
issue in the hope that it will go away. Well don't be confused or put off
by this type of double-speak. What the EC is saying is very simple: that
RAM storage is an act of reproduction. That is a bad thing to say because
it ignores the fact that copyright had always required a degree of
materiality/fixation/permanence in the definition of what a copy is. That
cannot be tossed aside with no regard for the consequences.

To say that these problems can be overcome by pointing to the exceptions
in Art 9(2) is not good enough. At the same time as the scope of
protected rights is being expanded, the pressure is on from the copyright
exporting countries (the EC and the US) and copyright NGO's to narrow the
exceptions. Better to fight off ill-considered expansions of the
exclusive rights than to pin all our hopes on Art 9(2) style exceptions.

In short, we have to wake up to this sneaky, expansionist copyright agenda
and expose it for what it really is. It is serving narrow sectional
interests with little regard for the public interest.

Jamie Wodetzki <jwodetzk@nla.gov.au> | W 616 262 1273
Copyright Research Officer \ / H 616 239 6113
                                          a c l i s
No responsibility taken for harm arising / \ F 616 273 4493
from reliance on comments made herein / \ M 014 903 875



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