(Fwd) WIPO Proposals

Subject: (Fwd) WIPO Proposals
From: ODI LIBRARY (library@odi.org.uk)
Date: ma 18 syys   2000 - 16:58:06 EEST

Again, interesting info, this time from cyberia-l list

------- Forwarded Message Follows -------
Date: Mon, 16 Sep 1996 09:35:48 -0400
Reply-to: Law & Policy of Computer Communications
From: Seth Greenstein <sethg@ACCESS.DIGEX.NET>
Subject: WIPO Proposals

FYI, the "basic proposals" to be negotiated at the December 1996
Diplomatic Conference at WIPO are now available electronically at the US
Patent and Trademark Office website, www.uspto.gov, in Adobe PDF format.
Look under What's New.

They also are supposed to be available soon from the Copyright Office

There are three aspects to the treaty proposals: One to update the Berne
Convention on the rights of authors, including computer programs; one to
update the rights of producers and performers in sound recordings; and one
to create new protections for copyrightable and noncopyrightable
databases (yes, this is the proposal Mike Godwin spoke of so fondly in a
recent thread).

These proposals include measures that were also incorporated in the U.S.
NII copyright bill that has stalled in Congress, i.e., a communication
or transmission right, a provision confirming that temporary copying in
RAM is a reproduction (but permitting exceptions and limitations that may
allow for caching), and a measure prohibiting certain circumventions of
technological measures to protect against copying and unlawful access.

What follows is a letter from Gary Shapiro, President of the Consumer
Electronics Manufacturers Association, to Commissioner Lehman outlining
CEMA's objections to the draft proposals.

Best regards -- Seth Greenstein

September 13, 1996

The Honorable Bruce A. Lehman
Assistant Secretary of Commerce and
Commissioner of Patents and Trademarks
United States Department of Commerce
Washington, DC 20230

                Re: Comments on WIPO Basic Proposals

Dear Commissioner Lehman:

On behalf of the Consumer Electronics Manufacturers Association, a sector
of the Electronic Industries Association, and as Chairman of the Home
Recording Rights Coalition, I write to express our comments and concerns
regarding the basic proposals before the World Intellectual Property
Organization for consideration in the December 1996 Diplomatic
Conference. We believe that more uniform and higher international levels
of protection for copyrighted works can be achieved now through
agreements on "traditional" agenda issues that have been vetted fully
domestically and at WIPO. But the "digital agenda" issues raised in the
proposed treaties simply are not ripe for resolution in a manner that
promotes the balanced interests of private stakeholders and the public.

While progress internationally is important, it should not be obtained by
unbalancing domestic copyright law. We have worked diligently with
members of Congress and representatives of all affected industries and
public interests to describe and propose balanced improvements, and
continue to do so. Given the interdependence of works and technology,
such collaboration is essential to the formulation of durable policies
and flexible legal structures. We remain convinced that these
discussions can yield model legislation suitable for national and
international implementation.

Unfortunately, the current basic proposals on the digital agenda unfairly
prejudice the interests of the public and our member companies.
Premature acceptance of these proposals could foreclose more consensual
and forward-looking solutions.

Traditional issues in the basic proposals have been fully considered, and
have achieved sufficient domestic and international consensus. Such
issues include: confirmation of Berne protection for
  computer programs and original databases; elimination of non-voluntary
licenses; rental rights for computer programs and sound recordings; and
TRIPs enforcement provisions. There has emerged, however, no meaningful
consensus in the U.S. or internationally on key digital agenda issues.
Additional debate on these issues is needed.

The "Technological Measures" Provision is Overbroad and Unfair to
Manufacturers and Consumers

We are concerned principally with the text on Technological Measures in
each of the proposed treaties. This has been described inaccurately as a
prohibition against only "black boxes" that have no legitimate purposes,
or against the trafficking in codes that break encryption or scrambling.
The provision contains no such limitations. It broadly encompasses "any
device, product or component incorporated into a device or product... ."
As such, the provision potentially ensnares a multitude of devices,
manufactured by our member companies, that can be and are used for
legitimate purposes.

The question then becomes whether other limitations in the proposal
adequately protect the manufacture of devices for legitimate uses --
including the recording and use of non-copyrighted works and the fair use
of copyrighted works -- notwithstanding the fact that these devices could
also be used in a manner not authorized by law. We believe it does not,
for the following reasons:

u A "primary purpose or primary effect" test creates an unacceptable
level of risk for our industries. An "effect"-based test places the
legal status of a device in the hands of users. As a consequence,
devices with legitimate "primary purposes" would be lost to consumers.
u A "primary" test is too indefinite and stringent. It is uncertain
whether "primary" always means greater than 50 percent or simply a
plurality use among many. Even if 50 percent, a "primary" standard
outlaws devices with 49 percent legitimate uses.
u Paragraph (1) applies to any person knowing or having reasonable
grounds to know that a device "will be used for" an unauthorized exercise
of rights. This seems to impose liability if the importer, manufacturer
or distributor knows or has reason to know of even one potential
unauthorized use. Moreover, it is unclear to us how this clause
interacts with the "primary purpose or primary effect" test.
u Although the Notes indicate that legislation should not "impede lawful
practices and the lawful uses of subject matter that is in the public
domain," the proposal itself provides no means to enact such enabling
exceptions. Particularly troubling is that Article 12, which permits
such exceptions in other contexts, purportedly would not apply to Article
u The proposal does not define what is meant by "protection." If it
means any protection applied by any copyright owner, the provision could
require machines to respect and implement protection means that degrade
product performance. It is extraordinarily difficult to control
recording without inadvertently damaging the audiovisual quality of
watching or listening to the same material. The only way to safeguard
quality is to "circumvent" the damaging elements of the system. This
problem is real, and has confronted our industry repeatedly over the last
20 years. The proposed text would restrict the ability to design and
improve products. It also could make manufacturers liable for failing to
implement one protection technology although it is incompatible with
u "Circumvent" is not defined. The consequences for manufacturers vary
widely depending on where the definition of "circumvent" lies on the wide
spectrum between intentional negation of a technology for unlawful
purposes and the failure to adopt a potentially infinite number of
available technologies.

This "Technological Measures" provision has far-reaching implications for
the public interest, in that it will be impossible for any consumer to
exercise the fair use of protected copies. No manufacturer can know
whether copies made using a particular device will be "primarily" for
purposes of fair use, and the technology cannot distinguish fair from
unauthorized use. As a result, devices that can remove protection for
lawful uses are unlikely to be made. Fair use becomes an empty promise
if there are no lawful means accessible to consumers to enable it.

The public policy implications of a Technological Measures provision are
equally great under the Database proposal, since protected works can
consist solely of non-original compilations of facts and public domain

Finally, the proposal negates important legal principles established in
Sony Corporation v. Universal City Studios, Inc., 464 U.S. 417 (1984).
The essence of that case was that a manufacturer of a device cannot be
held liable for potential unlawful acts by users of the device, unless
the device is not capable of commercially significant noninfringing uses:

[T]he sale of copying equipment, like the sale of other articles of
commerce, does not constitute contributory infringement if the product is
widely used for legitimate, unobjectionable purposes. Indeed, it need
merely be capable of substantial noninfringing uses.

464 U.S. at 442. To resolve this question, the Court continued, it was
not necessary to quantify the noninfringing uses or determine whether
these were the "primary" uses of the machines:

[W]e need not explore all the different potential uses of the machine and
determine whether or not they would constitute infringement. Rather, we
need only consider whether on the basis of the facts as found by the
District Court a significant number of them would be noninfringing.
Moreover, in order to resolve this case we need not give precise content
to the question of how much use is commercially significant.

Id.; emphasis added.

The Supreme Court did not adopt a "primary purpose or primary effect"
test in Sony. As the Court held, a lawful device did not have to be
"primarily" used for unobjectionable purposes in order to avoid vicarious
liability. A minority use could be considered "wide," "substantial" or
"commercially significant."

Clearly, then, the Technological Measures proposal overturns the heart of
the Supreme Court's ruling to the detriment of the manufacturers and
consumers of recording equipment. Indeed, if the "primary purpose or
effect" test were coextensive with the Sony standard, there would be no
need to enact new legislation in the United States in order to comply
with the WIPO proposals, and Section 1201 of the pending NII Bill would
be unnecessary.

Notwithstanding differences in modalities between the Section 1201
proposal and determinations of contributory infringement liability, the
fact is inescapable that Section 1201 and the WIPO proposals would impose
vicarious liability on manufacturers where the Sony decision would not.
As a result, consumers will be denied legitimate uses of recording and
signal processing equipment, and copyright owners may be free to apply
copy protection so as to foreclose consumer access to reasonable,
customary and legal personal uses.

The Treaties Should Not Narrow the Scope of Fair Use and Other

Article 12 of the Berne Protocol, and by reference Articles 13 and 20 of
the New Instrument, limit the potential scope of fair use and other
necessary limitations and exceptions to exclusive rights. Article 12(1)
contains what appears to be a significant difference from the text of its
source, Article 9(2) of the Berne Convention, in that Article 12(1)
permits limitations and exceptions "only" in certain special cases.... ."
 The word "only" does not appear in Article 9(2). Although paragraph
12.02 of the explanatory notes states that the three-step test is
identical in each, we question whether the differences in the text would
be interpreted so as to restrict the scope of those "special cases" and,
potentially, prejudice public interests.

Similarly, Article 12(2) limits the scope of other existing limitations
and exceptions under the current Berne Convention to those meeting the
three-part test. We have not had a full opportunity to consider the
potential impact of this provision, but urge that there should be a full
and open public discussion of its potential international and domestic

The Scope of the Reproduction and Communication Rights

We appreciate that Chairman Liedes has attempted to provide for some
limitations to exclusive rights of reproduction and communication.
However, we question whether these efforts are sufficient and why
limitations should not be mandatory rather than optional.

For example, numerous devices manufactured by our member companies
temporarily store portions of works in memory. Such storage can occur
for a wide variety of beneficial and creative purposes, and should
clearly be permitted by law.

Similarly, we previously have expressed our concern that a broad
communication right trumps the first sale doctrine under United States
law. We believe that the need for this doctrine persists and becomes
increasingly important when the mode of acquisition is electronic rather
than tangible.

In a global marketplace, it is as desirable to have a uniform level of
certain limitations to exclusive rights as it is to have the rights
themselves. Any exceptions to these rights must be broad enough to
encompass legitimate actions and should be mandatory obligations under
the Protocol.

"Rights Management Information" Should be Limited to Distributions

Article 14(1)(i) of the Berne Protocol seems unnecessary. Since the
location and nature of "rights management information" has not been
specified either by the proposal or by common practice, this section
unduly restricts consumers' ability to use portions of copyrighted works
for private purposes. Unless a copy is distributed in some manner, there
is no prejudice from the removal of rights management information. We
also note that the Article omits the important element of the intent to
remove or alter information for fraudulent purposes, which was present in
the U.S.-proposed legislation.

Conversely, we support the definition of "rights management information"
insofar as it does not include information that defines the terms and
conditions of use. Such an overly broad definition, together with
Article 13, would give copyright owners "two bites at the apple."

* * *

Despite your laudable efforts to seek comment while formulating the
digital agenda proposals, the nature and impact of the proscriptions have
not received sufficient debate and still are dimly understood in the
United States and internationally. With your guidance, the United States
has taken the leadership role internationally in intellectual property
law by bringing these issues to the forefront at WIPO. Now, however, we
fear that role will be jeopardized if we prematurely shut off the
engaging debate and act precipitously.

We urge therefore that the United States at the WIPO Diplomatic
Conference should work toward acceptance of the traditional agenda
issues, and promote continued discussion of the digital agenda through
WIPO. We look forward to working with you as the process moves forward
in December and thereafter.

Respectfully submitted,

Gary Shapiro

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