Re: WIPO Proposals

Subject: Re: WIPO Proposals
Date: ti 19 syys   2000 - 16:45:25 EEST

Emanuella and ECUP List
Re. your request
> I am very interested in the changes or additions you might feel
> necessary to these texts.

With regard to the technical protection measures, the response of Gary Shapiro, President of the Consumer
Electronics Manufacturers Association basically covers my viewpoint.

Article 7, notes 7.14 and 7.15
These notes attempt to justify Article 7 by reasoning that the
interpretation of right of reproduction should <be in fair and
reasonable harmony all over the world.> This surely contradicts
Article 12 which leaves limitations or exceptions to such rights
to national legislation, leading in effect to <unfair and
unreasonable diharmony all over the world> with respect to

Article 7, note 7.17
This note states that limiting the definition of reproduction by
allowing national freedom of interpretation is excluded by existing
Article 9(1); why in that case is there a proposed definition of this right
in Article 7(1)?

Article 8(1)
Extending sale or other transfer of ownership to all works - how does
this fit with Article 10 (Right of Communication), especially with
regards to importation.

Article 8(3)
Here the term personal luggage is used - how about electronic
importation, or is this restricted (unnecessarily) by Article 10?

Article 9(2)
How does this fit with Public Library Lending, especially regarding
exceptions where a renumeration system is in place (eg. UK).
<Materially impairs the exclusive right of reproduction> seems to me
a legal nightmare - so imprecise and open to arguement it could lead
to no public lending.

Article 10 As it stands - few objections, especially given that
communication to the public seems quite tightly defined. My only
worries here are the usual fair use ones - without such exceptions
(Article 12), quoting or reviewing someone elses work on the
internet could become illegal!

Article 12
This is the real issue and nightmare.
2 major issues:-
<only 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.>

Who defines the above? Only in certain special cases, why? Surely
the purpose of copyright in general, and exceptions in particular,
is to balance copyright owners and users rights in order to promote
creativity and distribution; this phrase turns this purpose on its
head. As was pointed out in Gary Shapiro's response, the word *only*
does not appear in Article 9(2).

What is normal exploitation? In most areas the term exploitation has
moved beyond commercial exploitation to mere use. Legitimate
interests of the author need to be balanced against the legitimate
interests of the user (and author is a misnomer - why not state
copyright owner as that is what is meant and is enforced!) While
these follow existing practice, I think we should be aware of their
impact in combination with the new proposals.

My main criticism is leaving these exceptions to national
legislation, especially when it comes to Article 7(1) - transient
copies and Article 10 - Right of Communication. While creating /
international formalising new owners rights on the basis of need for
worldwide interpretation in this age of international communication,
the impact on usage is left to national legislation, leading to major
problems for users communicating, quoting and reviewing in the same
age of international communication.

Recommendation - wherever the proposed Articles and accompanying
notes argue for owners rights needing uniform international
interpretation, the same should be inserted for the exceptions -
especially with regard to areas open to international communications.

          Mark Perkins, RRMG Librarian
          ODI Library, Regents College
Inner Circle, Regents Park, London NW14NS. UK
TEL: +44 (0)171-487-7611 FAX: +44 (0)171-487-7590

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