Re: Article 10 WIPO proposals

Subject: Re: Article 10 WIPO proposals
Date: ti 26 syys   2000 - 13:38:09 EEST

> Thank you very much for responding to my message concerning
> Article 7 of the WIPO proposals. Today I would like to discuss with
> you another interesting Article, namely Article 10: Right of
> Communication.

Some comments on Article 10 and attatched notes.

Note 10.08 states that the <The proposal made by the European
Community and its member states received a positive reaction from
many Government members of the Committee>. While notes on other
sections (eg. 13.07) mention some Governments reservations /
alternatives - none is given in this case, although Seth Greenstein's
report on theWIPO meeting made clear that these existed.

Note 10.14 states that ISP liability does not occur within the
<Right of Communication> unless a copy is made available to the
public by the ISP, which should evidentally not occur. It further
refers to Article 7 (Reproduction right) with regard to transient
copies occurring in ISP computers due to electronic transmission.
However, Article 7 (and notes 7.07 and 7.18) gives no protection to
ISPs inadvertently producing transient, temporary or incidental
copies in the process of <communicating> or <transmitting> a user
initiated message - except where national limitations / exceptions
are in place. In effect, this combination of Article 10 and Article
7 seems to make ISPs potentially liable for the users transmissions.

Proposal - ISP should be explicitly protected from liability for
incidental / unintentional liability for transient / temporary /
incidental copies. This should be done at Treaty level, not under
National Treatment.

Note 12.08 is essential in understanding all these proposals - it is
similar to the European Communities Green Paper on Copyright: <In the
digital environment, formally minor reservations may in reality
undermine important aspects of protection.> This seems to have been
the excuse for tipping the balance against the public and towards
copyright owners. In other words, these proposals are founded on the
premise of commercial rights not public interest.

Article 16. This brings the proposed treaty and new rights under the
remit of the World Trade Organisation via the TRIPS provisions. The
TRIPs provisions do require adherence to the Berne Convention (Paris
Agreement) but not these proposals (excepting computer programs &
cinematographic rental rights and compilations). However, the TRIPs
agreement (and WTO in general) have clauses against monopolisitic
abuse of IP, allowing for compulsory licenses in such cases. I do not
see such provisions in the Article 16 - or it notes - or anywhere
else in the proposals.

Proposal - The anti monopolistic clauses of TRIPs, including
compulsory licensing, should also be included in Article 16.

          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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