Proposed WIPO response

Subject: Proposed WIPO response
Date: ke 09 loka   1996 - 17:35:14 EEST

      Dear colleagues~

      Emanuella Giavarra has asked if I would post this to the Ecup
      List. I have put this together as a proposed response to
      governments. I admit to using suggestions from other
      colleagues. Feel free to use it and to post further
      suggestions/deletions. I have not commented on Article 13 -
      Obligations concerning Technological Measures - as I do not
      know whether it should concern the lis community. If you
      think it should be included, write something. I look forward
      to your views.~

      Sandy Norman~

            Sandy Norman
            Information Manager (Legal and Parliamentary)
            Information Services
            The Library Association Tel: 0171 636 7543
            7 Ridgmount Street Fax: 0171 436 7218
            London WC1E 7AE email:
            United Kingdom

      Proposed New Treaties in the Copyright field under discussion
      within WIPO

      Suggested text for a Response from the Library and Information

      General points~
      1. Comments are confined to the proposals contained in
      CRNR/DC/4 concerning the provisions aimed at addressing the
      challenges of digital technology.

      2. Whilst it is important to consider the solutions to the
      problems digital technology may cause to copyright owners, the
      library and information community believes that the proposals
      on the digital agenda are premature. The proposals concerning
      the Right of Reproduction and the Right of Communication have
      only been put forward in the last few months. The
      implications for the public especially have not been given
      sufficient debate either in the WIPO Committee of Experts or
      nationally. Users' viewpoints have not been considered or
      discussed. We consider, therefore, that they be deleted from
      the treaty in December with the aim to raise them again after
      a suitable period of deliberation and discussion with the
      users, especially the library and information community.

      3. Of especial concern is the fear that the balance between
      the protection of rights owners and public interest will be

      4. In the note 7.15, the Chairman has stated that the
      interpretation of the important right of reproduction should
      be agreed by all nations. We support this. In this digital
      age, harmonisation of intellectual property laws is essential.
      However, within this harmonisation should be the equally
      important aim of ensuring access to information and knowledge
      to all.

      5. From the perspective of the library community, the growing
      trend towards copyright protection for purely economic reasons
      seems to be in conflict with the original aims of copyright to
      promote the progress of science and arts. We are concerned
      for our colleagues working in less favoured nations who are
      unable to have adequate access to knowledge contained in
      copyright protected works and we question what would happen to
      knowledge if all knowledge had to be paid for.

      6. It is essential, therefore, that there are exceptions in
      all countries to allow copying especially by librarians for
      certain purposes. It is essential that the gap between the
      information haves and have-nots is not widened.

      Article 7 - Scope of the Right of Reproduction~
      7. We are puzzled by the need to expand the definition of the
      right of reproduction to include indirect reproduction (7.1)
      caused by incidental digitisation of a work, and we are
      similarly confused about the the proposed limitation in 7.2:
      "Contracting Parties may limit this right of reproduction in
      cases where a temporary reproduction has the sole purpose of
      making the work perceptible or where the work is of a
      transient or incidental nature".

      8. It would appear that the limitation would still have to be
      authorised by the author or allowed under national
      legislation. As it cannot be guaranteed that all nations will
      implement an exception to authorise temporary reproduction in
      the digital environment, there appears to be a contradiction
      to the purpose behind the accompanying notes 7.14 and 7.15
      which attempt to justify Article 7 by reasoning that the
      interpretation of the right of reproduction should be "in fair
      and reasonable harmony all over the world". The opposite is
      likely to be the case.

      Article 10 Right of Communication~
      9. Note 10.08 states that the proposal made by the European
      Community and its member states received a positive reaction
      from many Government members of the Committee. However,
      according to reports, many other Government members had

      10. Note 10.14 indicates that the liability of an Information
      Service Provider (ISP) 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 back 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)
      give no protection to ISPs who inadvertently producing
      transient, temporary or incidental copies in the process of
      communicating or transmitting a user initiated message -
      except where national limitations or exceptions are in place.
      In effect, this combination of Article 10 and Article 7 seems
      to make ISPs potentially liable for the users transmissions.

      11. An Information Service Provider should be explicitly
      protected from liability for incidental/unintentional
      liability for transient/temporary/incidental copies. Again,
      this should be done at Treaty level and not left to
      Contracting Parties.

      12. Although the Chairman has avoided it, it is essential
      that a definition is given on what is "public". It is not
      enough to leave it to national interpretation which, as has
      been pointed before, will lead to disharmony. The role of the
      librarian is to give access to information to all citizens.
      They act as a failsafe for the disadvanted in society. This
      Article will cripple libraries and frustrate society unless
      there are clear limitations to this right in "fair and
      reasonable harmony all over the world". Although this is
      addressed in Article 12, it is by no means clear.

      Article 12 Limitations and Exceptions~
      13. This Article is to be welcomed although, the library and
      information community would prefer that there should be some
      harmonisation of what exactly would be a deserving case which
      passes the three step test.

      14. Leaving limitations or exceptions to such rights to
      national legislation, will create, in effect, unfair and
      unreasonable disharmony all over the world with respect to the
      interpretation. While creating 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.

      15. The exceptions and limitations of the exclusive rights of
      authors should also be harmonised internationally. In the
      analogue world, there are already many differences between
      nations on what can or cannot be copied for research, private
      study, education and by libraries. It is not enough to leave
      it to Contracting Parties.

      16. The notes are very helpful although some examples of
      copying electronically would be of use. Also, the note 12.09,
      although very welcome, could be argued to be of such
      importance that it should have been at the beginning of the
      notes and not as, what looks like, an afterthought.
      "Important values in society" deserve a greater and more
      prominent place in this treaty. Authors as creators need to
      have access to works of other authors in order to understand
      and build upon them. If creators are hampered in some way by
      being denied access, whether because it is no longer available
      in libraries or the payment for access is prohibitive then
      creativity is stifled.

      17. Having to ask permission every time to disseminate or use
      a copyright work, or having to pay for every piece of
      copyright information would frustrate society. If payment is
      required every time a work is even accessed (eg. viewed on a
      computer screen) the role of the library to be society's
      collectors and disseminators of knowledge will be destroyed.

      18. Note 12.10 demonstrates the need for further discussion
      of this part of the treaty. Have Governments been asked to
      submit proposals? Have Governments consulted the people?
      There has been no direct consultation with the international
      library community on this.

      19. Some clarification (ie. a comma?) is need in the clause
      (1) of this Article: Contracting Parties may........ under
      this treaty only ...."; or "only in certain special cases".

      20. 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".

      Article 16 - Special Provisions on Enforcement of Rights.~
      21. It is recommended that the anti-monopolistic clauses of
      TRIPs, including compulsory licensing, should also be included
      in Article 16.

      Sandy Norman (with the help of her friends)
      October 1996

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