WIPO Article 10 - some concerns

Subject: WIPO Article 10 - some concerns
From: Heikki Poroila (poroila@kaapeli.fi)
Date: ma 11 marras 1996 - 11:12:00 EET

Dear ecup-list members!

At the copyright workshop in Oslo 4-5.11.1996 the WIPO proposals were discussed, too. I
would like to continue that discussion presenting my concerns about the proposed Article
10, Right of Communication.

There are both general and detailed concerns. I start with the details.

The text in this article uses very specified wordings "any communication to the public".
The word "any" here is not by chance, I believe. It is intended to make sure that
NOTHING is left outside this exclusive right.

What is "communication to the public"? My Collins Cobuild English Language Dictionary
states, that communication is: "the active process of giving information to other people
or to other living things, using signals such as speech, body movements, or radio
signals." I am afraid, that anything we in libraries want to do can be stipulated as
"communication", because all we do is an active process of giving information to other

The words "making available to the public of their works, by wire or wireless means, in
such a way that members of the public may access these works from a place and at a time
individually chosen by them" refer to all kinds of communicational situations which may
occur, I think. Or can you imagine any situation of "communication to the public" that
does not meet this definition? We have learned, that this wording is especially meant
for electronic enviroment.

I think that this Right of Communication is a new exclusive right, and a very strong
one. Until now the Berne Convention has granted this right only to the authors of
dramatic works, movies, musical works, recitation of literary works etc. The meaning of
this right has been quite clear, since the communication of such works has been very
different to printed works like books.

If you read the notes Mr. Jukka Liedes has written, you can learn more about this all.

Note 10.05: "... the rights currently provided under the Berne Convention need to be
supplemented by extending the field of application of the right of communication to the
public to cover all categories of works." Notes 10.07 and 10.08 make it clear, that this
Article 10 is exactly what the European Commission has proposed.

Note 10.10 explains, what is the relevant act: "The relevant act is the making available
of the work by providing access to it. What counts is the INITIAL ACT of making the work
available, not the mere provision of server space, communication connections, or
facilities for the carriage and routing of signals. It is IRRELEVANT whether copies are
available for the user or whether the work is simply made perceptible to, and thus
usable by, the user." Could you make this any clearer? No more making works perceptible
without the authorizing from the right owner!

Note 10.11 wants to make clear, that "interactive on-demand acts of communication are
within the scope of this provision." Good to know...

Note 10.12 makes it clear, that this article does not cover private communication nor
broadcasting. Just the acts we are dealing with in libraries...

Note 10.14 contains a clarification, that "The expression 'communication to the public'
of a work means making a work available to the public by any means or process other than
by distributing copies. Hooray, public lending is not "communication to the public"!

Note 10.14 makes it also clear, that "communication" "implies transmission to a public
not present in the place where the communication originates." Does this mean, that if we
are using an external database, the communication does not originate in the same place
we are?

The second paragraphe in this note gives us more light to the question about article 7,
too! "Communication of a work can involve a series of acts of transmission and temporary
storage, such incidental storage being a necessary feature of the communication process.
If, at any point, the stored work is made available to the public, such making available
contitutes a further act of communication which requires authorization. It should be
noted that storage falls within the scope of the right of reproduction."

What about exhaustion of copyright? Note 10.20 makes it clear, that "no rights are
exhausted in connection with communication to the public. Should communication of a work
result in the reproduction of a copy at the recipient end, the work may not be
communicated further to the public or distributed to the public without authorization.
Exhaustion of rights is only associated with the distribution of tangible copies."

Does the note 10.22 make all of our fears to vanish? "In respect of rights provided in
Article 10, Contracting Parties may apply certain limitations and exceptions
traditionally acceptable under the Berne Convention. The proposal is not intended to
impair the ability of Contracting Parties to maintain in their national laws exceptions
that have traditionally been viewed as 'minor reservations'". Well well, why is this
beautiful note not in the Article itself? Is it just an accident, that the proposal does
not offer any exceptions in the text, but only in the notes? And how could there be
"exceptions traditionally considered acceptable", when we have here a new exclusive
right? What are these exceptions? That the libraries are allowed to make it available to
the public anything they can find from Internet? And what are "minor reservations"?
Could someone please explain?

Then some general concerns.

If we look at the proposal CRNR/DC/4 as a whole, we might understand the meaning of this
Article 10 easier. I have heard Mr. Jukka Liedes to explain, that in the digital
enviroment both Articles 7 and 10 are needed to guarantee the exclusive rights of
rightowners. Article 7 is for total control over works not in the network and Article 10
is for the works in the network. Articles 7 and 10 together leave nothing outside.

Libraries are certainly not the main concern of right owners of electronic works. But
that is not the point. These WIPO proposals are planned to make it sure, that NOBODY can
do ANYTHING with copyrighted electronic material without an authorization and possible
paying for it. Among these anybodies are also libraries. To me it seems that these
treaties might be the end of library privilegies.

Oh yeah, I forgot the exceptions and limitations on the national level... But please
remember, that they are only allowed if they pass the three step step!

Heikki Poroila
Finnish Library Copyright Group
E-mail poroila@kaapeli.fi

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