USIA on WIPO Negotiations

[James Love <love@tap.org>]

This is a copy of an article by Wendy Lubetkin, correspondent for the
United States Information Agency, on the WIPO Negotiations.  USIA is
prohibited by the 1948 Smith-Mundt Act for disseminating this informtion
in the United States.  It is one of dozens of public domain materials
placed on the Internet daily by USIA.  It is an "official" version of the
news, by the U.S. Government.  Bruce Lehman is reportedly being asked to
refuse general press interviews for a while (or so I was told by the
foreign press here), but he is quoted extensively here.  jamie


USIS GENEVA DAILY BULLETIN
Thursday, December 5, 1996

Mission of the USA            
11,  route de Pregny               
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Tel +41 22 749 4358                Public Affairs Counselor: 
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USIS Geneva on the Internet - http://www.itu.ch/MISSIONS/US/


EUR315   12/04/96


NEW TREATIES WOULD UPDATE COPYRIGHT LAW FOR THE DIGITAL AGE
(Critics worry protections will stifle Internet use) (1570) By
Wendy Lubetkin

USIA European Correspondent

Geneva -- A three-week diplomatic conference is meeting here to
consider how to update international copyright protections to
meet the challenges of a digital age when texts, recordings,
images and computer software can be transmitted rapidly and
anonymously across the Internet.

Three proposed new treaties have become the focal point of a
debate about the future of information exchange on the Internet
between those who say better protection will greatly expand the
availability of on-line information, and those who believe it
will stifle it.

Lining up on one side of the debate are the film and recording
industries, some publishing companies and major computer firms,
including IBM, Microsoft and Intel.  On the other are consumer
advocates, major library and academic groups including the
National Academy of Sciences, telecommunications firms and non-
governmental organizations such as the Association for Computing.

Bruce Lehman, U.S. assistant secretary of Commerce and
commissioner of Patents and Trademarks, argues that the proposed
changes will stimulate investment in information infrastructures
and expand the potential of the Internet by allowing businesses
to safely offer a whole new array of products and services on-
line.

"We would like to think that this will provide the security that
the people who make information products need to really start to
produce dynamite products for distribution through the Internet,"
Lehman said in a December 3 interview.



Lehman noted that a growing number of people, particularly in the
developed world, are dependent for their livelihoods on incomes
generated through the sale of intellectual property.  More
Californians are now employed in the film industry than by the
defense industry, he pointed out.

The three treaties now under consideration at the December 2-20
Diplomatic Conference of the World Intellectual Property
Organization (WIPO) will update copyright protections to meet the
challenges of the digital age so that businesses have the
confidence to pursue new ventures on the Internet, he contends.

International copyright norms have not been revised in a
substantive way since 1972 when the Berne Convention -- the 110-
year old treaty which protects literary and artistic works -- was
last updated.

Two of the treaties would extend into the digital environment
protections for artistic and literary works (including computer
software which is considered a literary work); the third, and
most controversial, would become the first treaty to extend
copyright protection to the creators of databases.

"With new technologies and the absence of the law, it is
basically anarchy: you can't have any marketplace where you can't
get paid for what you produce and distribute," Lehman said.  "If
you are going to decide to distribute a motion picture on-line,
rather than at the video store, you are going to have to have
some assurance that you are going to get paid for it."

Under copyright law, "rights" are extended to the authors of
works.  These rights simply establish that the work in question
is indeed a form of property which belongs to its creator.  "The
basic rules are almost as old as the ages," says Lehman.  "If you
work hard to create something yourself, you have a right to
control its use and to get paid when you sell it."

Currently only two rights are recognized under the Berne
Convention: the right of reproduction, and the right of
communication, which normally refers to broadcasting.  The new
treaties would introduce a third right, " a right of
distribution," which would allow authors to control how and on
what terms copies of their works are sold.

"You have to have property before you can take steps to protect
it.  All these treaties do is recognize that these intellectual
creations are property," says Lehman. "It is then up to the laws
of the individual country to provide how that is going to be
enforced."

But opponents of the treaties argue that existing copyright
protections already apply to the Internet and say creating new
property rights may erect new barriers to the transmission and

sharing of information in the private sphere, via e-mail, for
example.

"These treaties are seeking, in a way, to make private
distribution of information illegal on the Internet," contends
James Love, director of the Consumer Project on Technology, an
organization started by consumer advocate Ralph Nader.  "They
would define an e-mail message that contains copyrighted material
as an infringement of the copyright."

Currently this type of private transmission of copyrighted
materials is permissible under the so-called "doctrine of fair
use," a legal concept which allows certain exemptions to
copyright, he pointed out.

"People have rights in the U.S. and elsewhere to make a Xerox
copy of a newspaper article and to fax it to a friend or
colleague," Love said.  "This is an attempt to make the Internet
an arena where you have fewer rights than you currently have with
a fax machine or just using the mail."

Lehman said he rejected entirely the idea that the treaties would
impede the free flow of information across the Internet, and
asserted that the concept of fair use will be preserved in the
digital environment under the new treaties.

In particular, Lehman said it was the intention of the U.S.
delegation to ensure that the type of transient copying or
"caching" which is built into Internet browsers such as Netscape
not be understood under the new treaties as a violation of
copyright.

"Ever since we have had computers, the laws of the United States
and other countries have recognized that there has to be a
certain amount of copying that takes place in just using a
computer program," Lehman said.  "It is our intention that it
will be understood that that is not a violation of copyright."

The Computer and Communications Industry Association (CCIA) has
expressed concern that even simple viewing of digital images
might be construed as an infringement if the copies automatically
generated by the act of browsing are considered reproductions.

"The adoption of unbalanced copyright laws will result in
embedding land mines all along the Bridge to the 21st Century,"
said the CCIA, which counts AT&T, Bell Atlantic, Sun Microsystems
and other computer and telecommunications giants among its
members.

In a November 29 press release, the industry group argued that
the treaties could result in Internet service providers being
held liable for the actions of their users.  CCIA members say
they fear such significant potential liability will inhibit those
who would otherwise invest in the Global Information
infrastructure.

But members of another major Computer Industry Group, the
Business Software Alliance, which includes IBM, Intel, and
Microsoft Corporation, are arguing that the future development of
the information society depends on strong intellectual property
protections.

"While we may have individual recommendations for improvements,
we believe in the main that the draft treaties represent a
thoughtful balanced approach to intellectual property protection
in the digital environment," BSA members stated in a December 2
press release.  They urged that the treaties be finalized at the
current meeting.

The controversial "Draft WIPO Treaty on Intellectual Property in
Respect of Databases" has set off alarm bells among a diverse
group including sports fans, meteorologists, library associations
and academic institutes.

It would protect any database that represents a substantial
investment in the collection, assembly, verification,
organization or presentation of its contents.

"Here you are dealing with people who invest a lot of money to
compile pure data that is not necessarily a copyrighted work,"
Lehman said.  "Protection becomes a problem in a digital
environment when with a few keystrokes of your computer you can
download the equivalent of thousands of pages of data."

But the treaty, as it is currently worded, could "undermine our
nation's progress in scientific and technical research and
education," according to the presidents of the National Academy
of Sciences, the National Academy of Engineering and the
Institute of Medicine.

In an October 9 letter to Secretary of Commerce Mickey Kantor,
they warned that unless exemptions and limitations are added to
the text, the resulting treaty would "seriously undermine the
ability of researchers and educators to access and use scientific
data."

"Right now under copyright law you are specifically told that
expressions and creativity are protected," says James Love.  "The
database protection proposal would change that.  It would create
a brand new property right in factual information."

"It would change the way stock information is owned, the way
weather information is owned," he said. "Sports statistics, train
schedules, television schedules, all sorts of information which
is currently in the public domain, would be affected."

Lehman said "legitimate concerns" have been raised about the
database treaty and the United States delegation believes "there

will still be some points that need to be clarified" during the
three-week meeting in Geneva.  "We want to make certain that this
treaty isn't used to deny pure information to somebody, for
example, weather statistics to meteorologists who need them."

Lehman said he was "mildly optimistic" that the U.S. Patent and
Trademark Office would succeed in its objective of passage of all
three treaties.

"There are disagreements among the various countries, there are
disagreements within our own country, but I think they are pretty
discreet.There is no disagreement that people have a right to get
paid when they distribute a valuable product."



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James Love / love@tap.org / P.O. Box 19367, Washington, DC 20036
Voice: 202/387-8030; Fax 202/234-5176
Center for Study of Responsive Law
   Consumer Project on Technology; http://www.essential.org/cpt
   Taxpayer Assets Project; http://www.tap.org
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