sign-on letter for WIPO delegates

[James Love <love@tap.org>]

This is a letter the Union for the Public Domain (UPD) will be distributed
in Geneva.  (The UPD web page is at http://www.public-domain.org).  If
other organizations can support the letter, please send a note to James
Love (love@tap.org, fax 202-234-5176, voice 202-387-8030) and the name
will be added.  jamie


An Open Letter To The Delegates Of The WIPO Diplomatic Conference

December  17, 1996

We are writing to urge the delegates at this diplomatic 
conference to defer final action on the three proposed treaties.  
The discussions so far have just began to shed light on many of 
the problematic areas of the treaties.  We believe there is much 
more to be gained from further study, and we are concerned that 
hasty action on novel changes in intellectual property laws will 
lead to many unanticipated problems.  In this respect, one has to 
ask why WIPO, a United Nations body, is acting as a super 
Parliament or Congress on issues which have never been resolved 
by national governments through traditional lawmaking processes.

While there are many problems with the three treaties, allow 
us to highlight four areas of concern.

1.	The Proposed Rights Of "Reproduction" And "Communication" 
Are Far Too Broad. 

	In an effort to give copyright owners the broadest possible 
rights, the treaties would give a new right to authorize the 
"direct and indirect" reproduction of a work, "whether permanent 
or temporary . in any manner or form."  (Treaty 1, Article 7).  
National limits on those rights would be limited to very narrow 
"authorized" circumstances.  Some critics say the "any manner or 
form" language is so open ended that it would be illegal to 
memorize a poem.

	The issue of the rights of the public to use computers to 
view, study and analyze works is important.  Overbroad 
restrictions on those rights will discourage or impair the 
development of many important and useful new technologies.  For 
example, the new smart searching engines on the Internet's World 
Wide Web routinely read hundreds of thousands, if not millions of 
Web pages, in order to create indexes and abstracts of articles 
and other works.  These new and important software tools will 
vastly expand our ability to identify and locate information.

	There is also considerable concern that the "Right of 
Reproduction" (Article 7), combined with the "Right of 
Communication," (Article 10) are written in such a way that 
Internet Service Providers (ISPs) will be liable for 
infringements.  Several major ISPs have noted that if they are 
liable for infringements by their customers, they will be 
compelled to engage in intrusive surveillance of private 
communications.  This indeed was the concern of eleven CEOs of 
major Internet and Telecommunication firms [1], who wrote President 
Clinton in opposition to the treaties on December 10, 1996.  
(http://www.public-domain.org/copyright/11ceos.html).

	While we prefer no action on the treaties at this time, we 
would add that the proposed December 12, 1996 amendments by the 
30 African countries offer a much better approach (Treaty No. 1, 
CRNR/DC/56, Article 7 and Article 10), and is preferred to the 
far too restrictive versions that have been advanced by the 
United States Delegation.


2.	The Technological Measures Are Written Too Broadly 

	 Any language in a treaty that prohibits the development of 
new information technologies is problematic, since there are 
likely to be competing public interests.  The Chairman's 
provisions, in his December 12, 1996 drafts of Treaty No. 1 
(Article 13), and Treaty No. 2 (Article 22), are far too broad.  
They would make unlawful "any . . . device, product or component 
incorporated into a device or product, the primary purposes or 
primary effect of which is to circumvent any process, mechanism 
or system that prevents or inhibits any of the rights under this 
treaty."  (From Treaty 1, Article 13). 

	Taken with the rest of these deeply flawed treaties, there 
would be an enormous chilling effect on the development of new 
information technologies.  For example, the popular Web browser 
Netscape would arguably be an illegal device, not only because it 
is used for reading documents into memory to display them, but 
because it has features which permit the easy reading and 
downloading of source code for HTML documents, as well as digital 
images.  Many of us would say that these types of features have 
made an important contribution to the explosive growth of the 
Internet.  It is worth noting that more restrictive proprietary 
technologies have withered, having failed to compete with the 
more open Internet model.  

	Also, the new generation of Internet searching and index 
tools mentioned above would likely be challenged under the 
proposed treaty language. 

	Again, the language offered as a substitute by the 30 
African countries is a better approach.  Countries would be 
required to provide:

        adequate legal protection and effective legal remedies 
        against the circumvention of effective technological 
        measures that are used by rights holders in connection 
        with the exercise of their rights under this Treaty and 
        that restrict acts, in respect of their works, which 
        are not authorized by the rights holders concerned or 
        permitted by law. (CRNR/DC/56, Treaty 1, Article 13).

	The more flexible language offered by the African countries 
would give each nation greater latitude in implementing anti-
circumvention legislation.  This is important, given the rapid 
growth of the Internet, the novelty of the technology and the 
Internet culture, and the need to encourage rather than 
discourage the development of new information technologies.  

	However, we cannot endorse even this approach, at this time.  
The issue of anti-circumvention is not ripe for legislation or 
treaty, given:

-    the lack of sophistication by many legislators or policy 
     makers, 
-    the uncertainty concerning the extent to which new 
     encryption based technologies can protect rights owners 
     without additional legal remedies, and
-    the need to gain a better model for enforcement in a world 
     with transitional data flows and radically different 
     concepts of fair use of copyrighted materials. 

3.	Concerns About Privacy Are Not Specifically Addressed In The 
Treaties.

	We come from a tradition of using information products and 
services in ways that are mostly anonymous.  The acquisition of 
newspapers, books, recorded music, and listening to broadcast 
television and radio can be done in anonymity.  The development 
of cable television, video rental stores, online communications 
and other technologies are leading to an explosive growth in the 
ability of the government and private corporations to conduct 
surveillance of what information we receive or share with others.  
It is essential for a free society that people have the practical 
ability to read and share information with friends and colleagues 
without surveillance.  When it is possible to take different 
approaches in protecting copyright owners, it is desirable and 
important to seek those roads which are consistent with a 
significant degree of personal privacy.  This principle should be 
specifically addressed in the treaties.  

	As noted above, there are specific concerns about privacy in 
the section of the treaties dealing with the liability of ISPs.  
There is also concern about the degree to which the "Rights 
Management Information" may be used to provide mechanisms for 
tracking document usage.  Countries should be both permitted and 
encouraged to limit the types of technologies used for "rights 
management information" in order to protect personal privacy.

4.	There Should Be No Actions Taken That Would Give A Radical 
New Property Right To Facts Or Other Public Domain Information.

	There is widespread opposition to the concepts underlying 
the proposed database treaty, and no action should be taken at 
this time.  As presently drafted, the treaty would give sporting 
leagues the right to license box scores of sporting events, give 
stock exchanges permanent "ownership" of share prices and other 
financial data, define the practice of creating abstracts of 
scientific journals or web pages as an infringement of a database 
extraction right, and create many other unintended consequences.  

	The fact that organizations such as Dun and Bradstreet, 
Bloomberg, and STATS, Inc (sports statistics), vigorously oppose 
the treaty because it goes too far illustrates the complexity of 
this issue.  Value added information providers are both producers 
and consumers of information.  This proposal is so deeply flawed 
it cannot be salvaged at this conference.  The controversy over 
the database treaty should also serve as a reminder to the 
delegates that the public domain in matters concerning 
information is something to be protected and cherished.


5.	Closing Comments

	In closing, we urge the delegates to reflect upon how the 
unique features of the Internet have contributed to its amazing 
success, and to tread carefully when asked to dramatically change 
the Internet culture.  Not only is the Internet a flourishing and 
dynamic place to publish information, as evidenced by the 
astronomical rates of growth in usage and published content, but 
there is scant evidence to suggest that there are serious threats 
to the commercial content industry from infringements.

	Much of the concern over unauthorized reproductions of works 
on the Internet stem from the very transparency of those 
reproductions, which are visible to everyone, including the 
owners of the works.  Indeed, the Internet indexing and 
abstracting tools which are threatened by these treaties offer 
perhaps the best tools yet for identifying and managing 
inappropriate unauthorized reproductions of works.  

	This transparency of publishing activities on the Internet 
is something new.  We are also just beginning to understand the 
engines which drive the dynamic growth of this publishing 
platform.   We are forced to re-think and re-examine our ideas 
about fair use and other matters which are central to these ill 
conceived treaties.  

	Finally, there is great opposition to the treaties by the 
persons who should matter the most  - the persons who use the 
Internet, and who are alarmed to the prospects for increased 
surveillance and stifling regulation of new technologies.  As 
delegates you should look beyond the multitude of lobbyists who 
have shaped this treaty, and consider the public.  We urge you to 
conclude this Diplomatic Conference without taking action on any 
of the treaties.


[1] PSI, Net, America Online, Bell Atlantic, BellSouth, Compuserve, MCI,
MFS Communications, Netcom On-line Communications, NYNEX, Prodigy, UUNET.


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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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