From james.love@cptech.org Mon Jan 17 17:58:24 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 0908029B60 for ; Mon, 17 Jan 2005 17:58:24 -0500 (EST) Received: (qmail 22224 invoked from network); 17 Jan 2005 22:58:23 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 17 Jan 2005 22:58:23 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 17 Jan 2005 22:58:23 -0000 Message-ID: <41EC430E.8050708@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] a2k Proposals by library organizatioins Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 17 18:01:00 2005 X-Original-Date: Mon, 17 Jan 2005 17:58:22 -0500 This document was provided by the American Association of Law Libraries, American Library Association, Association of Research Libraries, Medical Library Association, and the Special Libraries Association. Jamie Library-Related Principles[1] for the International Development Agenda of the World Intellectual Property Organization Measures to address concerns of libraries 1: A robust and growing public domain to provide new opportunities for creativity, research, and scholarship 1.1. Works created by governmental authorities should be in the public domain. 1.2. Published works resulting from government-funded research should be publicly available at no charge within a reasonable time frame. 1.3. Facts and other public domain materials, and works lacking in creativity, should not be subject to copyright or copyright-like protections. 1.4. Consistent with the Berne Convention, the term of copyright should be the life of the author plus 50 years. The term of copyright should not be extended retroactively. 2: Effective library programs and services as a means of advancing knowledge. 2.1. A library may make copies of published and unpublished works in its collection for purposes of preservation or to migrate content to a new format. 2.2. A work that has been lawfully acquired by a library may be lent to others without further transaction fees to be paid by the library. 2.3. A work that has been lawfully acquired by a library or other educational institution may be made available over a network in support of classroom teaching or distance education in a manner that does not unreasonably prejudice the rights holder. 2.4. Subject to appropriate limitations, a library or educational institution may make copies of a work for classroom use. 2.5. A library may convert material from one format to another to make it accessible to persons with disabilities. 2.6. In support of preservation, education or research, libraries and educational institutions may make copies of works still in copyright but not currently the subject of commercial exploitation. 3: High levels of creativity and technological progress resulting from individual research and study. 3.1. Copyright laws should not inhibit the development of technology where the technology in question has substantial non-infringing uses. 3.2. Copying of individual items for or by individual users should be permitted for personal research and study. 3.3. It should be permissible to circumvent a technological protection measure for the purpose of making a non-infringing use of a work. 4: Harmonization of copyright. 4.1 The goals and policies set out in this document should not be over-ridden by other bi-lateral or multi-lateral agreements. 4.2 The goals and policies set out in this document are important statements of national and international principle and should not be varied by contract. [1] The foregoing principles were developed in December 2004 and have been endorsed by the following library associations: American Association of Law Libraries, American Library Association, Association of Research Libraries, Medical Library Association, and the Special Libraries Association. These principles were prepared for use in discussions at the World Intellectual Property Organization concerning the impact of intellectual property protection on economic development and the significance of copyright exceptions for libraries, educational institutions, and the disabled. These principles are not intended to serve as statutory language and thus do not reflect limitations and qualifications that would appear in such language. From james.love@cptech.org Mon Jan 17 18:12:55 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id DD89E29B60 for ; Mon, 17 Jan 2005 18:12:54 -0500 (EST) Received: (qmail 15546 invoked from network); 17 Jan 2005 23:12:54 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 17 Jan 2005 23:12:53 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 17 Jan 2005 23:12:53 -0000 Message-ID: <41EC4674.4030304@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org content-transfer-encoding: quoted-printable content-type: text/plain; charset=windows-1252; format=flowed Subject: [A2k] John Barton's a2k propoals Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 17 18:14:00 2005 X-Original-Date: Mon, 17 Jan 2005 18:12:52 -0500 1.=09John Barton=92s 2003/UNCTAD/ICTSD proposals On 11 April 2003, UNCTAD and the International Centre for Trade and Sustainable Development (ICTSD) organized a Policy Dialogue on a Proposal for an International Science and Technology Treaty, as part of the Science and Technology Diplomacy Initiative and the UNCTAD/ICTSD Project on Intellectual Property Rights and Development. John Barton presented a variety of ideas for a treaty on access to knowledge. http://stdev.unctad.org/capacity/treaty.html http://stdev.unctad.org/capacity/Barton.doc a.=09Free trade type proposals i.=09Reciprocal commitments to ensure that the benefits of publicly funded research are made available to all and not just to nationals. ii.=09Reciprocal commitments to prohibit favouritism to national firms in areas like participation in research consortia and access to research-oriented tax benefits. b.=09Free Movement of Researchers i.=09Commitments against visa restrictions that limit the ability of students to study at universities in another nation, or restrict the ability of scientists or engineers to participate in conferences or gain experience at firms in another nation. c.=09Access to scientific databases. i.=09Ensuring that intellectual property law not restrict access to basic scientific advances. ii.=09Safeguard provisions, to ensure, for example, that intellectual property associated with international scientific and technological collaboration is managed in a fair way, and to respond appropriately to national security and technology proliferation concerns, as with respect to military uses of biotechnology. iii.=09There would also need to be provisions for regular meetings, for a small secretariat to evaluate the actual degree of scientific and technological cooperation and its mutual benefit, and for continuing negotiations. d.=09Technology transfer for developing countries i.=09Developed nations might commit themselves to assist developing nations in achieving specific educational and scientific/technological goals. This form of international assistance has proven particularly effective, even if rare =96 broad commitments to technology transfer such as those in TRIPS2 have not generally contributed much technology to developing nations. From his paper.... Possible provisions of a treaty =09The key legal provision of such a treaty would require that, in as many ways as possible, foreign scientists and firms be treated the same way as national ones with respect to access to a nation=92s scientific and technological support and capability. Specific provisions might include reciprocal commitments to ensure that the benefits of publicly funded research are made available to all and not just to nationals. Similar reciprocal commitments would prohibit favoritism to national firms in areas like participation in research consortia and access to research-oriented tax benefits. And there might be commitments against visa restrictions that limit the ability of students to study at universities in another nation, or restrict the ability of scientists or engineers to participate in conferences or gain experience at firms in another nation. Other issues that might be covered include access to scientific databases and ensuring that intellectual property law not restrict access to basic scientific advances. =09These would have to be balanced by safeguard provisions, to ensure, for example, that intellectual property associated with international scientific and technological collaboration is managed in a fair way, and to respond appropriately to national security and technology proliferation concerns, as with respect to military uses of biotechnology. The latter issue is especially important after September 11, 2001. The United States has proposed, for example, programs to create new kinds of security classification for biological data and recent legislation restricts certain foreign students from studying particular areas of biotechnology. Such restrictions may be in the national and global interest =96 but only if they are reasonably applied and make a proper balance between anti-terrorism concerns and scientific/technological commons concerns. A treaty could usefully spell out this balance. =09There would also need to be provisions for regular meetings, for a small secretariat to evaluate the actual degree of scientific and technological cooperation and its mutual benefit, and for continuing negotiations. Such negotiations could provide a focal point for scientific and technical constituencies interested in further opening of the global scientific/technological commons Helping the Developing Nations =09Strengthening openness on a global basis will itself greatly help developing countries, not just by giving them increased access to information and ideas, but also by accelerating the rate of development of science and technology. But a treaty might go much further to help the scientific and technological communities in these nations. Developed nations might commit themselves to assist developing nations in achieving specific educational and scientific/technological goals. This form of international assistance has proven particularly effective, even if rare =96 broad commitments to technology transfer such as those in TRIPS have not generally contributed much technology to developing nations. It is strong and relatively specific treaty commitments that are likely to be especially useful. The economic benefit of such assistance is often long-term while the political support may be short term. =09Of special importance should be commitments to support programs for providing global public scientific and technological goods for the developing world, such as the Consultative Group on International Agricultural Research and the new public-private partnerships for research on HIV, TB, and malaria. Dealing with these needs is absolutely crucial to human survival and to the stability of international society =96 and the programs are greatly underfunded. Financial commitments would be excellent; they could well be supplemented by commitments to help deal with possible intellectual property difficulties, such as obtaining access to patented platform technologies. -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From philippe.aigrain@wanadoo.fr Tue Jan 18 03:07:14 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mail.sopinspace.com (mail.sopinspace.com [82.225.32.39]) by lists.essential.org (Postfix) with ESMTP id E147129B37 for ; Tue, 18 Jan 2005 03:07:13 -0500 (EST) Received: from rome.sop (rome.sop [192.168.2.21]) by mail.sopinspace.com (Postfix) with ESMTP id AE0782AD76 for ; Tue, 18 Jan 2005 09:07:02 +0100 (CET) From: Philippe Aigrain Organization: Personnel To: a2k@lists.essential.org User-Agent: KMail/1.7.1 MIME-Version: 1.0 Content-Disposition: inline Message-Id: <200501180907.09685.philippe.aigrain@wanadoo.fr> content-transfer-encoding: 7bit content-type: text/plain; charset=iso-8859-15 Subject: [A2k] Pro-commons blanket clause for A2K Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Jan 18 06:55:01 2005 X-Original-Date: Tue, 18 Jan 2005 09:07:09 +0100 Dear all, I have drafted a a pro-commons blanket clause proposed for inclusion in the A2K treaty in order to make sure that the focus on limited exceptions does not override more global actions for commons-based cooperative creation and innovation. I have drafted it in 2 versions. You will find below an introductory explanation and the 2 versions. I have put in place a Wiki on my personal pages for those who would wish to directly revise it. You can also use it for cooperative drafting of other components of the A2K treatry draft if you wish so. For accessing this Wiki : 1- Register as new user on www.publicdebate.net. All you will be asked for is choosing a user name and giving a valid email address to which a password will be sent. 2- Notify me of your chosen user name so I can give you access and publication rights on the Wiki. 3- When this is done, the Wiki can be accessed (with your user name and password) at: http://www.debatpublic.net/Members/paigrain/a2k/ 4-1 to initiate a new page on another component, select "Wiki page" and click "add new item" 4-2 to access or modify existing contents just click on the corresponding page Philippe Aigrain Adviser for strategy and development, Transversales Science Culture & CEO, Society for Public Information Spaces ------------------------------------------------------------------------------------------------------------------- Pro-commons blanket clause EXPLANATION The aim of this blanket clause is to recall that intellectual property mechanisms such as patents, copyright or their execution mechanisms are only a limited part of what can contribute to the superior aims they were set to serve. These aims include for instance innovation, creation, access to information and knowledge for all, or learning through reuse and further elaboration of information and knowledge. The blanket clause is a way to ensure that working within the present limits of WIPO's mission definition will not lead to forgetting the superior values and aims that matter to humanity. The blanket clause is proposed in 2 forms: * Preamble form * Whereas-article form The advantage of the Preamble form is that it can be blunter and more detailed. Its possible weakness is that some parties might consider it a simple "explanatory memorandum" item, non-binding and not part of the legally relevant text after its adoption. The advantage of the Whereas-article form it that it is clearly part of the legally relevant text. The possible flaw is that such items have to be consistent with the present definition of WIPO's mission. However it was made clear that WIPO is to serve the general aims of the UN in the WIPO-UN agreement, making its mission much more open to general values beyond "reinforcing intellectual property". PREAMBLE FORM The freedom of all to access and reuse information, knowledge, creative works or scientific data is key to the advancement of humanity. Thanks to information and communication technology, never has the possibility to mobilise the full breadth and diversity of human intelligence and creativeness been so high than today. All could benefit from existing knowledge, learn in the process of reusing and extending it, contribute to each culture and a global civilisation, adapt technology to their needs and contribute to its progress, participate in science and raise new questions for its enquiry. Commons-based cooperative innovation and creation has demonstrated its specific value in the field of information, knowledge, technology and art that can be represented by information. Free / open source software, open scientific publishing, free encyclopedia, freely accessible digital libraries, publicly shared and produced scientific data, new forms of creation and media are testimony to the value of these schemes. Over the past few centuries, schemes such as copyright, author rights and patents have been designed not against access to knowledge, but to serve it. Limited exclusive rights of various types have been granted, first to serve the advancement of knowledge and the arts in a local or National environment. They have then been progressively globalised in their scope, initially between developed countries, and more recently worldwide. In this process, the exclusive rights granted for various types of creations and innovative artifacts have become so valuable assets for some types of players, and their management or extension is becoming so important to specific interests that the higher goals of serving the progress of humanity are not properly taken in account. It is time to recall these goals. The A2K treaty draft proposal does this is in a pragmatic manner. There is urgency in ensuring than general consumer and public interests are given more weight in matters concerning patents, copyrights and other intellectual property rights. In some parts of the world and some segments of our societies, this is a matter of survival, and everywhere it is a matter of not losing the extraordinary opportunities that are set before us. The treaty draft proposes only minimal adaptations or reminders of common sense. No provision in this treaty can limit the rights of the public to access and use information or knowledge that are defined in other treaty or National legislation. This treaty never limits the ability of its signatories to further act to ensure that all can benefit from commons-based cooperative creation and innovation. WHEREAS + ARTICLE FORM Whereas: ... - Information and communication technology open new possibilities for mobilising the creative and innovative power of human beings in all parts of the world, and for serving their present needs and future endeavours. - Commons-based cooperative innovation and creation has demonstrated its specific value in the field of information, knowledge, technology and art that can be represented by information. - Free / open source software, open scientific publishing, free encyclopedia, freely accessible digital libraries, publicly shared and produced scientific data, new forms of creation and media are testimony to the value of these schemes. - The high interests that are at stake for specific interests when discussing the scope and execution of patents, copyrights and other intellectual property titles, make necessary to ensure that the more general public interest is given proper attention in these debates. - There is high urgency in recalling or making explicit a set of minimal exceptions for some activities and situations that are essential for the access of all to knowledge. - This urgency should not lead to forget the need for a more global recognition of the legitimacy and usefulness of commons-based schemes for innovation and creation. ... Article X: Scope 1. This treaty establishes or makes explicit a minimal set of exceptions that are necessary for the basic channels of access to knowledge to exist in the global information society and for limiting the number of those who are deprived from its benefits. 2. No provision in this treaty can limit the rights of the public to access and use information or knowledge that are defined in other treaty or National legislation. 3. This treaty never limits the ability of its signatories to further act to ensure that all can benefit from commons-based cooperative creation and innovation. From james.love@cptech.org Tue Jan 18 12:24:42 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id DD46429B37 for ; Tue, 18 Jan 2005 12:24:41 -0500 (EST) Received: (qmail 31963 invoked from network); 18 Jan 2005 17:24:41 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 18 Jan 2005 17:24:41 -0000 Received: from 65.222.222.226 ([65.222.222.226]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 18 Jan 2005 17:24:41 -0000 Message-ID: <41ED465B.5050205@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org content-transfer-encoding: quoted-printable content-type: text/plain; charset=windows-1252; format=flowed Subject: [A2k] SDO patent disclosure propoal Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Jan 18 12:26:01 2005 X-Original-Date: Tue, 18 Jan 2005 12:24:43 -0500 This is the *initial* proposal for a WIPO protocol on the development of open standards, focusing on the disclosure issue. Jamie ------ Proposed WIPO Protocol for the Development of Open Standards (PDOS) Version 1.0 Background and Context Open Standards. An open standard is a publicly available specification for achieving a specific task. There are considerable social benefits of having open standards. When anyone can use a standard, there is more competition, and a level playing field among competitors. As noted for example by EU Commissioner Erkki Liikanen, "Open standards are important to help create interoperable and affordable solutions for everybody. They also promote competition by setting up a technical playing field that is level to all market players. This means lower costs for enterprises and, ultimately, the consumer." (World Standards Day, 14 October 2003, http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=3Dgt&d= oc=3DIP/03/1374%7C0%7CRAPID&lg=3DEN) Closed Standards. There are also many standards that are closed, and only available to selected or limited firms, often using proprietary technology, including selectively licensed trade secrets or patented inventions. Standards Development Organizations There are thousands of Standards Development Organizations (SDOs), each proposing, refining and negotiating standards for a plethora of tasks and technical specifications. The most important are global SDOs. In the course of developing standards, the various SDOs have to address problems that arise when one or more =93essential patents(s)=94 are necessary for some to comply with the standard. The patent issue concerns two aspects. First, the SDO has to determine which patents (if any) are relevant to the standard. Second, when patents are involved, the SDO has to determine if there are acceptable licensing terms for the patented inventions. Some open standards are free of patents. Others deal with patents under acceptable licensing practices, including royalty free licensing (particularly important for software or Internet standards), or reasonable and non-discriminatory (RAND) licensing. The issues of disclosure and the acceptable licensing terms are of course related. An SDO needs to know about the patent landscape, and the possible licensing terms for essential patents, before a standard is adopted and firms invest in the implementation of the standard. The Disclosure Problem The problem of identifying which patents are relevant to the implementation of a standard has grown considerably in recent years. Each SDO has its own policies regarding the obligation of its own members to disclose patents, but these obligations only apply to patent holders who are members of an SDO, and often only if they are directly involved in the standards negotiations. Important patents may be held by persons outside of the SDO, and efforts to obtain disclosure of patents may be of limited utility, if owners identify entire portfolios of patents, without constructive descriptions of how patents are actually relevant. Some governments have adopted policies that require members of SDOs participating in the development of a standard to disclose patents, or be estopped from enforcing patents against the standard. However, these rules vary by country, and are not based upon clear statutory rules, and thus are sometimes litigated. And as noted, these rules have no effect on persons who are not members of the SDO or the standards process. Proposal for WIPO Protocol for the Development of Open Standards (PDOS) The initial proposal for addressing the disclosure problem is as follows. WIPO would create a protocol either within the Patent Cooperation Treaty (PCT) or in a separate instrument. WIPO would then undertake initial test cases, which would demonstrate the value of a new mechanism for managing the disclosure of patents relevant to an open standard. The countries that agree to the protocol would be obligated to support the disclosure process, and to prevent any patent owner who failed to provide constructive disclosure from enforcing a patent against the implementation of the standard. Specific steps to the PDOS would include: 1. Creation of WIPO committee on patents and open standards, referred to as the CPOS. 2. The CPOS would establish a process and the criteria for an application by a Standards Development Organization (SDO) to submit an open standard for a PDOS disclosure. 3. To qualify, the SDO must be global, with a membership that is open to any party. 4. A qualifying open standard must be: a. A publicly available specification for achieving a specific task, b. Feasible to implement without access to proprietary data. 5. The SDO seeking to use the PDOS must be developing a standard that will be available to the public on non-discriminatory terms under any of the following three scenarios, a. The Standard is based upon public domain technologies, or b. Patents are licensed on a royalty free basis, or c. Patents are licensed on reasonable and non-discriminatory (RAND) terms. 6. The CPOS will specify the process for the management of the disclosure. This process should include the following steps, a. A description of the SDO, including its policies on membership, b. An initial request by the SDO to use the PDOS, including i. An initial specification of the standard, ii. A narrative of the expected applications for the standard, iii. The results of disclosures of patents made by members of the SDO, iv. The benefits to the public of the development of the standard= , v. Fora for the public notice of the standard, vi. The expected timetable for additional notices of the standard, as the specifications of the standard change. c. If the CPOS accepts the request by the SDO to use the PDOS, it will then draft a PDOS notice. This notice will be published on the WIPO web site, and also on the web site of the patent office of every member of the PDOS. d. Disclosures of patents relevant to the proposed standard will be made to the CPOS. The WIPO Secretariat will reject disclosures that are not responsive to the requirements to be specific with regard to the relevance of the patent to the proposed standard. e. The process of Disclosure will be repeated as appropriate until the standard is final. f. A patent owner who fails to make constructive and informative disclosures of the patent will be prevented from enforcing the patent against the open standard in every country that is a member of the PDOS. Some background readings: Current Topics in IPR Protection in the Context of Global Standard-Setting Processes http://www.wipo.int/sme/en/documents/ip_standards2.htm Intellectual Property Rights Policies of selected standards developers http://www.gtwassociates.com/answers/IPRpolicies.html Criteria for the Evaluation of a patent policy for a Standards Setting Organization http://www.gtwassociates.com/answers/draftIPRcriteria.htm http://en.wikipedia.org/wiki/Standards_Organizations http://en.wikipedia.org/wiki/Open_standard W3C Patent Policy http://www.w3.org/Consortium/Patent-Policy-20040205/ -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From manon.ress@cptech.org Tue Jan 18 13:00:16 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 9D2F529B37 for ; Tue, 18 Jan 2005 13:00:15 -0500 (EST) Received: (qmail 29963 invoked from network); 18 Jan 2005 18:00:15 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 18 Jan 2005 18:00:14 -0000 Received: from 65.222.222.251 ([65.222.222.251]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 18 Jan 2005 18:00:14 -0000 Message-ID: <41ED4EAB.4020501@cptech.org> From: Manon Ress User-Agent: Mozilla/5.0 (X11; U; Linux i686; en-US; rv:1.7.3) Gecko/20041007 Debian/1.7.3-5 X-Accept-Language: en MIME-Version: 1.0 To: a2k discuss list , "Mann, David" content-transfer-encoding: quoted-printable content-type: text/plain; charset=windows-1252; format=flowed Subject: [A2k] WBU presentation at WIPO (quotes) Nov. 2003 Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Jan 18 13:03:03 2005 X-Original-Date: Tue, 18 Jan 2005 13:00:11 -0500 SUMMARY and QUOTES from WBU Presentation at WIPO relevant to a2k treaty discussions. At the World Intellectual Property Organisation (WIPO) Standing Committee on Copyright and Related Rights Information Day, 3 November, 2003, the World Blind Union (WBU) represented by David Mann stated that on the basis of Article 19 of the United Nations Universal Declaration on Human Rights that recognises the right to =93seek, receive and impart information.=94 and Article 27 that recognises the right to participate fully in =93the cultural life of the community=94 as well as Paragraph 5.6 of the United Nations Standard Rules on the Equalisation of Opportunity for Disabled People that also asserts the rights of disabled people to access information, =93if we accept that access to information is a right, then it follows that any impediment to access to information is a denial of that right. Barriers can be economic; they can be technological, and they can be legal.=94 In the presentation, the WBU calls=93for the creation of international agreements which would allow the unhindered transfer of accessible material created in one country to blind and partially sighted people in another country. Bi-lateral or multi-lateral agreements may be the first step. The dream is an international accord backed by WIPO and all its members.=94 Regarding exceptions, the WBU stated that exceptions should have the following features: a) They should achieve general acceptance and recognition of the principle that creation of alternative format versions from lawfully acquired originals on a non-profit basis with controlled distribution, does not constitute an infringement of copyright and therefore requires no permission. b) They should enshrine rights rather than merely improving procedures for permission. c) They should avoid restriction to particular formats or technologies. At the World level, WBU is initiating discussions with the International Publishers Association and other stakeholders. WBU supports any valid initiative to improve this collaboration, including: -adoption by the mainstream publishing industry of standards and specifications which facilitate the creation of accessible copies. The Daisy Standard is the prime example of this. -schemes for compulsory or voluntary deposit of master copies to which bona fide individuals or agencies would have access; -licensing agreements between publishers and agencies serving blind and partially sighted people; -other forms of collaboration between rights holders and agencies, in which the latter are seen as =93trusted intermediaries =94 to whom electronic material may be passed securely in order to facilitate the timely availability of accessible copies of published material. In the same presentation (see full text below), the WBU defined WIPO's role= . Role for WIPO - 1 An important part of WIPO=92s work is to offer advice on intellectual property law to developing countries and to countries in transition. WBU has been discussing with WIPO staff how that advice might be broadened to include advice on the scope for exceptions and limitations for the benefit of blind and partially sighted people, and indeed their desirability. We hope that progress can be made on this front in the very near future. Role for WIPO - 2 WIPO staff advised us earlier this year that they hope to commission a survey of national copyright legislation around the world in respect of exceptions or limitations for blind and partially sighted people. Most significantly for us, this survey would also enquire into any importation rights associated with such exceptions. This will be a valuable first step. We shall be able to see where there is already good practice. Rights holders and legislators will be able to see where there is similarity between different jurisdictions, and may thus feel more confident about entering into undertakings for the transfer of material to those other jurisdictions. Role for WIPO - 3 We very much hope that WIPO investigations into the role of digital rights management and technological protection measures will take full account of this. ************************************************************************* SOURCE: In PDF on WIPO's page: http://www.wipo.int/documents/en/meetings/2003/sccr/index_10.htm Cut and paste: World Intellectual Property Organisation (WIPO) Standing Committee on Copyright and Related Rights Information Day, 3 November, 2003 Presentation by the World Blind Union (WBU) Introduction The World Blind Union (WBU) is extremely grateful to the Standing Committee and to the staff of WIPO for today=92s opportunity to present to you the issues relating to copyright which affect the lives and opportunities of blind and partially sighted people. WBU has affiliate members in 158countries throughout the World. National delegations are made up of organisations representing or working with blind and partially sighted people. We are recognised by the United Nations as a major non-government organisation, and we have enjoyed observer status with WIPO for some ten years. Our President, Ms Kicki Nordstrom, sends her greetings and regrets that, due to prior commitments, she is unable to be here today. However, the President of the European region within WBU, Sir John Wall, CBE, is here. Sir John, Mr Stephen King and I will be happy to discuss matters further with distinguished delegates and observers following this morning=92s meeting. In this presentation, I intend to highlight the balance that should be struck between copyright and rights of access to information and learning. I will explain briefly how blind and partially sighted peopleread and the barriers they face in doing so. I shall indicate ways in which we feel WIPO and its member states can help dismantle some of these barriers. =09Afterwards, my colleagues from The Daisy Consortium and the Libraries for the Blind Section of the International Federation of Library Associations (IFLA) will build on this basic outline and provide greater insight into the problems, but above all the solutions that beckon. Background It is estimated that there are some 180 million blind and partially sighted people in the World. Epidemeology varies significantly from one part of the World to another. Altogether, however, we are talking both about children and young people yearning for education and employment, and older people whose sight has declined as they age, but whose rights to a full and enriching life should not diminish as a result. Article 19 of the United Nations Universal Declaration on Human Rights recognises the right to =93seek, receive and impart information.=94 Article 27 recognises the right to participate fully in =93the cultural life of the community.=94. Paragraph 5.6 of the United Nations Standard Rules on the Equalisation of Opportunity for Disabled People also asserts the rights of disabled people to access information. The term =93information=94 is used here in its broadest sense, encompassing material for life-long learning, culture and entertainment. One essential channel through which information is made available is the written word. It follows that access to the written word is indispensable if the rights of access described above are to be realised. Kofi Annan, Secretary-General of the United Nations, speaking at the inauguration of the UN Decade on Literacy earlier this year, described literacy as a human right. Blind and partially sighted people can only access the written word, whether originally displayed on paper or on computer screen, if the presentation of that material is adapted in some way. Adaptations include enlarging, altering features such as colour or font, transferring into a tactile code or into an audio format. The result may be hard copy braille, large print, tape or CD, or it may take the form of temporary output from computer peripherals such as synthetic speech or or enlarged screen display. In no case is modification to content suggested, only to forms of presentation. WBU recognises that there are people with other disabilities that impair reading in conventional ways. We are mandated to represent only those with a visual impairment, but we in o way wish to stand in the way of others, and believe that comprehensive solutions are desirable. Our reference throughout this presentation to =93blind and partially sighted people=94 does not imply any rejection of the case made by others. If we accept that access to information is a right, then it follows that any impediment to access to information is a denial of that right. Barriers can be economic; they can be technological, and they can be legal. Exceptions and Limitations to Copyright Let me stress that WBU fully accepts that copyright is in itself a legitimate form of moral and economic protection for creators of content and for those who add value to creative work. This right should, however, be balanced against the right of blind and partially sighted people to read the same material as their fellow citizens, at the same time and at no additional cost to the individual. The Berne Convention, the Trade Related Intellectual Property Rights (TRIPS) Treaty and the WIPO Copyright Treaty allow states to include in their intellectual property laws exceptions or limitations to copyright which do not conflict with the legitimate interests of rights holders. A growing number of states have enacted such legislation, although this takes a number of different forms. There is in some countries a commercial market for a limited range of =93accessible=94 material, but large print books and unabridged audio books almost always cost more than the =93standard=94 version. Most accessible material is today still created by specialist agencies operating on charitable funds or social subventions. This means in practice that only a small proportion of the material published currently becomes available in accessible formats. In the UK, for example, it is estimated that only around 5% of published titles ever become available in accessible formats, and it is rare indeed for the accessible version to come out until months or years after the original. If no exceptions or limitations exist in national legislation for the benefit of blind and partially sighted people, then those producing accessible formats need to seek explicit permission for every title and every format. This causes delay and is sometimes met with refusal, denying people vital access to a text they urgently require. It also places a huge administrative burden on organisations producing accessible material. WBU believes that every state in the World should have exceptions or limitations in its national law, for the benefit of blind and partially sighted people. We would urge distinguished delegates from those countries who do not yet have these to consider how they can introduce them as a matter of urgency. We believe those exceptions should have the following features: a) They should achieve general acceptance and recognition of the =09principle that creation of alternative format versions from lawfully =09acquired originals on a non-profit basis with controlled distribution, does =09not constitute an infringement of copyright and therefore requires no permission. b) They should enshrine rights rather than merely improving procedures for permission. c) They should avoid restriction to particular formats or technologies. Role for WIPO - 1 An important part of WIPO=92s work is to offer advice on intellectual property law to developing countries and to countries in transition. WBU has been discussing with WIPO staff how that advice might be broadened to include advice on the scope for exceptions and limitations for the benefit of blind and partially sighted people, and indeed their desirability. We hope that progress can be made on this front in the very near future. The International Dimension However, national arrangements are not, in our view, enough on their own. A blind person in, say, Canada can benefit from that country=92s copyright exceptions. Another blind person, even one sharing the Canadian=92s language, in for example France or the UK, wanting to read material made accessible in Canada, still may have no right to do so, even if their own country also has exceptions in its copyright legislation. No jurisdiction can legislate for another. Because of the acute shortage of accessible materials, blind and partially =09sighted people should also have straightforward access to the world stock of accessible materials without geographical or territorial limitations caused by legislative divergence. Again, this would be on a non-profit basis with controlled distribution. Thus, WBU also calls for the creation of international agreements which would allow the unhindered transfer of accessible material created in one country to blind and partially sighted people in another country. Bi-lateral or multi-lateral agreements may be the first step. The dream is an international accord backed by WIPO and all its members. Role for WIPO - 2 WIPO staff advised us earlier this year that they hope to commission a survey of national copyright legislation around the world in respect of exceptions or limitations for blind and partially sighted people. Most significantly for us, this survey would also enquire into any importation rights associated with such exceptions. This will be a valuable first step. We shall be able to see where there is already good practice. Rights holders and legislators will be able to see where there is similarity between different jurisdictions, and may thus feel more confident about entering into undertakings for the transfer of material to those other jurisdictions. Technological Barriers The advent of digital rights management and technological protection measures has often created new technological barriers. The systems used are often incompatible with current access technology. Copyright legislation should therefore create mechanisms to ensure that anyone benefiting from an exception to copyright law is not then prevented from =09enjoying that exception because of an inadvertent technical block, and is afforded access by another legal means. Role for WIPO - 3 We very much hope that WIPO investigations into the role of digital rights management and technological protection measures will take full account of this. Building the Future WBU also recognises that the removal of copyright barriers, while an invaluable foundation for future action, will not alone give instant access to all published material. It is also important to establish close working relationships between rights holders (especially publishers) and agencies serving blind and partially sighted people. At the World level, we are now initiating discussions with the International Publishers Association, alongside our colleagues in the other bodies addressing you today. Parallel contacts exist in several countries or regions. WBU supports any valid initiative to improve this collaboration, including: -=09adoption by the mainstream publishing industry of standards and specifications which facilitate the creation of accessible copies. The Daisy Standard is the prime example of this. -=09schemes for compulsory or voluntary deposit of master copies to which bona fide individuals or agencies would have access; -=09licensing agreements between publishers and agencies serving blind and partially sighted people; -=09other forms of collaboration between rights holders and agencies, in which the latter are seen as =93trusted intermediaries =94 to whom electronic material may be passed securely in order to facilitate the timely availability of accessible copies of published material. Conclusion In conclusion, let me stress that WBU is not opposed to the legitimate application of copyright. Nor do we wish to deny rights holders a fair return for their endeavours. Where the market can provide accessible material at the same time and at the same price as the =93standard=94 versi= on, there is no need for intervention. However, in so many cases this is not =09so, and blind and partially sighted people, along with those serving them, should be assisted by legislators to realise their right to share in the rich culture and wealth of knowledge open to society as a whole. We urge WIPO to play its part in realising for blind and partially sighted people throughout the World their Right to Read. Thank you. David Mann, 3rd November, 2003 -- Manon Anne Ress manon.ress@cptech.org, www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: +1.202.387.8030, fax: +1.202.234.5176 Consumer Project on Technology in Geneva, 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727 Consumer Project on Technology in London, 24 Highbury Cresent, London, N5 1RX, UK. Tel:+44(0)207 226 6663 ex 253. Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607 From manon.ress@cptech.org Thu Jan 20 14:53:08 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id E43DC29B57 for ; Thu, 20 Jan 2005 14:53:07 -0500 (EST) Received: (qmail 10072 invoked from network); 20 Jan 2005 19:53:07 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 20 Jan 2005 19:53:07 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 20 Jan 2005 19:53:07 -0000 Message-ID: <41F00C22.4050701@cptech.org> From: Manon Ress User-Agent: Mozilla/5.0 (X11; U; Linux i686; en-US; rv:1.7.3) Gecko/20041007 Debian/1.7.3-5 X-Accept-Language: en MIME-Version: 1.0 To: a2k discuss list content-transfer-encoding: quoted-printable content-type: text/plain; charset=windows-1252; format=flowed Subject: [A2k] DRMs & Copyright/DRMs & Consumers Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Thu Jan 20 14:55:03 2005 X-Original-Date: Thu, 20 Jan 2005 14:53:06 -0500 FROM: Natali Helberger Senior project researcher Institute for Information Law Rokin 84 1012 KX Amsterdam The Netherlands Tel. + 31 20 525 36 46 Fax. + 31 20 525 30 33 http://www.ivir.nl Please notice the project http://www.indicare.org - The Informed Dialogue about Consumer Acceptability of Digital Rights Management solutions in Europe RE: a2k and DRMs Here is a collection of some ideas of how copyright law could be reconciled with consumer interests. The suggestions are divided into two parts. The first concerns the relationship between DRMs and copyright law. The second one concerns, more generally, the relationship between DRMs and consumer interests: 1. DRMs and the boundaries of copyright law Define narrow scope technological measures: Only such technological solutions would fall under the anti-circumvention rules, which have been specifically developed to protect existing intellectual property rights, notably the right to control the making of copies and communication of works to the public. Comment: controlling access to works is not a right that is protected under copyright law. Re-enforcing territorial borders (region codes) is also not a right that is protected under copyright law, etc. And: if one would take the requirement of effective technological measures seriously, for the time being there were probably no DRMs that deserve protection under the anti-circumvention rules. Hold DRM users responsible for respecting the limitations and exceptions in copyright law Comment: the underlying concept is to make clear that in those situations in which copyright exceptions apply, the protection period has expired, copyright law does not apply etc, the use of DRMs is not protected by anti-circumvention rules. Motto: it is the property order that dictates how to place the fence, and not the fence that dictates the property order. Foresee sanctions in case that DRM users fail to make DRMs compatible with copyright law Comment: self-explanatory Foresee a right to appeal for a) consumers and b) consumer organisations if DRM =09users fail to make DRMs compatible with copyright law Comment: self-explanatory Note: Taking into account that, as DRM developers often argue, it is not possible to make DRMs compatible with copyright law, the above suggestion would have the side effect that there are probably almost no DRMs which would qualify for protection. Furthermore, it would stimulate R & D to design more consumer friendly DRMs, provided such DRMs were possible. The anti-circumvention rules, as they are now, do not stimulate this at all. Note: Cory, your suggestion that "a DRM that is capable of being used in excess of the bounds of copyright can be lawfully circumvented and that the tools to accomplish this circumvention are lawful to manufacture and sell" is another interesting alternative. The problem is: a) how effective would this solution be in practice, and how many users would make use of it? b) why should consumers be forced to circumvent when it should be, first of all, the responsibility of DRM users not to impede legitimate uses?, c) the practical problems with realising this plan could weaken the strength of this argument considerably when it comes to negotiating it. Similar is true for the suggestion to carve out unambiguous =91rights=92 to perform certain permitted activities such as private copying, even when technological measures are applied. This is the approach taken by the German legislator in the context of the implementation act. In practice, this suggestion will probably have limited practical effect. Most importantly, this is because it is unlikely that consumers will turn to the courts to claim the right to make a copy of a CD. Secondly, there are good arguments to argue in favour of a more general consumer protection agenda concerning DRMs. Some important points on such an agenda could be: 2. DRMs and consumers interests DRMs must be designed and applied in a way that they do not conflict with legitimate rights and interests of consumers Key-aspects are: Consumer friendly design Comment: The use of DRM may not hinder the normal processing of content, for example because of incompatibilities or because the TPM is not robust enough to work with current and future technologies. Responding to the needs of consumers with special needs Comment: self-explanatory Hardware and security issues TPM users must respect the consumers=92 property in their hardware and software. Where TPMs cause damages to consumers' property, consumers should be able to hold TPM controllers liable for the damage. Comment: Hardware and security issues concern cases where TPMs come in conflict with other software installed on a PC, a situation that can lead to incompatibilities and application failures. Also, where TPMs require an online registration procedure or are remotely controlled, this should not confront consumers with the risk of external attacks. Respecting the right to privacy Comment: self-explanatory. An obligation to implement Privacy Enhancing Technologies (PETs) may be an interesting route to follow. Transparency Consumers should receive sufficient information on whether TPMs are used and how do they affect the usability of digital content. More specifically, consumers should have information about Are DRMs used? How are DRMs used and how do they affect the usability of works (are they used to collect personal data, do they allow private copying, forwarding, sampling, etc., what are the terms under which all flags can be switched on or off before the device is purchased/acquired - Cory, this is your point)? What are the terms and conditions governing DRMs, are they changed remotely, etc. ? Who is the operator of DRMs? How to contact this operator? Comment: information should be distributed in a way that is easily understandable and accessible for the average user. Self-regulatory solutions might be an option. Standard term contract The formation and content of standard form contracts concluded in the context of digital content delivery should be regulated so as to enhance the fairness of terms and the consumers=92 confidence. Right to withdrawal If the contract terms change, consumers should have a right to withdraw. Comment: Cory, this is your point. Actually, a similar provision can already now be found in European telecommunications law. DRMs must be designed and applied in a way that they do not create obstacles to functioning competition Competition DRMs may not be used in an anti-competitive way. Comment: Actually, this is evident. If DRMs are used in an anti-competitive way competition laws will apply. Important is the underlying idea: DRM protected contents or services should meet the legitimate expectations of consumers. Accordingly, the conditions should be given for a competitive market for such products and services, so that consumers are offered a choice from a range of different products and services and can make a decision for the product that meets best the consumers=92 expectations concerning quality and price of the product. Important aspects in this context are: Interoperability This is a tricky one. Making DRMs interoperable in form of standardisation is not always in the interest of consumers. Also, as Cory points out very correctly, DRM standards must not preclude FOSS. Still, it might be beneficial and competition enhancing to find ways to prevent technical lock-in/out situations. Transparency Comment: It is not sufficient that consumers are free to switch between different services and interoperable platforms; they must also be able to access information about the choices available to them. For consumers to be able to compare terms and conditions and choose the service that offers the most attractive conditions to them, they need answers to the following questions: -- Manon Anne Ress manon.ress@cptech.org, www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: +1.202.387.8030, fax: +1.202.234.5176 Consumer Project on Technology in Geneva, 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727 Consumer Project on Technology in London, 24 Highbury Crescent, London, N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607 From cory@eff.org Thu Jan 20 18:19:45 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from smtp.well.com (smtp.well.com [206.14.209.7]) by lists.essential.org (Postfix) with ESMTP id 7A55629B57 for ; Thu, 20 Jan 2005 18:19:44 -0500 (EST) X-WELL-Auth: Yes Received: from [IPv6:::1] (well.com [206.14.209.5]) by smtp.well.com (8.13.0/8.13.0) with ESMTP id j0KNJckj025643; Thu, 20 Jan 2005 15:19:40 -0800 (PST) In-Reply-To: <41F00C22.4050701@cptech.org> References: <41F00C22.4050701@cptech.org> Mime-Version: 1.0 (Apple Message framework v619) Message-Id: Cc: a2k discuss list From: Cory Doctorow Subject: Re: [A2k] DRMs & Copyright/DRMs & Consumers To: Manon Ress X-Mailer: Apple Mail (2.619) X-Virus-Scanned: ClamAV 0.80/674/Tue Jan 18 12:27:28 2005 clamav-milter version 0.80j on smtp.well.com X-Virus-Status: Clean content-transfer-encoding: quoted-printable content-type: text/plain; charset=WINDOWS-1252; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Thu Jan 20 18:28:01 2005 X-Original-Date: Thu, 20 Jan 2005 23:19:36 +0000 some thoughts on this: > =B7=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0Define narrow scope technolo= gical measures: > > Only such technological solutions would fall under the > anti-circumvention rules, which have been specifically developed to > protect existing intellectual property rights, notably the right to > control the making of copies and communication of works to the > public.=A0 > Is this narrow enough? I can think of lots of fair dealing/customary expectation contexts in which making a copy is a valid thing for a customer to do, eg backing up. =A0 > =B7=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0Hold DRM users responsible f= or respecting the > limitations and exceptions in copyright law My concern here is that new limitations arise out of "piracy" -- for example, the widespread norm that allows a network operator to make an ephemeral copy for the purposes of cacheing. This was illegal when the practice started, now it is tolerated everywhere and explicitly legal in many places. if the DRM is allowed to restrict everything not explicitly permitted, how will new exceptions evolve? =A0 > =B7=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0=A0Foresee a right to appeal fo= r a) consumers and b) > consumer organisations if DRM users fail to make DRMs compatible with > copyright law The problem with this is that it creates a world where all you need to do to take away a right from the public is embed it in DRM, but in order to get that right back, a citizen has to find the wherewithal to fight the DRM in court. That's why I favour allowing anyone to manufacture a circumvention device if the DRM it circumvents can be used beyond the scope of copyright. > The problem is: a) how effective would this solution be in practice, > and how many users would make use of it? b) why should consumers be > forced to circumvent when it should be, first of all, the > responsibility of DRM users not to impede legitimate uses?, c) the > practical problems with realising this plan could weaken the strength > of this argument considerably when it comes to negotiating it. I think that given the experience of 321 Studios and other commercial operators who have come under legal attack for manufacturing circumvention tools that we're pretty likely to see such tools in the field. I don't mind sanctioning DRM makers, but I think that that process will be slow and ungainly as compared to simply availing oneself of the right tools for the job. > TPM users must respect the consumers=92 property in their hardware and > software.=A0Where TPMs cause damages to consumers' property, consumers > should be able to hold TPM controllers liable for the damage. I like this, but I'd like to see the formulation broadened to recognize that one way of damaging my device is to for example switch on a flag that disables my fast-forward button or to force an update that removes my ability to record. > This is a tricky one. Making DRMs interoperable in form of > standardisation is not always in the interest of consumers. Also, as > Cory points out very correctly, DRM standards must not preclude FOSS. > Still, it might be beneficial and competition enhancing to find ways > to prevent technical lock-in/out situations. This is a little weird -- after all, the point of DRM is limit interoperability (that is, to keep users from using "rogue" software/hardware to operate on their media). I wonder if there is still a functional definition of DRM after you mandate that it provide interop? > :It is not sufficient that consumers are free to switch between > different services and interoperable platforms; they must also be able > to access information about the choices available to them.=A0 Also: fundamental to the right/ability to switch providers is the right/ability to migrate your media when you do, so that abandoning iTunes for eMusic down't mean losing your iTunes music. On Jan 20, 2005, at 7:53 PM, Manon Ress wrote: > FROM: > Natali Helberger > Senior project researcher > Institute for Information Law > Rokin 84 > 1012 KX Amsterdam > The Netherlands > Tel. + 31 20 525 36 46 > Fax. + 31 20 525 30 33 > http://www.ivir.nl > Please notice the project http://www.indicare.org - The Informed > Dialogue about Consumer Acceptability of Digital Rights Management > solutions in Europe > > RE: a2k and DRMs > > Here is a collection of some ideas of how copyright law could be > reconciled with consumer interests. The suggestions are divided into > two > parts. The first concerns the relationship between DRMs and copyright > law. The second one concerns, more generally, the relationship between > DRMs and consumer interests: > > > 1. DRMs and the boundaries of copyright law > > Define narrow scope technological measures: > Only such technological solutions would fall under the > anti-circumvention rules, which have been specifically developed to > protect existing intellectual property rights, notably the right to > control the making of copies and communication of works to the public. > > Comment: controlling access to works is not a right that is protected > under copyright law. Re-enforcing territorial borders (region codes) is > also not a right that is protected under copyright law, etc. > > And: if one would take the requirement of effective technological > measures seriously, for the time being there were probably no DRMs that > deserve protection under the anti-circumvention rules. > > Hold DRM users responsible for respecting the limitations and > exceptions > in copyright law > > Comment: the underlying concept is to make clear that in those > situations in which copyright exceptions apply, the protection period > has expired, copyright law does not apply etc, the use of DRMs is not > protected by anti-circumvention rules. Motto: it is the property order > that dictates how to place the fence, and not the fence that dictates > the property order. > > Foresee sanctions in case that DRM users fail to make DRMs compatible > with copyright law > > Comment: self-explanatory > > Foresee a right to appeal for a) consumers and b) consumer > organisations > if DRM =09users fail to make DRMs compatible with copyright law > > Comment: self-explanatory > > > Note: Taking into account that, as DRM developers often argue, it is > not > possible to make DRMs compatible with copyright law, the above > suggestion would have the side effect that there are probably almost no > DRMs which would qualify for protection. Furthermore, it would > stimulate > R & D to design more consumer friendly DRMs, provided such DRMs were > possible. The anti-circumvention rules, as they are now, do not > stimulate this at all. > > Note: Cory, your suggestion that "a DRM that is capable of being used > in > excess of the bounds of copyright can be lawfully circumvented and that > the tools to accomplish this circumvention are lawful to manufacture > and > sell" is another interesting alternative. The problem is: a) how > effective would this solution be in practice, and how many users would > make use of it? b) why should consumers be forced to circumvent when it > should be, first of all, the responsibility of DRM users not to impede > legitimate uses?, c) the practical problems with realising this plan > could weaken the strength of this argument considerably when it comes > to > negotiating it. > > Similar is true for the suggestion to carve out unambiguous =91rights=92 = to > perform certain permitted activities such as private copying, even when > technological measures are applied. This is the approach taken by the > German legislator in the context of the implementation act. In > practice, this suggestion will probably have limited practical effect. > Most importantly, this is because it is unlikely that consumers will > turn to the courts to claim the right to make a copy of a CD. > > > Secondly, there are good arguments to argue in favour of a more general > consumer protection agenda concerning DRMs. Some important points on > such an agenda could be: > > > 2. DRMs and consumers interests > > DRMs must be designed and applied in a way that they do not conflict > with legitimate rights and interests of consumers > > Key-aspects are: > Consumer friendly design > > Comment: The use of DRM may not hinder the normal processing of > content, > for example because of incompatibilities or because the TPM is not > robust enough to work with current and future technologies. > > Responding to the needs of consumers with special needs > > Comment: self-explanatory > > Hardware and security issues > > TPM users must respect the consumers=92 property in their hardware and > software. Where TPMs cause damages to consumers' property, consumers > should be able to hold TPM controllers liable for the damage. > > Comment: Hardware and security issues concern cases where TPMs come in > conflict with other software installed on a PC, a situation that can > lead to incompatibilities and application failures. Also, where TPMs > require an online registration procedure or are remotely controlled, > this should not confront consumers with the risk of external attacks. > > Respecting the right to privacy > > Comment: self-explanatory. An obligation to implement Privacy Enhancing > Technologies (PETs) may be an interesting route to follow. > > Transparency > > Consumers should receive sufficient information on whether TPMs are > used > and how do they affect the usability of digital content. More > specifically, consumers should have information about > Are DRMs used? > How are DRMs used and how do they affect the usability of works (are > they used to collect personal data, do they allow private copying, > forwarding, sampling, etc., what are the terms under which all flags > can > be switched on or off before the device is purchased/acquired - Cory, > this is your point)? > What are the terms and conditions governing DRMs, are they changed > remotely, etc. ? > Who is the operator of DRMs? How to contact this operator? > > Comment: information should be distributed in a way that is easily > understandable and accessible for the average user. Self-regulatory > solutions might be an option. > > Standard term contract > > The formation and content of standard form contracts concluded in the > context of digital content delivery should be regulated so as to > enhance > the fairness of terms and the consumers=92 confidence. > > Right to withdrawal > > If the contract terms change, consumers should have a right to > withdraw. > > Comment: Cory, this is your point. Actually, a similar provision can > already now be found in European telecommunications law. > > > DRMs must be designed and applied in a way that they do not create > obstacles to > functioning competition > > Competition > DRMs may not be used in an anti-competitive way. > > Comment: Actually, this is evident. If DRMs are used in an > anti-competitive way competition laws will apply. Important is the > underlying idea: DRM protected contents or services should meet the > legitimate expectations of consumers. Accordingly, the conditions > should > be given for a competitive market for such products and services, so > that consumers are offered a choice from a range of different products > and services and can make a decision for the product that meets best > the > consumers=92 expectations concerning quality and price of the product. > Important aspects in this context are: > Interoperability > > This is a tricky one. Making DRMs interoperable in form of > standardisation is not always in the interest of consumers. Also, as > Cory points out very correctly, DRM standards must not preclude FOSS. > Still, it might be beneficial and competition enhancing to find ways to > prevent technical lock-in/out situations. > > Transparency > > Comment: It is not sufficient that consumers are free to switch between > different services and interoperable platforms; they must also be able > to access information about the choices available to them. For > consumers to be able to compare terms and conditions and choose the > service that offers the most attractive conditions to them, they need > answers to the following questions: > > > > > > -- > Manon Anne Ress > manon.ress@cptech.org, > www.cptech.org > > Consumer Project on Technology in Washington, DC PO Box 19367, > Washington, DC 20036, USA Tel.: +1.202.387.8030, fax: +1.202.234.5176 > > Consumer Project on Technology in Geneva, 1 Route des Morillons, CP > 2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727 > > Consumer Project on Technology in London, 24 Highbury Crescent, London, > N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax: > +44(0)207 354 0607 > > > > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > From manon.ress@cptech.org Thu Jan 20 18:24:18 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 43E3729B57 for ; Thu, 20 Jan 2005 18:24:18 -0500 (EST) Received: (qmail 10434 invoked from network); 20 Jan 2005 23:24:17 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 20 Jan 2005 23:24:17 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 20 Jan 2005 23:24:17 -0000 Message-ID: <41F03DA1.6040903@cptech.org> From: Manon Ress User-Agent: Mozilla/5.0 (X11; U; Linux i686; en-US; rv:1.7.3) Gecko/20041007 Debian/1.7.3-5 X-Accept-Language: en MIME-Version: 1.0 To: a2k discuss list content-transfer-encoding: 7bit content-type: text/plain; charset=us-ascii; format=flowed Subject: [A2k] DRMs post Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Thu Jan 20 18:28:04 2005 X-Original-Date: Thu, 20 Jan 2005 18:24:17 -0500 RE: My earlier post on DRMs and copyright and DRMs and consumers Natali was not representing INDICARE, IViR etc, she wrote these comments on her own capacity and does not want to be quoted. Manon -- Manon Anne Ress manon.ress@cptech.org, www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: +1.202.387.8030, fax: +1.202.234.5176 Consumer Project on Technology in Geneva, 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727 Consumer Project on Technology in London, 24 Highbury Crescent, London, N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607 From james.love@cptech.org Sun Jan 23 08:02:47 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 68A9829B59 for ; Sun, 23 Jan 2005 08:02:47 -0500 (EST) Received: (qmail 11766 invoked from network); 23 Jan 2005 13:02:46 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 23 Jan 2005 13:02:46 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 23 Jan 2005 13:02:46 -0000 Message-ID: <41F3A075.8020608@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] a2k proposal: formalities for TRIPS Plus copyright terms Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 23 08:04:02 2005 X-Original-Date: Sun, 23 Jan 2005 08:02:45 -0500 DRAFT Enhancing the Public Domain - 1 REQUIREMENT FOR FORMALITIES WHEN COPYRIGHT TERM EXCEEDS TRIPS REQUIREMENTS COPYRIGHT TERM REQUIRED BY THE TRIPS The WTO TRIPS Agreement is the most important agreement concerning copyright and related rights because of the Dispute Resolution mechanism for applying sanctions to parties that violate the agreement. The TRIPS requires countries to offer a copyright term of at least 50 years, when the term is not calculated on the basis of the life of a natural person (works for hire), except for photographs. The TRIPS also requires members to comply with Articles 1 through 21 of the Berne Convention (1971) and the Berne Appendix (with the exception of Article 6bis). This makes these Berne Treaty articles subject to the strong WTO enforcement mechanisms, including the Berne provisions on the copyright term. Article 7 of the Berne requires that the term of copyright be life plus fifty years for most works, fifty years for cinematographic works, and 25 years for photographic works and works of applied art in so far as they are protected as artistic work. TRIPS PLUS COPYRIGHT TERMS A number of states have extended the term of copyright beyond that required by the TRIPS or the Berne, upwards to us much as 100 years for works for hire, or life plus seventy years or more for terms based upon the life of a natural person. There are also some important treaties and trade agreements that address copyright terms, including for example the 1996 WIPO Copyright Treaty that extended the term for photographs to 50 years, and a plethora of US and EU trade agreements that require copyright to be extended to life plus 70 years. BERNE PROVISIONS ON FORMALITIES Article 5 of the Berne also declares that the enjoyment and exercise of copyright not be subject to any formality, and not be based upon the existence of protection the country of origin of the work. PROBLEMS WITH FORMALITIES Recently Larry Lessig has draw renewed attention to the problems created by the elimination of formalities for copyright. Most works now protected by copyright have no commercial market, many are out-of-print or not available in modern distribution formats, and persons seeking to use works are faced with enormous difficulties locating right owners and negotiating licenses. Lessig has proposed the reintroduction of formalities for works, with the expectation that this would sort out the cases where right owners are truly interested in controlling distribution of works, and make it easier to identify and locate right owners. The United States did not join the Berne Convention until 1989. Before that, the US required registration for copyright. Works that were not registered entered the public domain. The United States and many other countries still have registration systems. In the United States the registration of copyrighted works is optional, but encouraged through legal provisions regarding the enforcement of rights. PROPOSAL FOR FORMALITIES ON TRIPS PLUS COPYRIGHT TERMS REGISTRATION OF COPYRIGHT FOR WORKS WHEN COPYRIGHT TERM EXCEEDS TRIPS REQUIREMENTS Parties agree to require that works subject to copyright protections will not be protected beyond the minimum terms set out in the WTO TRIPS agreement, unless the extended term of protection is based upon the registration of the work and the inclusion of a notice of extended copyright term identifying the right owner and the date the work will enter the public domain. -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From james.love@cptech.org Sun Jan 23 08:25:54 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 62E5129B59 for ; Sun, 23 Jan 2005 08:25:54 -0500 (EST) Received: (qmail 25895 invoked from network); 23 Jan 2005 13:25:53 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 23 Jan 2005 13:25:53 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 23 Jan 2005 13:25:53 -0000 Message-ID: <41F3A5DE.4050106@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org content-transfer-encoding: quoted-printable content-type: text/plain; charset=windows-1252; format=flowed Subject: [A2k] A2k - Additional Measures on Copyright Term Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 23 08:27:01 2005 X-Original-Date: Sun, 23 Jan 2005 08:25:50 -0500 A2k - Additional Measures on Copyright Term COPYRIGHT TERM OF PROTECTION Unlike the term for patents or many other types of intellectual property, modern copyright terms do not bear any relationship to economic incentives to create works. Arguments for extending terms may pay some lip service to economic benefits of protection, but they are more typically motivated by rent seeking lobbying by owners of long deceased authors or holders of corporate owned works for hire, and marketed on the basis of the need to =93honor=94 the creative community. In recent years there has been renewed interest in controlling the enormous extensions of copyright terms, and protecting the public domain. These proposals are somewhat overlapping, and supplement the earlier proposal on formalities for TRIPS plus copyright terms. 1. NO RETROACTIVE EXTENSION OF COPYRIGHT TERM FOR WORKS FOR HIRE OR WORKS WHEN AUTHOR HAS ALIENATED ECONOMIC RIGHTS Members agree that any future extensions of copyright terms will not be retroactive for works when the term of protection is based upon anything other than the life of a natural person, or in any case for any work for which the author has alienated all economic rights. 2. NO TRIPS PLUS TERM FOR WORKS FOR HIRE Members agree to that copyright terms for works for hire will not exceed 50 years for most works, and 25 years for works for hire involving photographic works and works of applied art in so far as they are protected as artistic work. -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From james.love@cptech.org Sun Jan 23 09:44:44 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 4049B29B5E for ; Sun, 23 Jan 2005 09:44:44 -0500 (EST) Received: (qmail 3491 invoked from network); 23 Jan 2005 14:44:43 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 23 Jan 2005 14:44:43 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 23 Jan 2005 14:44:43 -0000 Message-ID: <41F3B85A.7000204@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] a2k - Public Goods Database Exception to Patentability Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 23 09:46:01 2005 X-Original-Date: Sun, 23 Jan 2005 09:44:42 -0500 Proposal To Limit Patents Associated with Certain Public Good Databases Mechanisms to limit patents on inventions which are derived from certain open public goods databases This is the so called "HapMap" proposal that was developed in a meeting a Cambridge University last summer on licensing of patents for public goods. Jamie <--------Proposal-------------> The WIPO PCT will adopt procedures whereby persons, organizations or communities that seek to establish certain qualifying open public goods databases (QOPGD) apply for a time limited period during which no patent applications can be submitted that rely upon the data from the QOPGD. <------end proposal--------------> Explanatory note: For example, when it was first created, the developers of the HapMap database (see licensing terms below) asked that patents not be filed for a period of three years. The license did create problems in terms of the dissemination of the information, and was eventually eliminated, but only after it had served its basic purpose, which was to protect the public good against misappropriation by private patents for a critical period of time. An agreement among members of the PCT to coordinate efforts to create an exception for patents in cases like this will enable broader dissemination of the results. EXCERPTS FROM THE ORIGINAL HAPMAP TERMS AND CONDITIONS FOR ACCESS TO AND USE OF THE GENOTYPE DATABASE 2. You may access and conduct queries of the Genotype Database and copy, extract, distribute or otherwise use copies of the whole or any part of the Genotype Database's data as you receive it, in any medium and for all (including for commercial) purposes, provided always that: a. by your actions (whether now or in the future), you shall not restrict the access to, or the use which may be made by others of, the Genotype Database or the data that it contains; b. in particular, but without limitation, i. you shall not file any patent applications that contain claims to any composition of matter of any single nucleotide polymorphism ("SNP"), genotype or haplotype data obtained from the Genotype Database or any SNP, haplotype or haplotype block based on data obtained from the Genotype Database; and ii. you shall not file any patent applications that contain claims to particular uses of any SNP, genotype or haplotype data obtained from the Genotype Database or any SNP, haplotype or haplotype block based on data obtained from, the Genotype Database, unless such claims do not restrict, or are licensed on such terms that that they do not restrict, the ability of others to use at no cost the Genotype Database or the data that it contains for other purposes; and -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From james.love@cptech.org Sun Jan 23 12:36:04 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 9AA3529B63 for ; Sun, 23 Jan 2005 12:36:02 -0500 (EST) Received: (qmail 1853 invoked from network); 23 Jan 2005 17:36:00 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 23 Jan 2005 17:35:59 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 23 Jan 2005 17:35:59 -0000 Message-ID: <41F3E07C.4030605@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org content-transfer-encoding: quoted-printable content-type: text/plain; charset=windows-1252; format=flowed Subject: [A2k] Control of anticompetitive practices Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 23 12:38:02 2005 X-Original-Date: Sun, 23 Jan 2005 12:35:56 -0500 This can be improved and expanded. Jamie Proposal on issues related to the control of anticompetitive practices in contractual licenses Version January 23, 2005 1. Relationship between intellectual property rights and competition laws Members agree that some licensing practices and conditions pertaining to intellectual property rights restrain competition and have adverse effects on trade and impede the transfer and dissemination of technology. Members agree to specify in their legislation licensing practices or conditions that in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. 2. Control of Anticompetitive Practices Advisory Committee An Advisory Committee on the Control of Anticompetitive Practices (ACCAP) is established. The ACCAP shall at least once very two years to provide assistance to Members seeking to implement of Article 40 of the TRIPS. 3. Essential Software for Access to Knowledge and Transfer and Dissemination of Technology. Within two years the ACCAP will identify essential software that is critical for access to knowledge and the transfer and dissemination of technology. This list shall be updated at least every [four] years. The ACCAP will publish and best practices guidelines for Members seeking to promote competition and access to essential software, addressing at least the following topics: a.=09Government procurement policies relating to the licensing of software, and requirements for i.=09Open interfaces, ii.=09Obligations for software source code be released to the public within a fixed period of time, iii.=09Use of standards compliant file formats for data storage, b.=09Obligations to license interface information on a non-discriminatory basis, c.=09Excessive pricing of products with significant market power. d.=09Application of essential facilities and tying doctrines, with particular emphasis on obligations to un-bundle software components that are potentially competitive from components have substantial market power. 4.=09Excessive pricing of essential knowledge goods The ACCAP will collect and dissemination information about state practice on addressing problems relating to excessive pricing of essential knowledge goods, including education materials, essential software, library reference materials and scientific databases. <----------------Article 40 of the TRIPS Agreement-----------> Section 8: control of anti-competitive practices in contractual licences Article 40 1. Members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology. 2. Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member. 3. Each Member shall enter, upon request, into consultations with any other Member which has cause to believe that an intellectual property right owner that is a national or domiciliary of the Member to which the request for consultations has been addressed is undertaking practices in violation of the requesting Member=92s laws and regulations on the subject matter of this Section, and which wishes to secure compliance with such legislation, without prejudice to any action under the law and to the full freedom of an ultimate decision of either Member. The Member addressed shall accord full and sympathetic consideration to, and shall afford adequate opportunity for, consultations with the requesting Member, and shall cooperate through supply of publicly available non-confidential information of relevance to the matter in question and of other information available to the Member, subject to domestic law and to the conclusion of mutually satisfactory agreements concerning the safeguarding of its confidentiality by the requesting Member. 4. A Member whose nationals or domiciliaries are subject to proceedings in another Member concerning alleged violation of that other Member=92s laws and regulations on the subject matter of this Section shall, upon request, be granted an opportunity for consultations by the other Member under the same conditions as those foreseen in paragraph 3. -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From peters@earlham.edu Sun Jan 23 17:03:41 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from ke.earlham.edu (ke.earlham.edu [159.28.1.93]) by lists.essential.org (Postfix) with ESMTP id 9B8E829B37 for ; Sun, 23 Jan 2005 17:03:40 -0500 (EST) Received: from pds.earlham.edu (66-252-37-85.da.midmaine.com [66.252.37.85]) (authenticated bits=0) by ke.earlham.edu (8.12.6/8.12.6) with ESMTP id j0NM3B7m075002; Sun, 23 Jan 2005 17:03:17 -0500 (EST) (envelope-from peters@earlham.edu) Message-Id: <6.2.0.14.2.20050123163525.04ed4de0@pop.earlham.edu> X-Mailer: QUALCOMM Windows Eudora Version 6.2.0.14 To: a2k@lists.essential.org, SPARC-OAForum@arl.org, boai-forum@ecs.soton.ac.uk From: Peter Suber Mime-Version: 1.0 X-Sanitizer: This message has passed the MIMEDefang sanitizer. X-Sanitizer-URL: http://www.earlham.edu/~ecs X-Sanitizer-Version: MIMEDefang/ECSanitizer $Revision: 1.18 $ X-Sanitizer-Config-Version: $Revision: 1.176 $ X-Scanned-By: MIMEDefang 2.33 (www . roaringpenguin . com / mimedefang) content-transfer-encoding: 7bit content-type: text/plain; charset=us-ascii; format=flowed Subject: [A2k] Open-access proposal for the a2k treaty Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 23 19:26:01 2005 X-Original-Date: Sun, 23 Jan 2005 17:02:52 -0500 Colleagues, I propose the following provisions for the Access to Knowledge Treaty. Their purpose is to promote open access to scientific and scholarly research literature. * Signatory nations should put an open-access condition on publicly-funded research grants. By accepting a grant, the grantee agrees to provide open access (OA) to any publications that result from the funded research. The funding agency should give the grantee a choice of methods for providing OA to the resulting publications. Grantees should be able to choose between OA journals and OA archives (also called OA repositories). The OA archives should meet certain conditions of accessibility, interoperability, and long-term preservation. The interoperability condition could be satisfied by complying with the metadata harvesting protocol of the Open Archives Initiative . Qualifying archives need not be hosted by the government; they could, for example, be hosted and maintained by universities. If the grantee chooses to publish in an OA journal that charges an upfront processing fee on accepted articles, then the funding agency will agree to pay the fee. The OA condition on research grants could make reasonable exceptions, for example, for classified military research, for patentable discoveries, and for works that generate revenue for the author such as books. * Signatory nations should provide funds and technical assistance for all universities and research centers in the country to set up and maintain their own OA repositories. One condition of government assistance should be that the institution adopt a policy to encourage or require its researchers to deposit their research output in the repository. Again, the policy could recognize reasonable exceptions. * Signatory nations should provide funds and technical assistance for digitizing and providing open access to the nation's cultural heritage. * Signatory nations should sign the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities. http://www.zim.mpg.de/openaccess-berlin/berlindeclaration.html I may suggest other recommendations in the coming weeks. ----- For further reading, see the following: Open Access Overview http://www.earlham.edu/~peters/fos/overview.htm (An introduction to OA for those who are new to the concept.) Timeline of Open Access http://www.earlham.edu/~peters/fos/timeline.htm (A brief history to show what has been done in this area and to answer objections that OA is new, untried, or radical.) Scientific Publications: Free for All? http://www.publications.parliament.uk/pa/cm200304/cmselect/cmsctech/399/39902.htm (The exemplary July 2004 report of the UK House of Commons Science and Technology Committee; all nations signing the a2k treaty should consider the 82 recommendations in this report; by contrast, these nations should *not* follow the much-weakened policy of the US National Institutes of Health.) Thank you taking up this important topic, Peter Suber ---------- Peter Suber Open Access Project Director, Public Knowledge Research Professor of Philosophy, Earlham College Author, SPARC Open Access Newsletter Editor, Open Access News blog http://www.earlham.edu/~peters/ peter.suber@earlham.edu From lac@ecs.soton.ac.uk Mon Jan 24 04:47:32 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from smtp807.mail.ukl.yahoo.com (smtp807.mail.ukl.yahoo.com [217.12.12.197]) by lists.essential.org (Postfix) with SMTP id 04E6A29B74 for ; Mon, 24 Jan 2005 04:47:31 -0500 (EST) Received: from unknown (HELO ?192.168.0.2?) (boai-forum@ecs.soton.ac.uk@81.153.119.189 with poptime) by smtp807.mail.ukl.yahoo.com with SMTP; 24 Jan 2005 09:47:26 -0000 In-Reply-To: <6.2.0.14.2.20050123163525.04ed4de0@pop.earlham.edu> References: <6.2.0.14.2.20050123163525.04ed4de0@pop.earlham.edu> Mime-Version: 1.0 (Apple Message framework v619) Message-Id: Cc: a2k@lists.essential.org, SPARC-OAForum@arl.org From: Leslie Carr To: BOAI Forum X-Mailer: Apple Mail (2.619) content-transfer-encoding: 7bit content-type: text/plain; charset=US-ASCII; format=flowed Subject: [A2k] Re: [BOAI] Open-access proposal for the a2k treaty Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 24 10:01:01 2005 X-Original-Date: Mon, 24 Jan 2005 09:47:22 +0000 Perhaps someone would care to comment on the background to this proposal? In particular, the relationship between the library organisations' proposal by Jamie Love (http://lists.essential.org/pipermail/a2k/2005-January/000000.html) and the OA community's potential submission. Refering back to the WIPO, (http://www.wipo.int/about-wipo/en/dgo/pub487.htm) their objectives are to "to promote the protection of intellectual property throughout the world", but the Library's A2K contribution (to which the OA community is now being asked to contribute) doesn't seem to take cognizance of this. The one angle where the WIPO declaration may be useful to OA is in the wording of their first strategic goal: "to encourage creators and innovators to obtain, use and license IP rights and assets", but this is not a library's right to demand but an author's right to assert. Which brings us back to self-archiving... --- Les Carr From a.c.story@kent.ac.uk Mon Jan 24 06:33:53 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from greendale.ukc.ac.uk (greendale.kent.ac.uk [129.12.21.13]) by lists.essential.org (Postfix) with ESMTP id 94DF829B33 for ; Mon, 24 Jan 2005 06:33:52 -0500 (EST) Received: from pelican.ukc.ac.uk ([129.12.200.26]) by greendale.ukc.ac.uk with esmtp (Exim 4.42) id 1Ct2ST-0006HW-KV; Mon, 24 Jan 2005 11:32:37 +0000 Received: from dhcp1e6f.ukc.ac.uk ([129.12.30.111] helo=klsvig013) by pelican.ukc.ac.uk with esmtp (Exim 4.22) id 1Ct2SR-0007UD-TZ; Mon, 24 Jan 2005 11:32:35 +0000 From: "Alan Story" To: Cc: "acs3" MIME-Version: 1.0 X-Mailer: Microsoft Office Outlook, Build 11.0.6353 X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.2527 In-Reply-To: <20050123170009.4607.81754.Mailman@venice.essential.org> thread-index: AcUBbS7odbr/GAvzRe67IxDmJAfZ0gAljVAA Message-Id: X-UKC-Mail-System: No virus detected X-UKC-SpamCheck: X-UKC-MailScanner-From: a.c.story@kent.ac.uk content-transfer-encoding: 7bit content-type: text/plain; charset=us-ascii Subject: [A2k] Copyright term and Berne Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 24 10:01:04 2005 X-Original-Date: Mon, 24 Jan 2005 11:32:05 -0000 Re: Extension of copyright term. 1) I am certainly NOT in favour of extending the term of copyright --- it is already far too long and there are many arguments for decreasing the term, especially in the " era of the Internet" and speeded up communications AND there are many arguments, as well, for dramatically expanding "users rights" (which I do think is a preferable and more positive term compared to the more negative connotations of the words "copyright limitations and exceptions")----but there is the major problem getting around the wording of Article 7 (6) of the Berne Convention, which states: "The countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs." [which include the life, plus 50 years formulation of article 7(1)]. This section of Berne has been incorporated into TRIPS (by article 9(1)) and I cannot see how you can get around it without changing the terms of Berne or, better, repealing it. See my "Burn Berne" piece at: https://www.kent.ac.uk/law/undergraduate/modules/ip/resources/Authorlinks.ht m#AlanStory 2) I would avoid using the words "works for hire" in a global context. They are a specificly US copyright term and do not travel well. 3) In the same vein, I would not use our very limited resources at this time to argue for the ressurrection of copyright formalities. I appreciate that the US had to abolish registration requirements when it joined the Berne Convention 15 years ago and their absence may seem strange to US-trained copyright eyes....but many parts of the world have not had formalities for decades....and, indeed, the formalities requirement in Berne was abolished at the Berlin Revision Conference of the Berne Convention held in 1908. Not a priority when much bigger issues are on the table today. Best Alan Alan Story Lecturer Kent Law School University of Kent Canterbury, Kent, UK acs3@kent.ac.uk +44 (0)1227 823316 -----Original Message----- From: a2k-admin@lists.essential.org [mailto:a2k-admin@lists.essential.org] On Behalf Of a2k-request@lists.essential.org Sent: Sunday 23 January 2005 17:00 To: a2k@lists.essential.org Subject: A2k digest, Vol 1 #4 - 3 msgs Send A2k mailing list submissions to a2k@lists.essential.org To subscribe or unsubscribe via the World Wide Web, visit http://lists.essential.org/mailman/listinfo/a2k or, via email, send a message with subject or body 'help' to a2k-request@lists.essential.org You can reach the person managing the list at a2k-admin@lists.essential.org When replying, please edit your Subject line so it is more specific than "Re: Contents of A2k digest..." Today's Topics: 1. a2k proposal: formalities for TRIPS Plus copyright terms (James Love) 2. A2k - Additional Measures on Copyright Term (James Love) 3. a2k - Public Goods Database Exception to Patentability (James Love) --__--__-- Message: 1 Date: Sun, 23 Jan 2005 08:02:45 -0500 From: James Love To: a2k@lists.essential.org Subject: [A2k] a2k proposal: formalities for TRIPS Plus copyright terms DRAFT Enhancing the Public Domain - 1 REQUIREMENT FOR FORMALITIES WHEN COPYRIGHT TERM EXCEEDS TRIPS REQUIREMENTS COPYRIGHT TERM REQUIRED BY THE TRIPS The WTO TRIPS Agreement is the most important agreement concerning copyright and related rights because of the Dispute Resolution mechanism for applying sanctions to parties that violate the agreement. The TRIPS requires countries to offer a copyright term of at least 50 years, when the term is not calculated on the basis of the life of a natural person (works for hire), except for photographs. The TRIPS also requires members to comply with Articles 1 through 21 of the Berne Convention (1971) and the Berne Appendix (with the exception of Article 6bis). This makes these Berne Treaty articles subject to the strong WTO enforcement mechanisms, including the Berne provisions on the copyright term. Article 7 of the Berne requires that the term of copyright be life plus fifty years for most works, fifty years for cinematographic works, and 25 years for photographic works and works of applied art in so far as they are protected as artistic work. TRIPS PLUS COPYRIGHT TERMS A number of states have extended the term of copyright beyond that required by the TRIPS or the Berne, upwards to us much as 100 years for works for hire, or life plus seventy years or more for terms based upon the life of a natural person. There are also some important treaties and trade agreements that address copyright terms, including for example the 1996 WIPO Copyright Treaty that extended the term for photographs to 50 years, and a plethora of US and EU trade agreements that require copyright to be extended to life plus 70 years. BERNE PROVISIONS ON FORMALITIES Article 5 of the Berne also declares that the enjoyment and exercise of copyright not be subject to any formality, and not be based upon the existence of protection the country of origin of the work. PROBLEMS WITH FORMALITIES Recently Larry Lessig has draw renewed attention to the problems created by the elimination of formalities for copyright. Most works now protected by copyright have no commercial market, many are out-of-print or not available in modern distribution formats, and persons seeking to use works are faced with enormous difficulties locating right owners and negotiating licenses. Lessig has proposed the reintroduction of formalities for works, with the expectation that this would sort out the cases where right owners are truly interested in controlling distribution of works, and make it easier to identify and locate right owners. The United States did not join the Berne Convention until 1989. Before that, the US required registration for copyright. Works that were not registered entered the public domain. The United States and many other countries still have registration systems. In the United States the registration of copyrighted works is optional, but encouraged through legal provisions regarding the enforcement of rights. PROPOSAL FOR FORMALITIES ON TRIPS PLUS COPYRIGHT TERMS REGISTRATION OF COPYRIGHT FOR WORKS WHEN COPYRIGHT TERM EXCEEDS TRIPS REQUIREMENTS Parties agree to require that works subject to copyright protections will not be protected beyond the minimum terms set out in the WTO TRIPS agreement, unless the extended term of protection is based upon the registration of the work and the inclusion of a notice of extended copyright term identifying the right owner and the date the work will enter the public domain. -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org --__--__-- Message: 2 Date: Sun, 23 Jan 2005 08:25:50 -0500 From: James Love To: a2k@lists.essential.org Subject: [A2k] A2k - Additional Measures on Copyright Term A2k - Additional Measures on Copyright Term COPYRIGHT TERM OF PROTECTION Unlike the term for patents or many other types of intellectual property, modern copyright terms do not bear any relationship to economic incentives to create works. Arguments for extending terms may pay some lip service to economic benefits of protection, but they are more typically motivated by rent seeking lobbying by owners of long deceased authors or holders of corporate owned works for hire, and marketed on the basis of the need to =93honor=94 the creative community. In recent years there has been renewed interest in controlling the enormous extensions of copyright terms, and protecting the public domain. These proposals are somewhat overlapping, and supplement the earlier proposal on formalities for TRIPS plus copyright terms. 1. NO RETROACTIVE EXTENSION OF COPYRIGHT TERM FOR WORKS FOR HIRE OR WORKS WHEN AUTHOR HAS ALIENATED ECONOMIC RIGHTS Members agree that any future extensions of copyright terms will not be retroactive for works when the term of protection is based upon anything other than the life of a natural person, or in any case for any work for which the author has alienated all economic rights. 2. NO TRIPS PLUS TERM FOR WORKS FOR HIRE Members agree to that copyright terms for works for hire will not exceed 50 years for most works, and 25 years for works for hire involving photographic works and works of applied art in so far as they are protected as artistic work. -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org --__--__-- Message: 3 Date: Sun, 23 Jan 2005 09:44:42 -0500 From: James Love To: a2k@lists.essential.org Subject: [A2k] a2k - Public Goods Database Exception to Patentability Proposal To Limit Patents Associated with Certain Public Good Databases Mechanisms to limit patents on inventions which are derived from certain open public goods databases This is the so called "HapMap" proposal that was developed in a meeting a Cambridge University last summer on licensing of patents for public goods. Jamie <--------Proposal-------------> The WIPO PCT will adopt procedures whereby persons, organizations or communities that seek to establish certain qualifying open public goods databases (QOPGD) apply for a time limited period during which no patent applications can be submitted that rely upon the data from the QOPGD. <------end proposal--------------> Explanatory note: For example, when it was first created, the developers of the HapMap database (see licensing terms below) asked that patents not be filed for a period of three years. The license did create problems in terms of the dissemination of the information, and was eventually eliminated, but only after it had served its basic purpose, which was to protect the public good against misappropriation by private patents for a critical period of time. An agreement among members of the PCT to coordinate efforts to create an exception for patents in cases like this will enable broader dissemination of the results. EXCERPTS FROM THE ORIGINAL HAPMAP TERMS AND CONDITIONS FOR ACCESS TO AND USE OF THE GENOTYPE DATABASE 2. You may access and conduct queries of the Genotype Database and copy, extract, distribute or otherwise use copies of the whole or any part of the Genotype Database's data as you receive it, in any medium and for all (including for commercial) purposes, provided always that: a. by your actions (whether now or in the future), you shall not restrict the access to, or the use which may be made by others of, the Genotype Database or the data that it contains; b. in particular, but without limitation, i. you shall not file any patent applications that contain claims to any composition of matter of any single nucleotide polymorphism ("SNP"), genotype or haplotype data obtained from the Genotype Database or any SNP, haplotype or haplotype block based on data obtained from the Genotype Database; and ii. you shall not file any patent applications that contain claims to particular uses of any SNP, genotype or haplotype data obtained from the Genotype Database or any SNP, haplotype or haplotype block based on data obtained from, the Genotype Database, unless such claims do not restrict, or are licensed on such terms that that they do not restrict, the ability of others to use at no cost the Genotype Database or the data that it contains for other purposes; and -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org --__--__-- _______________________________________________ A2k mailing list A2k@lists.essential.org http://lists.essential.org/mailman/listinfo/a2k End of A2k Digest From james.love@cptech.org Mon Jan 24 11:19:32 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id AE9B529B69 for ; Mon, 24 Jan 2005 11:19:31 -0500 (EST) Received: (qmail 13735 invoked from network); 24 Jan 2005 16:19:31 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 24 Jan 2005 16:19:30 -0000 Received: from 65.222.222.226 ([65.222.222.226]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 24 Jan 2005 16:19:30 -0000 Message-ID: <41F52012.3000204@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: Alan Story Cc: a2k@lists.essential.org Subject: Re: [A2k] Copyright term and Berne References: In-Reply-To: content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 24 11:21:00 2005 X-Original-Date: Mon, 24 Jan 2005 11:19:30 -0500 This is a response to the Story comment, as well as some private email on formalities. 1. I think the issue of formalities is quite important in terms of access to works. The US system of formalities made it much easier to identify right owners, and when works did register, they were in the public domain, which is important. As copyright term have expanded, this becomes the only practical way to get access to the many of the oprhan works that would not bother to register, under a system of formalitis. Or, at least you could find out who the right owner was. Lessig has rightly focused attention on this issue. 2. We have lawyers on the list, and I think lawyers should be able to craft ways to accomplish legitimate public policy objectives, particularly when drafting a new treaty. If copyright extentions have been driven by non-orphan works, then conceed the non-orphan works, but fight for acccess to the orphan works. Berne requires (life plus) 50 years. It does not require (life plus) 70 or 95 years. Same with TRIPS. So, if a county wants something longer than Berne minimum or TRIPS minimun, does it *have* to abandon all formalities? I think not. In patents, we extend marketing monopolies, through non-patent sui generis mechanims. We could do the same for non-orphan works, if any really supported the use of formalties to protect access to orphan works. 3. I would not underestimate the public support for access to orphaned works, or the importances of this proposal. Jamie Alan Story wrote: > Re: Extension of copyright term. > > 1) I am certainly NOT in favour of extending the term of copyright --- it is > already far too long and there are many arguments for decreasing the term, > especially in the " era of the Internet" and speeded up communications AND > there are many arguments, as well, for dramatically expanding "users rights" > (which I do think is a preferable and more positive term compared to the > more negative connotations of the words "copyright limitations and > exceptions")----but there is the major problem getting around the wording of > Article 7 (6) of the Berne Convention, which states: "The countries of the > Union may grant a term of protection in excess of those provided by the > preceding paragraphs." [which include the life, plus 50 years formulation of > article 7(1)]. This section of Berne has been incorporated into TRIPS (by > article 9(1)) and I cannot see how you can get around it without changing > the terms of Berne or, better, repealing it. See my "Burn Berne" piece at: > https://www.kent.ac.uk/law/undergraduate/modules/ip/resources/Authorlinks.ht > m#AlanStory > > 2) I would avoid using the words "works for hire" in a global context. They > are a specificly US copyright term and do not travel well. > > 3) In the same vein, I would not use our very limited resources at this time > to argue for the ressurrection of copyright formalities. I appreciate that > the US had to abolish registration requirements when it joined the Berne > Convention 15 years ago and their absence may seem strange to US-trained > copyright eyes....but many parts of the world have not had formalities for > decades....and, indeed, the formalities requirement in Berne was abolished > at the Berlin Revision Conference of the Berne Convention held in 1908. Not > a priority when much bigger issues are on the table today. > > Best > Alan > > Alan Story > Lecturer > Kent Law School > University of Kent > Canterbury, Kent, UK > acs3@kent.ac.uk > +44 (0)1227 823316 > -----Original Message----- > From: a2k-admin@lists.essential.org [mailto:a2k-admin@lists.essential.org] > On Behalf Of a2k-request@lists.essential.org > Sent: Sunday 23 January 2005 17:00 > To: a2k@lists.essential.org > Subject: A2k digest, Vol 1 #4 - 3 msgs > > Send A2k mailing list submissions to > a2k@lists.essential.org > > To subscribe or unsubscribe via the World Wide Web, visit > http://lists.essential.org/mailman/listinfo/a2k > or, via email, send a message with subject or body 'help' to > a2k-request@lists.essential.org > > You can reach the person managing the list at > a2k-admin@lists.essential.org > > When replying, please edit your Subject line so it is more specific than > "Re: Contents of A2k digest..." > > > Today's Topics: > > 1. a2k proposal: formalities for TRIPS Plus copyright terms (James Love) > 2. A2k - Additional Measures on Copyright Term (James Love) > 3. a2k - Public Goods Database Exception to Patentability (James Love) > > --__--__-- > > Message: 1 > Date: Sun, 23 Jan 2005 08:02:45 -0500 > From: James Love > To: a2k@lists.essential.org > Subject: [A2k] a2k proposal: formalities for TRIPS Plus copyright terms > > > > DRAFT > > Enhancing the Public Domain - 1 > > REQUIREMENT FOR FORMALITIES WHEN COPYRIGHT TERM EXCEEDS TRIPS REQUIREMENTS > > > COPYRIGHT TERM REQUIRED BY THE TRIPS > > The WTO TRIPS Agreement is the most important agreement concerning copyright > and related rights because of the Dispute Resolution mechanism for applying > sanctions to parties that violate the agreement. > > The TRIPS requires countries to offer a copyright term of at least 50 years, > when the term is not calculated on the basis of the life of a natural person > (works for hire), except for photographs. > > The TRIPS also requires members to comply with Articles 1 through 21 of the > Berne Convention (1971) and the Berne Appendix (with the exception of > Article 6bis). This makes these Berne Treaty articles subject to the strong > WTO enforcement mechanisms, including the Berne provisions on the copyright > term. > > Article 7 of the Berne requires that the term of copyright be life plus > fifty years for most works, fifty years for cinematographic works, and > 25 years for photographic works and works of applied art in so far as they > are protected as artistic work. > > TRIPS PLUS COPYRIGHT TERMS > > A number of states have extended the term of copyright beyond that required > by the TRIPS or the Berne, upwards to us much as 100 years for works for > hire, or life plus seventy years or more for terms based upon > the life of a natural person. There are also some important treaties > and trade agreements that address copyright terms, including for example the > 1996 WIPO Copyright Treaty that extended the term for photographs to 50 > years, and a plethora of US and EU trade agreements that require copyright > to be extended to life plus 70 years. > > BERNE PROVISIONS ON FORMALITIES > > Article 5 of the Berne also declares that the enjoyment and exercise of > copyright not be subject to any formality, and not be based upon the > existence of protection the country of origin of the work. > > PROBLEMS WITH FORMALITIES > > Recently Larry Lessig has draw renewed attention to the problems created by > the elimination of formalities for copyright. Most works now protected by > copyright have no commercial market, many are out-of-print or not available > in modern distribution formats, and persons seeking to use works are faced > with enormous difficulties locating right owners and negotiating licenses. > Lessig has proposed the reintroduction of formalities for works, with the > expectation that this would sort out the cases where right owners are truly > interested in controlling distribution of works, and make it easier to > identify and locate right owners. > > The United States did not join the Berne Convention until 1989. Before > that, the US required registration for copyright. Works that were not > registered entered the public domain. The United States and many other > countries still have registration systems. In the United States the > registration of copyrighted works is optional, but encouraged through legal > provisions regarding the enforcement of rights. > > > PROPOSAL FOR FORMALITIES ON TRIPS PLUS COPYRIGHT TERMS > > > REGISTRATION OF COPYRIGHT FOR WORKS WHEN COPYRIGHT TERM EXCEEDS TRIPS > REQUIREMENTS > > Parties agree to require that works subject to copyright protections will > not be protected beyond the minimum terms set out in the WTO TRIPS > agreement, unless the extended term of protection is based upon the > registration of the work and the inclusion of a notice of extended copyright > term identifying the right owner and the date the work will enter the public > domain. > > > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC PO Box 19367, Washington, > DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love@cptech.org > > > > --__--__-- > > Message: 2 > Date: Sun, 23 Jan 2005 08:25:50 -0500 > From: James Love > To: a2k@lists.essential.org > Subject: [A2k] A2k - Additional Measures on Copyright Term > > A2k - Additional Measures on Copyright Term > > > COPYRIGHT TERM OF PROTECTION > > Unlike the term for patents or many other types of intellectual property, > modern copyright terms do not bear any relationship to economic incentives > to create works. Arguments for extending terms may pay some lip service to > economic benefits of protection, but they are more typically motivated by > rent seeking lobbying by owners of long deceased authors or holders of > corporate owned works for hire, and marketed on the basis of the need to > =93honor=94 the creative community. > In recent years there has been renewed interest in controlling the enormous > extensions of copyright terms, and protecting the public domain. > > These proposals are somewhat overlapping, and supplement the earlier > proposal on formalities for TRIPS plus copyright terms. > > 1. NO RETROACTIVE EXTENSION OF COPYRIGHT TERM FOR WORKS FOR HIRE OR WORKS > WHEN AUTHOR HAS ALIENATED ECONOMIC RIGHTS > > Members agree that any future extensions of copyright terms will not be > retroactive for works when the term of protection is based upon anything > other than the life of a natural person, or in any case for any work for > which the author has alienated all economic rights. > > 2. NO TRIPS PLUS TERM FOR WORKS FOR HIRE > > Members agree to that copyright terms for works for hire will not exceed 50 > years for most works, and 25 years for works for hire involving photographic > works and works of applied art in so far as they are protected as artistic > work. > > > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC PO Box 19367, Washington, > DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love@cptech.org > > --__--__-- > > Message: 3 > Date: Sun, 23 Jan 2005 09:44:42 -0500 > From: James Love > To: a2k@lists.essential.org > Subject: [A2k] a2k - Public Goods Database Exception to Patentability > > Proposal To Limit Patents Associated with Certain Public Good Databases > Mechanisms to limit patents on inventions which are derived from certain > open public goods databases > > This is the so called "HapMap" proposal that was developed in a meeting > a Cambridge University last summer on licensing of patents for > public goods. Jamie > > > <--------Proposal-------------> > > The WIPO PCT will adopt procedures whereby persons, organizations or > communities that seek to establish certain qualifying open public goods > databases (QOPGD) apply for a time limited period during which no patent > applications can be submitted that rely upon the data from the QOPGD. > > <------end proposal--------------> > > Explanatory note: For example, when it was first created, the developers of > the HapMap database (see licensing terms below) asked that patents not be > filed for a period of three years. The license did create problems in terms > of the dissemination of the information, and was eventually eliminated, but > only after it had served its basic purpose, which was to protect the public > good against misappropriation by private patents for a critical period of > time. An agreement among members of the PCT to coordinate efforts to create > an exception for patents in cases like this will enable broader > dissemination of the results. > > > EXCERPTS FROM THE ORIGINAL HAPMAP TERMS AND CONDITIONS FOR ACCESS TO AND USE > OF THE GENOTYPE DATABASE > > 2. You may access and conduct queries of the Genotype Database and copy, > extract, distribute or otherwise use copies of the whole or any part of the > Genotype Database's data as you receive it, in any medium and for all > (including for commercial) purposes, provided always that: > > a. by your actions (whether now or in the future), you shall not restrict > the access to, or the use which may be made by others of, the Genotype > Database or the data that it contains; > > b. in particular, but without limitation, > > i. you shall not file any patent applications that contain claims to any > composition of matter of any single nucleotide polymorphism ("SNP"), > genotype or haplotype data obtained from the Genotype Database or any SNP, > haplotype or haplotype block based on data obtained from the Genotype > Database; and > > ii. you shall not file any patent applications that contain claims to > particular uses of any SNP, genotype or haplotype data obtained from the > Genotype Database or any SNP, haplotype or haplotype block based on data > obtained from, the Genotype Database, unless such claims do not restrict, or > are licensed on such terms that that they do not restrict, the ability of > others to use at no cost the Genotype Database or the data that it contains > for other purposes; and > > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC PO Box 19367, Washington, > DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love@cptech.org > > > --__--__-- > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > > > End of A2k Digest > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From james.love@cptech.org Mon Jan 24 11:26:30 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 931B929B5C for ; Mon, 24 Jan 2005 11:26:30 -0500 (EST) Received: (qmail 13158 invoked from network); 24 Jan 2005 16:26:29 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 24 Jan 2005 16:26:29 -0000 Received: from 65.222.222.226 ([65.222.222.226]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 24 Jan 2005 16:26:29 -0000 Message-ID: <41F521B5.7000108@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: Leslie Carr Cc: BOAI Forum , a2k@lists.essential.org, SPARC-OAForum@arl.org Subject: Re: [A2k] Re: [BOAI] Open-access proposal for the a2k treaty References: <6.2.0.14.2.20050123163525.04ed4de0@pop.earlham.edu> In-Reply-To: content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 24 11:34:01 2005 X-Original-Date: Mon, 24 Jan 2005 11:26:29 -0500 I would not worry much about the your link on the WIPO mission. What we are proposing is consistent with the WIPO agreement with the UN (see the Geneva Declaration on the Future of WIPO or Jamie Boyle's article), and more important, WIPO has been asked by delegates to change its treaty, to address these types of concerns. What is important is the public interest in the proposal, not an evaluation of what WIPO has been pushing for the past couple of decades. The proposed Treaty on Access to Knowledge (a2k), is supposed to provide a new frame, a new instrument, and new push for access to knowledge. It should have concrete and elements that make sense a treaty instrument. It should be forward looking. Jamie Leslie Carr wrote: > Perhaps someone would care to comment on the background to this > proposal? In particular, the relationship between the library > organisations' proposal by Jamie Love > (http://lists.essential.org/pipermail/a2k/2005-January/000000.html) > and the OA community's potential submission. > > Refering back to the WIPO, > (http://www.wipo.int/about-wipo/en/dgo/pub487.htm) > their objectives are to "to promote the protection of intellectual > property throughout the world", but the Library's A2K contribution > (to which the OA community is now being asked to contribute) doesn't > seem to take cognizance of this. > > The one angle where the WIPO declaration may be useful to OA is in the > wording of their first strategic goal: "to encourage creators and > innovators to obtain, use and license IP rights and assets", but this > is not a library's right to demand but an author's right to assert. > Which brings us back to self-archiving... > --- > Les Carr > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From ucylfjf@ucl.ac.uk Mon Jan 24 12:15:21 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from vscane-a.ucl.ac.uk (vscane-a.ucl.ac.uk [144.82.100.148]) by lists.essential.org (Postfix) with ESMTP id 41C2B29B69 for ; Mon, 24 Jan 2005 12:15:21 -0500 (EST) Received: from host81-156-148-197.range81-156.btcentralplus.com ([81.156.148.197] helo=Friend) by vscane-a.ucl.ac.uk with smtp (Exim 4.30) id 1Ct7o4-0001cz-4k; Mon, 24 Jan 2005 17:15:16 +0000 Message-ID: <004601c50238$3117e1c0$c5949c51@Friend> Reply-To: "\"FrederickFriend\"" From: "\"FrederickFriend\"" To: , , , "Peter Suber" References: <6.2.0.14.2.20050123163525.04ed4de0@pop.earlham.edu> Subject: Re: [A2k] Open-access proposal for the a2k treaty MIME-Version: 1.0 X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 6.00.2900.2180 X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.2180 X-UCL-MailScanner-Information: Please contact the UCL Helpdesk, helpdesk@ucl.ac.uk for more information X-UCL-MailScanner: Found to be clean content-transfer-encoding: 7bit content-type: text/plain; format=flowed; charset=iso-8859-1; reply-type=response Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 24 13:12:10 2005 X-Original-Date: Mon, 24 Jan 2005 17:14:41 -0000 My thanks to Peter for producing this valuable proposal for the A2k Treaty discussions. Details of wording will no doubt be discussed, but I do hope that the essential features of Peter's proposal can be adopted. Having been fortunate enough to hear Sharon Terry of the Genetic Alliance describe her personal fight to gain access to the medical knowledge necessary to help her two children, I am even more convinced than I was before of the importance of the a2k discussions. These are life-and-death issues for so many people. And as a formal Witness to the UK Parliamentary Enquiry I can confirm that the UK Committee hoped that its findings would be adopted on an international basis. I do hope that lobbying of a2k by publishers will not be allowed to hold back wider access as lobbying in the UK and US has done. Fred Friend ----- Original Message ----- From: "Peter Suber" To: ; ; Sent: Sunday, January 23, 2005 10:02 PM Subject: [A2k] Open-access proposal for the a2k treaty > Colleagues, > > I propose the following provisions for the Access to Knowledge > Treaty. Their purpose is to promote open access to scientific and > scholarly research literature. > > * Signatory nations should put an open-access condition on publicly-funded > research grants. By accepting a grant, the grantee agrees to provide open > access (OA) to any publications that result from the funded research. > > The funding agency should give the grantee a choice of methods for > providing OA to the resulting publications. Grantees should be able to > choose between OA journals and OA archives (also called OA > repositories). The OA archives should meet certain conditions of > accessibility, interoperability, and long-term preservation. The > interoperability condition could be satisfied by complying with the > metadata harvesting protocol of the Open Archives Initiative > . Qualifying archives need not be hosted by > the government; they could, for example, be hosted and maintained by > universities. > > If the grantee chooses to publish in an OA journal that charges an upfront > processing fee on accepted articles, then the funding agency will agree to > pay the fee. > > The OA condition on research grants could make reasonable exceptions, for > example, for classified military research, for patentable discoveries, and > for works that generate revenue for the author such as books. > > * Signatory nations should provide funds and technical assistance for all > universities and research centers in the country to set up and maintain > their own OA repositories. One condition of government assistance should > be that the institution adopt a policy to encourage or require its > researchers to deposit their research output in the repository. Again, > the > policy could recognize reasonable exceptions. > > * Signatory nations should provide funds and technical assistance for > digitizing and providing open access to the nation's cultural heritage. > > * Signatory nations should sign the Berlin Declaration on Open Access to > Knowledge in the Sciences and Humanities. > http://www.zim.mpg.de/openaccess-berlin/berlindeclaration.html > > I may suggest other recommendations in the coming weeks. > > ----- > > For further reading, see the following: > > Open Access Overview > http://www.earlham.edu/~peters/fos/overview.htm > (An introduction to OA for those who are new to the concept.) > > Timeline of Open Access > http://www.earlham.edu/~peters/fos/timeline.htm > (A brief history to show what has been done in this area and to answer > objections that OA is new, untried, or radical.) > > Scientific Publications: Free for All? > http://www.publications.parliament.uk/pa/cm200304/cmselect/cmsctech/399/39902.htm > (The exemplary July 2004 report of the UK House of Commons Science and > Technology Committee; all nations signing the a2k treaty should consider > the 82 recommendations in this report; by contrast, these nations should > *not* follow the much-weakened policy of the US National Institutes of > Health.) > > Thank you taking up this important topic, > Peter Suber > > > > > ---------- > Peter Suber > Open Access Project Director, Public Knowledge > Research Professor of Philosophy, Earlham College > Author, SPARC Open Access Newsletter > Editor, Open Access News blog > http://www.earlham.edu/~peters/ > peter.suber@earlham.edu > > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Frederick J. Friend JISC Consultant OSI Open Access Advocate Honorary Director Scholarly Communication UCL E-mail ucylfjf@ucl.ac.uk Mail address: The Chimes, Cryers Hill Road, High Wycombe, England HP15 6JS Telephone +44 1494 563168 or +44 7747 627738 (mobile) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx From a.c.story@kent.ac.uk Tue Jan 25 04:07:56 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from greendale.ukc.ac.uk (greendale.kent.ac.uk [129.12.21.13]) by lists.essential.org (Postfix) with ESMTP id 679D629B3F for ; Tue, 25 Jan 2005 04:07:55 -0500 (EST) Received: from pelican.ukc.ac.uk ([129.12.200.26]) by greendale.ukc.ac.uk with esmtp (Exim 4.42) id 1CtMem-00005Z-KH; Tue, 25 Jan 2005 09:06:40 +0000 Received: from dhcp1e6f.ukc.ac.uk ([129.12.30.111] helo=klsvig013) by pelican.ukc.ac.uk with esmtp (Exim 4.22) id 1CtMem-0003EE-8M; Tue, 25 Jan 2005 09:06:40 +0000 From: "Alan Story" To: "'James Love'" Cc: , MIME-Version: 1.0 X-Mailer: Microsoft Office Outlook, Build 11.0.6353 In-Reply-To: <41F52012.3000204@cptech.org> X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.2527 Thread-Index: AcUCMKku5qnsw27iQgKr7+Lpomz5HwAio6Hg Message-Id: X-UKC-Mail-System: No virus detected X-UKC-SpamCheck: X-UKC-MailScanner-From: a.c.story@kent.ac.uk content-transfer-encoding: 7bit content-type: text/plain; charset=us-ascii Subject: [A2k] Copyright term Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Jan 25 08:59:08 2005 X-Original-Date: Tue, 25 Jan 2005 09:06:10 -0000 Jamie: Issues (formalities, copyright term, orphan works) are getting mixed up in your reply.Let's set aside formalities for the moment and concentrate solely on term. My main point, which you have failed to address, is this : to prevent countries being able/allowed to increase their term of copyright above life of the author, plus 50 years,would require a change in the wording of the Berne Convention because the Berne Convention (Article 7 (6)) permits them to increase their term...and, indeed, life, plus 500 years, would be perfectly legal under Berne. Do we agree on this point? Best Alan Alan Story Lecturer Kent Law School University of Kent Canterbury, Kent, UK acs3@kent.ac.uk +44 (0)1227 823316 -----Original Message----- From: James Love [mailto:james.love@cptech.org] Sent: Monday 24 January 2005 16:20 To: Alan Story Cc: a2k@lists.essential.org Subject: Re: [A2k] Copyright term and Berne This is a response to the Story comment, as well as some private email on formalities. 1. I think the issue of formalities is quite important in terms of access to works. The US system of formalities made it much easier to identify right owners, and when works did register, they were in the public domain, which is important. As copyright term have expanded, this becomes the only practical way to get access to the many of the oprhan works that would not bother to register, under a system of formalitis. Or, at least you could find out who the right owner was. Lessig has rightly focused attention on this issue. 2. We have lawyers on the list, and I think lawyers should be able to craft ways to accomplish legitimate public policy objectives, particularly when drafting a new treaty. If copyright extentions have been driven by non-orphan works, then conceed the non-orphan works, but fight for acccess to the orphan works. Berne requires (life plus) 50 years. It does not require (life plus) 70 or 95 years. Same with TRIPS. So, if a county wants something longer than Berne minimum or TRIPS minimun, does it *have* to abandon all formalities? I think not. In patents, we extend marketing monopolies, through non-patent sui generis mechanims. We could do the same for non-orphan works, if any really supported the use of formalties to protect access to orphan works. 3. I would not underestimate the public support for access to orphaned works, or the importances of this proposal. Jamie Alan Story wrote: > Re: Extension of copyright term. > > 1) I am certainly NOT in favour of extending the term of copyright --- > it is already far too long and there are many arguments for decreasing > the term, especially in the " era of the Internet" and speeded up > communications AND there are many arguments, as well, for dramatically expanding "users rights" > (which I do think is a preferable and more positive term compared to > the more negative connotations of the words "copyright limitations and > exceptions")----but there is the major problem getting around the > wording of Article 7 (6) of the Berne Convention, which states: "The > countries of the Union may grant a term of protection in excess of > those provided by the preceding paragraphs." [which include the life, > plus 50 years formulation of article 7(1)]. This section of Berne has > been incorporated into TRIPS (by article 9(1)) and I cannot see how > you can get around it without changing the terms of Berne or, better, repealing it. See my "Burn Berne" piece at: > https://www.kent.ac.uk/law/undergraduate/modules/ip/resources/Authorli > nks.ht > m#AlanStory > > 2) I would avoid using the words "works for hire" in a global context. > They are a specificly US copyright term and do not travel well. > > 3) In the same vein, I would not use our very limited resources at > this time to argue for the ressurrection of copyright formalities. I > appreciate that the US had to abolish registration requirements when > it joined the Berne Convention 15 years ago and their absence may seem > strange to US-trained copyright eyes....but many parts of the world > have not had formalities for decades....and, indeed, the formalities > requirement in Berne was abolished at the Berlin Revision Conference > of the Berne Convention held in 1908. Not a priority when much bigger issues are on the table today. > > Best > Alan > > Alan Story > Lecturer > Kent Law School > University of Kent > Canterbury, Kent, UK > acs3@kent.ac.uk > +44 (0)1227 823316 > -----Original Message----- > From: a2k-admin@lists.essential.org > [mailto:a2k-admin@lists.essential.org] > On Behalf Of a2k-request@lists.essential.org > Sent: Sunday 23 January 2005 17:00 > To: a2k@lists.essential.org > Subject: A2k digest, Vol 1 #4 - 3 msgs > > Send A2k mailing list submissions to > a2k@lists.essential.org > > To subscribe or unsubscribe via the World Wide Web, visit > http://lists.essential.org/mailman/listinfo/a2k > or, via email, send a message with subject or body 'help' to > a2k-request@lists.essential.org > > You can reach the person managing the list at > a2k-admin@lists.essential.org > > When replying, please edit your Subject line so it is more specific > than > "Re: Contents of A2k digest..." > > > Today's Topics: > > 1. a2k proposal: formalities for TRIPS Plus copyright terms (James Love) > 2. A2k - Additional Measures on Copyright Term (James Love) > 3. a2k - Public Goods Database Exception to Patentability (James > Love) > > --__--__-- > > Message: 1 > Date: Sun, 23 Jan 2005 08:02:45 -0500 > From: James Love > To: a2k@lists.essential.org > Subject: [A2k] a2k proposal: formalities for TRIPS Plus copyright > terms > > > > DRAFT > > Enhancing the Public Domain - 1 > > REQUIREMENT FOR FORMALITIES WHEN COPYRIGHT TERM EXCEEDS TRIPS > REQUIREMENTS > > > COPYRIGHT TERM REQUIRED BY THE TRIPS > > The WTO TRIPS Agreement is the most important agreement concerning > copyright and related rights because of the Dispute Resolution > mechanism for applying sanctions to parties that violate the agreement. > > The TRIPS requires countries to offer a copyright term of at least 50 > years, when the term is not calculated on the basis of the life of a > natural person (works for hire), except for photographs. > > The TRIPS also requires members to comply with Articles 1 through 21 > of the Berne Convention (1971) and the Berne Appendix (with the > exception of Article 6bis). This makes these Berne Treaty articles > subject to the strong WTO enforcement mechanisms, including the Berne > provisions on the copyright term. > > Article 7 of the Berne requires that the term of copyright be life > plus fifty years for most works, fifty years for cinematographic > works, and > 25 years for photographic works and works of applied art in so far as > they are protected as artistic work. > > TRIPS PLUS COPYRIGHT TERMS > > A number of states have extended the term of copyright beyond that > required by the TRIPS or the Berne, upwards to us much as 100 years > for works for hire, or life plus seventy years or more for terms based upon > the life of a natural person. There are also some important treaties > and trade agreements that address copyright terms, including for > example the > 1996 WIPO Copyright Treaty that extended the term for photographs to > 50 years, and a plethora of US and EU trade agreements that require > copyright to be extended to life plus 70 years. > > BERNE PROVISIONS ON FORMALITIES > > Article 5 of the Berne also declares that the enjoyment and exercise > of copyright not be subject to any formality, and not be based upon > the existence of protection the country of origin of the work. > > PROBLEMS WITH FORMALITIES > > Recently Larry Lessig has draw renewed attention to the problems > created by the elimination of formalities for copyright. Most works > now protected by copyright have no commercial market, many are > out-of-print or not available in modern distribution formats, and > persons seeking to use works are faced with enormous difficulties locating right owners and negotiating licenses. > Lessig has proposed the reintroduction of formalities for works, with > the expectation that this would sort out the cases where right owners > are truly interested in controlling distribution of works, and make it > easier to identify and locate right owners. > > The United States did not join the Berne Convention until 1989. Before > that, the US required registration for copyright. Works that were not > registered entered the public domain. The United States and many > other countries still have registration systems. In the United States > the registration of copyrighted works is optional, but encouraged > through legal provisions regarding the enforcement of rights. > > > PROPOSAL FOR FORMALITIES ON TRIPS PLUS COPYRIGHT TERMS > > > REGISTRATION OF COPYRIGHT FOR WORKS WHEN COPYRIGHT TERM EXCEEDS TRIPS > REQUIREMENTS > > Parties agree to require that works subject to copyright protections > will not be protected beyond the minimum terms set out in the WTO > TRIPS agreement, unless the extended term of protection is based upon > the registration of the work and the inclusion of a notice of extended > copyright term identifying the right owner and the date the work will > enter the public domain. > > > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC PO Box 19367, > Washington, DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love@cptech.org > > > > --__--__-- > > Message: 2 > Date: Sun, 23 Jan 2005 08:25:50 -0500 > From: James Love > To: a2k@lists.essential.org > Subject: [A2k] A2k - Additional Measures on Copyright Term > > A2k - Additional Measures on Copyright Term > > > COPYRIGHT TERM OF PROTECTION > > Unlike the term for patents or many other types of intellectual > property, modern copyright terms do not bear any relationship to > economic incentives to create works. Arguments for extending terms > may pay some lip service to economic benefits of protection, but they > are more typically motivated by rent seeking lobbying by owners of > long deceased authors or holders of corporate owned works for hire, > and marketed on the basis of the need to > =93honor=94 the creative community. > In recent years there has been renewed interest in controlling the > enormous extensions of copyright terms, and protecting the public domain. > > These proposals are somewhat overlapping, and supplement the earlier > proposal on formalities for TRIPS plus copyright terms. > > 1. NO RETROACTIVE EXTENSION OF COPYRIGHT TERM FOR WORKS FOR HIRE OR > WORKS WHEN AUTHOR HAS ALIENATED ECONOMIC RIGHTS > > Members agree that any future extensions of copyright terms will not > be retroactive for works when the term of protection is based upon > anything other than the life of a natural person, or in any case for > any work for which the author has alienated all economic rights. > > 2. NO TRIPS PLUS TERM FOR WORKS FOR HIRE > > Members agree to that copyright terms for works for hire will not > exceed 50 years for most works, and 25 years for works for hire > involving photographic works and works of applied art in so far as > they are protected as artistic work. > > > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC PO Box 19367, > Washington, DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love@cptech.org > > --__--__-- > > Message: 3 > Date: Sun, 23 Jan 2005 09:44:42 -0500 > From: James Love > To: a2k@lists.essential.org > Subject: [A2k] a2k - Public Goods Database Exception to Patentability > > Proposal To Limit Patents Associated with Certain Public Good > Databases Mechanisms to limit patents on inventions which are derived > from certain open public goods databases > > This is the so called "HapMap" proposal that was developed in a > meeting a Cambridge University last summer on licensing of patents for > public goods. Jamie > > > <--------Proposal-------------> > > The WIPO PCT will adopt procedures whereby persons, organizations or > communities that seek to establish certain qualifying open public > goods databases (QOPGD) apply for a time limited period during which > no patent applications can be submitted that rely upon the data from the QOPGD. > > <------end proposal--------------> > > Explanatory note: For example, when it was first created, the > developers of the HapMap database (see licensing terms below) asked > that patents not be filed for a period of three years. The license > did create problems in terms of the dissemination of the information, > and was eventually eliminated, but only after it had served its basic > purpose, which was to protect the public good against misappropriation > by private patents for a critical period of time. An agreement among > members of the PCT to coordinate efforts to create an exception for > patents in cases like this will enable broader dissemination of the results. > > > EXCERPTS FROM THE ORIGINAL HAPMAP TERMS AND CONDITIONS FOR ACCESS TO > AND USE OF THE GENOTYPE DATABASE > > 2. You may access and conduct queries of the Genotype Database and > copy, extract, distribute or otherwise use copies of the whole or any > part of the Genotype Database's data as you receive it, in any medium > and for all (including for commercial) purposes, provided always that: > > a. by your actions (whether now or in the future), you shall not > restrict the access to, or the use which may be made by others of, the > Genotype Database or the data that it contains; > > b. in particular, but without limitation, > > i. you shall not file any patent applications that contain claims to > any composition of matter of any single nucleotide polymorphism > ("SNP"), genotype or haplotype data obtained from the Genotype > Database or any SNP, haplotype or haplotype block based on data > obtained from the Genotype Database; and > > ii. you shall not file any patent applications that contain claims to > particular uses of any SNP, genotype or haplotype data obtained from > the Genotype Database or any SNP, haplotype or haplotype block based > on data obtained from, the Genotype Database, unless such claims do > not restrict, or are licensed on such terms that that they do not > restrict, the ability of others to use at no cost the Genotype > Database or the data that it contains for other purposes; and > > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC PO Box 19367, > Washington, DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love@cptech.org > > > --__--__-- > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > > > End of A2k Digest > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From james.love@cptech.org Tue Jan 25 12:33:30 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 2089629B5C for ; Tue, 25 Jan 2005 12:33:30 -0500 (EST) Received: (qmail 25210 invoked from network); 25 Jan 2005 17:33:29 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 25 Jan 2005 17:33:27 -0000 Received: from 200.167.53.243 ([200.167.53.243]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 25 Jan 2005 17:33:27 -0000 Message-ID: <41F682E5.4040103@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: Alan Story Cc: a2k@lists.essential.org Subject: Re: [A2k] Copyright term References: In-Reply-To: content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Jan 25 12:36:00 2005 X-Original-Date: Tue, 25 Jan 2005 12:33:25 -0500 Alan Story wrote: > Jamie: > > Issues (formalities, copyright term, orphan works) are getting mixed up in > your reply.Let's set aside formalities for the moment and concentrate solely > on term. > > My main point, which you have failed to address, is this : to prevent > countries being able/allowed to increase their term of copyright above life > of the author, plus 50 years,would require a change in the wording of the > Berne Convention because the Berne Convention (Article 7 (6)) permits them > to increase their term...and, indeed, life, plus 500 years, would be > perfectly legal under Berne. Do we agree on this point? Yes. Countries agree in Berne to have terms of at least life plus 50. They agree they can increase terms. They are also free to enter into other agreements, outside of Berne, which they do, such as, for example, the GATT which is a free trade agreement, the WCT, bilaterials, etcs. Countries do not have to have 500 year terms. They can decide to only have 50. Groups of them can decide to only have 50, or only 51. The Berne does not limit terms to 50, but other decisions or agreements could. Berne 7(6) Reads: "The countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs." I don't see the problem. Berne is not some sacred text. It is a one of thousands of agreements nations sign. Nothing we have proposed would prevent countries from not signing an agreement to not extend the copyright term. If you were really worried about this, you could make the provisions on term an optional protocol, which is probably a good idea anyway, for political reasons. If countries want to treat the Berne/TRIPS Plus terms differently, they can. They don't even have to call it copyright, any more than many of the sui generis extensions of market exclusivity for medicines are not legally constructed as patent extentions. The bigger problem is "do they want to do something to protect or enhance the public domain." My guess is no, unless we are organized and advocating on behalf of the public domain. Jamie BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (Paris Text 1971) Article 7 Duration (1) The term of protection granted by this Convention shall be the life of the author and fifty years after his death. (2) However, in the case of cinematographic works, the countries of the Union may provide that the term of protection shall expire fifty years after the work has been made available to the public with the consent of the author, or, failing such an event within fifty years from the making of such a work, fifty years after the making. (3) In the case of anonymous or pseudonymous works, the term of protection granted by this Convention shall expire fifty years after the work has been lawfully made available to the public. However, when the pseudonym adopted by the author leaves no doubt as to his identity, the term of protection shall be that provided in paragraph (1). If the author of an anonymous or pseudonymous work discloses his identity during the above-mentioned period, the term of protection applicable shall be that provided in paragraph (1). The countries of the Union shall not be required to protect anonymous or pseudonymous works in respect of which it is reasonable to presume that their author has been dead for fifty years. (4) It shall be a matter for legislation in the countries of the Union to determine the term of protection of photographic works and that of works of applied art in so far as they are protected as artistic works; however, this term shall last at least until the end of a period of twenty-five years from the making of such a work. (5) The term of protection subsequent to the death of the author and the terms provided by paragraphs (2), (3) and (4), shall run from the date of death or of the event referred to in those paragraphs, but such terms shall always be deemed to begin on the 1 st of January of the year following the death or such event. (6) The countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs. (7) Those countries of the Union bound by the Rome Act of this Convention, which grant, in their national legislation in force at the time of signature of the present Act, shorter terms of protection than those provided for in the preceding paragraphs, shall have the right to maintain such terms when ratifying or acceding to the present Act. (8) In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work. [Previous Section -] [Next Section +] > > Best > Alan > > > Alan Story > Lecturer > Kent Law School > University of Kent > Canterbury, Kent, UK > acs3@kent.ac.uk > +44 (0)1227 823316 > -----Original Message----- > From: James Love [mailto:james.love@cptech.org] > Sent: Monday 24 January 2005 16:20 > To: Alan Story > Cc: a2k@lists.essential.org > Subject: Re: [A2k] Copyright term and Berne > > This is a response to the Story comment, as well as some private email on > formalities. > > 1. I think the issue of formalities is quite important in terms of access > to works. The US system of formalities made it much easier to identify > right owners, and when works did register, they were in the public domain, > which is important. As copyright term have expanded, this becomes the only > practical way to get access to the many of the oprhan works that would not > bother to register, under a system of formalitis. Or, at least you could > find out who the right owner was. > Lessig has rightly focused attention on this issue. > > 2. We have lawyers on the list, and I think lawyers should be able to craft > ways to accomplish legitimate public policy objectives, particularly when > drafting a new treaty. If copyright extentions have been driven by > non-orphan works, then conceed the non-orphan works, but fight for acccess > to the orphan works. Berne requires (life plus) 50 years. It does not > require (life plus) 70 or 95 years. Same with TRIPS. So, if a county wants > something longer than Berne minimum or TRIPS minimun, does it *have* to > abandon all formalities? I think not. > In patents, we extend marketing monopolies, through non-patent sui generis > mechanims. We could do the same for non-orphan works, if any really > supported the use of formalties to protect access to orphan works. > > 3. I would not underestimate the public support for access to orphaned > works, or the importances of this proposal. > > Jamie > > > Alan Story wrote: > >>Re: Extension of copyright term. >> >>1) I am certainly NOT in favour of extending the term of copyright --- >>it is already far too long and there are many arguments for decreasing >>the term, especially in the " era of the Internet" and speeded up >>communications AND there are many arguments, as well, for dramatically > > expanding "users rights" > >>(which I do think is a preferable and more positive term compared to >>the more negative connotations of the words "copyright limitations and >>exceptions")----but there is the major problem getting around the >>wording of Article 7 (6) of the Berne Convention, which states: "The >>countries of the Union may grant a term of protection in excess of >>those provided by the preceding paragraphs." [which include the life, >>plus 50 years formulation of article 7(1)]. This section of Berne has >>been incorporated into TRIPS (by article 9(1)) and I cannot see how >>you can get around it without changing the terms of Berne or, better, > > repealing it. See my "Burn Berne" piece at: > >>https://www.kent.ac.uk/law/undergraduate/modules/ip/resources/Authorli >>nks.ht >>m#AlanStory >> >>2) I would avoid using the words "works for hire" in a global context. >>They are a specificly US copyright term and do not travel well. >> >>3) In the same vein, I would not use our very limited resources at >>this time to argue for the ressurrection of copyright formalities. I >>appreciate that the US had to abolish registration requirements when >>it joined the Berne Convention 15 years ago and their absence may seem >>strange to US-trained copyright eyes....but many parts of the world >>have not had formalities for decades....and, indeed, the formalities >>requirement in Berne was abolished at the Berlin Revision Conference >>of the Berne Convention held in 1908. Not a priority when much bigger > > issues are on the table today. > >>Best >>Alan >> >>Alan Story >>Lecturer >>Kent Law School >>University of Kent >>Canterbury, Kent, UK >>acs3@kent.ac.uk >>+44 (0)1227 823316 >>-----Original Message----- >>From: a2k-admin@lists.essential.org >>[mailto:a2k-admin@lists.essential.org] >>On Behalf Of a2k-request@lists.essential.org >>Sent: Sunday 23 January 2005 17:00 >>To: a2k@lists.essential.org >>Subject: A2k digest, Vol 1 #4 - 3 msgs >> >>Send A2k mailing list submissions to >> a2k@lists.essential.org >> >>To subscribe or unsubscribe via the World Wide Web, visit >> http://lists.essential.org/mailman/listinfo/a2k >>or, via email, send a message with subject or body 'help' to >> a2k-request@lists.essential.org >> >>You can reach the person managing the list at >> a2k-admin@lists.essential.org >> >>When replying, please edit your Subject line so it is more specific >>than >>"Re: Contents of A2k digest..." >> >> >>Today's Topics: >> >> 1. a2k proposal: formalities for TRIPS Plus copyright terms (James > > Love) > >> 2. A2k - Additional Measures on Copyright Term (James Love) >> 3. a2k - Public Goods Database Exception to Patentability (James >>Love) >> >>--__--__-- >> >>Message: 1 >>Date: Sun, 23 Jan 2005 08:02:45 -0500 >>From: James Love >>To: a2k@lists.essential.org >>Subject: [A2k] a2k proposal: formalities for TRIPS Plus copyright >>terms >> >> >> >>DRAFT >> >>Enhancing the Public Domain - 1 >> >>REQUIREMENT FOR FORMALITIES WHEN COPYRIGHT TERM EXCEEDS TRIPS >>REQUIREMENTS >> >> >> COPYRIGHT TERM REQUIRED BY THE TRIPS >> >>The WTO TRIPS Agreement is the most important agreement concerning >>copyright and related rights because of the Dispute Resolution >>mechanism for applying sanctions to parties that violate the agreement. >> >>The TRIPS requires countries to offer a copyright term of at least 50 >>years, when the term is not calculated on the basis of the life of a >>natural person (works for hire), except for photographs. >> >>The TRIPS also requires members to comply with Articles 1 through 21 >>of the Berne Convention (1971) and the Berne Appendix (with the >>exception of Article 6bis). This makes these Berne Treaty articles >>subject to the strong WTO enforcement mechanisms, including the Berne >>provisions on the copyright term. >> >>Article 7 of the Berne requires that the term of copyright be life >>plus fifty years for most works, fifty years for cinematographic >>works, and >>25 years for photographic works and works of applied art in so far as >>they are protected as artistic work. >> >> TRIPS PLUS COPYRIGHT TERMS >> >>A number of states have extended the term of copyright beyond that >>required by the TRIPS or the Berne, upwards to us much as 100 years >>for works for hire, or life plus seventy years or more for terms based > > upon > >>the life of a natural person. There are also some important treaties >>and trade agreements that address copyright terms, including for >>example the >>1996 WIPO Copyright Treaty that extended the term for photographs to >>50 years, and a plethora of US and EU trade agreements that require >>copyright to be extended to life plus 70 years. >> >> BERNE PROVISIONS ON FORMALITIES >> >>Article 5 of the Berne also declares that the enjoyment and exercise >>of copyright not be subject to any formality, and not be based upon >>the existence of protection the country of origin of the work. >> >> PROBLEMS WITH FORMALITIES >> >>Recently Larry Lessig has draw renewed attention to the problems >>created by the elimination of formalities for copyright. Most works >>now protected by copyright have no commercial market, many are >>out-of-print or not available in modern distribution formats, and >>persons seeking to use works are faced with enormous difficulties locating > > right owners and negotiating licenses. > >>Lessig has proposed the reintroduction of formalities for works, with >>the expectation that this would sort out the cases where right owners >>are truly interested in controlling distribution of works, and make it >>easier to identify and locate right owners. >> >>The United States did not join the Berne Convention until 1989. Before >>that, the US required registration for copyright. Works that were not >>registered entered the public domain. The United States and many >>other countries still have registration systems. In the United States >>the registration of copyrighted works is optional, but encouraged >>through legal provisions regarding the enforcement of rights. >> >> >> PROPOSAL FOR FORMALITIES ON TRIPS PLUS COPYRIGHT TERMS >> >> >>REGISTRATION OF COPYRIGHT FOR WORKS WHEN COPYRIGHT TERM EXCEEDS TRIPS >>REQUIREMENTS >> >>Parties agree to require that works subject to copyright protections >>will not be protected beyond the minimum terms set out in the WTO >>TRIPS agreement, unless the extended term of protection is based upon >>the registration of the work and the inclusion of a notice of extended >>copyright term identifying the right owner and the date the work will >>enter the public domain. >> >> >> >>-- >>James Love, Director, CPTech, http://www.cptech.org >> >>Consumer Project on Technology in Washington, DC PO Box 19367, >>Washington, DC 20036, USA >>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >>Consumer Project on Technology in Geneva >>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>Tel: +41 22 791 6727 >> >>Mobile +1.202.361.3040 >>james.love@cptech.org >> >> >> >>--__--__-- >> >>Message: 2 >>Date: Sun, 23 Jan 2005 08:25:50 -0500 >>From: James Love >>To: a2k@lists.essential.org >>Subject: [A2k] A2k - Additional Measures on Copyright Term >> >>A2k - Additional Measures on Copyright Term >> >> >>COPYRIGHT TERM OF PROTECTION >> >>Unlike the term for patents or many other types of intellectual >>property, modern copyright terms do not bear any relationship to >>economic incentives to create works. Arguments for extending terms >>may pay some lip service to economic benefits of protection, but they >>are more typically motivated by rent seeking lobbying by owners of >>long deceased authors or holders of corporate owned works for hire, >>and marketed on the basis of the need to >>=93honor=94 the creative community. >>In recent years there has been renewed interest in controlling the >>enormous extensions of copyright terms, and protecting the public domain. >> >>These proposals are somewhat overlapping, and supplement the earlier >>proposal on formalities for TRIPS plus copyright terms. >> >>1. NO RETROACTIVE EXTENSION OF COPYRIGHT TERM FOR WORKS FOR HIRE OR >>WORKS WHEN AUTHOR HAS ALIENATED ECONOMIC RIGHTS >> >>Members agree that any future extensions of copyright terms will not >>be retroactive for works when the term of protection is based upon >>anything other than the life of a natural person, or in any case for >>any work for which the author has alienated all economic rights. >> >>2. NO TRIPS PLUS TERM FOR WORKS FOR HIRE >> >>Members agree to that copyright terms for works for hire will not >>exceed 50 years for most works, and 25 years for works for hire >>involving photographic works and works of applied art in so far as >>they are protected as artistic work. >> >> >> >>-- >>James Love, Director, CPTech, http://www.cptech.org >> >>Consumer Project on Technology in Washington, DC PO Box 19367, >>Washington, DC 20036, USA >>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >>Consumer Project on Technology in Geneva >>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>Tel: +41 22 791 6727 >> >>Mobile +1.202.361.3040 >>james.love@cptech.org >> >>--__--__-- >> >>Message: 3 >>Date: Sun, 23 Jan 2005 09:44:42 -0500 >>From: James Love >>To: a2k@lists.essential.org >>Subject: [A2k] a2k - Public Goods Database Exception to Patentability >> >>Proposal To Limit Patents Associated with Certain Public Good >>Databases Mechanisms to limit patents on inventions which are derived >>from certain open public goods databases >> >> This is the so called "HapMap" proposal that was developed in a >>meeting a Cambridge University last summer on licensing of patents for >>public goods. Jamie >> >> >><--------Proposal-------------> >> >>The WIPO PCT will adopt procedures whereby persons, organizations or >>communities that seek to establish certain qualifying open public >>goods databases (QOPGD) apply for a time limited period during which >>no patent applications can be submitted that rely upon the data from the > > QOPGD. > >><------end proposal--------------> >> >>Explanatory note: For example, when it was first created, the >>developers of the HapMap database (see licensing terms below) asked >>that patents not be filed for a period of three years. The license >>did create problems in terms of the dissemination of the information, >>and was eventually eliminated, but only after it had served its basic >>purpose, which was to protect the public good against misappropriation >>by private patents for a critical period of time. An agreement among >>members of the PCT to coordinate efforts to create an exception for >>patents in cases like this will enable broader dissemination of the > > results. > >> >>EXCERPTS FROM THE ORIGINAL HAPMAP TERMS AND CONDITIONS FOR ACCESS TO >>AND USE OF THE GENOTYPE DATABASE >> >>2. You may access and conduct queries of the Genotype Database and >>copy, extract, distribute or otherwise use copies of the whole or any >>part of the Genotype Database's data as you receive it, in any medium >>and for all (including for commercial) purposes, provided always that: >> >>a. by your actions (whether now or in the future), you shall not >>restrict the access to, or the use which may be made by others of, the >>Genotype Database or the data that it contains; >> >>b. in particular, but without limitation, >> >>i. you shall not file any patent applications that contain claims to >>any composition of matter of any single nucleotide polymorphism >>("SNP"), genotype or haplotype data obtained from the Genotype >>Database or any SNP, haplotype or haplotype block based on data >>obtained from the Genotype Database; and >> >>ii. you shall not file any patent applications that contain claims to >>particular uses of any SNP, genotype or haplotype data obtained from >>the Genotype Database or any SNP, haplotype or haplotype block based >>on data obtained from, the Genotype Database, unless such claims do >>not restrict, or are licensed on such terms that that they do not >>restrict, the ability of others to use at no cost the Genotype >>Database or the data that it contains for other purposes; and >> >> >>-- >>James Love, Director, CPTech, http://www.cptech.org >> >>Consumer Project on Technology in Washington, DC PO Box 19367, >>Washington, DC 20036, USA >>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >>Consumer Project on Technology in Geneva >>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>Tel: +41 22 791 6727 >> >>Mobile +1.202.361.3040 >>james.love@cptech.org >> >> >>--__--__-- >> >>_______________________________________________ >>A2k mailing list >>A2k@lists.essential.org >>http://lists.essential.org/mailman/listinfo/a2k >> >> >>End of A2k Digest >> >>_______________________________________________ >>A2k mailing list >>A2k@lists.essential.org >>http://lists.essential.org/mailman/listinfo/a2k >> >> > > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC PO Box 19367, Washington, > DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love@cptech.org > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From a.c.story@kent.ac.uk Wed Jan 26 04:03:03 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mx5.kent.ac.uk (mx5.kent.ac.uk [129.12.21.36]) by lists.essential.org (Postfix) with ESMTP id 95F6529B19 for ; Wed, 26 Jan 2005 04:03:02 -0500 (EST) Received: from pelican.ukc.ac.uk ([129.12.200.26]) by mx5.kent.ac.uk with esmtp (Exim 4.44) id 1Ctj4d-0002S2-NF; Wed, 26 Jan 2005 09:02:51 +0000 Received: from dhcp1e6f.ukc.ac.uk ([129.12.30.111] helo=klsvig013) by pelican.ukc.ac.uk with esmtp (Exim 4.22) id 1Ctj4d-0004SL-D8; Wed, 26 Jan 2005 09:02:51 +0000 From: "Alan Story" To: "'James Love'" Cc: Subject: RE: [A2k] Copyright term MIME-Version: 1.0 X-Mailer: Microsoft Office Outlook, Build 11.0.6353 Thread-Index: AcUDBAuk2lcbHAIPSfKHZUJ2d9ZfdQAfxRwg X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.2527 In-reply-to: <41F682E5.4040103@cptech.org> Message-Id: X-UKC-Mail-System: No virus detected X-UKC-SpamCheck: X-UKC-MailScanner-From: a.c.story@kent.ac.uk content-transfer-encoding: 7bit content-type: text/plain; charset=us-ascii Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Wed Jan 26 04:28:01 2005 X-Original-Date: Wed, 26 Jan 2005 09:02:21 -0000 Jamie: I am glad that we agree on this point (that is, to prevent countries being able/allowed to increase their term of copyright above life of the author, plus 50 years,would require a change in the wording of the Berne Convention). And Jamie,please,I hardly believe that Berne is "some sacred text"; I have called for its repeal in my "Burn Berne" article ( because, among things, it operates as a "Western-based and unreconstructed colonial relic" that operates against the interests of peoples in the South.) I just want us all to be clear as to the stakes of this debate about improving access to knowledge. And while we are talking about "access to knowledge", please let us not be so presumptious as to think that this knowledge flow is a one-way street, North to South, or think it involves spreading Western (and/or US) "values", as one G. Bush put it last week at his inauguration. I am not suggesting, Jamie, that you are doing this...but it is an EXTREME DANGER when we talk about this important issue. Alan Alan Story Lecturer Kent Law School University of Kent Canterbury, Kent, UK acs3@kent.ac.uk +44 (0)1227 823316 -----Original Message----- From: James Love [mailto:james.love@cptech.org] Sent: Tuesday 25 January 2005 17:33 To: Alan Story Cc: a2k@lists.essential.org Subject: Re: [A2k] Copyright term Alan Story wrote: > Jamie: > > Issues (formalities, copyright term, orphan works) are getting mixed > up in your reply.Let's set aside formalities for the moment and > concentrate solely on term. > > My main point, which you have failed to address, is this : to prevent > countries being able/allowed to increase their term of copyright above > life of the author, plus 50 years,would require a change in the > wording of the Berne Convention because the Berne Convention (Article > 7 (6)) permits them to increase their term...and, indeed, life, plus > 500 years, would be perfectly legal under Berne. Do we agree on this point? Yes. Countries agree in Berne to have terms of at least life plus 50. They agree they can increase terms. They are also free to enter into other agreements, outside of Berne, which they do, such as, for example, the GATT which is a free trade agreement, the WCT, bilaterials, etcs. Countries do not have to have 500 year terms. They can decide to only have 50. Groups of them can decide to only have 50, or only 51. The Berne does not limit terms to 50, but other decisions or agreements could. Berne 7(6) Reads: "The countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs." I don't see the problem. Berne is not some sacred text. It is a one of thousands of agreements nations sign. Nothing we have proposed would prevent countries from not signing an agreement to not extend the copyright term. If you were really worried about this, you could make the provisions on term an optional protocol, which is probably a good idea anyway, for political reasons. If countries want to treat the Berne/TRIPS Plus terms differently, they can. They don't even have to call it copyright, any more than many of the sui generis extensions of market exclusivity for medicines are not legally constructed as patent extentions. The bigger problem is "do they want to do something to protect or enhance the public domain." My guess is no, unless we are organized and advocating on behalf of the public domain. Jamie BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (Paris Text 1971) Article 7 Duration (1) The term of protection granted by this Convention shall be the life of the author and fifty years after his death. (2) However, in the case of cinematographic works, the countries of the Union may provide that the term of protection shall expire fifty years after the work has been made available to the public with the consent of the author, or, failing such an event within fifty years from the making of such a work, fifty years after the making. (3) In the case of anonymous or pseudonymous works, the term of protection granted by this Convention shall expire fifty years after the work has been lawfully made available to the public. However, when the pseudonym adopted by the author leaves no doubt as to his identity, the term of protection shall be that provided in paragraph (1). If the author of an anonymous or pseudonymous work discloses his identity during the above-mentioned period, the term of protection applicable shall be that provided in paragraph (1). The countries of the Union shall not be required to protect anonymous or pseudonymous works in respect of which it is reasonable to presume that their author has been dead for fifty years. (4) It shall be a matter for legislation in the countries of the Union to determine the term of protection of photographic works and that of works of applied art in so far as they are protected as artistic works; however, this term shall last at least until the end of a period of twenty-five years from the making of such a work. (5) The term of protection subsequent to the death of the author and the terms provided by paragraphs (2), (3) and (4), shall run from the date of death or of the event referred to in those paragraphs, but such terms shall always be deemed to begin on the 1 st of January of the year following the death or such event. (6) The countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs. (7) Those countries of the Union bound by the Rome Act of this Convention, which grant, in their national legislation in force at the time of signature of the present Act, shorter terms of protection than those provided for in the preceding paragraphs, shall have the right to maintain such terms when ratifying or acceding to the present Act. (8) In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work. [Previous Section -] [Next Section +] > > Best > Alan > > > Alan Story > Lecturer > Kent Law School > University of Kent > Canterbury, Kent, UK > acs3@kent.ac.uk > +44 (0)1227 823316 > -----Original Message----- > From: James Love [mailto:james.love@cptech.org] > Sent: Monday 24 January 2005 16:20 > To: Alan Story > Cc: a2k@lists.essential.org > Subject: Re: [A2k] Copyright term and Berne > > This is a response to the Story comment, as well as some private > email on formalities. > > 1. I think the issue of formalities is quite important in terms of > access to works. The US system of formalities made it much easier to > identify right owners, and when works did register, they were in the > public domain, which is important. As copyright term have expanded, > this becomes the only practical way to get access to the many of the > oprhan works that would not bother to register, under a system of > formalitis. Or, at least you could find out who the right owner was. > Lessig has rightly focused attention on this issue. > > 2. We have lawyers on the list, and I think lawyers should be able to > craft ways to accomplish legitimate public policy objectives, > particularly when drafting a new treaty. If copyright extentions have > been driven by non-orphan works, then conceed the non-orphan works, > but fight for acccess to the orphan works. Berne requires (life plus) > 50 years. It does not require (life plus) 70 or 95 years. Same with > TRIPS. So, if a county wants something longer than Berne minimum or > TRIPS minimun, does it *have* to abandon all formalities? I think not. > In patents, we extend marketing monopolies, through non-patent sui > generis mechanims. We could do the same for non-orphan works, if any > really supported the use of formalties to protect access to orphan works. > > 3. I would not underestimate the public support for access to > orphaned works, or the importances of this proposal. > > Jamie > > > Alan Story wrote: > >>Re: Extension of copyright term. >> >>1) I am certainly NOT in favour of extending the term of copyright --- >>it is already far too long and there are many arguments for decreasing >>the term, especially in the " era of the Internet" and speeded up >>communications AND there are many arguments, as well, for dramatically > > expanding "users rights" > >>(which I do think is a preferable and more positive term compared to >>the more negative connotations of the words "copyright limitations and >>exceptions")----but there is the major problem getting around the >>wording of Article 7 (6) of the Berne Convention, which states: "The >>countries of the Union may grant a term of protection in excess of >>those provided by the preceding paragraphs." [which include the life, >>plus 50 years formulation of article 7(1)]. This section of Berne has >>been incorporated into TRIPS (by article 9(1)) and I cannot see how >>you can get around it without changing the terms of Berne or, better, > > repealing it. See my "Burn Berne" piece at: > >>https://www.kent.ac.uk/law/undergraduate/modules/ip/resources/Authorli >>nks.ht >>m#AlanStory >> >>2) I would avoid using the words "works for hire" in a global context. >>They are a specificly US copyright term and do not travel well. >> >>3) In the same vein, I would not use our very limited resources at >>this time to argue for the ressurrection of copyright formalities. I >>appreciate that the US had to abolish registration requirements when >>it joined the Berne Convention 15 years ago and their absence may seem >>strange to US-trained copyright eyes....but many parts of the world >>have not had formalities for decades....and, indeed, the formalities >>requirement in Berne was abolished at the Berlin Revision Conference >>of the Berne Convention held in 1908. Not a priority when much bigger > > issues are on the table today. > >>Best >>Alan >> >>Alan Story >>Lecturer >>Kent Law School >>University of Kent >>Canterbury, Kent, UK >>acs3@kent.ac.uk >>+44 (0)1227 823316 >>-----Original Message----- >>From: a2k-admin@lists.essential.org >>[mailto:a2k-admin@lists.essential.org] >>On Behalf Of a2k-request@lists.essential.org >>Sent: Sunday 23 January 2005 17:00 >>To: a2k@lists.essential.org >>Subject: A2k digest, Vol 1 #4 - 3 msgs >> >>Send A2k mailing list submissions to >> a2k@lists.essential.org >> >>To subscribe or unsubscribe via the World Wide Web, visit >> http://lists.essential.org/mailman/listinfo/a2k >>or, via email, send a message with subject or body 'help' to >> a2k-request@lists.essential.org >> >>You can reach the person managing the list at >> a2k-admin@lists.essential.org >> >>When replying, please edit your Subject line so it is more specific >>than >>"Re: Contents of A2k digest..." >> >> >>Today's Topics: >> >> 1. a2k proposal: formalities for TRIPS Plus copyright terms (James > > Love) > >> 2. A2k - Additional Measures on Copyright Term (James Love) >> 3. a2k - Public Goods Database Exception to Patentability (James >>Love) >> >>--__--__-- >> >>Message: 1 >>Date: Sun, 23 Jan 2005 08:02:45 -0500 >>From: James Love >>To: a2k@lists.essential.org >>Subject: [A2k] a2k proposal: formalities for TRIPS Plus copyright >>terms >> >> >> >>DRAFT >> >>Enhancing the Public Domain - 1 >> >>REQUIREMENT FOR FORMALITIES WHEN COPYRIGHT TERM EXCEEDS TRIPS >>REQUIREMENTS >> >> >> COPYRIGHT TERM REQUIRED BY THE TRIPS >> >>The WTO TRIPS Agreement is the most important agreement concerning >>copyright and related rights because of the Dispute Resolution >>mechanism for applying sanctions to parties that violate the agreement. >> >>The TRIPS requires countries to offer a copyright term of at least 50 >>years, when the term is not calculated on the basis of the life of a >>natural person (works for hire), except for photographs. >> >>The TRIPS also requires members to comply with Articles 1 through 21 >>of the Berne Convention (1971) and the Berne Appendix (with the >>exception of Article 6bis). This makes these Berne Treaty articles >>subject to the strong WTO enforcement mechanisms, including the Berne >>provisions on the copyright term. >> >>Article 7 of the Berne requires that the term of copyright be life >>plus fifty years for most works, fifty years for cinematographic >>works, and >>25 years for photographic works and works of applied art in so far as >>they are protected as artistic work. >> >> TRIPS PLUS COPYRIGHT TERMS >> >>A number of states have extended the term of copyright beyond that >>required by the TRIPS or the Berne, upwards to us much as 100 years >>for works for hire, or life plus seventy years or more for terms based > > upon > >>the life of a natural person. There are also some important treaties >>and trade agreements that address copyright terms, including for >>example the >>1996 WIPO Copyright Treaty that extended the term for photographs to >>50 years, and a plethora of US and EU trade agreements that require >>copyright to be extended to life plus 70 years. >> >> BERNE PROVISIONS ON FORMALITIES >> >>Article 5 of the Berne also declares that the enjoyment and exercise >>of copyright not be subject to any formality, and not be based upon >>the existence of protection the country of origin of the work. >> >> PROBLEMS WITH FORMALITIES >> >>Recently Larry Lessig has draw renewed attention to the problems >>created by the elimination of formalities for copyright. Most works >>now protected by copyright have no commercial market, many are >>out-of-print or not available in modern distribution formats, and >>persons seeking to use works are faced with enormous difficulties >>locating > > right owners and negotiating licenses. > >>Lessig has proposed the reintroduction of formalities for works, with >>the expectation that this would sort out the cases where right owners >>are truly interested in controlling distribution of works, and make it >>easier to identify and locate right owners. >> >>The United States did not join the Berne Convention until 1989. Before >>that, the US required registration for copyright. Works that were not >>registered entered the public domain. The United States and many >>other countries still have registration systems. In the United States >>the registration of copyrighted works is optional, but encouraged >>through legal provisions regarding the enforcement of rights. >> >> >> PROPOSAL FOR FORMALITIES ON TRIPS PLUS COPYRIGHT TERMS >> >> >>REGISTRATION OF COPYRIGHT FOR WORKS WHEN COPYRIGHT TERM EXCEEDS TRIPS >>REQUIREMENTS >> >>Parties agree to require that works subject to copyright protections >>will not be protected beyond the minimum terms set out in the WTO >>TRIPS agreement, unless the extended term of protection is based upon >>the registration of the work and the inclusion of a notice of extended >>copyright term identifying the right owner and the date the work will >>enter the public domain. >> >> >> >>-- >>James Love, Director, CPTech, http://www.cptech.org >> >>Consumer Project on Technology in Washington, DC PO Box 19367, >>Washington, DC 20036, USA >>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >>Consumer Project on Technology in Geneva >>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>Tel: +41 22 791 6727 >> >>Mobile +1.202.361.3040 >>james.love@cptech.org >> >> >> >>--__--__-- >> >>Message: 2 >>Date: Sun, 23 Jan 2005 08:25:50 -0500 >>From: James Love >>To: a2k@lists.essential.org >>Subject: [A2k] A2k - Additional Measures on Copyright Term >> >>A2k - Additional Measures on Copyright Term >> >> >>COPYRIGHT TERM OF PROTECTION >> >>Unlike the term for patents or many other types of intellectual >>property, modern copyright terms do not bear any relationship to >>economic incentives to create works. Arguments for extending terms >>may pay some lip service to economic benefits of protection, but they >>are more typically motivated by rent seeking lobbying by owners of >>long deceased authors or holders of corporate owned works for hire, >>and marketed on the basis of the need to >>=93honor=94 the creative community. >>In recent years there has been renewed interest in controlling the >>enormous extensions of copyright terms, and protecting the public domain. >> >>These proposals are somewhat overlapping, and supplement the earlier >>proposal on formalities for TRIPS plus copyright terms. >> >>1. NO RETROACTIVE EXTENSION OF COPYRIGHT TERM FOR WORKS FOR HIRE OR >>WORKS WHEN AUTHOR HAS ALIENATED ECONOMIC RIGHTS >> >>Members agree that any future extensions of copyright terms will not >>be retroactive for works when the term of protection is based upon >>anything other than the life of a natural person, or in any case for >>any work for which the author has alienated all economic rights. >> >>2. NO TRIPS PLUS TERM FOR WORKS FOR HIRE >> >>Members agree to that copyright terms for works for hire will not >>exceed 50 years for most works, and 25 years for works for hire >>involving photographic works and works of applied art in so far as >>they are protected as artistic work. >> >> >> >>-- >>James Love, Director, CPTech, http://www.cptech.org >> >>Consumer Project on Technology in Washington, DC PO Box 19367, >>Washington, DC 20036, USA >>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >>Consumer Project on Technology in Geneva >>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>Tel: +41 22 791 6727 >> >>Mobile +1.202.361.3040 >>james.love@cptech.org >> >>--__--__-- >> >>Message: 3 >>Date: Sun, 23 Jan 2005 09:44:42 -0500 >>From: James Love >>To: a2k@lists.essential.org >>Subject: [A2k] a2k - Public Goods Database Exception to Patentability >> >>Proposal To Limit Patents Associated with Certain Public Good >>Databases Mechanisms to limit patents on inventions which are derived >>from certain open public goods databases >> >> This is the so called "HapMap" proposal that was developed in a >>meeting a Cambridge University last summer on licensing of patents for >>public goods. Jamie >> >> >><--------Proposal-------------> >> >>The WIPO PCT will adopt procedures whereby persons, organizations or >>communities that seek to establish certain qualifying open public >>goods databases (QOPGD) apply for a time limited period during which >>no patent applications can be submitted that rely upon the data from >>the > > QOPGD. > >><------end proposal--------------> >> >>Explanatory note: For example, when it was first created, the >>developers of the HapMap database (see licensing terms below) asked >>that patents not be filed for a period of three years. The license >>did create problems in terms of the dissemination of the information, >>and was eventually eliminated, but only after it had served its basic >>purpose, which was to protect the public good against misappropriation >>by private patents for a critical period of time. An agreement among >>members of the PCT to coordinate efforts to create an exception for >>patents in cases like this will enable broader dissemination of the > > results. > >> >>EXCERPTS FROM THE ORIGINAL HAPMAP TERMS AND CONDITIONS FOR ACCESS TO >>AND USE OF THE GENOTYPE DATABASE >> >>2. You may access and conduct queries of the Genotype Database and >>copy, extract, distribute or otherwise use copies of the whole or any >>part of the Genotype Database's data as you receive it, in any medium >>and for all (including for commercial) purposes, provided always that: >> >>a. by your actions (whether now or in the future), you shall not >>restrict the access to, or the use which may be made by others of, the >>Genotype Database or the data that it contains; >> >>b. in particular, but without limitation, >> >>i. you shall not file any patent applications that contain claims to >>any composition of matter of any single nucleotide polymorphism >>("SNP"), genotype or haplotype data obtained from the Genotype >>Database or any SNP, haplotype or haplotype block based on data >>obtained from the Genotype Database; and >> >>ii. you shall not file any patent applications that contain claims to >>particular uses of any SNP, genotype or haplotype data obtained from >>the Genotype Database or any SNP, haplotype or haplotype block based >>on data obtained from, the Genotype Database, unless such claims do >>not restrict, or are licensed on such terms that that they do not >>restrict, the ability of others to use at no cost the Genotype >>Database or the data that it contains for other purposes; and >> >> >>-- >>James Love, Director, CPTech, http://www.cptech.org >> >>Consumer Project on Technology in Washington, DC PO Box 19367, >>Washington, DC 20036, USA >>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >>Consumer Project on Technology in Geneva >>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>Tel: +41 22 791 6727 >> >>Mobile +1.202.361.3040 >>james.love@cptech.org >> >> >>--__--__-- >> >>_______________________________________________ >>A2k mailing list >>A2k@lists.essential.org >>http://lists.essential.org/mailman/listinfo/a2k >> >> >>End of A2k Digest >> >>_______________________________________________ >>A2k mailing list >>A2k@lists.essential.org >>http://lists.essential.org/mailman/listinfo/a2k >> >> > > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC PO Box 19367, > Washington, DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love@cptech.org > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From james.love@cptech.org Wed Jan 26 04:26:32 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id CEE2429B3F for ; Wed, 26 Jan 2005 04:26:16 -0500 (EST) Received: (qmail 28202 invoked from network); 26 Jan 2005 09:26:06 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 26 Jan 2005 09:26:05 -0000 Received: from 200.167.53.243 ([200.167.53.243]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 26 Jan 2005 09:26:05 -0000 Message-ID: <41F7622D.7040707@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: Alan Story Cc: a2k@lists.essential.org Subject: Re: [A2k] Copyright term References: In-Reply-To: content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Wed Jan 26 04:30:21 2005 X-Original-Date: Wed, 26 Jan 2005 04:26:05 -0500 Alan Story wrote: > Jamie: > > I am glad that we agree on this point (that is, to prevent countries being > able/allowed to increase their term of copyright above life of the author, > plus 50 years,would require a change in the wording of the Berne > Convention). No need to twist what I said, which was the opposite. I can't see any need to change the Berne on this point. > And Jamie,please,I hardly believe that Berne is "some sacred text"; I have > called for its repeal in my "Burn Berne" article ( because, among things, it > operates as a "Western-based and unreconstructed colonial relic" that > operates against the interests of peoples in the South.) I just want us all > to be clear as to the stakes of this debate about improving access to > knowledge. > > And while we are talking about "access to knowledge", please let us not be > so presumptious as to think that this knowledge flow is a one-way street, > North to South, or think it involves spreading Western (and/or US) "values", > as one G. Bush put it last week at his inauguration. > I am not suggesting, Jamie, that you are doing this...but it is an EXTREME > DANGER when we talk about this important issue. Given this is such an EXTREME problem, maybe you can explain why this is a problem here, and what should be done about it. Are you opposed to a treaty for "Access to Knowledge?" Do you want a different approach? Do we have to first "burn Berne" before we can do anything else? Where are you going with your comments? Jamie -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From a.c.story@kent.ac.uk Wed Jan 26 06:11:52 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from greendale.ukc.ac.uk (greendale.kent.ac.uk [129.12.21.13]) by lists.essential.org (Postfix) with ESMTP id A632E29B3F for ; Wed, 26 Jan 2005 06:11:51 -0500 (EST) Received: from pelican.ukc.ac.uk ([129.12.200.26]) by greendale.ukc.ac.uk with esmtp (Exim 4.42) id 1Ctl47-0005kA-Cw; Wed, 26 Jan 2005 11:10:27 +0000 Received: from dhcp1e6f.ukc.ac.uk ([129.12.30.111] helo=klsvig013) by pelican.ukc.ac.uk with esmtp (Exim 4.22) id 1Ctl47-00076j-0u; Wed, 26 Jan 2005 11:10:27 +0000 From: "Alan Story" To: "'James Love'" Cc: Subject: RE: [A2k] Copyright term MIME-Version: 1.0 X-Mailer: Microsoft Office Outlook, Build 11.0.6353 X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.2527 Thread-Index: AcUDiT7cPqv3dLI5RgiOMXW7o/9A7gACaBNg In-Reply-To: <41F7622D.7040707@cptech.org> Message-Id: X-UKC-Mail-System: No virus detected X-UKC-SpamCheck: X-UKC-MailScanner-From: a.c.story@kent.ac.uk content-transfer-encoding: 7bit content-type: text/plain; charset=us-ascii Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Wed Jan 26 08:45:02 2005 X-Original-Date: Wed, 26 Jan 2005 11:09:57 -0000 Jamie: We seem to have reached a saw-off on this point...and unfortunately, the acrimony seems to be increasing by the hour. I have a suggestion: Why don't we ask those on the list or persons not on the list (to my knowledge) with expertise in international copyright law ( e.g. Peter Jaszi, Ruth Okediji in the US, Sam Ricketson in Australia, David Vaver in the UK, etc. )to give their views on the question: Keeping in mind the provisions of Articles 7 and 19 of the Berne Convention ( or any other relevant provisions), can a country which is a member of the Berne Union be PREVENTED(by other member countries)from increasing its own national term of protection for literary and artistic works beyond a term of life of the author and fifty years after her/his death WITHOUT CHANGING the wording of the Berne Convention? (CAPS FOR EMPHASIS ONLY) In a spirit of "access to knowledge", does this seem like a good resolution of this disagreement? I don't want to get into further "flame throwing" on this Jamie. I should add, in case there is any confusion, that I am NOT in favour of increasing copyright term and indeed, I think, the term should be decreased and users rights greatly expanded. I have just finished some research on copyright and the blind/visually impaired in the South and I think the current access restrictions are, not to put too fine a point on it, a bloody scandal. Best wishes Alan Alan Story Lecturer Kent Law School University of Kent Canterbury, Kent, UK acs3@kent.ac.uk +44 (0)1227 823316 -----Original Message----- From: James Love [mailto:james.love@cptech.org] Sent: Wednesday 26 January 2005 09:26 To: Alan Story Cc: a2k@lists.essential.org Subject: Re: [A2k] Copyright term Alan Story wrote: > Jamie: > > I am glad that we agree on this point (that is, to prevent countries > being able/allowed to increase their term of copyright above life of > the author, plus 50 years,would require a change in the wording of the > Berne Convention). No need to twist what I said, which was the opposite. I can't see any need to change the Berne on this point. > And Jamie,please,I hardly believe that Berne is "some sacred text"; I have > called for its repeal in my "Burn Berne" article ( because, among things, it > operates as a "Western-based and unreconstructed colonial relic" that > operates against the interests of peoples in the South.) I just want us all > to be clear as to the stakes of this debate about improving access to > knowledge. > > And while we are talking about "access to knowledge", please let us not be > so presumptious as to think that this knowledge flow is a one-way street, > North to South, or think it involves spreading Western (and/or US) "values", > as one G. Bush put it last week at his inauguration. > I am not suggesting, Jamie, that you are doing this...but it is an EXTREME > DANGER when we talk about this important issue. Given this is such an EXTREME problem, maybe you can explain why this is a problem here, and what should be done about it. Are you opposed to a treaty for "Access to Knowledge?" Do you want a different approach? Do we have to first "burn Berne" before we can do anything else? Where are you going with your comments? Jamie -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From james.love@cptech.org Wed Jan 26 08:44:19 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id AF7F829B19 for ; Wed, 26 Jan 2005 08:44:18 -0500 (EST) Received: (qmail 14763 invoked from network); 26 Jan 2005 13:44:18 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 26 Jan 2005 13:44:17 -0000 Received: from 200.167.53.243 ([200.167.53.243]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 26 Jan 2005 13:44:17 -0000 Message-ID: <41F79EB1.7020904@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: Alan Story Cc: a2k@lists.essential.org Subject: Re: [A2k] Copyright term References: In-Reply-To: content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Wed Jan 26 08:46:01 2005 X-Original-Date: Wed, 26 Jan 2005 08:44:17 -0500 Alan. I don't think disagreeing with you constitutes acrimony. I welcome the views of others on this point. I am alway open to more information and good legal analysis. And of course, in the end, I reserve the right to have an opinion. I also would emphasize the TRIPS as the most important instrument for most countries, since it is apparently essential for countries to join the WTO, and the TRIPS enforcement mechanisms are quite real. Jamie Alan Story wrote: > Jamie: > > We seem to have reached a saw-off on this point...and unfortunately, the > acrimony seems to be increasing by the hour. > > I have a suggestion: > > Why don't we ask those on the list or persons not on the list (to my > knowledge) with expertise in international copyright law ( e.g. Peter Jaszi, > Ruth Okediji in the US, Sam Ricketson in Australia, David Vaver in the UK, > etc. )to give their views on the question: > > Keeping in mind the provisions of Articles 7 and 19 of the Berne Convention > ( or any other relevant provisions), can a country which is a member of the > Berne Union be PREVENTED(by other member countries)from increasing its own > national term of protection for literary and artistic works beyond a term of > life of the author and fifty years after her/his death WITHOUT CHANGING the > wording of the Berne Convention? (CAPS FOR EMPHASIS ONLY) > > In a spirit of "access to knowledge", does this seem like a good resolution > of this disagreement? I don't want to get into further "flame throwing" on > this Jamie. > > I should add, in case there is any confusion, that I am NOT in favour of > increasing copyright term and indeed, I think, the term should be decreased > and users rights greatly expanded. I have just finished some research on > copyright and the blind/visually impaired in the South and I think the > current access restrictions are, not to put too fine a point on it, a bloody > scandal. > > Best wishes > Alan > > > Alan Story > Lecturer > Kent Law School > University of Kent > Canterbury, Kent, UK > acs3@kent.ac.uk > +44 (0)1227 823316 > -----Original Message----- > From: James Love [mailto:james.love@cptech.org] > Sent: Wednesday 26 January 2005 09:26 > To: Alan Story > Cc: a2k@lists.essential.org > Subject: Re: [A2k] Copyright term > > Alan Story wrote: > >>Jamie: >> >>I am glad that we agree on this point (that is, to prevent countries >>being able/allowed to increase their term of copyright above life of >>the author, plus 50 years,would require a change in the wording of the >>Berne Convention). > > > No need to twist what I said, which was the opposite. I can't see any > need to change the Berne on this point. > > > >>And Jamie,please,I hardly believe that Berne is "some sacred text"; I have >>called for its repeal in my "Burn Berne" article ( because, among things, > > it > >>operates as a "Western-based and unreconstructed colonial relic" that >>operates against the interests of peoples in the South.) I just want us > > all > >>to be clear as to the stakes of this debate about improving access to >>knowledge. >> >>And while we are talking about "access to knowledge", please let us not be >>so presumptious as to think that this knowledge flow is a one-way street, >>North to South, or think it involves spreading Western (and/or US) > > "values", > >>as one G. Bush put it last week at his inauguration. >>I am not suggesting, Jamie, that you are doing this...but it is an EXTREME >>DANGER when we talk about this important issue. > > > Given this is such an EXTREME problem, maybe you can explain why > this is a problem here, and what should be done about it. Are you > opposed to a treaty for "Access to Knowledge?" Do you want a different > approach? Do we have to first "burn Berne" before we can do anything > else? Where are you going with your comments? > > Jamie > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From philippe.aigrain@wanadoo.fr Wed Jan 26 11:18:30 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mail.sopinspace.com (mail.sopinspace.com [82.225.32.39]) by lists.essential.org (Postfix) with ESMTP id B239529B4E for ; Wed, 26 Jan 2005 11:18:24 -0500 (EST) Received: from rome.sop (rome.sop [192.168.2.21]) by mail.sopinspace.com (Postfix) with ESMTP id 34240D8C4 for ; Wed, 26 Jan 2005 17:18:20 +0100 (CET) From: Philippe Aigrain Organization: Personnel To: a2k@lists.essential.org User-Agent: KMail/1.7.2 MIME-Version: 1.0 Message-Id: <200501261717.47971.philippe.aigrain@wanadoo.fr> x-plaintext: Content of type application/pdf deleted content-transfer-encoding: 7bit content-type: text/plain Subject: [A2k] Scenario analysis for the future of the International IP environment (in French) Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Wed Jan 26 11:21:00 2005 X-Original-Date: Wed, 26 Jan 2005 17:17:47 +0100 -- Please find attached a note prepared by the French Commissariat au Plan (December 2004) on "Which Intellectual Property Policy at the 2020 horizon?". Though the exercise seems to completely ignore issues and alliances that cut across countries (such as coalitions between pro-commons NGO and developing countries), it is interesting to study. It tries to identify major possible scenarios : 1- A consensual scenario based on acceptance of adaptation of IP schemes to needs of various countries or zones, recognition of cultural diversity, specific schemes for traditional knowledge or gentic resources. This scenario is judged unlikely. 2- A fragmented scenario, based on agreements within geographic or "type of country" zones, with strongly opposed systems prevailing for instance in he US (triumph of all-out intellectual property), Europe (divided between some countries following the US and other closer more open to a cultural or commons-recognition approach, resulting in some renationalisation of rules but maintaining the European Patent Office), or the emerging countries. 3- A unipolar scenario with a triumph of the all-out extension of IP advocated by the US, though in practice the ability to enforce it would be weak. 4- A developed world and its satellites scenario where developed countries would agree on a strong but recentred on a more precise scope intellectual property, and try to federate other countries around them through bilateral or regional agreements. In this scenario, the position of the US and Europe would be closer that in the unipolar scenario, and the emerging countries would search agreements with the developed countries, without much consideration for the less advanced countries. The scenario 2 and 3 are judged the most dangerous for "France" (whatever that exactly means here). Thus it is a the search for the 4th scenario that is recommended by the report (so much for the poorer countries that our President cares so much for!). Philippe Aigrain -- [ Content of type application/pdf deleted ] From a.c.story@kent.ac.uk Thu Jan 27 10:40:41 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from greendale.ukc.ac.uk (greendale.kent.ac.uk [129.12.21.13]) by lists.essential.org (Postfix) with ESMTP id CE51529B3D for ; Thu, 27 Jan 2005 10:40:40 -0500 (EST) Received: from pelican.ukc.ac.uk ([129.12.200.26]) by greendale.ukc.ac.uk with esmtp (Exim 4.42) id 1CuBji-0001Yc-Dv for a2k@lists.essential.org; Thu, 27 Jan 2005 15:39:10 +0000 Received: from dhcp1e6f.ukc.ac.uk ([129.12.30.111] helo=klsvig013) by pelican.ukc.ac.uk with esmtp (Exim 4.22) id 1CuBji-0000T0-8J for a2k@lists.essential.org; Thu, 27 Jan 2005 15:39:10 +0000 From: "Alan Story" To: MIME-Version: 1.0 X-Mailer: Microsoft Office Outlook, Build 11.0.6353 Thread-Index: AcUEgpC1YULLQzm/Tqi2tME+Re7CvgAAxHqw X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.2527 Message-Id: X-UKC-Mail-System: No virus detected X-UKC-SpamCheck: X-UKC-MailScanner-From: a.c.story@kent.ac.uk content-transfer-encoding: 7bit content-type: text/plain; charset=us-ascii Subject: [A2k] FW: [Upd-discuss] [Fwd: Alert: "Eyes on the Prize" to be Released on Internet] Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Thu Jan 27 13:30:02 2005 X-Original-Date: Thu, 27 Jan 2005 15:38:40 -0000 It would be interesting to have some reaction on this " access to knowledge" list to the post that Robert Weissman has sent to the upd-discuss list...and in particular the tactics being used. Alan Alan Story Lecturer Kent Law School University of Kent Canterbury, Kent, UK acs3@kent.ac.uk +44 (0)1227 823316 -----Original Message----- From: upd-discuss-admin@lists.essential.org [mailto:upd-discuss-admin@lists.essential.org] On Behalf Of Robert Weissman Sent: Thursday 27 January 2005 15:09 To: upd-discuss@lists.essential.org Subject: [Upd-discuss] [Fwd: Alert: "Eyes on the Prize" to be Released on Internet] Alert: "Eyes on the Prize" to be Released on Internet FOR IMMEDIATE RELEASE January 26, 2005 Eyes on the Screen "Eyes on the Prize", Civil Rights Documentary, To Be Released Over the Internet Despite Copyright Disputes A day of public screenings of the legendary documentary, to be organized for February 8th, 2005 HYPERLINK: http://www.eyesonthescreen.org According to some, it's illegal for makers of the civil rights documentary "Eyes on the Prize" to put it on DVD or show it in public. But at 8:00 PM on February during Black History Month, Downhill Battle (downhillbattle.org) is encouraging Americans to celebrate the struggle and triumph of the civil rights movement with screenings of "Eyes on the Prize" in homes and public places with the goal of having a screening in every major city in America. The campaign is called Eyes on the Screen. "Eyes on the Prize" is the most comprehensive and revered civil rights documentary ever made. But the documentary has not been available for public viewing for the past 10 years because of unreasonable copyright laws that impose stifling restrictions on artists and filmmakers. In one instance, copyright holders believe they should receive licensing fees for the song "Happy Birthday," which appears in footage of a group of people singing to Dr. Martin Luther King Jr. "To celebrate Black History Month, we believe that "Eyes on the Prize" should be seen by as many people as possible," says Tiffiniy Cheng of Downhill Battle. "The civil rights movement is just too important for this invaluable resource to be denied to the public. So, we're going to help distribute "Eyes on the Prize" to a mass audience and communities can have screenings." "Eyes on the Prize is one of the most effective documentaries ever put together that dealt with civic engagement," says civil rights leader Lawrence Guyot. "This is analogous to stopping the circulation of all the books about Martin Luther King, stopping the circulation of all the books about Malcolm X, stopping the circulation of books about the founding of America... I would call upon everyone who has access to 'Eyes on the Prize' to openly violate any and all laws regarding its showing." "Eyes on the Prize" is an award-winning 14-volume documentary made by the late Henry Hampton, tracking the Civil Rights Movement from 1954 to 1965. Clayborne Carson, a Stanford University history professor, has said, "It is the principal film account of the most important American social justice movement of the 20th century" (Wired News, 12/22/04). "Eyes on the Prize" was the first introduction to the history of the Civil Rights Movement for millions of people," says Nicholas Reville of Downhill Battle, "But our corporatized copyright system is keeping it locked away." "The situation of "Eyes on the Prize" is a perfect example of why copyright law isn't working for the public," says Cheng. "It's ridiculous that this documentary is languishing in copyright purgatory, instead of being shown in classrooms. "Eyes on the Screen" is a perfect example of how people can bring attention to bad copyright law and start turning the situation around." For background, see this article: http://washingtonpost.com/wp-dyn/articles/A14801-2005Jan16.html Contact: Lawrence Guyot, Former Leader of the Mississippi Freedom Democratic Party w: (202)727-4742 h: (202)332-5157 Tiffiniy Cheng, Co-Director of Downhill Battle w: (508)963-1096 e: tyc@downhillbattle.org Nicholas Reville, Co-Director of Downhill Battle w: (508)963-7832 e: npr@downhillbattle.org ### _______________________________________________________ portside (the left side in nautical parlance) is a news, discussion and debate service of the Committees of Correspondence for Democracy and Socialism. It aims to provide varied material of interest to people on the left. For answers to frequently asked questions: To subscribe, unsubscribe or change settings: To submit material, paste into an email and send to: (postings are moderated) For assistance with your account: To search the portside archive: _______________________________________________ Upd-discuss mailing list Upd-discuss@lists.essential.org http://lists.essential.org/mailman/listinfo/upd-discuss From james.love@cptech.org Thu Jan 27 15:38:08 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id A833D29B4E for ; Thu, 27 Jan 2005 15:38:07 -0500 (EST) Received: (qmail 12110 invoked from network); 27 Jan 2005 20:38:07 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 27 Jan 2005 20:38:05 -0000 Received: from 200.167.53.243 ([200.167.53.243]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 27 Jan 2005 20:38:05 -0000 Message-ID: <41F9512E.9070705@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: Alan Story Cc: a2k@lists.essential.org Subject: Re: [A2k] Alert: "Eyes on the Prize" to be Released on Internet References: In-Reply-To: content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Thu Jan 27 15:46:01 2005 X-Original-Date: Thu, 27 Jan 2005 15:38:06 -0500 The a2k list was set up to help formulate specific elements of a treaty on access to knowledge. One possible response to the Eyes on the Prize dispute (which as received a lot of attention in the US), would be to have WIPO develop a best practices model for addressing exceptions relating to the making of documentaries. In this respect one might ask, what about the access to the documentary that needs access to other works? Should makers of films have special rights to use other works in documentaries, if they provide extra access to the public also? Jamie Alan Story wrote: > It would be interesting to have some reaction on this " access to > knowledge" list to the post that Robert Weissman has sent to the upd-discuss > list...and in particular the tactics being used. > > Alan > > > > > Alan Story > Lecturer > Kent Law School > University of Kent > Canterbury, Kent, UK > acs3@kent.ac.uk > +44 (0)1227 823316 > -----Original Message----- > From: upd-discuss-admin@lists.essential.org > [mailto:upd-discuss-admin@lists.essential.org] On Behalf Of Robert Weissman > Sent: Thursday 27 January 2005 15:09 > To: upd-discuss@lists.essential.org > Subject: [Upd-discuss] [Fwd: Alert: "Eyes on the Prize" to be Released on > Internet] > > Alert: "Eyes on the Prize" to be Released on Internet > > FOR IMMEDIATE RELEASE > > January 26, 2005 > > Eyes on the Screen > > "Eyes on the Prize", Civil Rights Documentary, To Be Released Over the > Internet Despite Copyright Disputes > > A day of public screenings of the legendary documentary, to be organized for > February 8th, 2005 > > HYPERLINK: http://www.eyesonthescreen.org > > According to some, it's illegal for makers of the civil rights documentary > "Eyes on the Prize" to put it on DVD or show it in public. But at 8:00 PM on > February during Black History Month, Downhill Battle > (downhillbattle.org) is encouraging Americans to celebrate the struggle and > triumph of the civil rights movement with screenings of "Eyes on the Prize" > in homes and public places with the goal of having a screening in every > major city in America. The campaign is called Eyes on the Screen. > > "Eyes on the Prize" is the most comprehensive and revered civil rights > documentary ever made. But the documentary has not been available for public > viewing for the past 10 years because of unreasonable copyright laws that > impose stifling restrictions on artists and filmmakers. In one instance, > copyright holders believe they should receive licensing fees for the song > "Happy Birthday," which appears in footage of a group of people singing to > Dr. Martin Luther King Jr. > > "To celebrate Black History Month, we believe that "Eyes on the Prize" > should be seen by as many people as possible," says Tiffiniy Cheng of > Downhill Battle. "The civil rights movement is just too important for this > invaluable resource to be denied to the public. So, we're going to help > distribute "Eyes on the Prize" to a mass audience and communities can have > screenings." > > "Eyes on the Prize is one of the most effective documentaries ever put > together that dealt with civic engagement," says civil rights leader > Lawrence Guyot. > "This is analogous to stopping the circulation of all the books about Martin > Luther King, stopping the circulation of all the books about Malcolm X, > stopping the circulation of books about the founding of America... I would > call upon everyone who has access to 'Eyes on the Prize' to openly violate > any and all laws regarding its showing." > > "Eyes on the Prize" is an award-winning 14-volume documentary made by the > late Henry Hampton, tracking the Civil Rights Movement from 1954 to 1965. > Clayborne Carson, a Stanford University history professor, has said, "It is > the principal film account of the most important American social justice > movement of the 20th century" (Wired News, 12/22/04). > > "Eyes on the Prize" was the first introduction to the history of the Civil > Rights Movement for millions of people," says Nicholas Reville of Downhill > Battle, "But our corporatized copyright system is keeping it locked away." > > "The situation of "Eyes on the Prize" is a perfect example of why copyright > law isn't working for the public," says Cheng. "It's ridiculous that this > documentary is languishing in copyright purgatory, instead of being shown in > classrooms. "Eyes on the Screen" is a perfect example of how people can > bring attention to bad copyright law and start turning the situation > around." > > For background, see this article: > > http://washingtonpost.com/wp-dyn/articles/A14801-2005Jan16.html > > Contact: > > Lawrence Guyot, > Former Leader of the Mississippi Freedom Democratic Party > w: (202)727-4742 > h: (202)332-5157 > > Tiffiniy Cheng, > Co-Director of Downhill Battle > w: (508)963-1096 > e: tyc@downhillbattle.org > > Nicholas Reville, > Co-Director of Downhill Battle > w: (508)963-7832 > e: npr@downhillbattle.org > > ### > > _______________________________________________________ > > portside (the left side in nautical parlance) is a news, discussion and > debate service of the Committees of Correspondence for Democracy and > Socialism. It aims to provide varied material of interest to people on the > left. > > For answers to frequently asked questions: > > > To subscribe, unsubscribe or change settings: > > > To submit material, paste into an email and send to: > (postings are moderated) > > For assistance with your account: > > > To search the portside archive: > > > _______________________________________________ > Upd-discuss mailing list > Upd-discuss@lists.essential.org > http://lists.essential.org/mailman/listinfo/upd-discuss > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From michelle.childs@cptech.org Sun Jan 30 10:13:40 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from questmail.futurequest.net (questmail.futurequest.net [69.5.6.251]) by lists.essential.org (Postfix) with SMTP id 470DE29B33 for ; Sun, 30 Jan 2005 10:13:39 -0500 (EST) Received: (qmail 7463 invoked by uid 12315); 30 Jan 2005 15:13:38 -0000 Received: from 82.35.80.214 (SquirrelMail authenticated user michelle.childs@cptech.org) by QuestMail.FutureQuest.net with HTTP; Sun, 30 Jan 2005 10:13:38 -0500 (EST) Message-ID: <1191.82.35.80.214.1107098018.squirrel@QuestMail.FutureQuest.net> From: "Michelle Childs" To: a2k@lists.essential.org User-Agent: SquirrelMail/1.4.4 X-Mailer: SquirrelMail/1.4.4 MIME-Version: 1.0 X-Priority: 3 (Normal) Importance: Normal References: In-Reply-To: content-transfer-encoding: 7bit content-type: text/plain; charset=iso-8859-1 Subject: [A2k] A2K:German library allowed to crack copy protection Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 30 14:30:01 2005 X-Original-Date: Sun, 30 Jan 2005 10:13:38 -0500 (EST) German library allowed to crack copy protection.From:EDRI-gram- the biweekly newsletter about digital civil rights in Europe.Number 3.2, 26 January 2005 ============================================================ 2. German library allowed to crack copy protection ============================================================ The German national library (Deutsche Bibliothek) has negiotated a license with rightholders to legally circumvent copy protection mechanisms on CD-roms, videos, software and E-books. It seems this is the first library in Europe to have managed a voluntary agreement on the strict new anti-circumvention rules prescribed by the EU copyright directive of 2001 (2001/29/EC). Article 6 of the EUCD prohibits acts of circumvention, as well as the distribution of tools and technologies used for circumvention of access control or copy protection measures. Member States could choose between penal or civil sanctions for infringement. Germany has chosen penal sanctions, with large fines or a 3 year prison sentence for circumvention for a commercial purpose. Article 6.4 of the EUCD calls on governments to take appropriate measures should voluntary agreements between rightsholders and 'beneficiaries of exceptions or limitations' fail. One of these permitted exceptions, that can be introduced by Member States, is Article 5.2c: "in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage." The German transposition of the EUCD, entered into force in September 2003, did not explicitly acknowledge this limitation, but allows users to circumvent technical measures for private, non-commercial archiving purposes. This exception indirectly also applies to libraries and archives, but depends on permission from the rightsholders. In the explanatory memorandum of the second 'basket' of copyright legislation, proposed in September 2004, the legislator only introduces a specific exception for libraries to make works available online, at the library, but declines any further clarification on the archiving issue. The German Federation of the Phonographic Industry and the German Booksellers and Publishers Association have agreed to allow the library to fulfil its legal obligation to collect and make available material for long-term archiving purposes. The agreement also allows the library to break digital locks on books and music for scientific purposes of users, for collections for school or educational purposes, for instruction and research as well as on works that are out of print. These duplications are subjected to a fee and possibly a digital watermark. Rightholders may either supply a lock-free copy of a work, but if not, the library may circumvent the protection. Joint press release library and rightsholders (English, January 2005) http://www.sub.uni-goettingen.de/frankfurtgroup/drms/drms.html German Library Allowed To Crack Copy Protection http://yro.slashdot.org/article.pl?sid=05/01/19/0021255 EU Copyright Directive 2001/29/EC (22.05.2001) http://europa.eu.int/cgi-bin/eur-lex/udl.pl?REQUEST=Seek-Deliver&SERVICE=eurlex&COLLECTION=oj&LANGUAGE=en&DOCID=2001l167p00100019 German copyright legislation (first basket, 10.09.2003) http://bundesrecht.juris.de/bundesrecht/urhg/index.html -- Michelle Childs -Head of European Affairs Consumer Project on Technology in London 24, Highbury Crescent, London, N5 1RX,UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607 http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 From james.love@cptech.org Sun Jan 30 14:24:39 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 83D0D29B33 for ; Sun, 30 Jan 2005 14:24:39 -0500 (EST) Received: (qmail 12899 invoked from network); 30 Jan 2005 19:24:38 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 30 Jan 2005 19:24:38 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 30 Jan 2005 19:24:38 -0000 Message-ID: <41FD347C.6050005@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org Cc: Peter Jaszi content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] Peter Jaszi a2k proposals for Copyright Limitations and Exceptions Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 30 14:30:07 2005 X-Original-Date: Sun, 30 Jan 2005 14:24:44 -0500 This text is a proposal from Professor Peter Jaszi. (I will also post in a separate message Peter's additional proposals regarding anti-circumvention technologies). Jamie -------- Limitations and Exceptions: (A) The exclusive economic rights of copyright owners (including but not limited to reproduction, distribution, display, performance, adaptation and communication to the public), shall not apply to: (1) The use of relevant excerpts, selections, and quotations for purposes of explanation and illustration in connection with not-for-profit teaching and scholarship; (2) The use of relevant excerpts, selections and quotations for purposes of criticism and comment, including but not limited to parody: (3) The use of works, by educational institutions, as secondary readings by enrolled students; (4) The use of works, by educations institutions, as primary instructional materials, if those materials are not made readily available by right holders at a reasonable price; provided that in case of such use the right holder shall be entitled to equitable remuneration. (5) The use of works for purposes of library or archival preservation; (6) The use of works in connection with legitimate reverse engineering; (7) The use of works specifically to promote access by persons of with impaired sight or hearing, learning disabilities, or other special needs; (8) The use .............................. (B) It shall be presumed that these uses constitute special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. (C) In determining whether applying any limitation or exception to exclusive rights to a particular use of a work would conflict with its normal exploitation or unreasonably prejudices the legitimate interests of the right holder, the extent to which the use benefits the larger public interest shall be taken into account. (D) In addition to implementing specific exceptions for the cases listed in subpargraph (A), parties to this treaty also shall implement a general exception to copyright law, applicable in special cases where the social, cultural, educational or other developmental benefit of a use outweigh the costs imposed by it on private parties, [and providing for equitable remuneration to the copyright owner in appropriate circumstances.]" From james.love@cptech.org Sun Jan 30 14:28:12 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 5E17129B33 for ; Sun, 30 Jan 2005 14:28:12 -0500 (EST) Received: (qmail 2036 invoked from network); 30 Jan 2005 19:28:12 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 30 Jan 2005 19:28:11 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 30 Jan 2005 19:28:11 -0000 Message-ID: <41FD3551.2060406@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org Cc: Peter Jaszi content-transfer-encoding: quoted-printable content-type: text/plain; charset=windows-1252; format=flowed Subject: [A2k] Peter Jaszi's proposals for anti-circumvention Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 30 14:30:11 2005 X-Original-Date: Sun, 30 Jan 2005 14:28:17 -0500 --------------- Anti-Circumvention: (A) It shall be impermissible to use technological measures in connection with the exercise of authors=92 rights if they restrict acts with respect to: (1) Works consisting predominantly of public-domain material; (2) Works of medical and scientific literature; (3) Works substantially financed by national governments or international organizations; (4) Works consisting predominantly of factual information available from a single source, if equivalent information cannot readily be gathered or compiled by others; (5) Works currently protected under extended terms of copyright that exceed those required by the Berne Convention or TRIPS. provided that the use of technological measures shall be permissible if they do not substantially interfere with uses of works that are authorized by the right holders or permitted by law. (B) In providing legal protection and remedies against the circumvention of technological measures, contracting parties shall not prohibit circumvention undertaken in connection with uses of works that are authorized by the right holders or permitted by law. (C) In providing legal protection and remedies against the circumvention of technological measures, contracting parties shall not prohibit the making available of any technology or service that is intended primarily to facilitate uses of works that are authorized by the right holders or permitted by law. From cory@eff.org Sun Jan 30 14:50:00 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from flarn.com (flarn.com [216.126.84.58]) by lists.essential.org (Postfix) with ESMTP id AD23D29B33 for ; Sun, 30 Jan 2005 14:49:59 -0500 (EST) Received: from [127.0.0.1] (flarn.com [216.126.84.58]) by flarn.com (8.12.8/8.12.8) with ESMTP id j0UJneqI019566; Sun, 30 Jan 2005 14:49:47 -0500 In-Reply-To: <41FD3551.2060406@cptech.org> References: <41FD3551.2060406@cptech.org> Mime-Version: 1.0 (Apple Message framework v619.2) Message-Id: Cc: a2k@lists.essential.org, Peter Jaszi From: Cory Doctorow Subject: Re: [A2k] Peter Jaszi's proposals for anti-circumvention To: James Love X-Mailer: Apple Mail (2.619.2) content-transfer-encoding: quoted-printable content-type: text/plain; charset=WINDOWS-1252; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 30 15:30:01 2005 X-Original-Date: Sun, 30 Jan 2005 19:49:36 +0000 I like this a lot. One thing that I would like to see added to something like this is the material that was raised earlier on this list regarding: * Ensuring that TPM-vendors are not allowed to discriminate against FOSS in their licensing practices -- eliminate all "robustness" requirements for TPM licensing where the TPM receives the benefit of anti-circumvention * Ensuring that TPM rulesets are clearly stated prior to acquisition of media or devices (eg knowing that the device contains a "copy never" flag) * Ensuring that any policy regarding which rule can be applied under what circumstance is transparent to customers for DRM-covered products (eg that I know in advance that the only circumstance under which the "copy never" flag can be triggered is in the instance of pay-per-view programming, and any other use of the flag is a breach of contract) Cory On Jan 30, 2005, at 7:28 PM, James Love wrote: > > --------------- > Anti-Circumvention: > > (A) It shall be impermissible to use technological measures in > connection with the exercise of authors=92 rights if they restrict acts > with respect to: > > (1) Works consisting predominantly of public-domain material; > > (2) Works of medical and scientific literature; > > (3) Works substantially financed by national governments or > international organizations; > > (4) Works consisting predominantly of factual information available > from > a single source, if equivalent information cannot readily be gathered > or compiled by others; > > (5) Works currently protected under extended terms of copyright that > exceed those required by the Berne Convention or TRIPS. > > provided that the use of technological measures shall be permissible > if > they do not substantially interfere with uses of works that are > authorized by the right holders or permitted by law. > > (B) In providing legal protection and remedies against the > circumvention of technological measures, contracting parties shall not > prohibit circumvention undertaken in connection with uses of works that > are authorized by the right holders or permitted by law. > > (C) In providing legal protection and remedies against the > circumvention of technological measures, contracting parties shall not > prohibit the making available of any technology or service that is > intended primarily to facilitate uses of works that are authorized by > the right holders or permitted by law. > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > From doctorow@craphound.com Sun Jan 30 14:53:24 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from smtp.well.com (smtp.well.com [206.14.209.7]) by lists.essential.org (Postfix) with ESMTP id 645C929B33 for ; Sun, 30 Jan 2005 14:53:24 -0500 (EST) X-WELL-Auth: Yes Received: from [IPv6:::1] (well.com [206.14.209.5]) by smtp.well.com (8.13.0/8.13.0) with ESMTP id j0UJr9ep026108; Sun, 30 Jan 2005 11:53:15 -0800 (PST) In-Reply-To: <41FD347C.6050005@cptech.org> References: <41FD347C.6050005@cptech.org> Mime-Version: 1.0 (Apple Message framework v619.2) Message-Id: Cc: a2k@lists.essential.org, Peter Jaszi From: Cory Doctorow Subject: Re: [A2k] Peter Jaszi a2k proposals for Copyright Limitations and Exceptions To: James Love X-Mailer: Apple Mail (2.619.2) X-Virus-Scanned: ClamAV version 0.81, clamav-milter version 0.81b on smtp.well.com X-Virus-Status: Clean content-transfer-encoding: 7bit content-type: text/plain; charset=US-ASCII; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 30 15:30:05 2005 X-Original-Date: Sun, 30 Jan 2005 19:53:05 +0000 I also like this very much, but have some suggested rewordings to broaden some clauses, for reasons stated: On Jan 30, 2005, at 7:24 PM, James Love wrote: > This text is a proposal from Professor Peter Jaszi. (I will also post > in a separate message Peter's additional proposals regarding > anti-circumvention technologies). > > Jamie > > -------- > Limitations and Exceptions: > > (A) The exclusive economic rights of copyright owners (including but > not > limited to reproduction, distribution, display, performance, adaptation > and communication to the public), shall not apply to: > > > (1) The use of relevant excerpts, selections, and quotations for > purposes of explanation and illustration in connection with > not-for-profit teaching and scholarship; "education" is better than "teaching" here, I think, since it catches things that might not fall into "teaching", like apprenticeships and informal peer counselling > > (2) The use of relevant excerpts, selections and quotations for > purposes of criticism and comment, including but not limited to parody: > > (3) The use of works, by educational institutions, as secondary > readings by enrolled students; Can this be broadened somehow to catch, e.g., the "students" of open universities and other educational programmes targetted at adult/underprivileged education? > > (4) The use of works, by educations institutions, as primary > instructional materials, if those materials are not made readily > available by right holders at a reasonable price; provided that in case > of such use the right holder shall be entitled to equitable > remuneration. > > (5) The use of works for purposes of library or archival preservation; > > (6) The use of works in connection with legitimate reverse > engineering; > > (7) The use of works specifically to promote access by persons of with > impaired sight or hearing, learning disabilities, or other special > needs; > > (8) The use .............................. > > > (B) It shall be presumed that these uses constitute special cases > which > do not conflict with a normal exploitation of the work and do not > unreasonably prejudice the legitimate interests of the right holder. > > (C) In determining whether applying any limitation or exception to > exclusive rights to a particular use of a work would conflict with its > normal exploitation or unreasonably prejudices the legitimate interests > of the right holder, the extent to which the use benefits the larger > public interest shall be taken into account. > > > (D) In addition to implementing specific exceptions for the cases > listed in subpargraph (A), parties to this treaty also shall > implement a general exception to copyright law, applicable in special > cases where the social, cultural, educational or other developmental > benefit of a use outweigh the costs imposed by it on private parties, > [and providing for equitable remuneration to the copyright owner in > appropriate circumstances.]" > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > From cory@eff.org Sun Jan 30 16:28:28 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from flarn.com (flarn.com [216.126.84.58]) by lists.essential.org (Postfix) with ESMTP id B1BA029B33 for ; Sun, 30 Jan 2005 16:28:12 -0500 (EST) Received: from [127.0.0.1] (flarn.com [216.126.84.58]) by flarn.com (8.12.8/8.12.8) with ESMTP id j0ULRgqI022372 for ; Sun, 30 Jan 2005 16:27:44 -0500 Mime-Version: 1.0 (Apple Message framework v619.2) Message-Id: To: a2k discuss list From: Cory Doctorow X-Mailer: Apple Mail (2.619.2) content-transfer-encoding: 7bit content-type: text/plain; charset=US-ASCII; format=flowed Subject: [A2k] TPMs versus social/legal constructs Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 30 18:37:00 2005 X-Original-Date: Sun, 30 Jan 2005 21:27:39 +0000 The notion of an "authorized domain" is in great vogue today in DRM circles. An "authorized domain" is meant to reflect all the devices "owned or controlled by a single household" and to restrict content to only those devices. But it is not enough for a user of an authorized domain device to merely assert, "This device is part of my household." The authors of these specifications are setting out caps and limits on the number of permissible people and devices in an authorized domain, as well as the frequency and total number of times that a device can join and leave a domain. This amounts to a technical regulation of the concepts of "household" and "family." These specifications will trump legal arrangements such as marriages between partners who live apart from one another for long period of time (think of domestic servants who go abroad for years at a time to earn a family fortune) or joint custody, where your daughter's device would need to leave her father's domain and join her mother's every week. And don't get me started on foster kids who go from home to home -- these kids could conceivably have their reading, listening and viewing collections yanked out from under them by DRM for the crime of being relocated to a new home by a state welfare agency -- as would the senior citizen who is placed in an old folks' home with 400 others, all of whom are now trying to merge their domains into one "household." So I would like to propose a limitation on anti-circumvention-protected DRM that mitigates this, like so: * Where TPMs make use of legally defined social entities such as families and households to govern their behavior, they will not define these entities more narrowly or restrictively than has been defined in local law Cory -- Cory Doctorow European Affairs Coordinator, Electronic Frontier Foundation cory@eff.org www.eff.org UK mobile: +44.798.607.2869 UK landline: +44.207.127.6468 Unit 306 456-458 Strand London WC2R 0DZ US: +1.415.726.5209 454 Shotwell St, San Francisco, CA USA 94110 blog: boingboing.net vanity: craphound.com From pjaszi@wcl.american.edu Sun Jan 30 18:28:51 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mailhost.wcl.american.edu (mailhost.wcl.american.edu [147.9.143.100]) by lists.essential.org (Postfix) with ESMTP id 24B2D29B33 for ; Sun, 30 Jan 2005 18:28:51 -0500 (EST) Received: from wcl.american.edu (unverified [127.0.0.1]) by wcl.american.edu (Rockliffe SMTPRA 6.1.17) with ESMTP id ; Sun, 30 Jan 2005 18:29:28 -0500 Message-ID: <380-220051030232928546@wcl.american.edu> X-Priority: 3 From: "Peter Jaszi" To: doctorow@craphound.com, james.love@cptech.org Cc: a2k@lists.essential.org, pjaszi@wcl.american.edu Subject: Re: [A2k] Peter Jaszi a2k proposals for Copyright Limitations and Exceptions MIME-Version: 1.0 content-transfer-encoding: 7bit content-type: text/plain; charset=iso-8859-1 Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 30 18:37:04 2005 X-Original-Date: Sun, 30 Jan 2005 18:29:28 -0500 Subbing "education" for "teaching" is fine. I think the existing language on educational institutions may be broad enough to catch Cory's important concern about new modes of learning. "Enrolled" could apply to many different kinds of individual/program affiliation. -- Peter > > >---- Original Message ---- >From: doctorow@craphound.com >To: james.love@cptech.org >Subject: Re: [A2k] Peter Jaszi a2k proposals for Copyright >Limitations and Exceptions >Date: Sun, 30 Jan 2005 19:53:05 +0000 > >>I also like this very much, but have some suggested rewordings to >>broaden some clauses, for reasons stated: >> >>On Jan 30, 2005, at 7:24 PM, James Love wrote: >> >>> This text is a proposal from Professor Peter Jaszi. (I will also >post >>> in a separate message Peter's additional proposals regarding >>> anti-circumvention technologies). >>> >>> Jamie >>> >>> -------- >>> Limitations and Exceptions: >>> >>> (A) The exclusive economic rights of copyright owners (including >but >>> not >>> limited to reproduction, distribution, display, performance, >adaptation >>> and communication to the public), shall not apply to: >>> >>> >>> (1) The use of relevant excerpts, selections, and quotations for >>> purposes of explanation and illustration in connection with >>> not-for-profit teaching and scholarship; >> >>"education" is better than "teaching" here, I think, since it >catches >>things that might not fall into "teaching", like apprenticeships >and >>informal peer counselling >> >>> >>> (2) The use of relevant excerpts, selections and quotations for >>> purposes of criticism and comment, including but not limited to >parody: >>> >>> (3) The use of works, by educational institutions, as secondary >>> readings by enrolled students; >> >>Can this be broadened somehow to catch, e.g., the "students" of open >>universities and other educational programmes targetted at >>adult/underprivileged education? >> >>> >>> (4) The use of works, by educations institutions, as primary >>> instructional materials, if those materials are not made readily >>> available by right holders at a reasonable price; provided that in >case >>> of such use the right holder shall be entitled to equitable >>> remuneration. >>> >>> (5) The use of works for purposes of library or archival >preservation; >>> >>> (6) The use of works in connection with legitimate reverse >>> engineering; >>> >>> (7) The use of works specifically to promote access by persons of >with >>> impaired sight or hearing, learning disabilities, or other special >>> needs; >>> >>> (8) The use .............................. >>> >>> >>> (B) It shall be presumed that these uses constitute special cases >>> which >>> do not conflict with a normal exploitation of the work and do not >>> unreasonably prejudice the legitimate interests of the right >holder. >>> >>> (C) In determining whether applying any limitation or exception >to >>> exclusive rights to a particular use of a work would conflict with >its >>> normal exploitation or unreasonably prejudices the legitimate >interests >>> of the right holder, the extent to which the use benefits the >larger >>> public interest shall be taken into account. >>> >>> >>> (D) In addition to implementing specific exceptions for the cases >>> listed in subpargraph (A), parties to this treaty also shall >>> implement a general exception to copyright law, applicable in >special >>> cases where the social, cultural, educational or other >developmental >>> benefit of a use outweigh the costs imposed by it on private >parties, >>> [and providing for equitable remuneration to the copyright owner >in >>> appropriate circumstances.]" >>> >>> _______________________________________________ >>> A2k mailing list >>> A2k@lists.essential.org >>> http://lists.essential.org/mailman/listinfo/a2k >>> >> >>_______________________________________________ >>A2k mailing list >>A2k@lists.essential.org >>http://lists.essential.org/mailman/listinfo/a2k From james.love@cptech.org Sun Jan 30 18:32:39 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id BD74E29B0F for ; Sun, 30 Jan 2005 18:32:38 -0500 (EST) Received: (qmail 21485 invoked from network); 30 Jan 2005 23:32:38 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 30 Jan 2005 23:32:38 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 30 Jan 2005 23:32:38 -0000 Message-ID: <41FD6E9C.4080400@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org Cc: Brian Kahin , Peter Jaszi References: <41FD347C.6050005@cptech.org> In-Reply-To: <41FD347C.6050005@cptech.org> content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] Treaty regulations for limitations and exceptions Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 30 18:37:08 2005 X-Original-Date: Sun, 30 Jan 2005 18:32:44 -0500 In the proposed WIPO substantive patent law treaty, there is a process for regulations setting out allowed exceptions and limitations. Indeed, the treaty regulations seem to be important for nearly every provision of the SPLT. Would it make sense to have a process for the adoption of regulations, to address problems in areas where we are not ready to recommend policy? For example Article X A Contracting Party shall, accordance with the Regulations, (a) exclude certain inventions from patentability, (b) exclude certain uses of patented inventions from the scope of exclusive rights, (c) exclude certain works from copyright, (d) exclude certain uses of copyrighted works from the scope of exclusive rights -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From jsarnoff@wcl.american.edu Sun Jan 30 20:13:32 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mailhost.wcl.american.edu (mailhost.wcl.american.edu [147.9.143.100]) by lists.essential.org (Postfix) with ESMTP id 60DD729B0F for ; Sun, 30 Jan 2005 20:13:32 -0500 (EST) Received: from wcl.american.edu (unverified [127.0.0.1]) by wcl.american.edu (Rockliffe SMTPRA 6.1.17) with ESMTP id ; Sun, 30 Jan 2005 20:14:10 -0500 Message-ID: <380-2200511311141031@wcl.american.edu> X-Priority: 3 From: "Josh Sarnoff" To: james.love@cptech.org, a2k@lists.essential.org Cc: kahin@umich.edu, pjaszi@wcl.american.edu Subject: RE: [A2k] Treaty regulations for limitations and exceptions MIME-Version: 1.0 content-transfer-encoding: 7bit content-type: text/plain; charset=iso-8859-1 Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 30 22:03:01 2005 X-Original-Date: Sun, 30 Jan 2005 20:14:10 -0500 Usually, a delegation of regulatory power to enact exclusions or limitatins is tied to an identified standard or objective. For example, the suggested treaty requirement could read something like (adding authority to adjust requirements): "Members shall provide by legislation authority to adopt regulations that: (a) exclude certain inventions from patentability, (b) exclude certain uses of patented inventions from the scope of exclusive rights, (c) adjust requirements applicable to patentable invenetions, (d) exclude certain works from copyright, (e) exclude certain uses of copyrighted works from the scope of exclusive rights, or (f) adjust requirements applicable to copyrighted works, when such treatment or any requirement is unnecessary, excessive, or harmful(not to mention fattening)." Of course, the important thing is the policy standard and how it is articulated. As another alternative, the delegation could simply begin with "as appropriate" and remove the final clause, leaving the policy grounds ambiguous and subject to country determination. Of course, this is a direct assault on the minimum standards approach of recent treaties. Josh > > >---- Original Message ---- >From: james.love@cptech.org >To: a2k@lists.essential.org >Subject: RE: [A2k] Treaty regulations for limitations and exceptions >Date: Sun, 30 Jan 2005 18:32:44 -0500 > >>In the proposed WIPO substantive patent law treaty, there is a >process >>for regulations setting out allowed exceptions and limitations. >Indeed, >>the treaty regulations seem to be important for nearly every >provision >>of the SPLT. >> >>Would it make sense to have a process for the adoption of >regulations, >>to address problems in areas where we are not ready to recommend >policy? >>For example >> >> >>Article X >> >>A Contracting Party shall, accordance with the Regulations, >> >>(a) exclude certain inventions from patentability, >>(b) exclude certain uses of patented inventions from the scope of >>exclusive rights, >>(c) exclude certain works from copyright, >>(d) exclude certain uses of copyrighted works from the scope of >>exclusive rights >> >> >> >> >>-- >>James Love, Director, CPTech, http://www.cptech.org >> >>Consumer Project on Technology in Washington, DC >>PO Box 19367, Washington, DC 20036, USA >>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >>Consumer Project on Technology in Geneva >>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>Tel: +41 22 791 6727 >> >>Mobile +1.202.361.3040 >>james.love@cptech.org >>_______________________________________________ >>A2k mailing list >>A2k@lists.essential.org >>http://lists.essential.org/mailman/listinfo/a2k >> From james.love@cptech.org Sun Jan 30 22:14:42 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 4F1B229B0F for ; Sun, 30 Jan 2005 22:14:41 -0500 (EST) Received: (qmail 616 invoked from network); 31 Jan 2005 03:14:40 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 31 Jan 2005 03:14:40 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 31 Jan 2005 03:14:40 -0000 Message-ID: <41FDA2A6.8050809@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: Josh Sarnoff Cc: a2k@lists.essential.org, kahin@umich.edu, pjaszi@wcl.american.edu Subject: Re: [A2k] Treaty regulations for limitations and exceptions References: <380-2200511311141031@wcl.american.edu> In-Reply-To: <380-2200511311141031@wcl.american.edu> content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Sun Jan 30 22:16:01 2005 X-Original-Date: Sun, 30 Jan 2005 22:14:46 -0500 Josh, what we are looking for are minimum limitation and exceptions.... more or less the opposite of the approach in the TRIPS, Berne and the SPLT. The proposals others have made are fairly specific limitations and exceptions, but the idea here, for regulations, was to provide for ongoing ability to broaden the exceptions and limitations. The objective is to further the purpose of the Treaty -- promoting access to knowledge. This could be spelled out in more detail, for a better statement of the delegation, and we should think about what langauge would best do this. It is already the case that Members "may" adopt exceptions under TRIPS/Berne/SPLT, etc.... We are exploring areas where some basic limitations and exceptions should be manadatory, and thus members "shall exclude." What is the "adjustment requirements applicable" meant to accomplish? It sounds good, but I don't fully understand it. Jamie Josh Sarnoff wrote: > Usually, a delegation of regulatory power to enact exclusions or > limitatins is tied to an identified standard or objective. For > example, the suggested treaty requirement could read something like > (adding authority to adjust requirements): > > "Members shall provide by legislation authority to adopt regulations > that: > (a) exclude certain inventions from patentability, > (b) exclude certain uses of patented inventions from the scope of > exclusive rights, > (c) adjust requirements applicable to patentable invenetions, > (d) exclude certain works from copyright, > (e) exclude certain uses of copyrighted works from the scope of > exclusive rights, or > (f) adjust requirements applicable to copyrighted works, > when such treatment or any requirement is unnecessary, excessive, or > harmful(not to mention fattening)." > > Of course, the important thing is the policy standard and how it is > articulated. As another alternative, the delegation could simply > begin with "as appropriate" and remove the final clause, leaving the > policy grounds ambiguous and subject to country determination. Of > course, this is a direct assault on the minimum standards approach of > recent treaties. > > Josh > >> >>---- Original Message ---- >>From: james.love@cptech.org >>To: a2k@lists.essential.org >>Subject: RE: [A2k] Treaty regulations for limitations and exceptions >>Date: Sun, 30 Jan 2005 18:32:44 -0500 >> >> >>>In the proposed WIPO substantive patent law treaty, there is a >> >>process >> >>>for regulations setting out allowed exceptions and limitations. >> >>Indeed, >> >>>the treaty regulations seem to be important for nearly every >> >>provision >> >>>of the SPLT. >>> >>>Would it make sense to have a process for the adoption of >> >>regulations, >> >>>to address problems in areas where we are not ready to recommend >> >>policy? >> >>>For example >>> >>> >>>Article X >>> >>>A Contracting Party shall, accordance with the Regulations, >>> >>>(a) exclude certain inventions from patentability, >>>(b) exclude certain uses of patented inventions from the scope of >>>exclusive rights, >>>(c) exclude certain works from copyright, >>>(d) exclude certain uses of copyrighted works from the scope of >>>exclusive rights >>> >>> >>> >>> >>>-- >>>James Love, Director, CPTech, http://www.cptech.org >>> >>>Consumer Project on Technology in Washington, DC >>>PO Box 19367, Washington, DC 20036, USA >>>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >>> >>>Consumer Project on Technology in Geneva >>>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>>Tel: +41 22 791 6727 >>> >>>Mobile +1.202.361.3040 >>>james.love@cptech.org >>>_______________________________________________ >>>A2k mailing list >>>A2k@lists.essential.org >>>http://lists.essential.org/mailman/listinfo/a2k >>> > > > > > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From a.c.story@kent.ac.uk Mon Jan 31 07:23:55 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mx5.kent.ac.uk (mx5.kent.ac.uk [129.12.21.36]) by lists.essential.org (Postfix) with ESMTP id 5C4E129B40 for ; Mon, 31 Jan 2005 07:23:55 -0500 (EST) Received: from pelican.ukc.ac.uk ([129.12.200.26]) by mx5.kent.ac.uk with esmtp (Exim 4.44) id 1Cvaal-0003Gg-Lb; Mon, 31 Jan 2005 12:23:43 +0000 Received: from dhcp1e6f.ukc.ac.uk ([129.12.30.111] helo=klsvig013) by pelican.ukc.ac.uk with esmtp (Exim 4.22) id 1Cvaal-0005em-FN; Mon, 31 Jan 2005 12:23:43 +0000 From: "Alan Story" To: Cc: "acs3" MIME-Version: 1.0 X-Mailer: Microsoft Office Outlook, Build 11.0.6353 X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.2527 Thread-Index: AcUHQZjvHf08valLSlabPKmJIZu9DwATcJVQ In-Reply-To: <20050131030300.23304.92943.Mailman@venice.essential.org> Message-Id: X-UKC-Mail-System: No virus detected X-UKC-SpamCheck: X-UKC-MailScanner-From: a.c.story@kent.ac.uk content-transfer-encoding: 7bit content-type: text/plain; charset=US-ASCII Subject: [A2k] An A2K orientation..... Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 07:27:01 2005 X-Original-Date: Mon, 31 Jan 2005 12:23:12 -0000 Here are a few comments on the proposed "access to knowledge" treaty. There are not in the form of legally-drafted treaty clauses (of the type that others, such as Peter Jaszi, have written), but are written more as suggested orientations and approaches to a massive and serious problem: barriers in accessing knowledge, and, in particular in the South. 1. The starting point of such discussions for a possible new treaty should NOT be existing LAWS (e.g. copyright laws), but existing NEEDS for access to knowledge. Inverting the order dramatically limits the possibilities for action, including the drafting of new laws and treaties which, after the identification of such needs is appreciated and understood, will have the possibility of actually serving human needs. 2. Copyright laws usually are not the principal cause of lack of access to learning tools in countries of the South, but they are often a key contributory and reinforcing cause (e.g. textbooks, distance learning, literacy programmes, programmes for the visually impaired, copyright (and patents) in computer software, academic journals). 3. Internet access --- let alone easy, reliable and affordable access to a computer --- remains the privilege of a small minority in the South. Hard-copy printed materials, such as textbooks, still are the most important essential learning tools for most students. 4. Neither the Berne Convention (which few countries of the South had any role in drafting) nor its 1971 Annex provide any "special exemptions" of substantive value for education, schools and universities in the South. and certainly not ones meeting the urgent educational needs of students and teachers (e.g. for distance learning, course packs, non-school based literacy programmes). 5. Exporting traditionally conceived fair use / fair dealing provisions are NOT sufficient to meet the educational and access-to-knowledge needs in the South. "Fair use" itself is a term of very limited geographic/jurisdictional import. And a much preferable term to "copyright limitations and exceptions" ---- which presumes the superiority of copyright values and of an exalted, "default position" for rights holders ---- is "users' rights." 6. The Berne Convention and its 1971 Annex do not make any explicit provision for compulsory/statutory licensing for non-private teaching purposes, except for very restrictive translation and reproduction rights in the South. 7. In any event, compulsory/statutory licensing is not a panacea for the greater use of and access to learning tools in the South. Compulsory licensing schemes usually involve very high transaction costs and may require high rates of payment beyond the capacity of most schools, universities, and students in the South. 8. In a related matter, actively discourage the creation of further national Reproduction Rights Organisations (or RRO's) such as the CCC (US), CLA (UK), DALRO (RSA)) in the South. Due to the uneven global spread of copyright-protected educational materials, such RRO's do --- and will ---- primarily operate as toll collectors for publishers located in the industrialised North. For example, countries of the South should be encouraged to apply high rates of taxation on all payments made by RROs in the South to Northern publishers; such taxation funds could be used in the South to assist in the creation of locally-produced materials. 9. Respect national cultures in the South and beware the dangers of exporting, through the exporting of texts or other learning materials (or their translation), the cultures and ideologies of the North to the South. Assist in the protection of national cultural sovereignty in the South in the face of what has been called "the cultural avalanche from the West." The Internet, for example, remains primarily a one-way street flowing North to South. 10. At the same time, actively encourage the spread and diffusion of knowledge from the South to the North. The dangers of a "centre-of-the- world" mentality in the North ---- and the accompanying missionary "THEY need to learn from US " attitude ---- are clear to those who want to see (with the US/UK war on Iraq being a current and obvious example.) 11. Copyright is not a pre-requisite for the production and/or use of knowledge and educational materials in the South; in fact, copyright often discourages creativity and can be extremely wasteful financially ( e.g. to take one of hundreds of examples, in the provision of materials for the blind.) Encourage open access models in the production of teaching materials. 12. Assist in the spread and sharing of knowledge: Encourage, for example, the sending of photocopiers (and similar reprographic and duplication machines) to countries of the South. 13. As much as possible, encourage the distribution to students of free textbooks and other learning materials. 14. Teachers and academics, not governments or publishers ( or "the market") , should play the determining role in the content of textbooks and other learning materials 15. Oppose the book and publishing programmes of the World Bank; their essential aim is privatisation and creating further global markets for publishers in the North and their Southern subsidiaries. 16. Challenge the campaigns of rich countries of the North to coerce countries of the South to extend their duration/term of copyright beyond the already-lengthy Berne minimum of life, plus 50 years; such coercion is aimed primarily at increasing revenues for publishers ( and other rights holders ) in the North which hold the overwhelming percentage of rights in copyrighted books ( and other copyrighted materials). 17. While a "Creative Commons" licensing approach undoubtedly provides a valuable alternative to creators of new works who wish to make their works more accessible, it still gives creators "trumping power" over users who want to access such work ( that is, it replicates and privileges most existing most copyright and property presumptions) and does not address the much wider access problem: how to get access to currently copyright restricted works.which are the overwhelming majority of works. 18. There has been little discussion, to date, of indigenous knowledge ( and, for example, the dangers of replicating copyright and "public domain " presumptions in this area.) This is a SERIOUS oversight and a priority matter. Before discussions proceed much further on this proposed treaty, I think there must be an open discussion of the process of consulting about, formulating, and drafting such a treaty should proceed. I personally have a lot of questions about whether many of the matters I have pointed out above, including the top-down issues, are not being replicated in the very process of writing this treaty. For example, developing links with the type of groups who are meeting (at this very moment) at the World Social Forum in Porto Alegre, Brazil is a priority. Anyways, my thougths.. Best Alan Alan Story Lecturer Kent Law School University of Kent Canterbury, Kent, UK acs3@kent.ac.uk +44 (0)1227 823316 From james.love@cptech.org Mon Jan 31 08:21:08 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 5254E29B0F for ; Mon, 31 Jan 2005 08:21:08 -0500 (EST) Received: (qmail 14790 invoked from network); 31 Jan 2005 13:21:07 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 31 Jan 2005 13:21:07 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 31 Jan 2005 13:21:07 -0000 Message-ID: <41FE30C9.80401@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org Cc: Alan Story Subject: Re: [A2k] An A2K orientation..... References: In-Reply-To: content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 08:26:01 2005 X-Original-Date: Mon, 31 Jan 2005 08:21:13 -0500 Alan, constructive proposals for what might make sense within the context of an Access to Knowledge Treaty, that was proposed in the WIPO Development Agenda (DA), are of course encouraged, from anyone who wishes to participate. You might wish also to read the DA documents that were tabled by a number of developing countries, and read the notes from the debate on the proposal, which are on the UPD/EFF/ etc web sites. You might also follow the debate in the WIPO standing committee on copyright and related rights (SCCR) over the proposal by Chile for discussion of copyright limitations and exceptions, a topic that will be discussed in the June WIPO SCCR meeting. I mention this because it seems important to recognize also the leadership (and framing) from the South in WIPO on these topics. Also useful are leads for specific persons and organizations from the South who should be active in discussion on an a2k treaty. And I will add that quite a bit of reaching out is taking place, but some things take time and resources (such as travel money) to be most effective. Jamie Alan Story wrote: > Here are a few comments on the proposed "access to knowledge" treaty. There > are not in the form of legally-drafted treaty clauses (of the type that > others, such as Peter Jaszi, have written), but are written more as > suggested orientations and approaches to a massive and serious problem: > barriers in accessing knowledge, and, in particular in the South. > > 1. The starting point of such discussions for a possible new treaty should > NOT be existing LAWS (e.g. copyright laws), but existing NEEDS for access to > knowledge. Inverting the order dramatically limits the possibilities for > action, including the drafting of new laws and treaties which, after the > identification of such needs is appreciated and understood, will have the > possibility of actually serving human needs. > > 2. Copyright laws usually are not the principal cause of lack of access to > learning tools in countries of the South, but they are often a key > contributory and reinforcing cause > (e.g. textbooks, distance learning, literacy programmes, programmes for the > visually impaired, copyright (and patents) in computer software, academic > journals). > > 3. Internet access --- let alone easy, reliable and affordable access to a > computer --- remains the privilege of a small minority in the South. > Hard-copy printed materials, such as textbooks, still are the most important > essential learning tools for most students. > > 4. Neither the Berne Convention (which few countries of the South had any > role in drafting) nor its 1971 Annex provide any "special exemptions" of > substantive value for education, schools and universities in the South. and > certainly not ones meeting the urgent educational needs of students and > teachers (e.g. for distance learning, course packs, non-school based > literacy programmes). > > 5. Exporting traditionally conceived fair use / fair dealing provisions are > NOT sufficient to meet the educational and access-to-knowledge needs in the > South. "Fair use" itself is a term of very limited > geographic/jurisdictional import. And a much preferable term to > "copyright limitations and exceptions" ---- which presumes the superiority > of copyright values and of an exalted, "default position" for rights holders > ---- is "users' rights." > > 6. The Berne Convention and its 1971 Annex do not make any explicit > provision for compulsory/statutory licensing for non-private teaching > purposes, except for very restrictive translation and reproduction rights in > the South. > > 7. In any event, compulsory/statutory licensing is not a panacea for the > greater use of and access to learning tools in the South. Compulsory > licensing schemes usually involve very high transaction costs and may > require high rates of payment beyond the capacity of most schools, > universities, and students in the South. > > 8. In a related matter, actively discourage the creation of further > national Reproduction Rights Organisations (or RRO's) such as the CCC (US), > CLA (UK), DALRO (RSA)) in the South. Due to the uneven global spread of > copyright-protected educational materials, such RRO's do --- and will ---- > primarily operate as toll collectors for publishers located in the > industrialised North. For example, countries of the South should be > encouraged to apply high rates of taxation on all payments made by RROs in > the South to Northern publishers; such taxation funds could be used in the > South to assist in the creation of locally-produced materials. > > 9. Respect national cultures in the South and beware the dangers of > exporting, through the exporting of texts or other learning materials (or > their translation), the cultures and ideologies of the North to the South. > Assist in the protection of national cultural sovereignty in the South in > the face of what has been called "the cultural avalanche from the West." The > Internet, for example, remains primarily a one-way street flowing North to > South. > > 10. At the same time, actively encourage the spread and diffusion of > knowledge from the South to the North. The dangers of a "centre-of-the- > world" mentality in the North ---- and the accompanying missionary "THEY > need to learn from US " attitude ---- are clear to those who want to see > (with the US/UK war on Iraq being a current and obvious example.) > > 11. Copyright is not a pre-requisite for the production and/or use of > knowledge and educational materials in the South; in fact, copyright often > discourages creativity and can be extremely wasteful financially ( e.g. to > take one of hundreds of examples, in the provision of materials for the > blind.) Encourage open access models in the production of teaching > materials. > > 12. Assist in the spread and sharing of knowledge: Encourage, for example, > the sending of photocopiers (and similar reprographic and duplication > machines) to countries of the South. > > 13. As much as possible, encourage the distribution to students of free > textbooks and other learning materials. > > 14. Teachers and academics, not governments or publishers ( or "the market") > , should play the determining role in the content of textbooks and other > learning materials > > 15. Oppose the book and publishing programmes of the World Bank; their > essential aim is privatisation and creating further global markets for > publishers in the North and their Southern subsidiaries. > > 16. Challenge the campaigns of rich countries of the North to coerce > countries of the South to extend their duration/term of copyright beyond the > already-lengthy Berne minimum of life, plus 50 years; such coercion is aimed > primarily at increasing revenues for publishers ( and other rights holders ) > in the North which hold the overwhelming percentage of rights in copyrighted > books ( and other copyrighted materials). > > 17. While a "Creative Commons" licensing approach undoubtedly provides a > valuable > alternative to creators of new works who wish to make their works more > accessible, it still gives creators "trumping power" over users who want to > access such work ( that is, it replicates and privileges most existing most > copyright and property presumptions) and does not address the much wider > access problem: how to get access to currently copyright restricted > works.which are the overwhelming majority of works. > > 18. There has been little discussion, to date, of indigenous knowledge ( > and, for example, the dangers of replicating copyright and "public domain " > presumptions in this area.) This is a SERIOUS oversight and a priority > matter. > > Before discussions proceed much further on this proposed treaty, I think > there must be an open discussion of the process of consulting about, > formulating, and drafting such a treaty should proceed. I personally have a > lot of questions about whether many of the matters I have pointed out above, > including the top-down issues, are not being replicated in the very process > of writing this treaty. For example, developing links with the type of > groups who are meeting (at this very moment) at the World Social Forum in > Porto Alegre, Brazil is a priority. > > Anyways, my thougths.. > > > Best > Alan > > Alan Story > Lecturer > Kent Law School > University of Kent > Canterbury, Kent, UK > acs3@kent.ac.uk > +44 (0)1227 823316 > > > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From philippe.aigrain@sopinspace.com Mon Jan 31 09:22:42 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mail.sopinspace.com (mail.sopinspace.com [82.225.32.39]) by lists.essential.org (Postfix) with ESMTP id 972C029B33 for ; Mon, 31 Jan 2005 09:22:41 -0500 (EST) Received: from rome.sop (rome.sop [192.168.2.21]) by mail.sopinspace.com (Postfix) with ESMTP id 9B3952FCA8 for ; Mon, 31 Jan 2005 15:22:40 +0100 (CET) From: Philippe Aigrain Organization: =?iso-8859-15?q?Soci=E9t=E9_pour_les_espaces_publics?= d'information To: a2k@lists.essential.org Subject: Re: [A2k] An A2K orientation..... User-Agent: KMail/1.7.2 References: In-Reply-To: MIME-Version: 1.0 Content-Disposition: inline Message-Id: <200501311521.44066.philippe.aigrain@sopinspace.com> content-transfer-encoding: quoted-printable content-type: text/plain; charset=iso-8859-1 Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 10:27:06 2005 X-Original-Date: Mon, 31 Jan 2005 15:21:43 +0100 Alan, I am not sure that you saw my proposal for a pro-commons blanket clause. It was trying to address some of your concerns (not specifically on copyright, but more generally on not "blessing" implicitly the present framework through a process of defining "exceptions"). You can acces it here : http://lists.essential.org/pipermail/a2k/2005-January/000002.html Comments welcome, Cheers, Philippe Aigrain Le Lundi 31 Janvier 2005 13:23, Alan Story a =E9crit : > Here are a few comments on the proposed "access to knowledge" treaty. The= re > are not in the form of legally-drafted treaty clauses (of the type that > others, such as Peter Jaszi, have written), but are written more as > suggested orientations and approaches to a massive and serious problem: > barriers in accessing knowledge, and, in particular in the South. > > 1. The starting point of such discussions for a possible new treaty shoul= d > NOT be existing LAWS (e.g. copyright laws), but existing NEEDS for access > to knowledge. Inverting the order dramatically limits the possibilities f= or > action, including the drafting of new laws and treaties which, after the > identification of such needs is appreciated and understood, will have th= e > possibility of actually serving human needs. > > 2. Copyright laws usually are not the principal cause of lack of access t= o > learning tools in countries of the South, but they are often a key > contributory and reinforcing cause > (e.g. textbooks, distance learning, literacy programmes, programmes for t= he > visually impaired, copyright (and patents) in computer software, academic > journals). > > 3. Internet access --- let alone easy, reliable and affordable access to= a > computer --- remains the privilege of a small minority in the South. > Hard-copy printed materials, such as textbooks, still are the most > important essential learning tools for most students. > > 4. Neither the Berne Convention (which few countries of the South had any > role in drafting) nor its 1971 Annex provide any "special exemptions" of > substantive value for education, schools and universities in the South. a= nd > certainly not ones meeting the urgent educational needs of students and > teachers (e.g. for distance learning, course packs, non-school based > literacy programmes). > > 5. Exporting traditionally conceived fair use / fair dealing provisions a= re > NOT sufficient to meet the educational and access-to-knowledge needs in t= he > South. "Fair use" itself is a term of very limited > geographic/jurisdictional import. And a much preferable term to > "copyright limitations and exceptions" ---- which presumes the superiorit= y > of copyright values and of an exalted, "default position" for rights > holders ---- is "users' rights." > > 6. The Berne Convention and its 1971 Annex do not make any explicit > provision for compulsory/statutory licensing for non-private teaching > purposes, except for very restrictive translation and reproduction rights > in the South. > > 7. In any event, compulsory/statutory licensing is not a panacea for the > greater use of and access to learning tools in the South. Compulsory > licensing schemes usually involve very high transaction costs and may > require high rates of payment beyond the capacity of most schools, > universities, and students in the South. > > 8. In a related matter, actively discourage the creation of further > national Reproduction Rights Organisations (or RRO's) such as the CCC (US= ), > CLA (UK), DALRO (RSA)) in the South. Due to the uneven global spread of > copyright-protected educational materials, such RRO's do --- and will ---= - > primarily operate as toll collectors for publishers located in the > industrialised North. For example, countries of the South should be > encouraged to apply high rates of taxation on all payments made by RROs i= n > the South to Northern publishers; such taxation funds could be used in th= e > South to assist in the creation of locally-produced materials. > > 9. Respect national cultures in the South and beware the dangers of > exporting, through the exporting of texts or other learning materials (or > their translation), the cultures and ideologies of the North to the South= . > Assist in the protection of national cultural sovereignty in the South in > the face of what has been called "the cultural avalanche from the West." > The Internet, for example, remains primarily a one-way street flowing Nor= th > to South. > > 10. At the same time, actively encourage the spread and diffusion of > knowledge from the South to the North. The dangers of a "centre-of-the- > world" mentality in the North ---- and the accompanying missionary "THEY > need to learn from US " attitude ---- are clear to those who want to see > (with the US/UK war on Iraq being a current and obvious example.) > > 11. Copyright is not a pre-requisite for the production and/or use of > knowledge and educational materials in the South; in fact, copyright ofte= n > discourages creativity and can be extremely wasteful financially ( e.g. t= o > take one of hundreds of examples, in the provision of materials for the > blind.) Encourage open access models in the production of teaching > materials. > > 12. Assist in the spread and sharing of knowledge: Encourage, for example= , > the sending of photocopiers (and similar reprographic and duplication > machines) to countries of the South. > > 13. As much as possible, encourage the distribution to students of free > textbooks and other learning materials. > > 14. Teachers and academics, not governments or publishers ( or "the > market") , should play the determining role in the content of textbooks a= nd > other learning materials > > 15. Oppose the book and publishing programmes of the World Bank; their > essential aim is privatisation and creating further global markets for > publishers in the North and their Southern subsidiaries. > > 16. Challenge the campaigns of rich countries of the North to coerce > countries of the South to extend their duration/term of copyright beyond > the already-lengthy Berne minimum of life, plus 50 years; such coercion i= s > aimed primarily at increasing revenues for publishers ( and other rights > holders ) in the North which hold the overwhelming percentage of rights i= n > copyrighted books ( and other copyrighted materials). > > 17. While a "Creative Commons" licensing approach undoubtedly provides a > valuable > alternative to creators of new works who wish to make their works more > accessible, it still gives creators "trumping power" over users who want = to > access such work ( that is, it replicates and privileges most existing mo= st > copyright and property presumptions) and does not address the much wider > access problem: how to get access to currently copyright restricted > works.which are the overwhelming majority of works. > > 18. There has been little discussion, to date, of indigenous knowledge ( > and, for example, the dangers of replicating copyright and "public domain= " > presumptions in this area.) This is a SERIOUS oversight and a priority > matter. > > Before discussions proceed much further on this proposed treaty, I think > there must be an open discussion of the process of consulting about, > formulating, and drafting such a treaty should proceed. I personally have= a > lot of questions about whether many of the matters I have pointed out > above, including the top-down issues, are not being replicated in the ver= y > process of writing this treaty. For example, developing links with the > type of groups who are meeting (at this very moment) at the World Social > Forum in Porto Alegre, Brazil is a priority. > > Anyways, my thougths.. > > > Best > Alan > > Alan Story > Lecturer > Kent Law School > University of Kent > Canterbury, Kent, UK > acs3@kent.ac.uk > +44 (0)1227 823316 > > > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k -- Philippe Aigrain Directeur, Soci=E9t=E9 pour les espaces publics d'information 4, passage de la Main d'Or, F-75011 Paris, France Tel: +33 (0)1 55 28 37 65 - Fax: +33 (0)1 55 28 37 69 philippe.aigrain@sopinspace.com, www.sopinspace.com --------------------------------------------------------------- SARL Sopinspace, Soci=E9t=E9 pour les espaces publics d'information RCS 451 436 604 - SIRET 451 436 604 00016 - APE 721Z From davidt@public-domain.org Mon Jan 31 09:42:27 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from pantheon-po08.its.yale.edu (pantheon-po08.its.yale.edu [130.132.50.50]) by lists.essential.org (Postfix) with ESMTP id 6779529B0F for ; Mon, 31 Jan 2005 09:42:27 -0500 (EST) Received: from [10.0.1.4] (pcp03904852pcs.nhaven01.ct.comcast.net [68.46.214.68]) (authenticated bits=0) by pantheon-po08.its.yale.edu (8.12.11/8.12.11) with ESMTP id j0VEgQlK030885 (version=TLSv1/SSLv3 cipher=DHE-RSA-AES256-SHA bits=256 verify=NOT) for ; Mon, 31 Jan 2005 09:42:27 -0500 Message-ID: <41FE43D2.3070809@public-domain.org> From: David Tannenbaum User-Agent: Mozilla Thunderbird 1.0RC1 (Macintosh/20041201) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org References: <41FD347C.6050005@cptech.org> In-Reply-To: <41FD347C.6050005@cptech.org> X-YaleITSMailFilter: Version 1.2a (attachment(s) not renamed) content-transfer-encoding: quoted-printable content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] A2K internet copyright DRAFT Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 10:27:12 2005 X-Original-Date: Mon, 31 Jan 2005 09:42:26 -0500 In the tradition of releasing early and often, here is a draft set of provisions addressing various internet copyright issues. Suggestions and critiques very welcome. The structure is built on Peter Jaszi's L&E's proposal. David COPYRIGHT ON THE INTERNET - DRAFT NOTES: (A)(8) - Text taken directly from DMCA =A7 512(a) on Transitory Digital Network Communications. (A)(9) - Similar to the spirit of DMCA =A7 512(b), but without the notice and takedown provisions. A(10) - Language taken from DMCA =A7 512(c), but excluding requirements that an ISP is exempt only if they have do not have knowledge of infringing activity and do not respond to notice and takedown requests. A(11) - Language taken from DMCA =A7 512(d), but excluding requirements that an ISP is exempt only if they have do not have knowledge of infringing activity and do not respond to notice and takedown requests. A(12) - A response to the Google cache problem. A(13) - A response to the murky waters of inline linking. TEXT: Limitations and Exceptions: (A) The exclusive economic rights of copyright owners (including but not limited to reproduction, distribution, display, performance, adaptation and communication to the public), shall not apply to: . . . (8) An internet service provider's (ISP) transmitting, routing or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if -- =09(i) the transmission of the material was initiated by or at the direction of a person other than the service provider; =09(ii) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; =09(iii) the service provider does not select the recipients of the material except as an automatic response to the request of another person; =09(iv) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and =09(v) the material is transmitted through the system or network without modification of its content. (9) An ISP's intermediate and temporary storage of material for the purposes of caching material to facilitate users' efficient and speedy access to the material, as long as they do not modify the material or provide it in a manner inconsistent with access conditions set by the copyright holder; (10) An ISP's storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider; (11) The referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the ISP does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; (12) The caching of electronic documents for the purposes of enhancing functionality of internet search engines, as long as the original webpage address is clearly indicated on the cached page, and it is clear that the cached page may not be the most up-to-date version; (13) The transmitting of a universal resource locator or other electronic pointer, that has the effect of instructing a user's browser to load electronic documents from a third-party server ("inline linking"); . . . From jsarnoff@wcl.american.edu Mon Jan 31 10:02:46 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mailhost.wcl.american.edu (mailhost.wcl.american.edu [147.9.143.100]) by lists.essential.org (Postfix) with ESMTP id 2B2BE29B0F for ; Mon, 31 Jan 2005 10:02:46 -0500 (EST) Received: from wcl.american.edu (unverified [127.0.0.1]) by wcl.american.edu (Rockliffe SMTPRA 6.1.17) with ESMTP id ; Mon, 31 Jan 2005 10:03:24 -0500 Message-ID: <380-220051131153240@wcl.american.edu> X-Priority: 3 From: "Josh Sarnoff" To: james.love@cptech.org, jsarnoff@wcl.american.edu Cc: a2k@lists.essential.org, kahin@umich.edu, pjaszi@wcl.american.edu Subject: Re: [A2k] Treaty regulations for limitations and exceptions MIME-Version: 1.0 content-transfer-encoding: 7bit content-type: text/plain; charset=iso-8859-1 Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 10:27:17 2005 X-Original-Date: Mon, 31 Jan 2005 10:03:24 -0500 Jamie: I thought the premise was a lack of agreement over the standards for exclusion and their application, and thus the inability to mandate specific exclusions. If you can generate agreement on the standards, you can (and should) require the specific exclusions (and specify the standards as well as a catch-all). Assuming you have the language for the standard, you can then add "shall" before "exclude" or "adjust" to each of the numbered entries, and "when" plus the language of the standard after each or all of the numbered entries. By "adjust requirements applicable", I had in mind the idea that life plus seventy or twenty years from issue make little sense when imposed uniformly (if at all). Thus, even if copyrights or patents were desired, their term and the specific exlusionary rights that protect those works or inventions should be succeptible to adjustment so they are not coextensive with TRIPS minima. I do not have any specific suggestion at this time for the language of the exclusionary standards. However, if we are discussing mandatory exclusions by regulation, you may want to add requirements to assure that the "shall" will be effectuated. For example, you may want to add requirements for collecting information on effects, requirements for analyzing such information, and a "precautionary" principle or default assumption of exclusion in the absence of evidence of the lack of harm and/or affirmative requirements to demonstrate a need to protect particular inventions or works to the extent otherwise required by TRIPS minima. The default position is particularly important given the costs of information collection and the administrative burdens of regulating. At a minimum, a strong default will help with internal politics, given the relative power of the different organizations that may be playing the game. Hope that helps. Josh > > >---- Original Message ---- >From: james.love@cptech.org >To: jsarnoff@wcl.american.edu >Subject: Re: [A2k] Treaty regulations for limitations and exceptions >Date: Sun, 30 Jan 2005 22:14:46 -0500 > >>Josh, what we are looking for are minimum limitation and >exceptions.... >>more or less the opposite of the approach in the TRIPS, Berne and >the >>SPLT. The proposals others have made are fairly specific >limitations >>and exceptions, but the idea here, for regulations, was to provide >for >>ongoing ability to broaden the exceptions and limitations. The >>objective is to further the purpose of the Treaty -- promoting >access to >>knowledge. This could be spelled out in more detail, for a better >>statement of the delegation, and we should think about what langauge >>would best do this. >> >>It is already the case that Members "may" adopt exceptions under >>TRIPS/Berne/SPLT, etc.... We are exploring areas where some basic >>limitations and exceptions should be manadatory, and thus members >"shall >>exclude." >> >>What is the "adjustment requirements applicable" meant to >accomplish? >>It sounds good, but I don't fully understand it. >> >>Jamie >> >> >>Josh Sarnoff wrote: >>> Usually, a delegation of regulatory power to enact exclusions or >>> limitatins is tied to an identified standard or objective. For >>> example, the suggested treaty requirement could read something >like >>> (adding authority to adjust requirements): >>> >>> "Members shall provide by legislation authority to adopt >regulations >>> that: >>> (a) exclude certain inventions from patentability, >>> (b) exclude certain uses of patented inventions from the scope of >>> exclusive rights, >>> (c) adjust requirements applicable to patentable invenetions, >>> (d) exclude certain works from copyright, >>> (e) exclude certain uses of copyrighted works from the scope of >>> exclusive rights, or >>> (f) adjust requirements applicable to copyrighted works, >>> when such treatment or any requirement is unnecessary, excessive, >or >>> harmful(not to mention fattening)." >>> >>> Of course, the important thing is the policy standard and how it >is >>> articulated. As another alternative, the delegation could simply >>> begin with "as appropriate" and remove the final clause, leaving >the >>> policy grounds ambiguous and subject to country determination. Of >>> course, this is a direct assault on the minimum standards approach >of >>> recent treaties. >>> >>> Josh >>> >>>> >>>>---- Original Message ---- >>>>From: james.love@cptech.org >>>>To: a2k@lists.essential.org >>>>Subject: RE: [A2k] Treaty regulations for limitations and >exceptions >>>>Date: Sun, 30 Jan 2005 18:32:44 -0500 >>>> >>>> >>>>>In the proposed WIPO substantive patent law treaty, there is a >>>> >>>>process >>>> >>>>>for regulations setting out allowed exceptions and limitations. >>>> >>>>Indeed, >>>> >>>>>the treaty regulations seem to be important for nearly every >>>> >>>>provision >>>> >>>>>of the SPLT. >>>>> >>>>>Would it make sense to have a process for the adoption of >>>> >>>>regulations, >>>> >>>>>to address problems in areas where we are not ready to recommend >>>> >>>>policy? >>>> >>>>>For example >>>>> >>>>> >>>>>Article X >>>>> >>>>>A Contracting Party shall, accordance with the Regulations, >>>>> >>>>>(a) exclude certain inventions from patentability, >>>>>(b) exclude certain uses of patented inventions from the scope of >>>>>exclusive rights, >>>>>(c) exclude certain works from copyright, >>>>>(d) exclude certain uses of copyrighted works from the scope of >>>>>exclusive rights >>>>> >>>>> >>>>> >>>>> >>>>>-- >>>>>James Love, Director, CPTech, http://www.cptech.org >>>>> >>>>>Consumer Project on Technology in Washington, DC >>>>>PO Box 19367, Washington, DC 20036, USA >>>>>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >>>>> >>>>>Consumer Project on Technology in Geneva >>>>>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>>>>Tel: +41 22 791 6727 >>>>> >>>>>Mobile +1.202.361.3040 >>>>>james.love@cptech.org >>>>>_______________________________________________ >>>>>A2k mailing list >>>>>A2k@lists.essential.org >>>>>http://lists.essential.org/mailman/listinfo/a2k >>>>> >>> >>> >>> >>> >>> >> >>-- >>James Love, Director, CPTech, http://www.cptech.org >> >>Consumer Project on Technology in Washington, DC >>PO Box 19367, Washington, DC 20036, USA >>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >>Consumer Project on Technology in Geneva >>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>Tel: +41 22 791 6727 >> >>Mobile +1.202.361.3040 >>james.love@cptech.org >>_______________________________________________ >>A2k mailing list >>A2k@lists.essential.org >>http://lists.essential.org/mailman/listinfo/a2k >> From james.love@cptech.org Mon Jan 31 10:22:10 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 2C69B29B33 for ; Mon, 31 Jan 2005 10:22:09 -0500 (EST) Received: (qmail 9126 invoked from network); 31 Jan 2005 15:22:08 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 31 Jan 2005 15:22:08 -0000 Received: from 63.111.165.22 ([63.111.165.22]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 31 Jan 2005 15:22:08 -0000 Message-ID: <41FE4D27.4020002@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: Josh Sarnoff Cc: a2k@lists.essential.org, kahin@umich.edu, pjaszi@wcl.american.edu Subject: Re: [A2k] Treaty regulations for limitations and exceptions References: <380-220051131153240@wcl.american.edu> In-Reply-To: <380-220051131153240@wcl.american.edu> content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 10:27:23 2005 X-Original-Date: Mon, 31 Jan 2005 10:22:15 -0500 Dear Josh, these are very interesting comments. A few quick reactions. 1. Regarding "adjust requirements applicable" language, I think attacking the Article 27 provision that "patents shall be available and patent rights enjoyable without discrimination as to the . . . the field of technology," would be quite useful, and possibly successful if focused on the use of an invention, or on non-discriminatory differential treatment (i.e. Canadian Bolar case). I am assuming that differential treatment is widely ok for copyright, since provisions in the Berne and TRIPS are so different (did WCT create any problems in this respect?). 2. As a further issue with respect to the "default" situation and regulations, would it make sense to have countries agree that the exceptions and limitations in the regulations would become national law, if a country does not notify the Treaty secretariat of reservations within 3 years? Josh Sarnoff wrote: > Jamie: > > I thought the premise was a lack of agreement over the standards for > exclusion and their application, and thus the inability to mandate > specific exclusions. If you can generate agreement on the standards, > you can (and should) require the specific exclusions (and specify the > standards as well as a catch-all). Assuming you have the language > for the standard, you can then add "shall" before "exclude" or > "adjust" to each of the numbered entries, and "when" plus the > language of the standard after each or all of the numbered entries. > > By "adjust requirements applicable", I had in mind the idea that life > plus seventy or twenty years from issue make little sense when > imposed uniformly (if at all). Thus, even if copyrights or patents > were desired, their term and the specific exlusionary rights that > protect those works or inventions should be succeptible to adjustment > so they are not coextensive with TRIPS minima. > > I do not have any specific suggestion at this time for the language > of the exclusionary standards. However, if we are discussing > mandatory exclusions by regulation, you may want to add requirements > to assure that the "shall" will be effectuated. For example, you may > want to add requirements for collecting information on effects, > requirements for analyzing such information, and a "precautionary" > principle or default assumption of exclusion in the absence of > evidence of the lack of harm and/or affirmative requirements to > demonstrate a need to protect particular inventions or works to the > extent otherwise required by TRIPS minima. The default position is > particularly important given the costs of information collection and > the administrative burdens of regulating. At a minimum, a strong > default will help with internal politics, given the relative power of > the different organizations that may be playing the game. > > Hope that helps. > > Josh > >> >>---- Original Message ---- >>From: james.love@cptech.org >>To: jsarnoff@wcl.american.edu >>Subject: Re: [A2k] Treaty regulations for limitations and exceptions >>Date: Sun, 30 Jan 2005 22:14:46 -0500 >> >> >>>Josh, what we are looking for are minimum limitation and >> >>exceptions.... >> >>>more or less the opposite of the approach in the TRIPS, Berne and >> >>the >> >>>SPLT. The proposals others have made are fairly specific >> >>limitations >> >>>and exceptions, but the idea here, for regulations, was to provide >> >>for >> >>>ongoing ability to broaden the exceptions and limitations. The >>>objective is to further the purpose of the Treaty -- promoting >> >>access to >> >>>knowledge. This could be spelled out in more detail, for a better >>>statement of the delegation, and we should think about what langauge >>>would best do this. >>> >>>It is already the case that Members "may" adopt exceptions under >>>TRIPS/Berne/SPLT, etc.... We are exploring areas where some basic >>>limitations and exceptions should be manadatory, and thus members >> >>"shall >> >>>exclude." >>> >>>What is the "adjustment requirements applicable" meant to >> >>accomplish? >> >>>It sounds good, but I don't fully understand it. >>> >>>Jamie >>> >>> >>>Josh Sarnoff wrote: >>> >>>>Usually, a delegation of regulatory power to enact exclusions or >>>>limitatins is tied to an identified standard or objective. For >>>>example, the suggested treaty requirement could read something >> >>like >> >>>>(adding authority to adjust requirements): >>>> >>>>"Members shall provide by legislation authority to adopt >> >>regulations >> >>>>that: >>>>(a) exclude certain inventions from patentability, >>>>(b) exclude certain uses of patented inventions from the scope of >>>>exclusive rights, >>>>(c) adjust requirements applicable to patentable invenetions, >>>>(d) exclude certain works from copyright, >>>>(e) exclude certain uses of copyrighted works from the scope of >>>>exclusive rights, or >>>>(f) adjust requirements applicable to copyrighted works, >>>>when such treatment or any requirement is unnecessary, excessive, >> >>or >> >>>>harmful(not to mention fattening)." >>>> >>>>Of course, the important thing is the policy standard and how it >> >>is >> >>>>articulated. As another alternative, the delegation could simply >>>>begin with "as appropriate" and remove the final clause, leaving >> >>the >> >>>>policy grounds ambiguous and subject to country determination. Of >>>>course, this is a direct assault on the minimum standards approach >> >>of >> >>>>recent treaties. >>>> >>>>Josh >>>> >>>> >>>>>---- Original Message ---- >>>>>From: james.love@cptech.org >>>>>To: a2k@lists.essential.org >>>>>Subject: RE: [A2k] Treaty regulations for limitations and >> >>exceptions >> >>>>>Date: Sun, 30 Jan 2005 18:32:44 -0500 >>>>> >>>>> >>>>> >>>>>>In the proposed WIPO substantive patent law treaty, there is a >>>>> >>>>>process >>>>> >>>>> >>>>>>for regulations setting out allowed exceptions and limitations. >>>>> >>>>>Indeed, >>>>> >>>>> >>>>>>the treaty regulations seem to be important for nearly every >>>>> >>>>>provision >>>>> >>>>> >>>>>>of the SPLT. >>>>>> >>>>>>Would it make sense to have a process for the adoption of >>>>> >>>>>regulations, >>>>> >>>>> >>>>>>to address problems in areas where we are not ready to recommend >>>>> >>>>>policy? >>>>> >>>>> >>>>>>For example >>>>>> >>>>>> >>>>>>Article X >>>>>> >>>>>>A Contracting Party shall, accordance with the Regulations, >>>>>> >>>>>>(a) exclude certain inventions from patentability, >>>>>>(b) exclude certain uses of patented inventions from the scope of >>>>>>exclusive rights, >>>>>>(c) exclude certain works from copyright, >>>>>>(d) exclude certain uses of copyrighted works from the scope of >>>>>>exclusive rights >>>>>> >>>>>> >>>>>> >>>>>> >>>>>>-- >>>>>>James Love, Director, CPTech, http://www.cptech.org >>>>>> >>>>>>Consumer Project on Technology in Washington, DC >>>>>>PO Box 19367, Washington, DC 20036, USA >>>>>>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >>>>>> >>>>>>Consumer Project on Technology in Geneva >>>>>>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>>>>>Tel: +41 22 791 6727 >>>>>> >>>>>>Mobile +1.202.361.3040 >>>>>>james.love@cptech.org >>>>>>_______________________________________________ >>>>>>A2k mailing list >>>>>>A2k@lists.essential.org >>>>>>http://lists.essential.org/mailman/listinfo/a2k >>>>>> >>>> >>>> >>>> >>>> >>>> >>>-- >>>James Love, Director, CPTech, http://www.cptech.org >>> >>>Consumer Project on Technology in Washington, DC >>>PO Box 19367, Washington, DC 20036, USA >>>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >>> >>>Consumer Project on Technology in Geneva >>>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>>Tel: +41 22 791 6727 >>> >>>Mobile +1.202.361.3040 >>>james.love@cptech.org >>>_______________________________________________ >>>A2k mailing list >>>A2k@lists.essential.org >>>http://lists.essential.org/mailman/listinfo/a2k >>> > > > > > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From manon.ress@cptech.org Mon Jan 31 11:05:19 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 51ACD29B45 for ; Mon, 31 Jan 2005 11:05:19 -0500 (EST) Received: (qmail 15298 invoked from network); 31 Jan 2005 16:05:18 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 31 Jan 2005 16:05:18 -0000 Received: from 65.222.222.251 ([65.222.222.251]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 31 Jan 2005 16:05:18 -0000 Message-ID: <41FE5739.1080108@cptech.org> From: Manon Ress User-Agent: Mozilla/5.0 (X11; U; Linux i686; en-US; rv:1.7.3) Gecko/20041007 Debian/1.7.3-5 X-Accept-Language: en MIME-Version: 1.0 To: a2k discuss list content-transfer-encoding: quoted-printable content-type: text/plain; charset=windows-1252; format=flowed Subject: [A2k] Importation of educational, scientific and cultural materials Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 11:13:01 2005 X-Original-Date: Mon, 31 Jan 2005 11:05:13 -0500 Texts that experts might be interested in looking at: The Florence Agreement (1950) and its Protocol known as the =91Protocol of Nairobi=92 (1= 976) Find text at: http://www.unesco.org/culture/laws/florence/html_eng/page1.shtml Importation of educational, scientific and cultural materials Purpose of the Agreement and its Protocol The major purpose of the Agreement and the Protocol, as their titles indicate, is to make it easier to import educational, scientific and cultural materials. They reduce tariff, tax, currency and trade obstacles to the international circulation of these materials, permitting organizations and individuals to obtain them from abroad with less difficulty and at less cost. The Protocol broadens the scope of the Agreement, by extending the benefits it offers to additional objects and by granting further benefits to a number of materials. The Agreement and the Protocol are sponsored by the United Nations Educational, Scientific and Cultural Organization. The Agreement was initiated in accordance with one of the main constitutional objectives of UNESCO which is to facilitate =91the exchange of publications, objects of artistic and scientific interest and other materials of information=92 and to recommend international agreements which will promote =91the free flow of ideas=92. Reaffirming these principles on which the Agreement is based, the Protocol points to the accession since 1950 of many developing countries to national sovereignty and to the necessity of taking into account their needs and concerns with a view to giving them easier and less costly access to education, science, technology and culture= . -- Manon Anne Ress manon.ress@cptech.org, www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: +1.202.387.8030, fax: +1.202.234.5176 Consumer Project on Technology in Geneva, 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727 Consumer Project on Technology in London, 24 Highbury Crescent, London, N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607 From jsarnoff@wcl.american.edu Mon Jan 31 12:33:37 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mailhost.wcl.american.edu (mailhost.wcl.american.edu [147.9.143.100]) by lists.essential.org (Postfix) with ESMTP id 0F0D729B33 for ; Mon, 31 Jan 2005 12:33:37 -0500 (EST) Received: from WCL40531.wcl.american.edu (unverified [147.9.141.61]) by wcl.american.edu (Rockliffe SMTPRA 6.1.17) with ESMTP id ; Mon, 31 Jan 2005 12:34:15 -0500 Message-Id: <5.1.0.14.2.20050131121148.0154d0a0@mailhost.wcl.american.edu> X-Sender: jsarnoff@mailhost.wcl.american.edu X-Mailer: QUALCOMM Windows Eudora Version 5.1 To: James Love From: Joshua Sarnoff Subject: Re: [A2k] Treaty regulations for limitations and exceptions Cc: a2k@lists.essential.org, kahin@umich.edu, pjaszi@wcl.american.edu In-Reply-To: <41FE4D27.4020002@cptech.org> References: <380-220051131153240@wcl.american.edu> <380-220051131153240@wcl.american.edu> Mime-Version: 1.0 content-transfer-encoding: 7bit content-type: text/plain; charset=us-ascii; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 13:38:02 2005 X-Original-Date: Mon, 31 Jan 2005 12:33:34 -0500 At 10:22 AM 1/31/2005 -0500, James Love wrote: >Dear Josh, these are very interesting comments. A few quick reactions. > >1. Regarding "adjust requirements applicable" language, > >I think attacking the Article 27 provision that "patents shall be >available and patent rights enjoyable without discrimination as to the . >. . the field of technology," would be quite useful, and possibly >successful if focused on the use of an invention, or on >non-discriminatory differential treatment (i.e. Canadian Bolar case). >I am assuming that differential treatment is widely ok for copyright, >since provisions in the Berne and TRIPS are so different (did WCT create >any problems in this respect?). I agree that the Canada Pharmaceuticals case supports substantial flexibility in determining the meaning of "discrimination" and the ability to exclude from patentability or specific rights. But I doubt that Art. 27 would be interpreted by a dispute panel or by the Appellate Body to override "hard" minimum standards elsewhere provided in TRIPS -- e.g., 20 year term from filing (not issue; also, life plus fifty, not seventy; I guess I hadn't had my coffee yet). Hence the need for such a provision. The same is true of the "consistent with the provisions" language of Art. 8.1. >2. As a further issue with respect to the "default" situation and >regulations, would it make sense to have countries agree that the >exceptions and limitations in the regulations would become national law, >if a country does not notify the Treaty secretariat of reservations >within 3 years? > This makes sense, particularly if the exceptions and limitations are identified in the treaty. (Nevertheless, I suppose it is possible to impose a standard that would supercede existing rights in conflict with the standard, without knowing in advance what the effect would be.) But there may be constitutional problems in ratifying such a "self-executing" treaty directly imposing obligations as domestic law when there is legislative or regulatory inaction. I believe that some countries cannot or will not constitutionally sign such self-executing treaties. At a minimum, they raise inter-branch separation of powers issues, that make ratification more difficult to obtain. Josh >Josh Sarnoff wrote: > > Jamie: > > > > I thought the premise was a lack of agreement over the standards for > > exclusion and their application, and thus the inability to mandate > > specific exclusions. If you can generate agreement on the standards, > > you can (and should) require the specific exclusions (and specify the > > standards as well as a catch-all). Assuming you have the language > > for the standard, you can then add "shall" before "exclude" or > > "adjust" to each of the numbered entries, and "when" plus the > > language of the standard after each or all of the numbered entries. > > > > By "adjust requirements applicable", I had in mind the idea that life > > plus seventy or twenty years from issue make little sense when > > imposed uniformly (if at all). Thus, even if copyrights or patents > > were desired, their term and the specific exlusionary rights that > > protect those works or inventions should be succeptible to adjustment > > so they are not coextensive with TRIPS minima. > > > > I do not have any specific suggestion at this time for the language > > of the exclusionary standards. However, if we are discussing > > mandatory exclusions by regulation, you may want to add requirements > > to assure that the "shall" will be effectuated. For example, you may > > want to add requirements for collecting information on effects, > > requirements for analyzing such information, and a "precautionary" > > principle or default assumption of exclusion in the absence of > > evidence of the lack of harm and/or affirmative requirements to > > demonstrate a need to protect particular inventions or works to the > > extent otherwise required by TRIPS minima. The default position is > > particularly important given the costs of information collection and > > the administrative burdens of regulating. At a minimum, a strong > > default will help with internal politics, given the relative power of > > the different organizations that may be playing the game. > > > > Hope that helps. > > > > Josh > > > >> > >>---- Original Message ---- > >>From: james.love@cptech.org > >>To: jsarnoff@wcl.american.edu > >>Subject: Re: [A2k] Treaty regulations for limitations and exceptions > >>Date: Sun, 30 Jan 2005 22:14:46 -0500 > >> > >> > >>>Josh, what we are looking for are minimum limitation and > >> > >>exceptions.... > >> > >>>more or less the opposite of the approach in the TRIPS, Berne and > >> > >>the > >> > >>>SPLT. The proposals others have made are fairly specific > >> > >>limitations > >> > >>>and exceptions, but the idea here, for regulations, was to provide > >> > >>for > >> > >>>ongoing ability to broaden the exceptions and limitations. The > >>>objective is to further the purpose of the Treaty -- promoting > >> > >>access to > >> > >>>knowledge. This could be spelled out in more detail, for a better > >>>statement of the delegation, and we should think about what langauge > >>>would best do this. > >>> > >>>It is already the case that Members "may" adopt exceptions under > >>>TRIPS/Berne/SPLT, etc.... We are exploring areas where some basic > >>>limitations and exceptions should be manadatory, and thus members > >> > >>"shall > >> > >>>exclude." > >>> > >>>What is the "adjustment requirements applicable" meant to > >> > >>accomplish? > >> > >>>It sounds good, but I don't fully understand it. > >>> > >>>Jamie > >>> > >>> > >>>Josh Sarnoff wrote: > >>> > >>>>Usually, a delegation of regulatory power to enact exclusions or > >>>>limitatins is tied to an identified standard or objective. For > >>>>example, the suggested treaty requirement could read something > >> > >>like > >> > >>>>(adding authority to adjust requirements): > >>>> > >>>>"Members shall provide by legislation authority to adopt > >> > >>regulations > >> > >>>>that: > >>>>(a) exclude certain inventions from patentability, > >>>>(b) exclude certain uses of patented inventions from the scope of > >>>>exclusive rights, > >>>>(c) adjust requirements applicable to patentable invenetions, > >>>>(d) exclude certain works from copyright, > >>>>(e) exclude certain uses of copyrighted works from the scope of > >>>>exclusive rights, or > >>>>(f) adjust requirements applicable to copyrighted works, > >>>>when such treatment or any requirement is unnecessary, excessive, > >> > >>or > >> > >>>>harmful(not to mention fattening)." > >>>> > >>>>Of course, the important thing is the policy standard and how it > >> > >>is > >> > >>>>articulated. As another alternative, the delegation could simply > >>>>begin with "as appropriate" and remove the final clause, leaving > >> > >>the > >> > >>>>policy grounds ambiguous and subject to country determination. Of > >>>>course, this is a direct assault on the minimum standards approach > >> > >>of > >> > >>>>recent treaties. > >>>> > >>>>Josh > >>>> > >>>> > >>>>>---- Original Message ---- > >>>>>From: james.love@cptech.org > >>>>>To: a2k@lists.essential.org > >>>>>Subject: RE: [A2k] Treaty regulations for limitations and > >> > >>exceptions > >> > >>>>>Date: Sun, 30 Jan 2005 18:32:44 -0500 > >>>>> > >>>>> > >>>>> > >>>>>>In the proposed WIPO substantive patent law treaty, there is a > >>>>> > >>>>>process > >>>>> > >>>>> > >>>>>>for regulations setting out allowed exceptions and limitations. > >>>>> > >>>>>Indeed, > >>>>> > >>>>> > >>>>>>the treaty regulations seem to be important for nearly every > >>>>> > >>>>>provision > >>>>> > >>>>> > >>>>>>of the SPLT. > >>>>>> > >>>>>>Would it make sense to have a process for the adoption of > >>>>> > >>>>>regulations, > >>>>> > >>>>> > >>>>>>to address problems in areas where we are not ready to recommend > >>>>> > >>>>>policy? > >>>>> > >>>>> > >>>>>>For example > >>>>>> > >>>>>> > >>>>>>Article X > >>>>>> > >>>>>>A Contracting Party shall, accordance with the Regulations, > >>>>>> > >>>>>>(a) exclude certain inventions from patentability, > >>>>>>(b) exclude certain uses of patented inventions from the scope of > >>>>>>exclusive rights, > >>>>>>(c) exclude certain works from copyright, > >>>>>>(d) exclude certain uses of copyrighted works from the scope of > >>>>>>exclusive rights > >>>>>> > >>>>>> > >>>>>> > >>>>>> > >>>>>>-- > >>>>>>James Love, Director, CPTech, http://www.cptech.org > >>>>>> > >>>>>>Consumer Project on Technology in Washington, DC > >>>>>>PO Box 19367, Washington, DC 20036, USA > >>>>>>Tel.: 1.202.387.8030, fax: 1.202.234.5176 > >>>>>> > >>>>>>Consumer Project on Technology in Geneva > >>>>>>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > >>>>>>Tel: +41 22 791 6727 > >>>>>> > >>>>>>Mobile +1.202.361.3040 > >>>>>>james.love@cptech.org > >>>>>>_______________________________________________ > >>>>>>A2k mailing list > >>>>>>A2k@lists.essential.org > >>>>>>http://lists.essential.org/mailman/listinfo/a2k > >>>>>> > >>>> > >>>> > >>>> > >>>> > >>>> > >>>-- > >>>James Love, Director, CPTech, http://www.cptech.org > >>> > >>>Consumer Project on Technology in Washington, DC > >>>PO Box 19367, Washington, DC 20036, USA > >>>Tel.: 1.202.387.8030, fax: 1.202.234.5176 > >>> > >>>Consumer Project on Technology in Geneva > >>>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > >>>Tel: +41 22 791 6727 > >>> > >>>Mobile +1.202.361.3040 > >>>james.love@cptech.org > >>>_______________________________________________ > >>>A2k mailing list > >>>A2k@lists.essential.org > >>>http://lists.essential.org/mailman/listinfo/a2k > >>> > > > > > > > > > > > >-- >James Love, Director, CPTech, http://www.cptech.org > >Consumer Project on Technology in Washington, DC >PO Box 19367, Washington, DC 20036, USA >Tel.: 1.202.387.8030, fax: 1.202.234.5176 > >Consumer Project on Technology in Geneva >1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >Tel: +41 22 791 6727 > >Mobile +1.202.361.3040 >james.love@cptech.org >_______________________________________________ >A2k mailing list >A2k@lists.essential.org >http://lists.essential.org/mailman/listinfo/a2k Joshua D. Sarnoff Assistant Director, Glushko-Samuelson Intellectual Property Law Clinic Washington College of Law , Room 446A American University 4801 Massachusetts Ave. NW Washington DC 20016 202.274.4165 -- phone 202.274.0659 -- fax jsarnoff@wcl.american.edu This message may contain information that may be confidential and subject to the attorney-client privilege, work product doctrine, or other applicable protection. If you have received this message in error, please advise the sender by reply e-mail and delete the message. If you are not the addressee, you should not use, copy, transfer, or disclose to anyone else this message, attached documents, or any information relating to this message. Thank you very much. From james.love@cptech.org Mon Jan 31 13:08:24 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 42E0529B67 for ; Mon, 31 Jan 2005 13:08:23 -0500 (EST) Received: (qmail 9041 invoked from network); 31 Jan 2005 18:08:22 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 31 Jan 2005 18:08:22 -0000 Received: from 63.111.165.22 ([63.111.165.22]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 31 Jan 2005 18:08:22 -0000 Message-ID: <41FE741D.3090408@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: Joshua Sarnoff Cc: a2k@lists.essential.org, kahin@umich.edu, pjaszi@wcl.american.edu Subject: Re: [A2k] Treaty regulations for limitations and exceptions References: <380-220051131153240@wcl.american.edu> <380-220051131153240@wcl.american.edu> <5.1.0.14.2.20050131121148.0154d0a0@mailhost.wcl.american.edu> In-Reply-To: <5.1.0.14.2.20050131121148.0154d0a0@mailhost.wcl.american.edu> content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 13:38:25 2005 X-Original-Date: Mon, 31 Jan 2005 13:08:29 -0500 Joshua Sarnoff wrote: > At 10:22 AM 1/31/2005 -0500, James Love wrote: > >> Dear Josh, these are very interesting comments. A few quick reactions. >> >> 1. Regarding "adjust requirements applicable" language, >> >> I think attacking the Article 27 provision that "patents shall be >> available and patent rights enjoyable without discrimination as to the . >> . . the field of technology," would be quite useful, and possibly >> successful if focused on the use of an invention, or on >> non-discriminatory differential treatment (i.e. Canadian Bolar case). >> I am assuming that differential treatment is widely ok for copyright, >> since provisions in the Berne and TRIPS are so different (did WCT create >> any problems in this respect?). > > > I agree that the Canada Pharmaceuticals case supports substantial > flexibility in determining the meaning of "discrimination" and the > ability to exclude from patentability or specific rights. But I doubt > that Art. 27 would be interpreted by a dispute panel or by the Appellate > Body to override "hard" minimum standards elsewhere provided in TRIPS -- > e.g., 20 year term from filing (not issue; also, life plus fifty, not > seventy; I guess I hadn't had my coffee yet). Hence the need for such a > provision. The same is true of the "consistent with the provisions" > language of Art. 8.1. I don't think it is very fruitful to ask for terms that are shorter than TRIPS, for patents or copyrights. But for countries with TRIPS plus terms (common in copyright), or in terms of other aspects of the management of rights, the differentiation can be very important, for example, in apply a compulsory licensing to a particular problem, like research tools, essential medicines or essential education materials, or to have special requirements or limitations for for certain types of inventions or works. The Doha Declaration on TRIPS and Public Health was entirely about differentiation for medical inventions, for example. It is good to emphasize this, in order to have space to address public interest concerns. > >> 2. As a further issue with respect to the "default" situation and >> regulations, would it make sense to have countries agree that the >> exceptions and limitations in the regulations would become national law, >> if a country does not notify the Treaty secretariat of reservations >> within 3 years? >> > > This makes sense, particularly if the exceptions and limitations are > identified in the treaty. (Nevertheless, I suppose it is possible to > impose a standard that would supercede existing rights in conflict with > the standard, without knowing in advance what the effect would be.) But > there may be constitutional problems in ratifying such a > "self-executing" treaty directly imposing obligations as domestic law > when there is legislative or regulatory inaction. I believe that some > countries cannot or will not constitutionally sign such self-executing > treaties. At a minimum, they raise inter-branch separation of powers > issues, that make ratification more difficult to obtain. The 3-year notification of a reservation would make it possible for a country to easily opt out. It just creates an expectation that the regulation will be used in many countries, thus creating good models for state practice. The TRIPS gave countries 10 years to comply with some provisions (extended later till 2015 for LDCs when the Nov 2001 Doha Declaration was adopted), and created a limited waiver of 31.f obligations on 30 August 2003. The US government also waived a key part of NAFTA for Canada to export medicines under a complusory license, through a simple exchange of letters in 2004. The US Congress was asked to approve the WTO single undertaking in 1994/5, but not the subsequent expansions of limitations and exceptions. Not exactly on point, but relevant to thinking about the relationships between a national government and the treaty. Jamie > Josh > >> Josh Sarnoff wrote: >> > Jamie: >> > >> > I thought the premise was a lack of agreement over the standards for >> > exclusion and their application, and thus the inability to mandate >> > specific exclusions. If you can generate agreement on the standards, >> > you can (and should) require the specific exclusions (and specify the >> > standards as well as a catch-all). Assuming you have the language >> > for the standard, you can then add "shall" before "exclude" or >> > "adjust" to each of the numbered entries, and "when" plus the >> > language of the standard after each or all of the numbered entries. >> > >> > By "adjust requirements applicable", I had in mind the idea that life >> > plus seventy or twenty years from issue make little sense when >> > imposed uniformly (if at all). Thus, even if copyrights or patents >> > were desired, their term and the specific exlusionary rights that >> > protect those works or inventions should be succeptible to adjustment >> > so they are not coextensive with TRIPS minima. >> > >> > I do not have any specific suggestion at this time for the language >> > of the exclusionary standards. However, if we are discussing >> > mandatory exclusions by regulation, you may want to add requirements >> > to assure that the "shall" will be effectuated. For example, you may >> > want to add requirements for collecting information on effects, >> > requirements for analyzing such information, and a "precautionary" >> > principle or default assumption of exclusion in the absence of >> > evidence of the lack of harm and/or affirmative requirements to >> > demonstrate a need to protect particular inventions or works to the >> > extent otherwise required by TRIPS minima. The default position is >> > particularly important given the costs of information collection and >> > the administrative burdens of regulating. At a minimum, a strong >> > default will help with internal politics, given the relative power of >> > the different organizations that may be playing the game. >> > >> > Hope that helps. >> > >> > Josh >> > >> >> >> >>---- Original Message ---- >> >>From: james.love@cptech.org >> >>To: jsarnoff@wcl.american.edu >> >>Subject: Re: [A2k] Treaty regulations for limitations and exceptions >> >>Date: Sun, 30 Jan 2005 22:14:46 -0500 >> >> >> >> >> >>>Josh, what we are looking for are minimum limitation and >> >> >> >>exceptions.... >> >> >> >>>more or less the opposite of the approach in the TRIPS, Berne and >> >> >> >>the >> >> >> >>>SPLT. The proposals others have made are fairly specific >> >> >> >>limitations >> >> >> >>>and exceptions, but the idea here, for regulations, was to provide >> >> >> >>for >> >> >> >>>ongoing ability to broaden the exceptions and limitations. The >> >>>objective is to further the purpose of the Treaty -- promoting >> >> >> >>access to >> >> >> >>>knowledge. This could be spelled out in more detail, for a better >> >>>statement of the delegation, and we should think about what langauge >> >>>would best do this. >> >>> >> >>>It is already the case that Members "may" adopt exceptions under >> >>>TRIPS/Berne/SPLT, etc.... We are exploring areas where some basic >> >>>limitations and exceptions should be manadatory, and thus members >> >> >> >>"shall >> >> >> >>>exclude." >> >>> >> >>>What is the "adjustment requirements applicable" meant to >> >> >> >>accomplish? >> >> >> >>>It sounds good, but I don't fully understand it. >> >>> >> >>>Jamie >> >>> >> >>> >> >>>Josh Sarnoff wrote: >> >>> >> >>>>Usually, a delegation of regulatory power to enact exclusions or >> >>>>limitatins is tied to an identified standard or objective. For >> >>>>example, the suggested treaty requirement could read something >> >> >> >>like >> >> >> >>>>(adding authority to adjust requirements): >> >>>> >> >>>>"Members shall provide by legislation authority to adopt >> >> >> >>regulations >> >> >> >>>>that: >> >>>>(a) exclude certain inventions from patentability, >> >>>>(b) exclude certain uses of patented inventions from the scope of >> >>>>exclusive rights, >> >>>>(c) adjust requirements applicable to patentable invenetions, >> >>>>(d) exclude certain works from copyright, >> >>>>(e) exclude certain uses of copyrighted works from the scope of >> >>>>exclusive rights, or >> >>>>(f) adjust requirements applicable to copyrighted works, >> >>>>when such treatment or any requirement is unnecessary, excessive, >> >> >> >>or >> >> >> >>>>harmful(not to mention fattening)." >> >>>> >> >>>>Of course, the important thing is the policy standard and how it >> >> >> >>is >> >> >> >>>>articulated. As another alternative, the delegation could simply >> >>>>begin with "as appropriate" and remove the final clause, leaving >> >> >> >>the >> >> >> >>>>policy grounds ambiguous and subject to country determination. Of >> >>>>course, this is a direct assault on the minimum standards approach >> >> >> >>of >> >> >> >>>>recent treaties. >> >>>> >> >>>>Josh >> >>>> >> >>>> >> >>>>>---- Original Message ---- >> >>>>>From: james.love@cptech.org >> >>>>>To: a2k@lists.essential.org >> >>>>>Subject: RE: [A2k] Treaty regulations for limitations and >> >> >> >>exceptions >> >> >> >>>>>Date: Sun, 30 Jan 2005 18:32:44 -0500 >> >>>>> >> >>>>> >> >>>>> >> >>>>>>In the proposed WIPO substantive patent law treaty, there is a >> >>>>> >> >>>>>process >> >>>>> >> >>>>> >> >>>>>>for regulations setting out allowed exceptions and limitations. >> >>>>> >> >>>>>Indeed, >> >>>>> >> >>>>> >> >>>>>>the treaty regulations seem to be important for nearly every >> >>>>> >> >>>>>provision >> >>>>> >> >>>>> >> >>>>>>of the SPLT. >> >>>>>> >> >>>>>>Would it make sense to have a process for the adoption of >> >>>>> >> >>>>>regulations, >> >>>>> >> >>>>> >> >>>>>>to address problems in areas where we are not ready to recommend >> >>>>> >> >>>>>policy? >> >>>>> >> >>>>> >> >>>>>>For example >> >>>>>> >> >>>>>> >> >>>>>>Article X >> >>>>>> >> >>>>>>A Contracting Party shall, accordance with the Regulations, >> >>>>>> >> >>>>>>(a) exclude certain inventions from patentability, >> >>>>>>(b) exclude certain uses of patented inventions from the scope of >> >>>>>>exclusive rights, >> >>>>>>(c) exclude certain works from copyright, >> >>>>>>(d) exclude certain uses of copyrighted works from the scope of >> >>>>>>exclusive rights >> >>>>>> >> >>>>>> >> >>>>>> >> >>>>>> >> >>>>>>-- >> >>>>>>James Love, Director, CPTech, http://www.cptech.org >> >>>>>> >> >>>>>>Consumer Project on Technology in Washington, DC >> >>>>>>PO Box 19367, Washington, DC 20036, USA >> >>>>>>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >>>>>> >> >>>>>>Consumer Project on Technology in Geneva >> >>>>>>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >> >>>>>>Tel: +41 22 791 6727 >> >>>>>> >> >>>>>>Mobile +1.202.361.3040 >> >>>>>>james.love@cptech.org >> >>>>>>_______________________________________________ >> >>>>>>A2k mailing list >> >>>>>>A2k@lists.essential.org >> >>>>>>http://lists.essential.org/mailman/listinfo/a2k >> >>>>>> >> >>>> >> >>>> >> >>>> >> >>>> >> >>>> >> >>>-- >> >>>James Love, Director, CPTech, http://www.cptech.org >> >>> >> >>>Consumer Project on Technology in Washington, DC >> >>>PO Box 19367, Washington, DC 20036, USA >> >>>Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >>> >> >>>Consumer Project on Technology in Geneva >> >>>1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >> >>>Tel: +41 22 791 6727 >> >>> >> >>>Mobile +1.202.361.3040 >> >>>james.love@cptech.org >> >>>_______________________________________________ >> >>>A2k mailing list >> >>>A2k@lists.essential.org >> >>>http://lists.essential.org/mailman/listinfo/a2k >> >>> >> > >> > >> > >> > >> > >> >> -- >> James Love, Director, CPTech, http://www.cptech.org >> >> Consumer Project on Technology in Washington, DC >> PO Box 19367, Washington, DC 20036, USA >> Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >> Consumer Project on Technology in Geneva >> 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >> Tel: +41 22 791 6727 >> >> Mobile +1.202.361.3040 >> james.love@cptech.org >> _______________________________________________ >> A2k mailing list >> A2k@lists.essential.org >> http://lists.essential.org/mailman/listinfo/a2k > > > > Joshua D. Sarnoff > Assistant Director, > Glushko-Samuelson Intellectual Property Law Clinic > Washington College of Law , Room 446A > American University > 4801 Massachusetts Ave. NW > Washington DC 20016 > 202.274.4165 -- phone > 202.274.0659 -- fax > jsarnoff@wcl.american.edu > > This message may contain information that may be confidential and > subject to the attorney-client privilege, work product doctrine, or > other applicable protection. If you have received this message in > error, please advise the sender by reply e-mail and delete the message. > If you are not the addressee, you should not use, copy, transfer, or > disclose to anyone else this message, attached documents, or any > information relating to this message. Thank you very much. > > > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From cory@eff.org Mon Jan 31 13:48:58 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from flarn.com (flarn.com [216.126.84.58]) by lists.essential.org (Postfix) with ESMTP id 0200A29B45 for ; Mon, 31 Jan 2005 13:48:58 -0500 (EST) Received: from [127.0.0.1] (flarn.com [216.126.84.58]) by flarn.com (8.12.8/8.12.8) with ESMTP id j0VImRqI018552; Mon, 31 Jan 2005 13:48:37 -0500 In-Reply-To: References: Mime-Version: 1.0 (Apple Message framework v619.2) Message-Id: Cc: From: Cory Doctorow Subject: Re: [A2k] An A2K orientation..... To: "Alan Story" X-Mailer: Apple Mail (2.619.2) content-transfer-encoding: 7bit content-type: text/plain; charset=US-ASCII; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 13:52:03 2005 X-Original-Date: Mon, 31 Jan 2005 19:48:26 +0100 Regarding the Internet: I think it's a mistake to undersell this as a "northern" issue (certainly our friends in the Brazilian infocenter movement would agree!). The thing that the Internet does is make ad-hoc collaboration across distance easy. An Australian Projenct Gutenberg author can scan a page in her sitting room and send it to a Briton for OCR treatment and addition to the PG archive of freely usable, public domain works (which are used by educational and development efforts across the south, fwiw). But because of different copyright regimes in Aus and UK -- the life+50 problem -- if that page comes from Orwell, the Brit breaks the law when he runs the OCR software on the Aussie scan. Or imagine a Haitian CC-licensed educational material that is in use in France, Quebec and Cote D'Ivoire -- in those states that have strong, inalienable moral rights, the copyleft license on the materials won't be legal, and educators who make use of those works likely violate their obligation to their employer to make use of only noninfringing, lawful works in instruction. Collaboration -- standing on the shoulders of giants -- is the core of creation, but because of the lack of harmonized limitations and exceptions, you need to be an expert on every one of your collaborators' national copyright systems in order to partake in simple creative and consumptive acts. This cannot hold. The other side has successfully pushed for harmonized copyrights on the grounds that an international business needs to know where it stands in every nation it touches; the international cooperation movement has just the same need for just the same reason. This is a powerful message, and it touches directly on issues that are important to the developing world like distance ed, local sovereignty, cultural preservation (especially with diaspora populations, like India and the Philippines), and the competitive hedge provided by FOSS. On Jan 31, 2005, at 1:23 PM, Alan Story wrote: > > Here are a few comments on the proposed "access to knowledge" treaty. > There > are not in the form of legally-drafted treaty clauses (of the type that > others, such as Peter Jaszi, have written), but are written more as > suggested orientations and approaches to a massive and serious problem: > barriers in accessing knowledge, and, in particular in the South. > > 1. The starting point of such discussions for a possible new treaty > should > NOT be existing LAWS (e.g. copyright laws), but existing NEEDS for > access to > knowledge. Inverting the order dramatically limits the possibilities > for > action, including the drafting of new laws and treaties which, after > the > identification of such needs is appreciated and understood, will have > the > possibility of actually serving human needs. > > 2. Copyright laws usually are not the principal cause of lack of > access to > learning tools in countries of the South, but they are often a key > contributory and reinforcing cause > (e.g. textbooks, distance learning, literacy programmes, programmes > for the > visually impaired, copyright (and patents) in computer software, > academic > journals). > > 3. Internet access --- let alone easy, reliable and affordable access > to a > computer --- remains the privilege of a small minority in the South. > Hard-copy printed materials, such as textbooks, still are the most > important > essential learning tools for most students. > > 4. Neither the Berne Convention (which few countries of the South had > any > role in drafting) nor its 1971 Annex provide any "special exemptions" > of > substantive value for education, schools and universities in the > South. and > certainly not ones meeting the urgent educational needs of students and > teachers (e.g. for distance learning, course packs, non-school based > literacy programmes). > > 5. Exporting traditionally conceived fair use / fair dealing > provisions are > NOT sufficient to meet the educational and access-to-knowledge needs > in the > South. "Fair use" itself is a term of very limited > geographic/jurisdictional import. And a much preferable term to > "copyright limitations and exceptions" ---- which presumes the > superiority > of copyright values and of an exalted, "default position" for rights > holders > ---- is "users' rights." > > 6. The Berne Convention and its 1971 Annex do not make any explicit > provision for compulsory/statutory licensing for non-private teaching > purposes, except for very restrictive translation and reproduction > rights in > the South. > > 7. In any event, compulsory/statutory licensing is not a panacea for > the > greater use of and access to learning tools in the South. Compulsory > licensing schemes usually involve very high transaction costs and may > require high rates of payment beyond the capacity of most schools, > universities, and students in the South. > > 8. In a related matter, actively discourage the creation of further > national Reproduction Rights Organisations (or RRO's) such as the CCC > (US), > CLA (UK), DALRO (RSA)) in the South. Due to the uneven global spread of > copyright-protected educational materials, such RRO's do --- and will > ---- > primarily operate as toll collectors for publishers located in the > industrialised North. For example, countries of the South should be > encouraged to apply high rates of taxation on all payments made by > RROs in > the South to Northern publishers; such taxation funds could be used in > the > South to assist in the creation of locally-produced materials. > > 9. Respect national cultures in the South and beware the dangers of > exporting, through the exporting of texts or other learning materials > (or > their translation), the cultures and ideologies of the North to the > South. > Assist in the protection of national cultural sovereignty in the South > in > the face of what has been called "the cultural avalanche from the > West." The > Internet, for example, remains primarily a one-way street flowing > North to > South. > > 10. At the same time, actively encourage the spread and diffusion of > knowledge from the South to the North. The dangers of a "centre-of-the- > world" mentality in the North ---- and the accompanying missionary > "THEY > need to learn from US " attitude ---- are clear to those who want to > see > (with the US/UK war on Iraq being a current and obvious example.) > > 11. Copyright is not a pre-requisite for the production and/or use of > knowledge and educational materials in the South; in fact, copyright > often > discourages creativity and can be extremely wasteful financially ( > e.g. to > take one of hundreds of examples, in the provision of materials for the > blind.) Encourage open access models in the production of teaching > materials. > > 12. Assist in the spread and sharing of knowledge: Encourage, for > example, > the sending of photocopiers (and similar reprographic and duplication > machines) to countries of the South. > > 13. As much as possible, encourage the distribution to students of free > textbooks and other learning materials. > > 14. Teachers and academics, not governments or publishers ( or "the > market") > , should play the determining role in the content of textbooks and > other > learning materials > > 15. Oppose the book and publishing programmes of the World Bank; their > essential aim is privatisation and creating further global markets for > publishers in the North and their Southern subsidiaries. > > 16. Challenge the campaigns of rich countries of the North to coerce > countries of the South to extend their duration/term of copyright > beyond the > already-lengthy Berne minimum of life, plus 50 years; such coercion is > aimed > primarily at increasing revenues for publishers ( and other rights > holders ) > in the North which hold the overwhelming percentage of rights in > copyrighted > books ( and other copyrighted materials). > > 17. While a "Creative Commons" licensing approach undoubtedly provides > a > valuable > alternative to creators of new works who wish to make their works more > accessible, it still gives creators "trumping power" over users who > want to > access such work ( that is, it replicates and privileges most existing > most > copyright and property presumptions) and does not address the much > wider > access problem: how to get access to currently copyright restricted > works.which are the overwhelming majority of works. > > 18. There has been little discussion, to date, of indigenous knowledge > ( > and, for example, the dangers of replicating copyright and "public > domain " > presumptions in this area.) This is a SERIOUS oversight and a priority > matter. > > Before discussions proceed much further on this proposed treaty, I > think > there must be an open discussion of the process of consulting about, > formulating, and drafting such a treaty should proceed. I personally > have a > lot of questions about whether many of the matters I have pointed out > above, > including the top-down issues, are not being replicated in the very > process > of writing this treaty. For example, developing links with the type > of > groups who are meeting (at this very moment) at the World Social Forum > in > Porto Alegre, Brazil is a priority. > > Anyways, my thougths.. > > > Best > Alan > > Alan Story > Lecturer > Kent Law School > University of Kent > Canterbury, Kent, UK > acs3@kent.ac.uk > +44 (0)1227 823316 > > > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > From doctorow@craphound.com Mon Jan 31 13:49:19 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from smtp.well.com (smtp.well.com [206.14.209.7]) by lists.essential.org (Postfix) with ESMTP id 3339929B45 for ; Mon, 31 Jan 2005 13:49:19 -0500 (EST) X-WELL-Auth: Yes Received: from [IPv6:::1] (well.com [206.14.209.5]) by smtp.well.com (8.13.0/8.13.0) with ESMTP id j0VInGTD014362; Mon, 31 Jan 2005 10:49:17 -0800 (PST) In-Reply-To: <41FE43D2.3070809@public-domain.org> References: <41FD347C.6050005@cptech.org> <41FE43D2.3070809@public-domain.org> Mime-Version: 1.0 (Apple Message framework v619.2) Message-Id: Cc: a2k@lists.essential.org From: Cory Doctorow Subject: Re: [A2k] A2K internet copyright DRAFT To: David Tannenbaum X-Mailer: Apple Mail (2.619.2) X-Virus-Scanned: ClamAV version 0.81, clamav-milter version 0.81b on smtp.well.com X-Virus-Status: Clean content-transfer-encoding: quoted-printable content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 13:52:09 2005 X-Original-Date: Mon, 31 Jan 2005 19:49:14 +0100 +1 On Jan 31, 2005, at 3:42 PM, David Tannenbaum wrote: > In the tradition of releasing early and often, here is a draft set of > provisions addressing various internet copyright issues. Suggestions > and > critiques very welcome. The structure is built on Peter Jaszi's L&E's > proposal. > David > > > COPYRIGHT ON THE INTERNET - DRAFT > > NOTES: > > (A)(8) - Text taken directly from DMCA =A7 512(a) on Transitory Digital > Network Communications. > > (A)(9) - Similar to the spirit of DMCA =A7 512(b), but without the notice > and takedown provisions. > > A(10) - Language taken from DMCA =A7 512(c), but excluding requirements > that an ISP is exempt only if they have do not have knowledge of > infringing activity and do not respond to notice and takedown requests. > > A(11) - Language taken from DMCA =A7 512(d), but excluding requirements > that an ISP is exempt only if they have do not have knowledge of > infringing activity and do not respond to notice and takedown requests. > > A(12) - A response to the Google cache problem. > > A(13) - A response to the murky waters of inline linking. > > > TEXT: > > Limitations and Exceptions: > > (A) The exclusive economic rights of copyright owners (including but > not > limited to reproduction, distribution, display, performance, adaptation > and communication to the public), shall not apply to: > . > . > . > (8) An internet service provider's (ISP) transmitting, routing or > providing connections for, material through a system or network > controlled or operated by or for the service provider, or by reason of > the intermediate and transient storage of that material in the course > of > such transmitting, routing, or providing connections, if -- > =09(i) the transmission of the material was initiated by or at the > direction of a person other than the service provider; > =09(ii) the transmission, routing, provision of connections, or storage > is > carried out through an automatic technical process without selection of > the material by the service provider; > =09(iii) the service provider does not select the recipients of the > material except as an automatic response to the request of another > person; > =09(iv) no copy of the material made by the service provider in the > course of such intermediate or transient storage is maintained on the > system or network in a manner ordinarily accessible to anyone other > than > anticipated recipients, and no such copy is maintained on the system or > network in a manner ordinarily accessible to such anticipated > recipients > for a longer period than is reasonably necessary for the transmission, > routing, or provision of connections; and > =09(v) the material is transmitted through the system or network without > modification of its content. > > (9) An ISP's intermediate and temporary storage of material for the > purposes of caching material to facilitate users' efficient and speedy > access to the material, as long as they do not modify the material or > provide it in a manner inconsistent with access conditions set by the > copyright holder; > > (10) An ISP's storage at the direction of a user of material that > resides on a system or network controlled or operated by or for the > service provider; > > (11) The referring or linking users to an online location containing > infringing material or infringing activity, by using information > location tools, including a directory, index, reference, pointer, or > hypertext link, if the ISP does not receive a financial benefit > directly > attributable to the infringing activity, in a case in which the service > provider has the right and ability to control such activity; > > (12) The caching of electronic documents for the purposes of enhancing > functionality of internet search engines, as long as the original > webpage address is clearly indicated on the cached page, and it is > clear > that the cached page may not be the most up-to-date version; > > (13) The transmitting of a universal resource locator or other > electronic pointer, that has the effect of instructing a user's browser > to load electronic documents from a third-party server ("inline > linking"); > > . > . > . > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > From james.love@cptech.org Mon Jan 31 15:37:01 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id ED7CB29B45 for ; Mon, 31 Jan 2005 15:37:00 -0500 (EST) Received: (qmail 28262 invoked from network); 31 Jan 2005 20:36:59 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 31 Jan 2005 20:36:59 -0000 Received: from 63.111.165.22 ([63.111.165.22]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 31 Jan 2005 20:36:59 -0000 Message-ID: <41FE96F2.4060401@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org content-transfer-encoding: quoted-printable content-type: text/plain; charset=windows-1252; format=flowed Subject: [A2k] Update of Berne Appendix Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 15:53:00 2005 X-Original-Date: Mon, 31 Jan 2005 15:37:06 -0500 For now, is this mostly a placeholder. It is based upon discussions in recent meetings in Santiago, Bogot=E1 and Bellagio, there is a need for an =93update=94 of the Berne Appendix. The first three findings below are taken from the 1996 UNECSO Nairobi protocol. Proposal for =93updated=94 protocol for compulsory licensing of copyrighted works in developing countries Findings 1. In the past quarter of a Century, technical progress has changed the ways and means of transmitting information and knowledge, 2. Developments that have taken place in the field of international trade during this period reflect in greater freedom of exchanges, 3. The needs and concerns of the developing countries should be taken into consideration, with a view to giving them easier and less costly access to education, science, technology and culture, 4. The Appendix to the Berne Convention has been of limited benefit to developing countries, due to complex procedures, high transaction costs, limitations on exports and the limited scope of works and uses. 5. The Appendix to the Berne Convention is not a viable mechanism to promote access to works that are distributed on the Internet. Therefore. A new protocol for access to copyrighted works in developing countries will be developed for compulsory licenses for copyrighted works that will feature: 1. Simpler procedures, 2. Lower transaction costs, 3. Faster decision making, 4. Appropriate scope of works and uses, including for translations in major languages, 5. Permission to export to other developing countries that have issued compulsory licenses for the same works, 6. Feasible implementation for works distributed in electronic formats, including over the Internet, or in distance education. -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From manon.ress@cptech.org Mon Jan 31 16:03:00 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 8081B29B33 for ; Mon, 31 Jan 2005 16:02:59 -0500 (EST) Received: (qmail 12270 invoked from network); 31 Jan 2005 21:02:58 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 31 Jan 2005 21:02:58 -0000 Received: from 65.222.222.251 ([65.222.222.251]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 31 Jan 2005 21:02:58 -0000 Message-ID: <41FE9CFB.1040904@cptech.org> From: Manon Ress User-Agent: Mozilla/5.0 (X11; U; Linux i686; en-US; rv:1.7.3) Gecko/20041007 Debian/1.7.3-5 X-Accept-Language: en MIME-Version: 1.0 To: a2k discuss list content-transfer-encoding: quoted-printable content-type: text/plain; charset=windows-1252; format=flowed Subject: [A2k] Placeholder for distance education? Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 16:05:02 2005 X-Original-Date: Mon, 31 Jan 2005 16:02:51 -0500 I'm not sure we need separate provisions for DE, maybe we would be better off with good pro educators' provisions? However, the following recommendations could be discussed. There are many more but that could be a start and help get distance educators and administrators more involved= . Manon Elements for DE provisions: The convergence of telecommunications, publishing, television and computing, is creating a media environment with enormous implications for distance education, flexible learning, and mass higher education and training. Access to knowledge media will increase and the globalisation of communication will permit the growth of higher education. The use of new technologies in innovative education demands full reconsideration of the ability to use existing copyright-protected materials in distance education. One of the fundamental objectives of a new law or treaty should be to strike a balance between protecting copyright works, while permitting educators to use those materials in DE. Serious considerations should be given to the issues of who should be involved in the elaboration of DE law or treaty provisions. It is fundamental to include DE instructors, students and libraries as well as policy makers and institutions. In addition, model or exiting legislations and their analysis (in the US and EU) should be considered in order to address issues related to the cross-border nature of distance education. There is a crucial need for for harmonization and global solutions in the field of DE. Issues and recommendations may be organized around the following questions= : I=09Materials/works that should be covered and materials/worksthat should not be covered. II=09Instructors, students, place and time III=09Definitions and meaning IV=09Liability of institutions for infringement? V=09Analog to Digital? I=09Material/works Issues re range of allowed works. The law must permit the display and performance of nearly all types of works. The law should not sweepingly excludes broad categories of works. Only a few narrow classes of works may be excluded, and uses of only a few types of works can be subject to quantity limitations. Displays of any type of work including dramatic works, performances of audiovisual materials and sound recordings. Recommendation: The law must explicitly permits: =B7 Performances of nondramatic literary works; =B7 Performances of nondramatic musical works; =B7 Performances of any other work, including dramatic works and audiovisual works, but only in =93reasonable and limited portions=94; and =B7 Displays of any work =93in an amount comparable to that which is typically displayed in the course of a live classroom session. Excluded works must be limited to: Works that are marketed =93primarily for performance or display as part of mediated instructional activities transmitted via digital networks=94; and =B7 Performances or displays given by means of copies =93not lawfully made and acquired=94 (under the country's Copyright Act), if the educational institution =93knew or had reason to believe=94 that they were not lawfully made and acquired. The first of these limitations is clearly intended to protect the market for commercially available educational materials. II=09Teachers, students, place and time Issues: The DE law should not include unreasonable formalities (as in the Teach Act in the US). Recommendation: Instructors should be able to access materials with a blanket license. Reasonable remuneration to copyright owners should apply. Recommendation: The benefits of the DE Law should not apply only to a limited type of education institutions or programs. In the case of post-secondary education, an institution may be recognized by the applicable authorities of the countries. In developing countries, many private entities, such as for-profit subsidiaries of nonprofit institutions may not be duly =93accredited=94but should qualify and benefit from the DE Law. Recommendation: Expansion of receiving locations. The law must not limit the transmission of content to classrooms and other similar location. The law should have no such constraint. Educational institutions must be able to reach students through distance education at any location. Issue: Storage of transmitted content. Recommendation: The law must permit educational institutions to record and retain copies of the distance-education transmission, even if it included copyrighted content owned by others. The law must also explicitly allows retention of the content and student access for a brief period of time, and it permits copying and storage that is incidental or necessary to the technical aspects of digital transmission systems.The DE Law must explicitly exonerate educational institutions from liability that may result from most =93transient or temporary storage of material.=94 However, the law should not allow anyone to maintain the copyrighted content =93on the system or network=94 for availability to the students =93for a longer period than is reasonably necessary to facilitate the transmissions for which it was made.=94 Moreover, the institution may not store or maintain the material on a system or network where it may be accessed by anyone other than the =93anticipated recipients.=94 Issues: Students Recommendation: The institution must provide notice to students that materials used in connection with the course may be subject to copyright protection. It may be be a brief statement simply alerting the reader to copyright implications. Recommendation: Enrolled students. The transmission of content must be made solely for students officially enrolled in the course for which the transmission is made. The law may ask the institution to limit the transmission to students enrolled in the particular course =93to the extent technologically feasible.=94 Therefore, the institution may need to create a system that permits access only by students registered for that specific class. As a practical matter, the statute may lead educational institutions to implement technological access controls that are linked to enrollment records available from the registrar=92s office. Note that in the US, the DE law requires that the technological controls be "reasonable." In other words, do your best, and keep checking for the latest innovations. Developing countries should not go further. Issues: need for repeated access. recommendation: the law must explicitly allow for repeated access if it is necessary to meet teaching objectives. For example, if an instructor has properly included a clip of a copyrighted work in one "class session" as part of his online course, students should be able to continue to access that session repeatedly throughout the semester or other term of the course. In addition, if the instructor wants to re use the clip for another term (or any academic period) the law must permit the use. III=09Definitions and meaning Issues: RE definition of "mediated instructional activities". One of the most difficult part of a DE law is to determine that performances and displays, involving a =93digital transmission,=94 must be in the context of =93mediated instructional activities.=94 It means that the uses of materials in the program must be =93an integral part of the class experience, controlled by or under the actual supervision of the instructor and analogous to the type of performance or display that would take place in a live classroom setting.=94 The point is to prevent an instructor from including, in a digital transmission, copies of materials that are specifically marketed for and meant to be used by students outside of the classroom in the traditional teaching model. For example, should the law attempt to prevent an instructor from scanning and uploading chapters from a textbook in lieu of having the students purchase that material for their own use. There are some agreement even among educators that the law should protect the market for materials designed to serve the educational marketplace. But it is not entirely clear if the treatment of other materials that might ordinarily constitute handouts in class or reserves in the library. My recommendation would be to have a general provision allowing displays of materials in a quantity similar to that which would be displayed in the live classroom setting (=93mediated instructional activity=94) allowin= g occasional, brief handouts including entire short works. In the definitions, language such as: =93Mediated instructional activities means activities that use works as an integral part of the classroom experience and under the control or supervision of an instructor= =94. IV=09Liability of institutions for infringement Issues RE Educational content. Liability issues for educational institutions should not lead to lack of freedom or choice for instructors etc...(chilling effect). The DE law should explicitly address the issue. Any suggestions? V=09Analog to Digital Issues RE Digitizing of analog works. In order to facilitate digital transmissions, the law must permit digitization of some analog works if the work is not already available. Language such as: The institution or the instructor may decide to convert from analog to digital the portion or amount of that work authorized if there is no digital version of a work is available to the institution or if the digital version that is available is subject to technological measures that prevent its use for distance education -- Manon Anne Ress manon.ress@cptech.org, www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: +1.202.387.8030, fax: +1.202.234.5176 Consumer Project on Technology in Geneva, 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727 Consumer Project on Technology in London, 24 Highbury Crescent, London, N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607 From mnisbet@alawash.org Mon Jan 31 16:09:48 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from alawash.alawash.org (alawash.alawash.org [38.219.132.3]) by lists.essential.org (Postfix) with ESMTP id 5D11029B33 for ; Mon, 31 Jan 2005 16:09:48 -0500 (EST) Received: from ALA_DC_DMN-MTA by alawash.alawash.org with Novell_GroupWise; Mon, 31 Jan 2005 16:09:21 -0500 Message-Id: X-Mailer: Novell GroupWise Internet Agent 6.5.2 From: "Miriam Nisbet" To: , Mime-Version: 1.0 x-plaintext: WIPO library principles 012605.pdf of type application/pdf deleted content-transfer-encoding: 7bit content-type: text/plain Subject: [A2k] Re: A2K: General information, restaurant list and participant list Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 16:11:01 2005 X-Original-Date: Mon, 31 Jan 2005 16:08:36 -0500 -- Thiru: Thank you for the helpful information for the meeting. I'll look for the agenda tomorrow. Could I also ask that, if possible, the agenda or the message with it include a summarization of the expected outcome of the meeting? Will it be actual proposed treaty language, or a more conceptual approach and strategy? It's a bit unclear to me from the messages to the list that I've been reading. Also, attached is the latest version of the Library Principles. I would appreciate it if someone could post it to the web site as a replacement for the version that's currently there. Many thanks! Miriam Miriam M. Nisbet Legislative Counsel American Library Association 1301 Pennsylvania Ave. NW - #403 Washington, D.C. 20004-1701 Voice: 202-628-8410, x. 202, or 800-941-8478, x. 202 Fax: 202-628-8419 e-mail: mnisbet@alawash.org http://www.ala.org/washoff >>> Thiru Balasubramaniam 01/31/2005 12:31:15 PM >>> Dear participants, Please find attached some important information for the upcoming CPTech, IFLA, and TWN "Experts Meeting on the WIPO Development Agenda and Treaty on A2K", Geneva, Switzerland (February 3-4, 2005). The meeting will take place in the Rachel Carson room of La Maison des associations. See attached: a general information note, a restaurant list, and participants list. An updated agenda will be sent to you tomorrow. Please also note that you can read up on relevant proposals in the a2k discussion list archives - http://lists.essential.org/pipermail/a2k/ Sincerely, Thiru Balasubramaniam Geneva Representative Consumer Project on Technology Tel: 41 22 791 6727 Email: thiru@cptech.org -- [ WIPO library principles 012605.pdf of type application/pdf deleted ] From doctorow@craphound.com Mon Jan 31 16:31:53 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from smtp.well.com (smtp.well.com [206.14.209.7]) by lists.essential.org (Postfix) with ESMTP id 1B1AB29B19 for ; Mon, 31 Jan 2005 16:31:53 -0500 (EST) X-WELL-Auth: Yes Received: from [IPv6:::1] (well.com [206.14.209.5]) by smtp.well.com (8.13.0/8.13.0) with ESMTP id j0VLUjnA013111; Mon, 31 Jan 2005 13:31:49 -0800 (PST) In-Reply-To: <41FE9CFB.1040904@cptech.org> References: <41FE9CFB.1040904@cptech.org> Mime-Version: 1.0 (Apple Message framework v619.2) Message-Id: Cc: a2k discuss list From: Cory Doctorow Subject: Re: [A2k] Placeholder for distance education? To: Manon Ress X-Mailer: Apple Mail (2.619.2) X-Virus-Scanned: ClamAV version 0.81, clamav-milter version 0.81b on smtp.well.com X-Virus-Status: Clean content-transfer-encoding: quoted-printable content-type: text/plain; charset=WINDOWS-1252; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 17:51:03 2005 X-Original-Date: Mon, 31 Jan 2005 22:31:47 +0100 +1 On Jan 31, 2005, at 10:02 PM, Manon Ress wrote: > I'm not sure we need separate provisions for DE, maybe we would be > better off with good pro educators' provisions? However, the following > recommendations could be discussed. There are many more but that could > be a start and help get distance educators and administrators more > involved. > Manon > > Elements for DE provisions: > > The convergence of telecommunications, publishing, television and > computing, is creating a media environment with enormous implications > for distance education, flexible learning, and mass higher education > and > training. Access to knowledge media will increase and the > globalisation > of communication will permit the growth of higher education. > > The use of new technologies in innovative education demands full > reconsideration of the ability to use existing copyright-protected > materials in distance education. One of the fundamental objectives of > a > new law or treaty should be to strike a balance between protecting > copyright works, while permitting educators to use those materials in > DE. > > Serious considerations should be given to the issues of who should be > involved in the elaboration of DE law or treaty provisions. It is > fundamental to include DE instructors, students and libraries as well > as > policy makers and institutions. > > In addition, model or exiting legislations and their analysis (in the > US > and EU) should be considered in order to address issues related to the > cross-border nature of distance education. There is a crucial need for > for harmonization and global solutions in the field of DE. > > Issues and recommendations may be organized around the following > questions: > > I=09Materials/works that should be covered and materials/worksthat > should > not be covered. > II=09Instructors, students, place and time > III=09Definitions and meaning > IV=09Liability of institutions for infringement? > V=09Analog to Digital? > > I=09Material/works > > Issues re range of allowed works. The law must permit the display and > performance of nearly all types of works. The law should not sweepingly > excludes broad categories of works. Only a few narrow classes of works > may be excluded, and uses of only a few types of works can be subject > to > quantity limitations. Displays of any type of work including dramatic > works, performances of audiovisual materials and sound recordings. > > Recommendation: The law must explicitly permits: > =B7 Performances of nondramatic literary works; > =B7 Performances of nondramatic musical works; > =B7 Performances of any other work, including dramatic works and > audiovisual works, but only in =93reasonable and limited portions=94; and > =B7 Displays of any work =93in an amount comparable to that which is > typically displayed in the course of a live classroom session. > > Excluded works must be limited to: > Works that are marketed =93primarily for performance or display as part > of > mediated instructional activities transmitted via digital networks=94; > and > =B7 Performances or displays given by means of copies =93not lawfully mad= e > and acquired=94 (under the country's Copyright Act), if the educational > institution =93knew or had reason to believe=94 that they were not lawful= ly > made and acquired. > > The first of these limitations is clearly intended to protect the > market > for commercially available educational materials. > > II=09Teachers, students, place and time > > Issues: The DE law should not include unreasonable formalities (as in > the Teach Act in the US). > > Recommendation: Instructors should be able to access materials with a > blanket license. Reasonable remuneration to copyright owners should > apply. > > Recommendation: The benefits of the DE Law should not apply only to a > limited type of education institutions or programs. In the case of > post-secondary education, an institution may be recognized by the > applicable authorities of the countries. In developing countries, many > private entities, such as for-profit subsidiaries of nonprofit > institutions may not be duly =93accredited=94but should qualify and benef= it > from the DE Law. > > Recommendation: Expansion of receiving locations. The law must not > limit > the transmission of content to classrooms and other similar location. > The law should have no such constraint. Educational institutions must > be > able to reach students through distance education at any location. > > Issue: Storage of transmitted content. > Recommendation: The law must permit educational institutions to record > and retain copies of the distance-education transmission, even if it > included copyrighted content owned by others. The law must also > explicitly allows retention of the content and student access for a > brief period of time, and it permits copying and storage that is > incidental or necessary to the technical aspects of digital > transmission > systems.The DE Law must explicitly exonerate educational institutions > from liability that may result from most =93transient or temporary > storage > of material.=94 However, the law should not allow anyone to maintain the > copyrighted content =93on the system or network=94 for availability to th= e > students =93for a longer period than is reasonably necessary to > facilitate > the transmissions for which it was made.=94 Moreover, the institution may > not store or maintain the material on a system or network where it may > be accessed by anyone other than the =93anticipated recipients.=94 > > Issues: Students > > Recommendation: The institution must provide notice to students that > materials used in connection with the course may be subject to > copyright > protection. It may be be a brief statement simply alerting the reader > to > copyright implications. > > Recommendation: Enrolled students. The transmission of content must be > made solely for students officially enrolled in the course for which > the > transmission is made. The law may ask the institution to limit the > transmission to students enrolled in the particular course =93to the > extent technologically feasible.=94 Therefore, the institution may need > to > create a system that permits access only by students registered for > that > specific class. As a practical matter, the statute may lead educational > institutions to implement technological access controls that are linked > to enrollment records available from the registrar=92s office. Note that > in the US, the DE law requires that the technological controls be > "reasonable." In other words, do your best, and keep checking for the > latest innovations. Developing countries should not go further. > > Issues: need for repeated access. > > recommendation: the law must explicitly allow for repeated access if > it > is necessary to meet teaching objectives. For example, if an instructor > has properly included a clip of a copyrighted work in one "class > session" as part of his online course, students should be able to > continue to access that session repeatedly throughout the semester or > other term of the course. In addition, if the instructor wants to re > use the clip for another term (or any academic period) the law must > permit the use. > > III=09Definitions and meaning > > Issues: RE definition of "mediated instructional activities". One of > the > most difficult part of a DE law is to determine that performances and > displays, involving a =93digital transmission,=94 must be in the context = of > =93mediated instructional activities.=94 It means that the uses of > materials in the program must be =93an integral part of the class > experience, controlled by or under the actual supervision of the > instructor and analogous to the type of performance or display that > would take place in a live classroom setting.=94 The point is to prevent > an instructor from including, in a digital transmission, copies of > materials that are specifically marketed for and meant to be used by > students outside of the classroom in the traditional teaching model. > For > example, should the law attempt to prevent an instructor from scanning > and uploading chapters from a textbook in lieu of having the students > purchase that material for their own use. There are some agreement even > among educators that the law should protect the market for materials > designed to serve the educational marketplace. But it is not entirely > clear if the treatment of other materials that might ordinarily > constitute handouts in class or reserves in the library. > > My recommendation would be to have a general provision allowing > displays > of materials in a quantity similar to that which would be displayed in > the live classroom setting (=93mediated instructional activity=94) > allowing > occasional, brief handouts including entire short works. > > In the definitions, language such as: =93Mediated instructional > activities means activities that use works as an integral part of the > classroom experience and under the control or supervision of an > instructor=94. > > IV=09Liability of institutions for infringement > > Issues RE Educational content. Liability issues for educational > institutions should not lead to lack of freedom or choice for > instructors etc...(chilling effect). The DE law should explicitly > address the issue. Any suggestions? > > V=09Analog to Digital > > Issues RE Digitizing of analog works. In order to facilitate digital > transmissions, the law must permit digitization of some analog works if > the work is not already available. Language such as: > > The institution or the instructor may decide to convert from analog to > digital the portion or amount of that work authorized if there is no > digital version of a work is available to the institution or if the > digital version that is available is subject to technological measures > that prevent its use for distance education > > > -- > Manon Anne Ress > manon.ress@cptech.org, > www.cptech.org > > Consumer Project on Technology in Washington, DC PO Box 19367, > Washington, DC 20036, USA Tel.: +1.202.387.8030, fax: +1.202.234.5176 > > Consumer Project on Technology in Geneva, 1 Route des Morillons, CP > 2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727 > > Consumer Project on Technology in London, 24 Highbury Crescent, London, > N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax: > +44(0)207 354 0607 > > > > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > From mnisbet@alawash.org Mon Jan 31 16:32:19 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from alawash.alawash.org (alawash.alawash.org [38.219.132.3]) by lists.essential.org (Postfix) with ESMTP id 2B70929B19 for ; Mon, 31 Jan 2005 16:32:19 -0500 (EST) Received: from ALA_DC_DMN-MTA by alawash.alawash.org with Novell_GroupWise; Mon, 31 Jan 2005 16:31:51 -0500 Message-Id: X-Mailer: Novell GroupWise Internet Agent 6.5.2 From: "Miriam Nisbet" To: , , Mime-Version: 1.0 Content-Disposition: inline content-transfer-encoding: 7bit content-type: text/plain; charset=US-ASCII Subject: [A2k] library principles url Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 17:52:01 2005 X-Original-Date: Mon, 31 Jan 2005 16:31:37 -0500 http://www.arl.org/info/frn/copy/intl/wipoprinciples.html Library Principles, latest version Miriam M. Nisbet Legislative Counsel American Library Association 1301 Pennsylvania Ave. NW - #403 Washington, D.C. 20004-1701 Voice: 202-628-8410, x. 202, or 800-941-8478, x. 202 Fax: 202-628-8419 e-mail: mnisbet@alawash.org http://www.ala.org/washoff >>> Thiru Balasubramaniam 01/31/2005 12:31:15 PM >>> Dear participants, Please find attached some important information for the upcoming CPTech, IFLA, and TWN "Experts Meeting on the WIPO Development Agenda and Treaty on A2K", Geneva, Switzerland (February 3-4, 2005). The meeting will take place in the Rachel Carson room of La Maison des associations. See attached: a general information note, a restaurant list, and participants list. An updated agenda will be sent to you tomorrow. Please also note that you can read up on relevant proposals in the a2k discussion list archives - http://lists.essential.org/pipermail/a2k/ Sincerely, Thiru Balasubramaniam Geneva Representative Consumer Project on Technology Tel: 41 22 791 6727 Email: thiru@cptech.org From kahin@umich.edu Mon Jan 31 18:37:24 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from wanderer.mr.itd.umich.edu (wanderer.mr.itd.umich.edu [141.211.93.146]) by lists.essential.org (Postfix) with ESMTP id 1E0E629B19 for ; Mon, 31 Jan 2005 18:37:24 -0500 (EST) Received: from Brian.umich.edu (pool-141-156-37-78.res.east.verizon.net [141.156.37.78]) by wanderer.mr.itd.umich.edu (smtp) with ESMTP id j0VNbKgv008736; Mon, 31 Jan 2005 18:37:20 -0500 Message-Id: <6.2.0.14.0.20050131174557.02ccfcc0@k.imap.itd.umich.edu> X-Mailer: QUALCOMM Windows Eudora Version 6.2.0.14 To: James Love , Joshua Sarnoff From: Brian Kahin Subject: Re: [A2k] Treaty regulations for limitations and exceptions Cc: a2k@lists.essential.org, kahin@umich.edu, pjaszi@wcl.american.edu In-Reply-To: <41FE741D.3090408@cptech.org> References: <380-220051131153240@wcl.american.edu> <380-220051131153240@wcl.american.edu> <5.1.0.14.2.20050131121148.0154d0a0@mailhost.wcl.american.edu> <41FE741D.3090408@cptech.org> Mime-Version: 1.0 content-transfer-encoding: 7bit content-type: text/plain; charset=us-ascii; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 19:15:02 2005 X-Original-Date: Mon, 31 Jan 2005 18:37:20 -0500 I agree that it's worth attacking the one-size-fits-all aspect of Article 27, which is too often read to be more of a straightjacket than it is. For example, in the phrase "patents shall be available and patent rights enjoyable without discrimination as to the . . . the field of technology," it is easy to read "without discrimination" as modifying "enjoyable" whereas logically it has to refer to what follows it ("as to..."). Since the whole stupid idea of "discrimination" against technologies was planted by pharma, it should be especially vulnerable after Doha. Perhaps the spirit of Doha should be applied to patents that control access to information and knowledge -- although that would risk validating software patents if it is not done carefully. One way to do this would be to make clear that signatories are able to define the limits of "technology," "industrial application" and "invention" in light of their own conventions, practices, and culture. A2K is an opportunity to provide a "legislated" gloss on TRIPs that can go beyond Canadian Bolar and an opportunity to seed international discussion with some of the reservations many researchers have about the patent system. I agree that terms are too concrete to be attacked head on, but other language can in effect create a "TRIP minus" standard that could eventually be useful in reformulating TRIPs. Brian At 01:08 PM 1/31/2005, James Love wrote: >>>I think attacking the Article 27 provision that would be quite useful, >>>and possibly >>>successful if focused on the use of an invention, or on >>>non-discriminatory differential treatment (i.e. Canadian Bolar case). >>>I am assuming that differential treatment is widely ok for copyright, >>>since provisions in the Berne and TRIPS are so different (did WCT create >>>any problems in this respect?). >> >>I agree that the Canada Pharmaceuticals case supports substantial >>flexibility in determining the meaning of "discrimination" and the >>ability to exclude from patentability or specific rights. But I doubt >>that Art. 27 would be interpreted by a dispute panel or by the Appellate >>Body to override "hard" minimum standards elsewhere provided in TRIPS -- >>e.g., 20 year term from filing (not issue; also, life plus fifty, not >>seventy; I guess I hadn't had my coffee yet). Hence the need for such a >>provision. The same is true of the "consistent with the provisions" >>language of Art. 8.1. > > I don't think it is very fruitful to ask for terms that are shorter > than TRIPS, for patents or copyrights. But for countries with TRIPS plus > terms (common in copyright), or in terms of other aspects of the > management of rights, the differentiation can be very important, for > example, in apply a compulsory licensing to a particular problem, like > research tools, essential medicines or essential education materials, or > to have special requirements or limitations for for certain types of > inventions or works. The Doha Declaration on TRIPS and Public Health was > entirely about differentiation for medical inventions, for example. It > is good to emphasize this, in order to have space to address public > interest concerns. From gtw@gtwassociates.com Mon Jan 31 19:51:17 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from sccrmhc13.comcast.net (sccrmhc13.comcast.net [204.127.202.64]) by lists.essential.org (Postfix) with ESMTP id 4868729B19 for ; Mon, 31 Jan 2005 19:51:16 -0500 (EST) Received: from cp689344a (pcp04421364pcs.nrockv01.md.comcast.net[69.140.120.222]) by comcast.net (sccrmhc13) with SMTP id <20050201005111016004conde>; Tue, 1 Feb 2005 00:51:12 +0000 Message-ID: <000001c507f7$e3ecf140$0200a8c0@cp689344a> From: "George T. Willingmyre" To: "James Love" , , Subject: [A2k] SDO patent disclosure propoal MIME-Version: 1.0 X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 6.00.2800.1478 X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2800.1478 content-transfer-encoding: quoted-printable content-type: text/plain; charset=Windows-1252 Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 21:19:01 2005 X-Original-Date: Mon, 31 Jan 2005 19:36:16 -0500 Jamie and ak2 list members (also ipr-eg@ietf.org as the original posting) : This is to include in the a2k archive at http://lists.essential.org/pipermail/a2k/2005-January/date.html a January 19 reply (below) to Jamie's original post to the ipr-wg@ietf.org mailing list w/r to the [A2k] SDO patent disclosure proposal to be discussed Thursday and Friday in Geneva. Reflecting on the main point is that there are organizations such as ISO and IEC and ITU and WTO who play key roles that ought to be factored in to any recommendation that may come out of the meeting for a WIPO imitative to address issues of essential IPR and standards I shared James Love's January 18 email proposal below with some groups who have experience in such matters. These included the ANSI patent group; the IEEE patent committee and the ITU/T directors ad hoc group on IP= R asking for feedback and constructive comments I could bring to the meeting this week. One theme/question of the comments I received is whether it is the standard= s developing organization or whether it is the participants in the standards developing process who should have the primary duty to disclose IPR that ma= y be essential or relevant to some standard in process and to commit to some assurance of reasonable licensing terms. The proposal includes new expectations for both standards developing organizations and IPR holders. = A question that ought to have a good justification for any WIPO activity in addressing the "problem" is whether any proposed WIPO role would have had some direct impact in preventing the actual problems that are currently arising. I look forward to participating in the discussion George T. Willingmyre, P.E. GTW Associates 1012 Parrs Ridge Drive Spencerville, MD 20868 301 421 4138 facsimile 301 421 0977 www.gtwassociates.com ----- Original Message ----- From: "George T. Willingmyre" To: "James Love" ; Sent: Wednesday, January 19, 2005 1:57 PM Subject: Re: Patent disclosure proposal > Hello Jamie: > > There exist US and international "codes of practice" for development of > standards and definitions of what constitutes "acceptable" standards > development process that any discussion of WIPO activity could benefit from > taking account of before/while developing its own definitions > > Below are a few of them that seem relevant. The WTO for example includes a > process by which standards bodies "self declare" and notify to WTO their > adherence to a code that includes transparency obligations for notice and > comment for specific standards. Not that any particular code language is > "best" only that these contemporaneous approaches would be well to facto= r > in to a WIPO discussion > > > OMB Circular A119 interprets the language of the "National Technology > Transfer and Advancement Act of 1995" which in section 12(d) requires > federal agencies and departments to use standards that are developed or > adopted by voluntary consensus standards bodies except where that would b= e > inconsistent with applicable law or otherwise impractical. > clause 4 a. For purposes of this policy, "voluntary consensus standards" are > standards developed or adopted by voluntary consensus standards bodies, both > domestic and international. These standards include provisions requiring > that owners of relevant intellectual property have agreed to make that > intellectual property available on a non-discriminatory, royalty-free or > reasonable royalty basis to all interested parties > http://www.gtwassociates.com/answers/Approaches.htm#OMBA119 > > > The WTO agreement on Technical Barriers to Trade contains an "Annex 3 TB= T > Code of good practice for the preparation, adoption and application of > standards " that while it does not address IPR specifically it has as an > element E. The standardizing body shall ensure that standards are not > prepared, adopted or applied with a view to, or with the effect of, creating > unnecessary obstacles to international trade. See > http://www.gtwassociates.com/answers/Approaches.htm#TBT%20Code%20of%20Good%= 20practice > > > The PRINCIPLES FOR THE DEVELOPMENT OF INTERNATIONAL STANDARDS, GUIDES AND > RECOMMENDATIONS from WTO is much like the Code of Good practice but > intended to apply to "international organizations." See > http://www.gtwassociates.com/answers/Approaches.htm#ANNEX4ThirdTriennial > > Article 8 states, "All relevant bodies of WTO Members should be provided > with meaningful opportunities to contribute to the elaboration of an > international standard so that the standard development process will not > give privilege to, or favour the interests of, a particular supplier/s, > country/ies or region/s. Consensus procedures should be established that > seek to take into account the views of all parties concerned and to > reconcile any conflicting arguments. > > > ISO prepared its own Guide 59 Code of good practice for standardization= . > It has many characteristics similar to the TBT Code of Good practice. The > ISO Guide 59 includes specific IPR requirements. See > http://www.gtwassociates.com/answers/Approaches.htm#Guide59 > > Clause 3 General Provisions This code is intended for use by any > standardizing body, whether governmental regional, national or sub-national > level. > Clause 5.8 Standards should not be drafted in terms that include the use of > a patented item unless the use of such item is justifiable for technical > reasons and the rights holder agrees to negotiate licenses with intereste= d > applicants wherever located on reasonable terms and conditions > > > George T. Willingmyre, P.E. > GTW Associates > 1012 Parrs Ridge Drive > Spencerville, MD 20868 > 301 421 4138 facsimile 301 421 0977 > www.gtwassociates.com > > > > ----- Original Message ----- > From: "James Love" > To: > Sent: Tuesday, January 18, 2005 3:08 PM > Subject: Patent disclosure proposal > > > This is the draft proposal for a WIPO protocol on the development of > open standards, focusing on the disclosure issue. We hope to have a > discussion of this, or an improved version, as part of a broader meeting > on the WIPO development agenda, in Geneva on Feb 4. > > Jamie > > ------ > Proposed WIPO Protocol for the Development of Open Standards (PDOS) > Version 1.0 > > Background and Context > > Open Standards. An open standard is a publicly available specification > for achieving a specific task. There are considerable social benefits > of having open standards. As noted for example by EU Commissioner > Erkki Liikanen, "Open standards are important to help create > interoperable and affordable solutions for everybody. They also promote > competition by setting up a technical playing field that is level to all > market players. This means lower costs for enterprises and, ultimately, > the consumer." (World Standards Day, 14 October 2003, > http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=3Dgt&d= oc=3DIP/03/1374%7C0%7CRAPID&lg=3DEN) > > > Closed Standards. There are also many standards that are closed, and > only available to selected or limited firms, often using proprietary > technology, including selectively licensed trade secrets or patented > inventions. > > Standards Development Organizations > > There are thousands of Standards Development Organizations (SDOs), each > proposing, refining and negotiating standards for a plethora of tasks > and technical specifications. The most important are global SDOs. > > In the course of developing standards, the various SDOs have to address > problems that arise when one or more =93essential patents(s)=94 are > necessary for some to comply with the standard. The patent issue > concerns two aspects. First, the SDO has to determine which patents (if > any) are relevant to the standard. Second, when patents are involved, > the SDO has to determine if there are acceptable licensing terms for the > patented inventions. > > Some open standards are free of patents. Others deal with patents under > acceptable licensing practices, including royalty free licensing > (particularly important for software or Internet standards), or > reasonable and non-discriminatory (RAND) licensing. > > The issues of disclosure and the acceptable licensing terms are of > course related. An SDO needs to know about the patent landscape, and > the possible licensing terms for essential patents, before a standard is > adopted and firms invest in the implementation of the standard. > > The Disclosure Problem > > The problem of identifying which patents are relevant to the > implementation of a standard has grown considerably in recent years. > Each SDO has its own policies regarding the obligation of its own > members to disclose patents, but these obligations only apply to patent > holders who are members of an SDO, and often only if they are directly > involved in the standards negotiations. Important patents may be held > by persons outside of the SDO, and efforts to obtain disclosure of > patents may be of limited utility, if owners identify entire portfolios > of patents, without constructive descriptions of how patents are > actually relevant. > > Some governments have adopted policies that require members of SDOs > participating in the development of a standard to disclose patents, or > be estopped from enforcing patents against the standard. However, these > rules vary by country, and are not based upon clear statutory rules, and > thus are sometimes litigated. And as noted, these rules have no effect > on persons who are not members of the SDO or the standards process. > > Proposal for WIPO Protocol for the Development of Open Standards (PDOS) > > The initial proposal for addressing the disclosure problem is as > follows. WIPO would create a protocol either within the Patent > Cooperation Treaty (PCT) or in a separate instrument. WIPO would then > undertake initial test cases, which would demonstrate the value of a new > mechanism for managing the disclosure of patents relevant to an open > standard. The countries that agree to the protocol would be obligated > to support the disclosure process, and to prevent any patent owner who > failed to provide constructive disclosure from enforcing a patent > against the implementation of the standard. > > Specific steps to the PDOS would include: > > 1. Creation of WIPO committee on patents and open standards, referred > to as the CPOS. > 2. The CPOS would establish a process and the criteria for an > application by a Standards Development Organization (SDO) to submit an > open standard for a PDOS disclosure. > 3. To qualify, the SDO must be global, with a membership that is open > to any party. > 4. A qualifying open standard must be: > a. A publicly available specification for achieving a specific task= , > b. Feasible to implement without access to proprietary data. > 5. The SDO seeking to use the PDOS must be developing a standard that > will be available to the public on non-discriminatory terms under any of > the following three scenarios, > a. The Standard is based upon public domain technologies, or > b. Patents are licensed on a royalty free basis, or > c. Patents are licensed on reasonable and non-discriminatory (RAND) > terms. > > 6. The CPOS will specify the process for the management of the > disclosure. This process should include the following steps, > a. A description of the SDO, including its policies on membership, > b. An initial request by the SDO to use the PDOS, including > i. An initial specification of the standard, > ii. A narrative of the expected applications for the standard, > iii. The results of disclosures of patents made by members of > the SDO, > iv. The benefits to the public of the development of the standard, > v. Fora for the public notice of the standard, > vi. The expected timetable for additional notices of the > standard, as the specifications of the standard change. > c. If the CPOS accepts the request by the SDO to use the PDOS, it > will then draft a PDOS notice. This notice will be published on the > WIPO web site, and also on the web site of the patent office of every > member of the PDOS. > d. Disclosures of patents relevant to the proposed standard will be > made to the CPOS. The WIPO Secretariat will reject disclosures that > are not responsive to the requirements to be specific with regard to the > relevance of the patent to the proposed standard. > e. The process of Disclosure will be repeated as appropriate until > the standard is final. > f. A patent owner who fails to make constructive and informative > disclosures of the patent will be prevented from enforcing the patent > against the open standard in every country that is a member of the PDOS. > > > Some background readings: > > Current Topics in IPR Protection in the Context of Global > Standard-Setting Processes > http://www.wipo.int/sme/en/documents/ip_standards2.htm > > Intellectual Property Rights Policies of selected standards developers > http://www.gtwassociates.com/answers/IPRpolicies.html > > Criteria for the Evaluation of a patent policy for a Standards Setting > Organization > http://www.gtwassociates.com/answers/draftIPRcriteria.htm > > http://en.wikipedia.org/wiki/Standards_Organizations > > http://en.wikipedia.org/wiki/Open_standard > > W3C Patent Policy http://www.w3.org/Consortium/Patent-Policy-20040205/ > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC > PO Box 19367, Washington, DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love@cptech.org > > > > > -------------------------------------------------------------------------= - -- > ---- > > > > _______________________________________________ > > Ipr-wg mailing list > > Ipr-wg@ietf.org > > https://www1.ietf.org/mailman/listinfo/ipr-wg > > > From jsarnoff@wcl.american.edu Mon Jan 31 21:34:39 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mailhost.wcl.american.edu (mailhost.wcl.american.edu [147.9.143.100]) by lists.essential.org (Postfix) with ESMTP id 7C5D929B19 for ; Mon, 31 Jan 2005 21:34:38 -0500 (EST) Received: from wcl.american.edu (unverified [127.0.0.1]) by wcl.american.edu (Rockliffe SMTPRA 6.1.17) with ESMTP id ; Mon, 31 Jan 2005 21:35:17 -0500 Message-ID: <380-2200522123517140@wcl.american.edu> X-Priority: 3 From: "Josh Sarnoff" To: gtw@gtwassociates.com, james.love@cptech.org, ipr-wg@ietf.org, a2k@lists.essential.org Subject: RE: [A2k] SDO patent disclosure propoal MIME-Version: 1.0 content-transfer-encoding: quoted-printable content-type: text/plain; charset=iso-8859-1 Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Mon Jan 31 21:54:02 2005 X-Original-Date: Mon, 31 Jan 2005 21:35:17 -0500 Jamie: There is obviously a difference between a disclosure requirement in regard to the establishment of standards and the ability to obtain access free of licensing requirements (or at least subject to reasonable and non-discriminatory licensing conditions). I hope the discussion will address the need to assure that standards and other basic "platform" technologies on which multiple users depend are open for uses free of licensing requirements. (For example, such platform technologies would include basic research tools in biology.) It's one thing to require disclosure and consideration of the existence of a patent when developing the standard; it's quite another to assure there is no private toll booth on the information highway. Josh > > >---- Original Message ---- >From: gtw@gtwassociates.com >To: james.love@cptech.org, ipr-wg@ietf.org, a2k@lists.essential.org >Subject: RE: [A2k] SDO patent disclosure propoal >Date: Mon, 31 Jan 2005 19:36:16 -0500 > >>Jamie and ak2 list members (also ipr-eg@ietf.org as the original >posting) : >> >>This is to include in the a2k archive at >>http://lists.essential.org/pipermail/a2k/2005-January/date.html a >January >>19 reply (below) to Jamie's >>original post to the ipr-wg@ietf.org mailing list w/r to the [A2k] >SDO >>patent disclosure proposal to be discussed Thursday and Friday in >Geneva. >> >>Reflecting on the main point is that there are organizations such >as ISO >>and IEC and >>ITU and WTO who play key roles that ought to be factored in to any >>recommendation that may come out of the meeting for a WIPO >imitative to >>address issues of essential IPR and standards >> >>I shared James Love's January 18 email proposal below with some >>groups who have experience in such matters. These included the ANSI >patent >>group; the IEEE patent committee and the ITU/T directors ad hoc >group on IPR >>asking for feedback and constructive comments I could bring to the >meeting >>this week. >> >>One theme/question of the comments I received is whether it is the >standards >>developing organization or whether it is the participants in the >standards >>developing process who should have the primary duty to disclose IPR >that may >>be essential or relevant to some standard in process and to commit >to some >>assurance of reasonable licensing terms. The proposal includes new >>expectations for both standards developing organizations and IPR >holders. A >>question that ought to have a good justification for any WIPO >activity in >>addressing the "problem" is whether any proposed WIPO role would >have had >>some direct impact in preventing the actual problems that are >currently >>arising. >> >>I look forward to participating in the discussion >> >>George T. Willingmyre, P.E. >>GTW Associates >>1012 Parrs Ridge Drive >>Spencerville, MD 20868 >>301 421 4138 facsimile 301 421 0977 >>www.gtwassociates.com >> >> >>----- Original Message ----- >>From: "George T. Willingmyre" >>To: "James Love" ; >>Sent: Wednesday, January 19, 2005 1:57 PM >>Subject: Re: Patent disclosure proposal >> >> >>> Hello Jamie: >>> >>> There exist US and international "codes of practice" for >development of >>> standards and definitions of what constitutes "acceptable" >standards >>> development process that any discussion of WIPO activity could >benefit >>from >>> taking account of before/while developing its own definitions >>> >>> Below are a few of them that seem relevant. The WTO for example >includes >>a >>> process by which standards bodies "self declare" and notify to WTO >their >>> adherence to a code that includes transparency obligations for >notice and >>> comment for specific standards. Not that any particular code >language is >>> "best" only that these contemporaneous approaches would be well >to factor >>> in to a WIPO discussion >>> >>> >>> OMB Circular A119 interprets the language of the "National >Technology >>> Transfer and Advancement Act of 1995" which in section 12(d) >requires >>> federal agencies and departments to use standards that are >developed or >>> adopted by voluntary consensus standards bodies except where that >would be >>> inconsistent with applicable law or otherwise impractical. >>> clause 4 a. For purposes of this policy, "voluntary consensus >standards" >>are >>> standards developed or adopted by voluntary consensus standards >bodies, >>both >>> domestic and international. These standards include provisions >requiring >>> that owners of relevant intellectual property have agreed to make >that >>> intellectual property available on a non-discriminatory, >royalty-free or >>> reasonable royalty basis to all interested parties >>> http://www.gtwassociates.com/answers/Approaches.htm#OMBA119 >>> >>> >>> The WTO agreement on Technical Barriers to Trade contains an >"Annex 3 TBT >>> Code of good practice for the preparation, adoption and >application of >>> standards " that while it does not address IPR specifically it has >as an >>> element E. The standardizing body shall ensure that standards are >not >>> prepared, adopted or applied with a view to, or with the effect >of, >>creating >>> unnecessary obstacles to international trade. See >>> >>http://www.gtwassociates.com/answers/Approaches.htm#TBT%20Code%20of% >20Good%20practice >>> >>> >>> The PRINCIPLES FOR THE DEVELOPMENT OF INTERNATIONAL STANDARDS, >GUIDES >>AND >>> RECOMMENDATIONS from WTO is much like the Code of Good practice >but >>> intended to apply to "international organizations." See >>> >http://www.gtwassociates.com/answers/Approaches.htm#ANNEX4ThirdTrienn >ial >>> >>> Article 8 states, "All relevant bodies of WTO Members should be >provided >>> with meaningful opportunities to contribute to the elaboration of >an >>> international standard so that the standard development process >will not >>> give privilege to, or favour the interests of, a particular >supplier/s, >>> country/ies or region/s. Consensus procedures should be >established that >>> seek to take into account the views of all parties concerned and >to >>> reconcile any conflicting arguments. >>> >>> >>> ISO prepared its own Guide 59 Code of good practice for >standardization. >>> It has many characteristics similar to the TBT Code of Good >practice. >>The >>> ISO Guide 59 includes specific IPR requirements. See >>> http://www.gtwassociates.com/answers/Approaches.htm#Guide59 >>> >>> Clause 3 General Provisions This code is intended for use by any >>> standardizing body, whether governmental regional, national or >>sub-national >>> level. >>> Clause 5.8 Standards should not be drafted in terms that include >the use >>of >>> a patented item unless the use of such item is justifiable for >technical >>> reasons and the rights holder agrees to negotiate licenses with >interested >>> applicants wherever located on reasonable terms and conditions >>> >>> >>> George T. Willingmyre, P.E. >>> GTW Associates >>> 1012 Parrs Ridge Drive >>> Spencerville, MD 20868 >>> 301 421 4138 facsimile 301 421 0977 >>> www.gtwassociates.com >>> >>> >>> >>> ----- Original Message ----- >>> From: "James Love" >>> To: >>> Sent: Tuesday, January 18, 2005 3:08 PM >>> Subject: Patent disclosure proposal >>> >>> >>> This is the draft proposal for a WIPO protocol on the development >of >>> open standards, focusing on the disclosure issue. We hope to have >a >>> discussion of this, or an improved version, as part of a broader >meeting >>> on the WIPO development agenda, in Geneva on Feb 4. >>> >>> Jamie >>> >>> ------ >>> Proposed WIPO Protocol for the Development of Open Standards >(PDOS) >>> Version 1.0 >>> >>> Background and Context >>> >>> Open Standards. An open standard is a publicly available >specification >>> for achieving a specific task. There are considerable social >benefits >>> of having open standards. As noted for example by EU Commissioner >>> Erkki Liikanen, "Open standards are important to help create >>> interoperable and affordable solutions for everybody. They also >promote >>> competition by setting up a technical playing field that is level >to all >>> market players. This means lower costs for enterprises and, >ultimately, >>> the consumer." (World Standards Day, 14 October 2003, >>> >>http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=3Dgt& >amp;doc=3DIP/03/1374%7C0%7CRAPID&lg=3DEN) >>> >>> >>> Closed Standards. There are also many standards that are closed, >and >>> only available to selected or limited firms, often using >proprietary >>> technology, including selectively licensed trade secrets or >patented >>> inventions. >>> >>> Standards Development Organizations >>> >>> There are thousands of Standards Development Organizations (SDOs), >each >>> proposing, refining and negotiating standards for a plethora of >tasks >>> and technical specifications. The most important are global SDOs. >>> >>> In the course of developing standards, the various SDOs have to >address >>> problems that arise when one or more =93essential patents(s)=94 are >>> necessary for some to comply with the standard. The patent issue >>> concerns two aspects. First, the SDO has to determine which >patents (if >>> any) are relevant to the standard. Second, when patents are >involved, >>> the SDO has to determine if there are acceptable licensing terms >for the >>> patented inventions. >>> >>> Some open standards are free of patents. Others deal with patents >under >>> acceptable licensing practices, including royalty free licensing >>> (particularly important for software or Internet standards), or >>> reasonable and non-discriminatory (RAND) licensing. >>> >>> The issues of disclosure and the acceptable licensing terms are of >>> course related. An SDO needs to know about the patent landscape, >and >>> the possible licensing terms for essential patents, before a >standard is >>> adopted and firms invest in the implementation of the standard. >>> >>> The Disclosure Problem >>> >>> The problem of identifying which patents are relevant to the >>> implementation of a standard has grown considerably in recent >years. >>> Each SDO has its own policies regarding the obligation of its own >>> members to disclose patents, but these obligations only apply to >patent >>> holders who are members of an SDO, and often only if they are >directly >>> involved in the standards negotiations. Important patents may be >held >>> by persons outside of the SDO, and efforts to obtain disclosure of >>> patents may be of limited utility, if owners identify entire >portfolios >>> of patents, without constructive descriptions of how patents are >>> actually relevant. >>> >>> Some governments have adopted policies that require members of >SDOs >>> participating in the development of a standard to disclose >patents, or >>> be estopped from enforcing patents against the standard. However, >these >>> rules vary by country, and are not based upon clear statutory >rules, and >>> thus are sometimes litigated. And as noted, these rules have no >effect >>> on persons who are not members of the SDO or the standards >process. >>> >>> Proposal for WIPO Protocol for the Development of Open Standards >(PDOS) >>> >>> The initial proposal for addressing the disclosure problem is as >>> follows. WIPO would create a protocol either within the Patent >>> Cooperation Treaty (PCT) or in a separate instrument. WIPO would >then >>> undertake initial test cases, which would demonstrate the value of >a new >>> mechanism for managing the disclosure of patents relevant to an >open >>> standard. The countries that agree to the protocol would be >obligated >>> to support the disclosure process, and to prevent any patent owner >who >>> failed to provide constructive disclosure from enforcing a patent >>> against the implementation of the standard. >>> >>> Specific steps to the PDOS would include: >>> >>> 1. Creation of WIPO committee on patents and open standards, >referred >>> to as the CPOS. >>> 2. The CPOS would establish a process and the criteria for an >>> application by a Standards Development Organization (SDO) to >submit an >>> open standard for a PDOS disclosure. >>> 3. To qualify, the SDO must be global, with a membership that is >open >>> to any party. >>> 4. A qualifying open standard must be: >>> a. A publicly available specification for achieving a >specific task, >>> b. Feasible to implement without access to proprietary data. >>> 5. The SDO seeking to use the PDOS must be developing a standard >that >>> will be available to the public on non-discriminatory terms under >any of >>> the following three scenarios, >>> a. The Standard is based upon public domain technologies, or >>> b. Patents are licensed on a royalty free basis, or >>> c. Patents are licensed on reasonable and non-discriminatory >(RAND) >>> terms. >>> >>> 6. The CPOS will specify the process for the management of the >>> disclosure. This process should include the following steps, >>> a. A description of the SDO, including its policies on >membership, >>> b. An initial request by the SDO to use the PDOS, including >>> i. An initial specification of the standard, >>> ii. A narrative of the expected applications for the >standard, >>> iii. The results of disclosures of patents made by >members of >>> the SDO, >>> iv. The benefits to the public of the development of the >>standard, >>> v. Fora for the public notice of the standard, >>> vi. The expected timetable for additional notices of the >>> standard, as the specifications of the standard change. >>> c. If the CPOS accepts the request by the SDO to use the >PDOS, it >>> will then draft a PDOS notice. This notice will be published on >the >>> WIPO web site, and also on the web site of the patent office of >every >>> member of the PDOS. >>> d. Disclosures of patents relevant to the proposed standard >will be >>> made to the CPOS. The WIPO Secretariat will reject disclosures >that >>> are not responsive to the requirements to be specific with regard >to the >>> relevance of the patent to the proposed standard. >>> e. The process of Disclosure will be repeated as appropriate >until >>> the standard is final. >>> f. A patent owner who fails to make constructive and >informative >>> disclosures of the patent will be prevented from enforcing the >patent >>> against the open standard in every country that is a member of the >PDOS. >>> >>> >>> Some background readings: >>> >>> Current Topics in IPR Protection in the Context of Global >>> Standard-Setting Processes >>> http://www.wipo.int/sme/en/documents/ip_standards2.htm >>> >>> Intellectual Property Rights Policies of selected standards >developers >>> http://www.gtwassociates.com/answers/IPRpolicies.html >>> >>> Criteria for the Evaluation of a patent policy for a Standards >Setting >>> Organization >>> http://www.gtwassociates.com/answers/draftIPRcriteria.htm >>> >>> http://en.wikipedia.org/wiki/Standards_Organizations >>> >>> http://en.wikipedia.org/wiki/Open_standard >>> >>> W3C Patent Policy >http://www.w3.org/Consortium/Patent-Policy-20040205/ >>> >>> -- >>> James Love, Director, CPTech, http://www.cptech.org >>> >>> Consumer Project on Technology in Washington, DC >>> PO Box 19367, Washington, DC 20036, USA >>> Tel.: 1.202.387.8030, fax: 1.202.234.5176 >>> >>> Consumer Project on Technology in Geneva >>> 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>> Tel: +41 22 791 6727 >>> >>> Mobile +1.202.361.3040 >>> james.love@cptech.org >>> >>> >>> >>> >>> >--------------------------------------------------------------------- >----- >>-- >>> ---- >>> >>> >>> > _______________________________________________ >>> > Ipr-wg mailing list >>> > Ipr-wg@ietf.org >>> > https://www1.ietf.org/mailman/listinfo/ipr-wg >>> > >>> >> >> >>_______________________________________________ >>A2k mailing list >>A2k@lists.essential.org >>http://lists.essential.org/mailman/listinfo/a2k >> From philippe.aigrain@wanadoo.fr Tue Feb 1 02:01:33 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mail.sopinspace.com (mail.sopinspace.com [82.225.32.39]) by lists.essential.org (Postfix) with ESMTP id E15B429B19 for ; Tue, 1 Feb 2005 02:01:32 -0500 (EST) Received: from rome.sop (rome.sop [192.168.2.21]) by mail.sopinspace.com (Postfix) with ESMTP id A05D82AD00; Tue, 1 Feb 2005 08:01:31 +0100 (CET) From: Philippe Aigrain Organization: Personnel To: a2k@lists.essential.org Subject: Re: [A2k] Treaty regulations for limitations and exceptions User-Agent: KMail/1.7.2 Cc: Brian Kahin , James Love , Joshua Sarnoff , pjaszi@wcl.american.edu References: <380-220051131153240@wcl.american.edu> <41FE741D.3090408@cptech.org> <6.2.0.14.0.20050131174557.02ccfcc0@k.imap.itd.umich.edu> In-Reply-To: <6.2.0.14.0.20050131174557.02ccfcc0@k.imap.itd.umich.edu> MIME-Version: 1.0 Content-Disposition: inline Message-Id: <200502010800.31469.philippe.aigrain@wanadoo.fr> content-transfer-encoding: quoted-printable content-type: text/plain; charset=iso-8859-1 Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Feb 1 05:58:01 2005 X-Original-Date: Tue, 1 Feb 2005 08:00:31 +0100 TRIPS/Patents-wise, I believe one should carefully distinguish 2 aspects : - Delineating a restrictive interpretation of art. 27.1 based on its qualification (inventions, product or process, filed of techn ology) as to keep a decent patentability perimeter, excluding software and information processing methods, genetic sequences and other genomic, proteinomic or immunologic information, for instance - Developing an ambitious interpretation of art. 30, opening the widest possible range of exceptions and adaptations to specific country or population situations. However, I could not support any statement on the latter (exceptions, limitations, adaptations) that would seem to accept an all-encompassing interpretation or art. 27.1 Philippe Aigrain Le Mardi 1 F=E9vrier 2005 00:37, Brian Kahin a =E9crit : > I agree that it's worth attacking the one-size-fits-all aspect of Article > 27, which is too often read to be more of a straightjacket than it is. F= or > example, in the phrase "patents shall be available and patent rights > enjoyable without discrimination as to the . > . . the field of technology," it is easy to read "without discrimination" > as modifying "enjoyable" whereas logically it has to refer to what follow= s > it ("as to..."). Since the whole stupid idea of "discrimination" against > technologies was planted by pharma, it should be especially vulnerable > after Doha. > > Perhaps the spirit of Doha should be applied to patents that control acce= ss > to information and knowledge -- although that would risk validating > software patents if it is not done carefully. One way to do this would b= e > to make clear that signatories are able to define the limits of > "technology," "industrial application" and "invention" in light of their > own conventions, practices, and culture. > > A2K is an opportunity to provide a "legislated" gloss on TRIPs that can g= o > beyond Canadian Bolar and an opportunity to seed international discussion > with some of the reservations many researchers have about the patent > system. I agree that terms are too concrete to be attacked head on, but > other language can in effect create a "TRIP minus" standard that could > eventually be useful in reformulating TRIPs. > > Brian > > At 01:08 PM 1/31/2005, James Love wrote: > >>>I think attacking the Article 27 provision that would be quite useful= , > >>>and possibly > >>>successful if focused on the use of an invention, or on > >>>non-discriminatory differential treatment (i.e. Canadian Bolar case). > >>>I am assuming that differential treatment is widely ok for copyright, > >>>since provisions in the Berne and TRIPS are so different (did WCT crea= te > >>>any problems in this respect?). > >> > >>I agree that the Canada Pharmaceuticals case supports substantial > >>flexibility in determining the meaning of "discrimination" and the > >>ability to exclude from patentability or specific rights. But I doubt > >>that Art. 27 would be interpreted by a dispute panel or by the Appellat= e > >>Body to override "hard" minimum standards elsewhere provided in TRIPS -= - > >>e.g., 20 year term from filing (not issue; also, life plus fifty, not > >>seventy; I guess I hadn't had my coffee yet). Hence the need for such = a > >>provision. The same is true of the "consistent with the provisions" > >>language of Art. 8.1. > > > > I don't think it is very fruitful to ask for terms that are shorter > > than TRIPS, for patents or copyrights. But for countries with TRIPS pl= us > > terms (common in copyright), or in terms of other aspects of the > > management of rights, the differentiation can be very important, for > > example, in apply a compulsory licensing to a particular problem, like > > research tools, essential medicines or essential education materials, o= r > > to have special requirements or limitations for for certain types of > > inventions or works. The Doha Declaration on TRIPS and Public Health w= as > > entirely about differentiation for medical inventions, for example. It > > is good to emphasize this, in order to have space to address public > > interest concerns. > > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k -- Ceci est un message personnel qui ne repr=E9sente pas n=E9cessairement la position officielle de la Soci=E9t=E9 pour les espaces publics d'information From teresa.hackett@eifl.net Tue Feb 1 07:52:30 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mail05.svc.cra.dublin.eircom.net (mail05.svc.cra.dublin.eircom.net [159.134.118.21]) by lists.essential.org (Postfix) with SMTP id 726AE29B19 for ; Tue, 1 Feb 2005 07:52:29 -0500 (EST) Received: (qmail 56510 messnum 361346 invoked from network[159.134.59.140/159-134-59-140.as1.dla.dublin.eircom.net]); 1 Feb 2005 12:52:28 -0000 Received: from 159-134-59-140.as1.dla.dublin.eircom.net (HELO ?159.134.59.140?) (159.134.59.140) by mail05.svc.cra.dublin.eircom.net (qp 56510) with SMTP; 1 Feb 2005 12:52:28 -0000 Message-ID: <41FF7C5A.3070706@eifl.net> From: "Teresa Hackett (eIFL)" User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: "Teresa. Hackett" , a2k@lists.essential.org content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] New project announcement: eIFL-IP Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Feb 1 08:07:02 2005 X-Original-Date: Tue, 01 Feb 2005 12:55:54 +0000 eIFL.net is looking forward to joining the discussions in Geneva this week! Teresa ----------- January 2005 Dear colleague, eIFL.net is pleased to announce the launch of a new service, eIFL-IP. The goal of eIFL-IP is to build capacity and expertise amongst the eIFL.net library community in 50 developing and transition countries in intellectual property issues. The global trend is towards more protection, greater enforcement and new rights on information. Intellectual property is increasingly viewed as an asset to be traded. This can result in very restrictive IP provisions which affect access to essential information, educational and learning materials and cultural resources, all crucial to development. In order to safeguard future library services, to help narrow the digital divide, empower citizens and encourage democratic values, eIFL.net librarians must be in a position to advocate for fair access to information, as well as balance, proportionality and developmental awareness in IP laws. eIFL-IP will build on the eIFL network to create national and regional expertise in copyright issues for libraries, will pro-actively monitor the latest developments and will provide tools, resources and specialist advice. It will represent the interests of members in key international policy fora and will create strategic partnerships with the international library community and a wide range of civil society organisations. This is an exciting new activity in a hugely important area of international debate which will bring new opportunities and benefits to eIFL.net members. For more information: www.eifl.net Rima Kupryte, eIFL.net Director: info@eifl.net Teresa Hackett, Project Manager, eIFL-IP: teresa.hackett@eifl.net -- Teresa Hackett Project Manager, eIFL-IP Email: teresa.hackett@eifl.net Mobile: +353 87 625 3768 Web: www.eifl.net Electronic Information for Libraries in transition & developing countries -- From james.love@cptech.org Tue Feb 1 07:59:21 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 35B4B29B19 for ; Tue, 1 Feb 2005 07:59:21 -0500 (EST) Received: (qmail 12189 invoked from network); 1 Feb 2005 12:59:20 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 01 Feb 2005 12:59:20 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 01 Feb 2005 12:59:20 -0000 Message-ID: <41FF7D30.400@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] W3C sumbission Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Feb 1 08:08:01 2005 X-Original-Date: Tue, 01 Feb 2005 07:59:28 -0500 -------- Original Message -------- Subject: have to miss the WIPO event Date: Tue, 1 Feb 2005 07:54:37 -0500 From: Daniel Weitzner To: James Love Hi Jamie, I'm really sorry to tell you that I'm not going to be able to make it to the WIPO event this week. . . . I'll look forward to hearing how things go and hope to find a way to participate in the discussion as it goes forward. If if would help at all, I'd be happy to submit the following document 'for the record.' http://www.w3.org/2004/10/patents-standards-innovation.html Best, Danny -- Daniel J. Weitzner +1.617.253.8036 (MIT) World Wide Web Consortium +1.202.364.4750 (DC) Technology & Society Domain Leader http://www.w3.org/People/Weitzner.html -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From james.love@cptech.org Tue Feb 1 08:06:09 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 5CD8B29B19 for ; Tue, 1 Feb 2005 08:06:09 -0500 (EST) Received: (qmail 14418 invoked from network); 1 Feb 2005 13:06:09 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 01 Feb 2005 13:06:08 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 01 Feb 2005 13:06:08 -0000 Message-ID: <41FF7EC8.1000508@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] Obligation to Finance Free and Open Public Knowledge Goods Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Feb 1 08:08:03 2005 X-Original-Date: Tue, 01 Feb 2005 08:06:16 -0500 Proposal: Obligation to Finance Free and Open Public Knowledge Goods Version February 1, 2005 The following is a response to innovative projects such as the South Africa Free High School Science Textbook (FHSST) project, the Creative Commons, the free software movement, the open access publishing movement, and many other efforts to create free/open public goods. The benefits of free open public goods are large, particularly for access to knowledge. But financing is a problem. Who wants to pay for something that everyone will have for free? The proposal, modelled somewhat after obligations in the proposed medical R&D treaty, would create obligations for countries to support financial incentives for the creation of works that are open, and available to the world for free. The financing mechanism would be left to national governments, and include such instruments as tax credits, government grants, distributions from collection societies, charitable contributions, etc. 1. Amount of Obligation would vary by GPD and level of development The amount of the obligation would be linked to the country GDP, and the county level of development. This is quite rough, but consider for example, an obligation of 1 basis point (.001 of GDP), adjusted downward using a sliding scale based upon the relative position on the UNDP Human Development Index (the approach taken in the Canadian royalty guidelines for exports of medicines). This is illustrated below in Table 1. 2. Tradable Credits for priority projects The Treaty could create a process for identifying projects of particular merit, using such measures as: a. Peer review, b. Citations by scholars, c. Actual use as measured by surveys of downloads, d. Etc Projects that address certain subject matter (software, educational teaching materials like open textbooks, open access journals and archives, research databases, preservation and dissemination of local knowledge, neglected scholarship, the transfer of technology among /to developing countries etc) that also demonstrate merit would be eligible for special tradable credits. Persons, organizations or governments that earned such credits could sell them to countries were below quotas. 3. Development Objectives The Treaty could promote development in several different ways. It could grant higher credits for projects in developing countries, require high-income countries to purchase credits from developing countries, emphasize technology transfer project credits, recognize credits for neglected scholarship in developing countries, etc. The Treaty could also consider such approaches as reverse purchasing power parity (ppp) to adjust the value of inputs from developing when determining the value of credits to a high-income purchaser. Table 1, Share of GDP to Support Creation of Open Public Knowledge Goods HDR Rank Basis Point of GDP Country 1 1.00 Norway 2 0.99 Sweden 3 0.99 Australia 4 0.98 Canada 5 0.98 Netherlands 6 0.97 Belgium 7 0.97 Iceland 8 0.96 United States 9 0.95 Japan 10 0.95 Ireland 11 0.94 Switzerland 12 0.94 United Kingdom 13 0.93 Finland 14 0.93 Austria 15 0.92 Luxembourg 16 0.92 France 17 0.91 Denmark 18 0.90 New Zealand 19 0.90 Germany 20 0.89 Spain 21 0.89 Italy 22 0.88 Israel 23 0.88 Hong Kong SAR 24 0.87 Greece 25 0.86 Singapore 26 0.86 Portugal 27 0.85 Slovenia 28 0.85 Korea Rep. of 29 0.84 Barbados 30 0.84 Cyprus 31 0.83 Malta 32 0.82 Czech Republic 33 0.82 Brunei Darussalam 34 0.81 Argentina 35 0.81 Seychelles 36 0.80 Estonia 37 0.80 Poland 38 0.79 Hungary 39 0.79 Saint Kitts and Nevis 40 0.78 Bahrain 41 0.77 Lithuania 42 0.77 Slovakia 43 0.76 Chile 44 0.76 Kuwait 45 0.75 Costa Rica 46 0.75 Uruguay 47 0.74 Qatar 48 0.73 Croatia 49 0.73 United Arab Emirates 50 0.72 Latvia 51 0.72 Bahamas 52 0.71 Cuba 53 0.71 Mexico 54 0.70 Trinidad and Tobago 55 0.69 Antigua and Barbuda 56 0.69 Bulgaria 57 0.68 Russian Federation 58 0.68 Libyan Arab Jamahiriya 59 0.67 Malaysia 60 0.67 Macedonia TFYR 61 0.66 Panama 62 0.66 Belarus 63 0.65 Tonga 64 0.64 Mauritius 65 0.64 Albania 66 0.63 Bosnia and Herzegovina 67 0.63 Suriname 68 0.62 Venezuela 69 0.62 Romania 70 0.61 Ukraine 71 0.60 Saint Lucia 72 0.60 Brazil 73 0.59 Colombia 74 0.59 Oman 75 0.58 Samoa Western 76 0.58 Thailand 77 0.57 Saudi Arabia 78 0.56 Kazakhstan 79 0.56 Jamaica 80 0.55 Lebanon 81 0.55 Fiji 82 0.54 Armenia 83 0.54 Philippines 84 0.53 Maldives 85 0.53 Peru 86 0.52 Turkmenistan 87 0.51 Saint Vincent and the Grenadines 88 0.51 Turkey 89 0.50 Paraguay 90 0.50 Jordan 91 0.49 Azerbaijan 92 0.49 Tunisia 93 0.48 Grenada 94 0.47 China 95 0.47 Dominica 96 0.46 Sri Lanka 97 0.46 Georgia 98 0.45 Dominican Republic 99 0.45 Belize 100 0.44 Ecuador 101 0.44 Iran 102 0.43 Occupied Palestinian Territories 103 0.42 El Salvador 104 0.42 Guyana 105 0.41 Cape Verde 106 0.41 Syrian Arab Republic 107 0.40 Uzbekistan 108 0.40 Algeria 109 0.39 Equatorial Guinea 110 0.38 Kyrgyzstan 111 0.38 Indonesia 112 0.37 Vietnam 113 0.37 Moldova 114 0.36 Bolivia 115 0.36 Honduras 116 0.35 Tajikistan 117 0.34 Mongolia 118 0.34 Nicaragua 119 0.33 South Africa 120 0.33 Egypt 121 0.32 Guatemala 122 0.32 Gabon 123 0.31 Sao Tome and Principe 124 0.31 Solomon Islands 125 0.30 Morocco 126 0.29 Namibia 127 0.29 India 128 0.28 Botswana 129 0.28 Vanuatu 130 0.27 Cambodia 131 0.27 Ghana 132 0.26 Myanmar 133 0.25 Papua New Guinea 134 0.25 Bhutan 135 0.24 Lao Peoples Dem. Rep. 136 0.24 Comoros 137 0.23 Swaziland 138 0.23 Bangladesh 139 0.22 Sudan 140 0.21 Nepal 141 0.21 Cameroon 142 0.20 Pakistan 143 0.20 Togo 144 0.19 Congo 145 0.19 Lesotho 146 0.18 Uganda 147 0.18 Zimbabwe 148 0.17 Kenya 149 0.16 Yemen 150 0.16 Madagascar 151 0.15 Nigeria 152 0.15 Mauritania 153 0.14 Haiti 154 0.14 Djibouti 155 0.13 Gambia 156 0.12 Eritrea 157 0.12 Senegal 158 0.11 Timor Leste 159 0.11 Rwanda 160 0.10 Guinea 161 0.10 Benin 162 0.09 Tanzania 163 0.08 Cote d Ivoire 164 0.08 Zambia 165 0.07 Malawi 166 0.07 Angola 167 0.06 Chad 168 0.06 Congo Dem. Rep. 169 0.05 Central African Republic 170 0.05 Ethiopia 171 0.04 Mozambique 172 0.03 Guinea Bissau 173 0.03 Burundi 174 0.02 Mali 175 0.02 Burkina Faso 176 0.01 Niger 177 0.01 Sierra Leone -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From james.love@cptech.org Tue Feb 1 08:10:47 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 6BA1B29B19 for ; Tue, 1 Feb 2005 08:10:47 -0500 (EST) Received: (qmail 11533 invoked from network); 1 Feb 2005 13:10:47 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 01 Feb 2005 13:10:46 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 01 Feb 2005 13:10:46 -0000 Message-ID: <41FF7FDE.1070308@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] Proposal on collection society activities in developing countries Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Feb 1 08:17:01 2005 X-Original-Date: Tue, 01 Feb 2005 08:10:54 -0500 Proposal on collection society activities in developing countries Copyright collection societies in developing countries that are not considered high income or high middle income by the World Bank should be free to limit payments to domestic authors and performers -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From cory@eff.org Tue Feb 1 08:48:01 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from flarn.com (flarn.com [216.126.84.58]) by lists.essential.org (Postfix) with ESMTP id D607429B19 for ; Tue, 1 Feb 2005 08:48:00 -0500 (EST) Received: from [127.0.0.1] (flarn.com [216.126.84.58]) by flarn.com (8.12.8/8.12.8) with ESMTP id j11DimqI022143; Tue, 1 Feb 2005 08:45:14 -0500 In-Reply-To: <41FF7FDE.1070308@cptech.org> References: <41FF7FDE.1070308@cptech.org> Mime-Version: 1.0 (Apple Message framework v619.2) Message-Id: Cc: a2k@lists.essential.org From: Cory Doctorow Subject: Re: [A2k] Proposal on collection society activities in developing countries To: James Love X-Mailer: Apple Mail (2.619.2) content-transfer-encoding: 7bit content-type: text/plain; charset=US-ASCII; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Feb 1 09:01:04 2005 X-Original-Date: Tue, 1 Feb 2005 14:44:46 +0100 Jamie, can you unpack this for us a little? Do you mean payments to *foreign* authors and performers? On Feb 1, 2005, at 2:10 PM, James Love wrote: > Proposal on collection society activities in developing countries > > Copyright collection societies in developing countries that are not > considered high income or high middle income by the World Bank should > be > free to limit payments to domestic authors and performers > > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC > PO Box 19367, Washington, DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love@cptech.org > _______________________________________________ > A2k mailing list > A2k@lists.essential.org > http://lists.essential.org/mailman/listinfo/a2k > From james.love@cptech.org Tue Feb 1 09:11:03 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 9277629B3F for ; Tue, 1 Feb 2005 09:11:03 -0500 (EST) Received: (qmail 28677 invoked from network); 1 Feb 2005 14:11:03 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 01 Feb 2005 14:11:03 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 01 Feb 2005 14:11:03 -0000 Message-ID: <41FF8DFE.1060800@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: Cory Doctorow Cc: a2k@lists.essential.org Subject: Re: [A2k] Proposal on collection society activities in developing countries References: <41FF7FDE.1070308@cptech.org> In-Reply-To: content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Feb 1 09:15:03 2005 X-Original-Date: Tue, 01 Feb 2005 09:11:10 -0500 For Cory, the writer, here is what I meant to say: Proposal on collection society activities in developing countries Copyright collection societies in developing countries that are not considered high income or high middle income by the World Bank should be free to limit payments to foreign authors and performers in order to increase payments to domestic authors and performers. ... still could be written better... jamie Cory Doctorow wrote: > Jamie, can you unpack this for us a little? Do you mean payments to > *foreign* authors and performers? > > On Feb 1, 2005, at 2:10 PM, James Love wrote: > >> Proposal on collection society activities in developing countries >> >> Copyright collection societies in developing countries that are not >> considered high income or high middle income by the World Bank should be >> free to limit payments to domestic authors and performers >> >> >> -- >> James Love, Director, CPTech, http://www.cptech.org >> >> Consumer Project on Technology in Washington, DC >> PO Box 19367, Washington, DC 20036, USA >> Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >> Consumer Project on Technology in Geneva >> 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >> Tel: +41 22 791 6727 >> >> Mobile +1.202.361.3040 >> james.love@cptech.org >> _______________________________________________ >> A2k mailing list >> A2k@lists.essential.org >> http://lists.essential.org/mailman/listinfo/a2k >> > > > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From cory@eff.org Tue Feb 1 09:16:16 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from flarn.com (flarn.com [216.126.84.58]) by lists.essential.org (Postfix) with ESMTP id 87D8C29B3F for ; Tue, 1 Feb 2005 09:16:15 -0500 (EST) Received: from [127.0.0.1] (flarn.com [216.126.84.58]) by flarn.com (8.12.8/8.12.8) with ESMTP id j11EFSqI023201; Tue, 1 Feb 2005 09:15:30 -0500 In-Reply-To: <41FF8DFE.1060800@cptech.org> References: <41FF7FDE.1070308@cptech.org> <41FF8DFE.1060800@cptech.org> Mime-Version: 1.0 (Apple Message framework v619.2) Message-Id: <0c526c880fcf96692a8b1d74e17b7217@eff.org> Cc: a2k@lists.essential.org From: Cory Doctorow Subject: Re: [A2k] Proposal on collection society activities in developing countries To: James Love X-Mailer: Apple Mail (2.619.2) content-transfer-encoding: 7bit content-type: text/plain; charset=US-ASCII; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Feb 1 09:24:01 2005 X-Original-Date: Tue, 1 Feb 2005 15:15:27 +0100 Thanks, Jamie! I thought that was what you meant, but wanted to be sure. Here's my wordsmithing: In developing countries that are not considered high- or middle-income by the World Bank, copyright collection societies are free to limit payments to foreign rightsholders in order to increase payments to domestic creators and performers. On Feb 1, 2005, at 3:11 PM, James Love wrote: > For Cory, the writer, here is what I meant to say: > > > Proposal on collection society activities in developing countries > > Copyright collection societies in developing countries that are not > considered high income or high middle income by the World Bank should > be > free to limit payments to foreign authors and performers in order to > increase payments to domestic authors and performers. > > ... > still could be written better... > jamie > > > Cory Doctorow wrote: >> Jamie, can you unpack this for us a little? Do you mean payments to >> *foreign* authors and performers? >> On Feb 1, 2005, at 2:10 PM, James Love wrote: >>> Proposal on collection society activities in developing countries >>> >>> Copyright collection societies in developing countries that are not >>> considered high income or high middle income by the World Bank >>> should be >>> free to limit payments to domestic authors and performers >>> >>> >>> -- >>> James Love, Director, CPTech, http://www.cptech.org >>> >>> Consumer Project on Technology in Washington, DC >>> PO Box 19367, Washington, DC 20036, USA >>> Tel.: 1.202.387.8030, fax: 1.202.234.5176 >>> >>> Consumer Project on Technology in Geneva >>> 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>> Tel: +41 22 791 6727 >>> >>> Mobile +1.202.361.3040 >>> james.love@cptech.org >>> _______________________________________________ >>> A2k mailing list >>> A2k@lists.essential.org >>> http://lists.essential.org/mailman/listinfo/a2k >>> > > -- > James Love, Director, CPTech, http://www.cptech.org > > Consumer Project on Technology in Washington, DC > PO Box 19367, Washington, DC 20036, USA > Tel.: 1.202.387.8030, fax: 1.202.234.5176 > > Consumer Project on Technology in Geneva > 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland > Tel: +41 22 791 6727 > > Mobile +1.202.361.3040 > james.love@cptech.org > From james.love@cptech.org Tue Feb 1 09:21:34 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id 4B28229B3F for ; Tue, 1 Feb 2005 09:21:34 -0500 (EST) Received: (qmail 28883 invoked from network); 1 Feb 2005 14:21:33 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 01 Feb 2005 14:21:33 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 01 Feb 2005 14:21:33 -0000 Message-ID: <41FF9074.5020704@cptech.org> From: James Love User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: Cory Doctorow Cc: a2k@lists.essential.org Subject: Re: [A2k] Proposal on collection society activities in developing countries References: <41FF7FDE.1070308@cptech.org> <41FF8DFE.1060800@cptech.org> <0c526c880fcf96692a8b1d74e17b7217@eff.org> In-Reply-To: <0c526c880fcf96692a8b1d74e17b7217@eff.org> content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Feb 1 09:24:03 2005 X-Original-Date: Tue, 01 Feb 2005 09:21:40 -0500 Cory's version is better, I think. One small change. It is high or high-middle income. Middle income is too broad a category for the WB. On another point, is "creators" the right term? I had used authors. RMS always complains when I use "creators." jamie In developing countries that are not considered high- or high-middle-income by the World Bank, copyright collection societies are free to limit payments to foreign rightsholders in order to increase payments to domestic creators and performers. Cory Doctorow wrote: > Thanks, Jamie! I thought that was what you meant, but wanted to be sure. > Here's my wordsmithing: > > In developing countries that are not considered high- or middle-income > by the World Bank, copyright collection societies are free to limit > payments to foreign rightsholders in order to increase payments to > domestic creators and performers. > > On Feb 1, 2005, at 3:11 PM, James Love wrote: > >> For Cory, the writer, here is what I meant to say: >> >> >> Proposal on collection society activities in developing countries >> >> Copyright collection societies in developing countries that are not >> considered high income or high middle income by the World Bank should be >> free to limit payments to foreign authors and performers in order to >> increase payments to domestic authors and performers. >> >> ... >> still could be written better... >> jamie >> >> >> Cory Doctorow wrote: >> >>> Jamie, can you unpack this for us a little? Do you mean payments to >>> *foreign* authors and performers? >>> On Feb 1, 2005, at 2:10 PM, James Love wrote: >>> >>>> Proposal on collection society activities in developing countries >>>> >>>> Copyright collection societies in developing countries that are not >>>> considered high income or high middle income by the World Bank >>>> should be >>>> free to limit payments to domestic authors and performers >>>> >>>> >>>> -- >>>> James Love, Director, CPTech, http://www.cptech.org >>>> >>>> Consumer Project on Technology in Washington, DC >>>> PO Box 19367, Washington, DC 20036, USA >>>> Tel.: 1.202.387.8030, fax: 1.202.234.5176 >>>> >>>> Consumer Project on Technology in Geneva >>>> 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >>>> Tel: +41 22 791 6727 >>>> >>>> Mobile +1.202.361.3040 >>>> james.love@cptech.org >>>> _______________________________________________ >>>> A2k mailing list >>>> A2k@lists.essential.org >>>> http://lists.essential.org/mailman/listinfo/a2k >>>> >> >> -- >> James Love, Director, CPTech, http://www.cptech.org >> >> Consumer Project on Technology in Washington, DC >> PO Box 19367, Washington, DC 20036, USA >> Tel.: 1.202.387.8030, fax: 1.202.234.5176 >> >> Consumer Project on Technology in Geneva >> 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland >> Tel: +41 22 791 6727 >> >> Mobile +1.202.361.3040 >> james.love@cptech.org >> > > > -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love@cptech.org From manon.ress@cptech.org Tue Feb 1 09:34:55 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from unity.futurequest.net (unity.futurequest.net [69.5.15.2]) by lists.essential.org (Postfix) with SMTP id D74D029B3F for ; Tue, 1 Feb 2005 09:34:54 -0500 (EST) Received: (qmail 4199 invoked from network); 1 Feb 2005 14:34:54 -0000 Received: from borgwatch.org (borgwatch.org [69.5.16.187]) by unity.futurequest.net ([69.5.15.2]); 01 Feb 2005 14:34:54 -0000 Received: from 69.143.161.214 ([69.143.161.214]) by borgwatch.org ([69.5.16.187]) with ESMTP via TCP; 01 Feb 2005 14:34:54 -0000 Message-ID: <41FF938A.8080808@cptech.org> From: Manon Ress User-Agent: Mozilla/5.0 (X11; U; Linux i686; en-US; rv:1.7.3) Gecko/20041007 Debian/1.7.3-5 X-Accept-Language: en MIME-Version: 1.0 To: a2k discuss list content-transfer-encoding: quoted-printable content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] Manon Ress Geneva contact info Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Feb 1 09:44:00 2005 X-Original-Date: Tue, 01 Feb 2005 09:34:50 -0500 I'm staying at: H=F4tel Kipling Manotel 27, rue de la Navigation Phone : +41 (0)22 544 4040 My cell phone in Geneva 079 296 1650 Thiru is 076 508 0997 Call if you have problems or questions in Geneva, I think I can help with French if necessary. Note that Geneva is unusually cold this year See you there Manon -- Manon Anne Ress manon.ress@cptech.org, www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: +1.202.387.8030, fax: +1.202.234.5176 Consumer Project on Technology in Geneva, 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727 Consumer Project on Technology in London, 24 Highbury Crescent, London, N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607 From teresa.hackett@eifl.net Tue Feb 1 09:57:03 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from mail10.svc.cra.dublin.eircom.net (mail10.svc.cra.dublin.eircom.net [159.134.118.26]) by lists.essential.org (Postfix) with SMTP id 5D8E129B19 for ; Tue, 1 Feb 2005 09:57:03 -0500 (EST) Received: (qmail 30276 messnum 1968922 invoked from network[159.134.59.117/159-134-59-117.as1.dla.dublin.eircom.net]); 1 Feb 2005 14:57:02 -0000 Received: from 159-134-59-117.as1.dla.dublin.eircom.net (HELO ?159.134.59.117?) (159.134.59.117) by mail10.svc.cra.dublin.eircom.net (qp 30276) with SMTP; 1 Feb 2005 14:57:02 -0000 Message-ID: <41FF998C.2040800@eifl.net> From: "Teresa Hackett (eIFL)" User-Agent: Mozilla Thunderbird 1.0 (Macintosh/20041206) X-Accept-Language: en-us, en MIME-Version: 1.0 To: James Love Cc: Cory Doctorow , a2k@lists.essential.org Subject: Re: [A2k] Proposal on collection society activities in developing countries References: <41FF7FDE.1070308@cptech.org> <41FF8DFE.1060800@cptech.org> <0c526c880fcf96692a8b1d74e17b7217@eff.org> <41FF9074.5020704@cptech.org> In-Reply-To: <41FF9074.5020704@cptech.org> content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Feb 1 10:01:01 2005 X-Original-Date: Tue, 01 Feb 2005 15:00:28 +0000 Two small comments. I'm wondering about where a domestic author transfers their rights to a foreign publisher, so do we mean rather foreign rightsholders v domestic rightsholders? For developing country regions e.g. west Africa with a strong regional music tradition, would it make sense to apply the foreign limitation only to high income countries i.e. those considered high or high-middle income by the WB. e.g. "In developing countries that are not considered high- or high-middle-income by the World Bank, copyright collection societies are free to limit payments to foreign rightsholders in countries that are considered high- or high-middle-income by the World Bank, in order to increase payments to domestic rightholders." Or is this complicating the point unduly. Teresa --------- James Love wrote: > In developing countries that are not considered high- or > high-middle-income by the World Bank, copyright collection societies > are free to limit payments to foreign rightsholders in order to increase > payments to domestic creators and performers. > -- Teresa Hackett Project Manager, eIFL-IP Email: teresa.hackett@eifl.net Mobile: +353 87 625 3768 Web: www.eifl.net Electronic Information for Libraries in transition & developing countries -- From davidt@public-domain.org Tue Feb 1 16:06:54 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from pantheon-po07.its.yale.edu (pantheon-po07.its.yale.edu [130.132.50.49]) by lists.essential.org (Postfix) with ESMTP id 809F529B3F for ; Tue, 1 Feb 2005 16:06:53 -0500 (EST) Received: from [10.0.1.4] (pcp03904852pcs.nhaven01.ct.comcast.net [68.46.214.68]) (authenticated bits=0) by pantheon-po07.its.yale.edu (8.12.11/8.12.11) with ESMTP id j11L6pcF016970 (version=TLSv1/SSLv3 cipher=DHE-RSA-AES256-SHA bits=256 verify=NOT); Tue, 1 Feb 2005 16:06:51 -0500 Message-ID: <41FFEF6A.4020303@public-domain.org> From: David Tannenbaum User-Agent: Mozilla Thunderbird 1.0RC1 (Macintosh/20041201) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org, Shyamkrishna Balganesh , James Grimmelmann X-YaleITSMailFilter: Version 1.2a (attachment(s) not renamed) content-transfer-encoding: quoted-printable content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] Copyright on the Internet, v.1.5 Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Tue Feb 1 17:03:14 2005 X-Original-Date: Tue, 01 Feb 2005 16:06:50 -0500 This version incorporates comments from Shyamkrishna Balganesh and James Grimmelmann, mostly expanding and clarifying the scope of the exceptions. Changes are indicated in brackets in the notes. There is still more refining to be done. COPYRIGHT ON THE INTERNET - DRAFT, v. 1.5 NOTES: (A)(8) - Text taken directly from DMCA =A7 512(a) on Transitory Digital Network Communications. (A)(9) - Similar to the spirit of DMCA =A7 512(b), but without the notice and takedown provisions. [Deleted "to facilitate users' efficient and speedy access to the material" to broaden the scope of the exception.] A(10) - Language taken from DMCA =A7 512(c), but excluding requirements that an ISP is exempt only if they have do not have knowledge of infringing activity and do not respond to notice and takedown requests. A(11) - Language taken from DMCA =A7 512(d), but excluding requirements that an ISP is exempt only if they have do not have knowledge of infringing activity and do not respond to notice and takedown requests. [Deleted "by using information location tools, including a directory, index, reference, pointer, or hypertext link" to broaden the scope of the exception. Rearranged "in cases..." clause to fix dangling modifier.] A(12) - A response to the Google cache problem. [Deleted "for the purposes of enhancing functionality of internet search engines" to broaden the scope.] [Query: is this redundant given 9?] A(13) - A response to the murky waters of inline and deep linking. [Deleted "inline linking"] TEXT: Limitations and Exceptions: (A) The exclusive economic rights of copyright owners (including but not limited to reproduction, distribution, display, performance, adaptation and communication to the public), shall not apply to: . . . (8) An internet service provider's (ISP) transmitting, routing or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if -- (i) the transmission of the material was initiated by or at the direction of a person other than the service provider; (ii) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; (iii) the service provider does not select the recipients of the material except as an automatic response to the request of another person; (iv) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and (v) the material is transmitted through the system or network without modification of its content. (9) An ISP's intermediate and temporary storage of material for the purposes of caching material, as long as they do not modify the material or provide it in a manner inconsistent with access conditions set by the copyright holder; (10) An ISP's storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider; (11) The referring or linking to an online location containing infringing material or infringing activity; in cases in which the service provider has the right and ability to control such activity, this exemption applies only if the ISP does not receive a financial benefit directly attributable to the infringing activity. (12) The caching of electronic documents for the purposes of enhancing functionality of internet search engines, as long as the original webpage address is clearly indicated on the cached page, and it is clear that the cached page may not be the most up-to-date version; (13) The transmitting of a universal resource locator or other electronic pointer, that has the effect of instructing a user's browser to load electronic documents from a third-party server; . . . From davidt@public-domain.org Tue Feb 1 21:28:17 2005 Return-Path: Delivered-To: a2k@lists.essential.org Received: from pantheon-po08.its.yale.edu (pantheon-po08.its.yale.edu [130.132.50.50]) by lists.essential.org (Postfix) with ESMTP id 8536E29B19 for ; Tue, 1 Feb 2005 21:28:17 -0500 (EST) Received: from [192.168.2.62] ([65.244.5.3]) (authenticated bits=0) by pantheon-po08.its.yale.edu (8.12.11/8.12.11) with ESMTP id j122SDkr017197 (version=TLSv1/SSLv3 cipher=DHE-RSA-AES256-SHA bits=256 verify=NOT); Tue, 1 Feb 2005 21:28:15 -0500 Message-ID: <42003AB1.5070507@public-domain.org> From: David Tannenbaum User-Agent: Mozilla Thunderbird 1.0RC1 (Macintosh/20041201) X-Accept-Language: en-us, en MIME-Version: 1.0 To: a2k@lists.essential.org X-YaleITSMailFilter: Version 1.2a (attachment(s) not renamed) content-transfer-encoding: 7bit content-type: text/plain; charset=ISO-8859-1; format=flowed Subject: [A2k] Proposal for WIPO Access to Knowledge Watch List Sender: a2k-admin@lists.essential.org Errors-To: a2k-admin@lists.essential.org X-BeenThere: a2k@lists.essential.org Precedence: bulk List-Help: List-Post: List-Subscribe: , List-Id: List-Unsubscribe: , List-Archive: Date: Wed Feb 2 06:15:01 2005 X-Original-Date: Tue, 01 Feb 2005 21:28:01 -0500 This proposal is based on the U.S. Trade Representative's "Special 301" watch list and inspired by discussions within the Yale Law School Global Intellectual Property Practicum. DRAFT PROPOSAL FOR ACCESS TO KNOWLEDGE WATCH LIST, v0.5 Article X (A) WIPO will create an Access to Knowledge Task Force ("task force") responsible for assessing Contracting Parties' efforts to enhance, protect and block access to knowledge; (1) The task force will be comprised of representatives from civil society representing a broad constituency of librarians, educators, archivists, students, scientists, engineers, artists and writers; (B) The A2KTF will issue an annual report on steps taken by Contracting Parties to enhance, protect and block access to knowledge. The annual report will: (1) identify countries that take affirmative steps to protect and enhance access to knowledge; (2) identify countries that engage in acts, policies or practices that -- (i) block adequate and effective protection of access to knowledge; or (ii) are unjustifiable and burdens on international exchange of knowledge; or (iii) are unreasonable or discriminatory barriers to knowledge; (3) identify "priority" countries that erect the most egregious barriers t