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 A library may make copies of published and unpublished works in its collection for purposes of preservation or to migrate content to a new format. 2.2.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