[A2k] The Draft a2k text relating to several copyright related issues

[Manon Ress]

These are the draft provisions for general copyright limitations and
exceptions, provisions regarding distance education, the rights of persons
with disabilities, the first sale doctrine for libraries, ISP liability,
and DRM/TPMs.  This draft reflects some but not all (others are being
evaluated) of the comments from the drafting committee.  More comments are
of course welcome.     Manon

(version: May 5, 2005)

Article X, General Limitations and Exceptions to Copyrights

(a).  Members agree that the exclusive economic rights of copyright
holders (including but not limited to reproduction, distribution, display,
performance, adaptation and communication to the public), shall not apply
to:

1.   The use of relevant excerpts, selections, and quotations for purposes
of explanation and illustration in connection with not-for-profit teaching
and scholarship;

2.   The use of relevant excerpts, selections and quotations for purposes
of criticism and comment, including but not limited to parody:

3.   The use of works, by educational institutions, as secondary readings
by enrolled students;

4.   The use of works, by educations institutions, as primary
instructional materials, if those materials are not made readily available
by right holders at a reasonable price; provided that in case of such use
the right holder shall be entitled to equitable remuneration;

5.   The use of works for purposes of library or archival preservation, or
to migrate content to a new format;

6.   The use of works in connection with legitimate reverse engineering;

7.   The use of works specifically to promote access by persons of with
impaired sight or hearing, learning disabilities, or other special needs;

8.   The use by libraries, archivists or educational institutions, to make
copies of works that are protected by copyright but which are not
currently the subject of commercial exploitation, for purposes of
preservation, education or research.

9.   The use of works in connection with Internet search engines, so long
as the owners of works do not make reasonably effective measures to
prevent access by Internet search engines, and the Internet search engine
service provides convenient and effective means to remove works from
databases upon request of the right owner.

(b)  It shall be presumed that these uses constitute special cases that do
not conflict with a normal exploitation of the work and do not
unreasonably prejudice the legitimate interests of the right holder.

(c)  In determining whether applying any limitation or exception to
exclusive rights to a particular use of a work would conflict with its
normal exploitation or unreasonably prejudices the legitimate interests of
the right holder, the extent to which the use benefits the larger public
interest shall be taken into account.

(d)  In addition to implementing specific exceptions for the cases listed
in subparagraph (a), parties to this treaty also shall implement a general
exception to copyright law, applicable in special cases where the social,
cultural, educational or other developmental benefit of a use outweigh the
costs imposed by it on private parties, [and providing for equitable
remuneration to the copyright owner in appropriate circumstances.]"

Article X, Provisions regarding Distance Education

(a)   Members agree that the convergence of telecommunications,
publishing, broadcasting and computing, is creating a media environment
with enormous implications for flexible learning, and mass higher
education and training, including through programs of distance education.
The cross border nature of information flows provides compelling
justification for harmonization of minimum limitations and exceptions for
distance education.   In order to take full advantage of new technologies
in the delivery of education and flexible learning, it is necessary to
ensure that educators have sufficient rights to use works.

(b)    The exclusive economic rights of copyright owners shall not extend
to the following uses in connection with distance education projects:

1.   Performances of non-dramatic literary works;
2.   Performances of any other work, including dramatic works and
audiovisual works, but only in =94reasonable and limited portions=94 and
3.   Displays of any work in an amount comparable to that which is
typically displayed in the course of a live classroom session.

(c)   The works described in (b) do not include works that are marketed
primarily for performance or display as part of mediated instructional
activities transmitted via digital networks; and performances or displays
given by means of copies not lawfully made and acquired, if the
educational institution knew or had reason to believe that they were not
lawfully made and acquired.

(d)   Non-voluntary authorizations for education institutions and programs
to use works in distance education should not involve overly restrictive
or burdensome procedures.

(e)   Educational institutions shall be permitted to record and retain
copies of the distance-education transmission, even if it included
copyrighted content owned by others, for (1) retention of the content for
student access for a period of time that is necessary to achieve the
learning objectives, and (2) copying and storage that is incidental or
necessary to the technical aspects of digital transmission, including
transient or temporary storage of material, provided that the copyrighted
content on a system or network is not available for a longer period than
is reasonably necessary to facilitate the transmissions for which it was
made, and to the extent technologically feasible, the material is not
accessed by anyone other than the anticipated recipients.


Article X,  The rights of persons with disabilities

(a)   Members recognize the importance of accessibility in the process of
the equalization of opportunities in all spheres of society, and the right
of equitable access to knowledge irrespective of disability.  This
requires:

1.   a right to access knowledge through a diversity of formats to meet
the individual=92s specific needs,
2.   a right to transcend national frontiers,
3.   a functional definition of accessibility, and
4.   a functional definition of disability.

(b)   Libraries, education institutions, or other institutions or
organizations duly designed shall have the authority to convert material
from one format to another to make it accessible to persons with
disabilities.

(c)   The dissemination of works in formats that enable access by disabled
persons shall be permitted to any country that duly authorizes the
non-voluntary use of such works.

(d)   Inclusive design principles to promote accessibility shall apply to
government web pages and other public documents.

(e)   National legislation to protect copyrighted or non-copyrighted works
using digital rights management or technological protection measures shall
provide for appropriate exceptions that are necessary to ensure access by
persons with disabilities.


Article X - First Sale Doctrine for Library Use

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.

Article X =96 Internet Service Providers

Members agree that the exclusive economic rights of copyright owners
(including but not limited to reproduction, distribution, display,
performance, adaptation and communication to the public), shall not apply
to:

(a) An Internet service provider's (ISP) transmitting, routing or
providing connections for, material through a system or network controlled
or operated by or for the service provider, or by reason of the
intermediate and transient storage of that material in the course of such
transmitting, routing, or providing connections, if =96
(i) the transmission of the material was initiated by or at the direction
of a person other than the service provider;
(ii) the transmission, routing, provision of connections, or storage is
carried out through an automatic technical process without selection of
the material by the service provider;
(iii) the service provider does not select the recipients of the material
except as an automatic response to the request of another person;
(iv) no copy of the material made by the service provider in the course of
such intermediate or transient storage is maintained on the system or
network in a manner ordinarily accessible to anyone other than anticipated
recipients, and no such copy is maintained on the system or network in a
manner ordinarily accessible to such anticipated recipients for a longer
period than is reasonably necessary for the transmission, routing, or
provision of connections; and
(v) the material is transmitted through the system or network without
irreversible modification of its content.

(b) An ISP's intermediate and temporary storage of material for the
purposes of caching material, as long as they do not modify the material
or provide it in a manner inconsistent with access conditions set by the
copyright holder;

(c) An ISP's storage at the direction of a user of material that resides
on a system or network controlled or operated by or for the service
provider;

(d) The referring or linking to an online location containing infringing
material or infringing activity; in cases in which the service provider
has the right and ability to control such activity, this exemption applies
only if the ISP does not receive a financial benefit directly attributable
to the infringing activity.

(e) The caching of electronic documents for the purposes of enhancing
functionality of internet search engines, as long as the original webpage
address is clearly indicated on the cached page, and it is clear that the
cached page may not be the most up-to-date version;

(f) The transmitting of a universal resource locator or other electronic
pointer, that has the effect of instructing a user's browser to load
electronic documents from a third-party server;


Article X =96 Digital Rights Management and Measures Regarding Circumventio=
n
of Technological Protection Measures  (combining Cory and Peter=92s
proposals).

(a)   Members agree that measures concerning Digital Rights Management
(DRM) systems and prohibitions against the circumvention of technological
protection measures (TPMs), referred to as DRM/TPM measures, present the
following risks:

i.   The DRM/TPM measures may undermine traditional limitations and
exceptions to exclusive rights,

ii.   DRM/TPM measures may present barriers to mechanisms that enable or
enhance access for the visually impaired or other people with
disabilities,

iii.   The DRM/TPM measures may effectively extend of the term of
protection beyond that provided in copyright law, including perpetual
protection,

iv.   Unfair contract terms and the inadequate disclosure of the
limitations of uses of works may harm consumers,

v.   Anticompetitive practices, including market segmentation and
technological tying to other potentially competitive products, may result
in high prices and reduced innovation,

vi.   DRM/TPM measures may make it difficult or impossible to archive or
preserve works.

(b)   Therefore, legal prohibitions against anti-circumvention of DRM/TPM
measures shall be limited, and not be enforced in the following cases:

i.   When DRM/TPM licensing terms preclude implementation in Free and Open
Source Software (FOSS),

ii.   When DRM/TPM systems are marketed without adequate disclosure of
their restriction modes and the terms under which they can be invoked, or
when terms can be modified without a user's explicit consent,

iii.   When DRM/TPM systems do not provide mechanisms to permit works to
be accessible by persons with visually impairments or other disabilities,

iv.   When DRM systems rely upon social entities that such as households
and families in their technology more narrowly or restrictively than have
been defined in local law,

v.   Unless the use of DRM/TPM measures do not substantially interfere
with uses that are authorized by the right holders or permitted by law,
circumvention is permitted for the following works:

1.   Works consisting predominantly of public-domain material;
2.   Works of medical and scientific literature;
3.   Works substantially financed by national governments or international
organizations;
4.   Works consisting predominantly of factual information available from
a single source, if equivalent information cannot readily be gathered or
compiled by others;
5.   Works currently protected under extended terms of copyright that
exceed those required by the Berne Convention or TRIPS.

(e)   In providing legal protection and remedies against the circumvention
of technological measures, contracting parties shall not prohibit
circumvention undertaken in connection with uses of works that are
authorized by rightholders or permitted by law.

(f)   In providing legal protection and remedies against the circumvention
of technological measures, contracting parties shall not prohibit the
making available of any technology or service that is intended primarily
to facilitate uses of works that are authorized by the right holders or
permitted by law.