TACD on IP and E-Commerce

[James Love <love@cptech.org>]

The following are the Trans Atlantic Consumer Dialogue (TACD)
working group on electronic commerce's new (April 24)
recommendations regarding intellectual property.  


     Jamie Love <love@cptech.org>

http://www.tacd.org/meeting1/electronic.html


Intellectual Property and Electronic Commerce

The Internet and new information technologies present a number of
complex issues regarding intellectual property rights. Authors and
creators have an interest in protecting unauthorized commercial
exploitation of their own works, but also in obtaining access to the
works of others. Firms that sell computing equipment and software may
seek protection for those works, but also may need the right to reverse
engineer or develop products that are interoperable with works owned by
others. Citizens benefit from the economic incentives of copyright laws,
but also from fair ("innocent") use exemptions in several national
copyright systems. The free flow of information is essential for a
variety of purposes, including the exercise of free speech and the
ability of innovate and create. Education use presents special issues,
including those involved in distance learning.

For these reasons, governments in the US and the EU should embrace an
intellectual property framework that includes the following elements:

   1.Distance Education. Mechanisms to protect copyrighted works on the
Internet should not unduly restrict the ability of educators to share
information with students in ways that are equivalent to current
practices involving more conventional teaching methods. 

   2.Privacy. There are important conflicts between privacy and certain
technologies that protect copyrighted materials. Privacy is a social
good. Society should avoid mechanisms to protect copyright that are
unreasonable intrusions on personal privacy, particularly when less
intrusive mechanisms are technologically feasible. 

   3.Copyright exceptions. Governments should provide copyright
exceptions that address such issues as fair or innocent use, private
copying, library uses, research and private study, and exceptions that
are essential for reverse engineering and other techniques needed for
the development of interoperable products. Consumer rights in the
digital world should not be less than traditional rights in older
publishing and other information technologies. Consumer rights for fair
uses of copyrighted materials should not be alienated by coercive or
unfair contracts.  Legislation to implement WIPO treaties should address
these concerns. 

   4.TRIPS Article 13. Governments should ask the WTO to expand Article
13 of the TRIPS regarding exceptions to copyrights. The language is
currently too narrow, and does not even include the language in Article
30 concerning patents, that permits governments to consider the
legitimate interests of third parties. 

   5.Public Domain and non-commercial software. The public domain and
non-commercial software plays an important role in public and commercial
life. The Internet is built upon public and open protocols and uses a
wide range of free software programs. Free software operating systems
such as Linux and xBSD are important alternatives to more monopolistic
server technologies. Databases of government information provide an
important new foundation for civic democracy in the information society.

   6.Database rights. National legislation to protect investments in
databases should avoid overly broad protections, creating rights in
facts, or rights that lead to anticompetitive or monopolistic acts. 

   7.Business Practice Patents. The US and EU governments should ask
competition authorities to solicit public comments and hold public
hearings on the policy issues associated with issuing patents on
business practices, including those associated with electronic commerce,
to determine if these patents are needed, or if they are unnecessary,
anticompetitive and socially wasteful. 

   8.Parallel Imports. Electronic commerce raises profound and
fundamental challenges to national policies that seek to restrict
parallel imports of goods. Government should provide for international
exhaustion of rights for copyrights, patents and trademarks, as is
permitted under Article 6 of the WTO/TRIPS agreement, so that consumers
can benefit from the free flow of goods. Governments can require that
goods be labeled or identified as parallel imports, if such requirements
benefit consumers and do not present unreasonable restrictions on trade
in parallel goods. 

             Appendix - TRIPS Articles 6, 13 and 30

                          Article 6
                         Exhaustion

For the purposes of dispute settlement under this Agreement, subject to
the provisions of Articles 3 and 4 nothing in this Agreement shall be
used to address the issue of the exhaustion of intellectual property
rights.

                          Article 13
           Limitations and Exceptions (copyright)

Members shall confine limitations or exceptions to exclusive rights to
certain special cases which do not conflict with a normal exploitation
of the work and do not unreasonably prejudice the legitimate interests
of the right holder. 

                         Article 30
           Exceptions to Rights Conferred (patents)

Members may provide limited exceptions to the exclusive rights conferred
by a patent, provided that such exceptions do not unreasonably conflict
with a normal exploitation of the patent and do not unreasonably
prejudice the legitimate interests of the patent owner, taking account
of the legitimate interests of third parties.



-- 
James Love, Director, Consumer Project on Technology
I can be reached at love@cptech.org, by telephone 202.387.8030,
by fax at 202.234.5176. CPT web page is http://www.cptech.org