January 18, 1997
I am sending this memo on two related government-affairs issues to members in two parts, and including a summary of both parts at the outset. I should like the ADVOCACY Working Group to particularly take note of these issues insofar as they will bear on our discussions.
Ironically, the WIPO Copyright Treaty (with its important accompanying "Agreed Statements") that emerged from Geneva is far closer to the balanced document (with its recognition of the importance of continuing fair use) that the cultural community wanted than the more aggressive treaty the Administration expected. Many hope that the Treaty will form the basis for new domestic copyright legislation. Beyond ratification, the implementation legislation putting the Treaty into effect together with accompanying commentary, will be critical and could provide a better base for domestic copyright legislation than last year's bill. Additional copyright-related issues to be concerned about are the "sui generis" database proposal and, especially important for this community the relationship between copyright law and licensing/contracts.
The Senior Advisor to the President for Policy Development has been helping coordinate a more cohesive White House approach towards the Internet. This is principally taking the form of a policy paper on commerce and the Internet: "A Framework for Global Electronic Commerce." Intellectual Property has an important place here and Magaziner and the administration is admitting shifting its position and invites commentary from this community. Some urge that in the "Framework's" proposal for a Uniform Commercial Code consideration should be given to the copyright law versus "shrink-wrap" licensing issue, in which law could be pre-empted by contracts. Public comments welcome by Thursday January 23.
As you have seen from the American Library Association's Washington Office Online newsrelease forwarded to you earlier this week, ALA has reported on the results and early imagined implications of the WIPO Treaties. There is a certain irony about the fact that the Administration, having failed to win the legislation it wanted domestically with the NII Copyright Protection Act, and believing it could obtain what it wanted through the WIPO process, is now facing a Treaty that is far more balanced with respect to the rights of copyright holders and the rights of users.
Both WIPO treaties, together with the important "Agreed Statements" are available on the NINCH Web Site.
Particular points worth noting.
A. BALANCE
The Preamble of the "Copyright" Treaty pointedly recognizes the importance of balance between owners and users, which the proposed treaty did not: "Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention....".
B. TEMPORARY COPYING
The rather illogical and unrealistic language giving copyright holders rights over the necessary temporary copies made onto computers' memories in the process of transmitting information across the Internet was deleted.
C. FAIR USE & OTHER LIMITATIONS
While the proposed treaty suggested fair use might be limited in the digital environment, the final treaty, in the important Article 10 confirmed that current limitations can continue into the future. The Conference also issued a unanimous (or "agreed") statement that new exceptions and limitations could be created in response to the needs of users of digital technology: "Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment."
D. CIRCUMVENTION
The fierce language of the proposal prohibiting any device designed to circumvent copyright protection was replaced with language emphasizing the general obligation to protect effective technologies against the act of circumvention for unlawful purposes. Thus, the treaties no longer threaten devices that can be used for lawful purposes such as fair use, archiving or use of materials in the public domain.
E. LIABILITY
While the Proposal called for every party involved in communicating intellectual property liable for any infringement, the final treaty's Right of Communication to the Public (Article 8) has to be read in conjunction with a the Agreed Statement on Article 8 that "the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty."
F. RIGHTS MANAGEMENT INFORMATION
The proposal to penalize any alteration of rights management information (codes that identify copyright owners, authors, etc.) for any purpose whatsoever, including cataloguing or other library organization for retrieval, was softened so as to allow such procedures.
The treaties must now be ratified in the United States by a two-thirds vote in the Senate but then will need implementing legislation in both chambers of Congress.
Many in the community now believe that the copyright Treaty, government comments on the treaties and the implementing legislation required to put to translate it into domestic law, will provide a far more promising scenario than any attempt to revive last year's"NII Copyright Protection Act."
The legislative timetable for copyright is currently unclear. Both the House and Senate are adjourned until January 21. After meeting on January 21, the House will adjourn until February 4. It appears that the Senate will be in session from January 21 until mid-February before taking another recess. There are still a number of contentious issues from the last session that were unresolved, such as the scope of "on line service provider" liability and how best to foster "distance education."
Whatever scenario evolves it will be a far more complex one than that of last session. Apart from the "sui generis" database issue (a new form of non-copyright protection proposed for compilations of information--including public domain information) a most important issue to be adopted for consideration by the Digital Future Coalition is the increasing issue of the tension between copyright law and "shrink-wrap" and other licensing contracts.
The important issue here for this community is the possibility that electronic licensing agreements could limit a licensee's ability to make "fair use" or other exempt secondary uses of licensed works. I predict that this will become of increasing importance during 1997.