The World Intellectual Property Organization met in December of 1996 to bring together the divergent opinions of 150 countries and lay the foundation for international copyright law in the digital age. The UN-sponsored organization is in charge of maintaining the Berne Convention, an international copyright treaty written in 1886. Delegates at the December conference formed the WIPO Copyright Treaty, which will soon be implemented as law in participating countries. This paper will discuss the events leading up to the conference, explain the biggest issues of controversy at the conference, and see where things stand after the first quarter of 1997.
September of 1995 marked the beginning of a long journey toward updating international copyright law for the future. It was then that Bruce Lehman, former copyright lobbyist and chair of the Intellectual Property Working Group for the Clinton Administration, introduced the 250-page White Paper on Intellectual Property and the National Information Infrastructure into Congress. Lehman saw the need to protect media publishers’ copyright rights on the Internet, and wanted to implement legislation to change current copyright law in the U.S.
In her article "The Copyright Grab," Pamela Samuelson, a professor of law at UC Berkeley, argues that Lehman’s White Paper is "a wholesale giveaway of the public’s rights" and outlines its agenda. According to Samuelson, the White Paper portrays the "maximalist" perspective on copyright law, taking away rights from the consumers and handing them over to the media giants. For example, the white paper would have made any transmission of a digital document an infringing public distribution. Forwarding of a copyrighted work to a friend for educational use would be illegal. The seven other issues that Samuelson addresses in the White Paper, when working together, would put far too many rights into the hands of the copyright owners.
The paper’s extreme imbalance of rights made Congress agree with Samuelson. The White Paper faced so much opposition that it was never reported outside the subcommittee (Samuelson, "Big Media"). Lehman still wanted his legislation passed, however, so he reintroduced it for consideration at the World Intellectual Property Organization (WIPO) conference in Geneva.
Delegates at the WIPO conference strove to strike a balance between the two sides of the copyright issue: the copyright holders and the content consumers. Media publishers want the ability to safely license their products for use over the Internet, while consumers need to maintain their rights to privacy, free speech, and the "fair use" of copyrighted works on the Internet. Additionally, Internet users feel that the media publishers are "…failing to understand the nature of the new medium" (Harmon, "Not Quite"). Imposing strict laws on digital media now will only serve to dampen its unborn potential in the future.
Overall, the WIPO conference went well—according to Lehman, "The basic issue that all parties agree on is, ‘Thou shalt not steal.’ That’s what these treaties do." (qtd. in McAllester). Samuelson was also satisfied with the treaty: "The WIPO Copyright Treaty signed in Geneva is … about as balanced and sensible a copyright agreement as it was conceivable to get" ("Big Media"). The biggest disagreements at the conference, however, were over fair use provisions on the Internet, temporary copying, and property rights for databases.
Article 12 of the draft WIPO treaty wanted to restrain fair use rights, a copyright provision that we usually take for granted. Fair use allows the duplication of copyrighted materials for private or educational use. Making a photocopy or printout of a newspaper article for a research paper is considered fair use. Fair use provisions also cover backup copies of computer programs. Adam Eisgrow of the American Library Association opposes restrictions: "We are concerned that fair-use exemptions not remain stuck in the 20th century while rights of owners get updated for the 21st" (qtd. in Harmon, "Meeting Takes"). Lehman, however, feels these concerns are overblown. "We have always had a right of reproduction. We still do, and we will in the new digital environment," he said in an April 2 speech (qtd. in "USIA").
In addition to the national delegates at the conference in Geneva, a lobbying group called the Ad Hoc Copyright Coalition attended. The AHCC consists of telecommunications companies (such as AT&T, MCI, and America Online) and educational groups who want to preserve their neutral position as carriers of content (McAllester). Though they had no votes at the conference, they expressed concerns that laws may soon make them liable for the information that travels through their communications equipment. "We just don’t want to see ourselves put in the in the position of being the Internet police," says Bill McColskey, a BellSouth spokesman (qtd. in McAllester).
Unfortunately, Article 7 of the WIPO draft was designed to do just that. If an Internet Service Provider (ISP) had a temporary copy of a copyrighted work on their computer, they would be liable. ISPs argue that it is both immoral and technically impossible to snoop on their users in an attempt to eliminate copyright infringement. Bob Collie, systems engineer at Telalink, an ISP in Nashville, TN says, "A telephone company isn’t responsible for intellectual property that travels over their lines—ISPs should not be, either." Article 7 would have made both telephone companies and ISPs fully liable for unauthorized data traveling through their equipment. It received so much opposition from the AHCC and conference delegates that it was dropped from the final treaty.
Another heavily disputed issue involved the ownership of "sui generis" databases. Should the NBA have intellectual property rights on the sports scores they collect? Lehman thought so, and brought up a database treaty for consideration at the conference, though Congress had not discussed the issue and the administration was opposed to it. He wanted to protect the investments of companies that collect data by giving them property rights on the data. If his proposal passed, the NBA could legally license or sell professional sports statistics to news agencies.
The database treaty especially worried scientists and consumer advocates. When the issue was proposed in Geneva, Richard Nicholson of the American Association for the Advancement of Science wrote a letter to the Vice President. "Databases are integral to scientific research, and with the growing use of the Internet as a major vehicle for providing access to scientists around the world, they are finding new and exciting applications in research," he wrote. Nicholson was concerned that the treaty would "conflict with these trends and applications [and] infringe on the full and free flow of information so vital to their success" (qtd. in Harmon, "Meeting Takes"). The presidents of major U.S. science organizations wrote a letter to President Clinton regarding the database issue. They were especially apprehensive because conference delegates considered the treaty "without any debate or analysis of the law’s potentially harmful implications for our nation’s scientific and technological development." (qtd. in Samuelson, "Big Media").
Because of the controversy surrounding the issue, however, WIPO took the proposal off the table almost immediately at the conference. (Samuelson, "Big Media") In his April 2 speech, Lehman addressed the issue: "…we did not have the time nor the broad based familiarity and knowledge about the issue … to conclude such a treaty at this time. So further study and discussion is necessary" (qtd. in "USIA"). Lehman said his committee plans to hold intergovernmental meetings and public hearings this year in order to "obtain the full spectrum of public comments on sui generis database protection." The WIPO may sponsor another conference to further discuss the database issue as early as June 1997 (Samuelson, "Big Media").
Now that the WIPO conference is over and the treaties have been ratified, the next important step in the U.S. is implementing legislation. Lehman explained the two-step ratification process for the treaties in his April 2 speech. First, two-thirds of the Senate must agree to ratify the treaties. Second, if the treaties require modification of federal law, further legislation must pass through both houses and be signed by the President. Only then will the United States officially adhere to the treaties. "We are presently researching and examining existing U.S. statutory and common law to determine if implementing legislation is needed for ratification of the treaties…" said Lehman at his April 2 speech (qtd. in "USIA").
Samuelson doesn’t think the ratification process will be so simple, however. Most of the treaty can be ratified without implementation legislation, she says, except for the parts dealing with the protection of rights management information (RMI). RMI for computer software might use a monitoring system to track usage over a network and detect unauthorized copies. Lehman may push a stronger RMI provision in Congress, where "any effort to block monitoring software because you thought it invaded your privacy would make you a felon" ("Big Media"). Big media companies are especially interested in having a little extra protection.
As a whole, the WIPO treaty does a good job of supporting the individual’s rights outlined in the Berne Convention while protecting the investments of media providers. In his closing speech at the conference, Kenyan conference president Esther Tolle asked delegates to work toward "balanc[ing] the needs of and responsibilities of authors and performers, communicators and the public at large" rather than only trying to protect the creator’s works (qtd. in Browning). The treaty shows that this balance can be attained, but we can only hope that Congress will heed Tolle’s advice when implementation legislation is considered.
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