================================================================= ALAWON Volume 6, Number 3 ISSN 1069-7799 January 14, 1997 American Library Association Washington Office Newsline In this issue: (255 lines) BLOWS FOR BALANCE IN GLOBAL INTELLECTUAL PROPERTY DEBATE STRUCK AT GENEVA TREATY TALKS; ALA, NEA AND ACLS OFFICIALLY REPRESENTED THE PRE- AND POST-WIPO STATUS OF THE PRINCIPAL ISSUES RAISED BY THE TREATIES JUST CONSIDERED IN GENEVA 1. IMPORTANCE OF "BALANCE" UNDERSCORED IN TEXT OF COPYRIGHT TREATY 2. TEMPORARY REPRODUCTIONS NOT NECESSARILY PROPRIETARY "COPIES" 3. "BLACK BOX" CLAUSE GENERALIZED AND REFOCUSED ON UNLAWFUL USE 4. FAIR USE AND OTHER EXCEPTIONS EXTEND TO, AND MAY BE UPDATED IN, DIGITAL ENVIRONMENT 5. MERE PROVISION OF INFORMATION OR ACCESS TO IT EXCLUDED FROM SCOPE OF NEW "RIGHT OF COMMUNICATION TO THE PUBLIC" 6. "RIGHTS MANAGEMENT INFORMATION" PROTECTION LIMITED 7. DATABASE TREATY DEFERRED _________________________________________________________________ BLOWS FOR BALANCE IN GLOBAL INTELLECTUAL PROPERTY DEBATE STRUCK AT GENEVA TREATY TALKS; ALA, NEA AND ACLS OFFICIALLY REPRESENTED [ALAWON gratefully acknowledges the substantial contributions of Seth Greenstein, writing originally for the Home Recording Rights Coalition, to the following report. His work, modified for ALAWON, is used here by permission.] First, in September of 1995, came the Clinton Administration's "White Paper" on whether and how domestic intellectual property laws should be changed to handle the opportunities and challenges of cyberspace. Next came the "National Information Infrastructure Protection Act" (an unsuccessful effort to implement the White Paper's recommendations in the last Congress) and the "Database Investment and Intellectual Property Antipiracy Act" (a separate proposal not made until May of 1996) to provide sweeping new protection in addition to the Copyright Act for certain databases. Then, just last month, came the World Intellectual Property Organization--a United Nations-sponsored Diplomatic Conference of the World Intellectual Property Organization. Meeting in Geneva from December 2-20, 1996, WIPO member nations came together for the first time in 25 years to consider three international agreements to recalibrate copyright law for the digital age: (1) a treaty to update copyright law, especially with respect to works delivered in digital form; (2) a treaty to provide protections for performers in and producers of sound recordings; and, (3) a treaty to broadly protect certain economically valuable databases. Delegates from more than 125 industrialized and developing countries attended, as did representatives from some 90 nongovernmental organizations. For perhaps the first time in the Association's history, ALA actively participated in the actual treaty negotiation process and worked actively in concert with many other groups prior to the Diplomatic Conference to help prevent the adoption of potentially disastrous new international law. ALA President Mary Somerville, invited by the head of the U.S. delegation to serve as one of fewer than 20 private sector advisors in Geneva, designated ALA Executive Board member James Neal, Director of the Milton S. Eisenhower Library at Johns Hopkins University, to attend the Diplomatic Conference in her place. Together with counterparts Roger Knutsen (attending for Bob Chase, President of the National Education Association [NEA]) and Douglas Bennett (Vice President of the American Council of Learned Societies [ACLS]), Mr. Neal assured that at every appropriate opportunity United States negotiators understood the importance of striking the right balance in the agreements under discussion between protecting intellectual property owners and affording society access to information, particularly through schools and libraries. ALA also was represented in Geneva by Adam Eisgrau, Legislative Counsel to the Washington Office. In addition to lobbying on behalf of ALA and the Digital Future Coalition (DFC) in the corridors, Eisgrau was officially seated at the Conference as a member of the delegations of the International Federation of Library Associations & Institutions (IFLA) and the Educators Ad Hoc Committee for Copyright Law (ECCL), two of the 90 nongovernmental organizations. In contrast to the versions of treaties with which delegates to the Diplomatic Conference began their work, the two treaties ultimately adopted--concerning copyright and phonograms--appear to have found the appropriate balance sought by ALA, NEA, ACLS and the 32 other public and private sector members of the Digital Future Coalition. The third treaty concerning databases--which had been heavily criticized in the U.S. by many in the scientific, educational, library and commercial communities as dangerously overbroad and premature--was neither discussed nor acted upon by the Conference. The two treaties ultimately adopted just prior to midnight on the Conference's last day include important protection for copyright owners, but do so in a manner that should enable countries to flexibly apply their copyright laws so as not to interfere with the development and use of new digital technologies and networks. The treaties must now be ratified in the United States by a two-thirds vote in the Senate and are likely to require at least limited implementing legislation in both chambers of Congress. With the new 105th Congress in recess until later this month, it is likely to be some weeks or months before more information about the procedural fate of the two treaties adopted is known. The timetable for action will be influenced by many factors, including the scope of the legislation sought and of ratification hearings yet to be scheduled. In addition contentious issues from last year's debate are still unresolved, such as the scope of "on line service provider" liability and how best to foster "distance education," may affect the calculus of various stakeholders and Congressional leaders. The ALA Washington Office will be working closely with others in the library and educational communities, and with other members of the DFC, to remind (and educate new) members of Congress of society's interest in balanced intellectual property policy. THE PRE- AND POST-WIPO STATUS OF THE PRINCIPAL ISSUES RAISED BY THE TREATIES JUST CONSIDERED IN GENEVA 1. IMPORTANCE OF "BALANCE" UNDERSCORED IN TEXT OF COPYRIGHT TREATY PROPOSAL: Although not legally binding text like the provisions discussed below, the Preamble of the Copyright Treaty does make a strong and important statement about the context in which the actual clauses of the agreement are to be understood. As originally presented to WIPO national delegations, the Preamble contained no reference to legal interests other than those of "authors." RESULT: Due in large measure to the activities in Geneva of representatives of the educational, scientific, and research communities (with assistance from library colleagues), the Copyright Treaty Preamble was expanded with a new clause "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." 2. TEMPORARY REPRODUCTIONS NOT NECESSARILY PROPRIETARY "COPIES" PROPOSAL: The original WIPO proposal specified that a copyright owner has exclusive rights over all temporary reproductions. This would have extended to typical business and consumer activities which have no economic impact on the copyright owner, such as a)copying to computer memory in the course of browsing the Internet; b)copying to the memory buffers of a CD player or other electronic device; and, c)"caching" of text or images in the operation of a telecommunications network. Permissible exceptions would have been quite limited, in that innocent users and on-line service providers (including libraries and schools) still may have been liable for the knowing infringement of their users. RESULT: This provision was deleted entirely from the Copyright Treaty, and any reference to temporary copying was deleted from the Phonograms Treaty. Developed and developing nations alike recognized that the original proposal was both illogical and a potential disincentive to the development of new technologies and socially valuable uses of digital technology, including those in libraries and schools . 3. "BLACK BOX" CLAUSE GENERALIZED AND REFOCUSED ON UNLAWFUL USE PROPOSAL: The WIPO draft would have created liability for devices that had the "primary purpose or effect" of circumventing any technology used to protect copyrighted works. While intended as a weapon against "black box" devices used for piracy, this sweeping provision also could have affected the manufacture and development of audio and video recorders, general purpose computers and other common consumer electronics products needed to enable the lawful use of copyrighted information in libraries and schools. RESULT: The treaties now include only a 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. 4. FAIR USE AND OTHER EXCEPTIONS EXTEND TO, AND MAY BE UPDATED IN, DIGITAL ENVIRONMENT PROPOSAL: The draft treaties (and original commentary associated with them) suggested that fair use and other exceptions to copyright might be limited with respect to works in digital form and new modes of digital distribution and exploitation. RESULT: The treaties confirm that limitations and exceptions currently permitted under copyright law 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. 5. MERE PROVISION OF INFORMATION OR ACCESS TO IT EXCLUDED FROM SCOPE OF NEW "RIGHT OF COMMUNICATION TO THE PUBLIC" PROPOSAL: The draft Copyright Treaty provided for a broad right of communication that would have made every party to a communication-- including companies, libraries and schools that merely facilitated the communication--potentially liable for copyright infringement. RESULT: The new "right of communication to the public" adopted by the Conference must be read together with a unanimously adopted "agreed statement" declaring that a "communication" does not include the mere provision of facilities that make such communication possible. 6. "RIGHTS MANAGEMENT INFORMATION" PROTECTION LIMITED PROPOSAL: The draft treaties would have protected rights management information (codes that identify copyright owners, authors, etc.) against any deletion or alteration for any purpose, potentially including cataloguing or other library organization for retrieval. RESULT: Rights management information will be protected only where the information is knowingly altered for the purposes of enabling or concealing copyright infringement. 7. DATABASE TREATY DEFERRED PROPOSAL: Sweeping new rights were proposed to protect owners of economically valuable databases, regardless of whether the databases could be covered by copyright. This potentially threatened the ordinary use of factual compilations such as telephone books, scientific or census data, sports scores or historical facts. RESULT: General recognition that the database treaty was overbroad and premature, in addition to limited time for completion of even two treaties, caused the deferral of the database treaty. The Conference recommended that, in the first quarter of 1997, WIPO should consider a schedule for possible future work on databases. _________________________________________________________________ ALAWON is a free, irregular publication of the American Library Association Washington Office. To subscribe, send the message: subscribe ala-wo [your_firstname] [your_lastname] to listproc @ala.org. ALAWON archives at http://www.ala.org/washoff/alawon. Visit our Web site at http://www.alawash.org. ALA Washington Office 202.628.8410 (V) 1301 Pennsylvania Ave., NW, #403 202.628.8419 (F) Washington, DC 20004-1701 800.941.8478 (V) Lynne E. Bradley, Editor Deirdre Herman, Managing Editor Contributors: Adam Eisgrau Carol C. Henderson All materials subject to copyright by the American Library Association may be reprinted or redistributed for noncommercial purposes with appropriate credits. =================================================================