We are writing to urge the delegates at this diplomatic conference to defer final action on the three proposed treaties. The discussions so far have just began to shed light on many of the problematic areas of the treaties. We believe there is much more to be gained from further study, and we are concerned that hasty action on novel changes in intellectual property laws will lead to many unanticipated problems. In this respect, one has to ask why WIPO, a United Nations body, is acting as a super Parliament or Congress on issues which have never been resolved by national governments through traditional lawmaking processes.
While there are many problems with the three treaties, allow us to highlight four areas of concern.
1. The Proposed Rights Of "Reproduction" And "Communication" Are Far Too Broad.
In an effort to give copyright owners the broadest possible rights, the treaties would give a new right to deny authorization of the "direct and indirect" reproduction of a work, "whether permanent or temporary . in any manner or form." (Treaty 1, Article 7). National exceptions would be allowed for some temporary or incidental reproductions, provided that the reproductions are "authorized by the author" or otherwise permitted by law. It is unclear how broad these exemptions can be, or how a patchwork system of national exemptions will achieve the international uniformity the treaty seeks.
The starting point for the reproduction rights are so open ended that it would be seem to make the memorization of a poem a violation of the author's exclusive rights.
The issue of the rights of the public to use computers to view, study and analyze works is important. Overbroad restrictions on those rights will discourage or impair the development of many important and useful new technologies. For example, the new smart searching engines on the Internet's World Wide Web routinely read hundreds of thousands, if not millions of Web pages, in order to create indexes and abstracts of articles and other works. These new and important software tools will vastly expand our ability to identify and locate information.
There is also considerable concern that the "Right of Reproduction" (Article 7), combined with the "Right of Communication," (Article 10) are written in such a way that Internet Service Providers (ISPs) will be liable for infringements. Several major ISPs have noted that if they are liable for infringements by their customers, they will be compelled to engage in intrusive surveillance of private communications. This indeed was the concern of eleven CEOs of major Internet and Telecommunication firms,[1] who wrote President Clinton in opposition to the treaties on December 10, 1996. (http://www.public-domain.org/oldwww/copyright/11ceos.html).
We strongly urge that no treaty be finalized at this time. However, we would add that the proposed December 12, 1996 amendments by the 30 African countries offer a much better approach (CRNR/DC/56, Treaty No. 1, Article 7 and Article 10), and are preferred to the far too restrictive versions that have been advanced by the United States Delegation.
2. The Technological Measures Are Written Too Broadly
Any language in a treaty that prohibits the development of new information technologies is problematic, since there are likely to be competing public interests. The Chairman's provisions, in his December 12, 1996 drafts of Treaty No. 1 (Article 13), and Treaty No. 2 (Article 22), are far too broad. They would make unlawful "any . . . device, product or component incorporated into a device or product, the primary purposes or primary effect of which is to circumvent any process, mechanism or system that prevents or inhibits any of the rights under this treaty." (From Treaty 1, Article 13).
Taken with the rest of these deeply flawed treaties, there would be an enormous chilling effect on the development of new information technologies. For example, the popular Web browser Netscape would arguably be an illegal device, not only because it is used for reading documents into memory to display them, but because it has features which permit the easy reading and downloading of source code for HTML documents, as well as digital images. Many of us would say that these types of features have made an important contribution to the explosive growth of the Internet. It is worth noting that more restrictive proprietary technologies have withered, having failed to compete with the more open Internet model.
Also, the new generation of Internet searching and index tools mentioned above would likely be challenged under the proposed treaty language.
Again, the language offered as a substitute by the 30 African countries is a better approach. Countries would be required to provide:
adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by rights holders in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their works, which are not authorized by the rights holders concerned or permitted by law. (CRNR/DC/56, Treaty 1, Article 13).
The more flexible language offered by the African countries would give each nation greater latitude in implementing anti-circumvention legislation. This is important, given the rapid growth of the Internet, the novelty of the technology and the Internet culture, and the need to encourage rather than discourage the development of new information technologies.
However, we cannot endorse even this approach, at this time. The issue of anti- circumvention is not ripe for legislation or treaty, given:
3. Concerns About Privacy Are Not Specifically Addressed In The Treaties.
We come from a tradition of using information products and services in ways that are mostly anonymous. The acquisition of newspapers, books, recorded music, and listening to broadcast television and radio can be done in anonymity. The development of cable television, video rental stores, online communications and other technologies are leading to an explosive growth in the ability of the government and private corporations to conduct surveillance of what information we receive or share with others. It is essential for a free society that people have the practical ability to read and share information with friends and colleagues without surveillance. When it is possible to take different approaches in protecting copyright owners, it is desirable and important to seek those roads which are consistent with a significant degree of personal privacy. This principle should be specifically addressed in the treaties.
As noted above, there are specific concerns about privacy in the section of the treaties dealing with the liability of ISPs. There is also concern about the degree to which the "Rights Management Information" may be used to provide mechanisms for tracking document usage. Countries should be both permitted and encouraged to limit the types of technologies used for "rights management information" in order to protect personal privacy.
4. There Should Be No Actions Taken That Would Give A Radical New Property Right To Facts Or Other Public Domain Information.
There is widespread opposition to the concepts underlying the proposed database treaty, and no action should be taken at this time. As presently drafted, the treaty would give sporting leagues the right to license box scores of sporting events, give stock exchanges permanent "ownership" of share prices and other financial data, define the practice of creating abstracts of scientific journals or web pages as an infringement of a database extraction right, and create many other unintended consequences.
The fact that organizations such as Dun and Bradstreet, Bloomberg, and STATS, Inc (sports statistics), vigorously oppose the treaty because it goes too far illustrates the complexity of this issue. Value added information providers are both producers and consumers of information. This proposal is so deeply flawed it cannot be salvaged at this conference. The controversy over the database treaty should also serve as a reminder to the delegates that the public domain in matters concerning information is something to be protected and cherished.
5. Closing Comments
In closing, we urge the delegates to reflect upon how the unique features of the Internet have contributed to its amazing success, and to tread carefully when asked to dramatically change the Internet culture. Not only is the Internet a flourishing and dynamic place to publish information, as evidenced by the astronomical rates of growth in usage and published content, but there is scant evidence to suggest that there are serious threats to the commercial content industry from infringements.
Much of the concern over unauthorized reproductions of works on the Internet stem from the very transparency of those reproductions, which are visible to everyone, including the owners of the works. Indeed, the Internet indexing and abstracting tools which are threatened by these treaties offer perhaps the best tools yet for identifying and managing inappropriate unauthorized reproductions of works.
This transparency of publishing activities on the Internet is something new. We are also just beginning to understand the engines which drive the dynamic growth of this publishing platform. We are forced to re-think and re-examine our ideas about fair use and other matters which are central to these ill conceived treaties.
Finally, there is great opposition to the treaties by the persons who should matter the most - the persons who use the Internet, and who are alarmed to the prospects for increased surveillance and stifling regulation of new technologies. As delegates you should look beyond the multitude of lobbyists who have shaped this treaty, and consider the public. We urge you to conclude this Diplomatic Conference without taking action on any of the treaties.
[1] PSINet, America Online, Bell Atlantic, BellSouth, Compuserve, MCI, MFS Communications, Netcom On-line Communications, NYNEX, Prodigy, UUNET.
James Love (love@tap.org)
Work Phone: (202) 387-8030
Home Phone: (703) 522-4380