Response to Federal Register notice #96-26511

These comments reflect the positions of the American Committee for Interoperable Systems (ACIS), an informal organization of almost 40 American companies that develop innovative hardware and software products essential to the operation of the Global Information Infrastructure. As we discuss more fully below, we strongly endorse some provisions of the draft, while strongly opposing others.

We strongly support Article 4 concerning computer programs. We feel that this language concerning computer programs eliminates ambiguities created by earlier proposals, and will assist in the worldwide efforts of our members to combat software piracy. We feel that Article 5 concerning original databases likewise will increase the incentive for investment in this area.

At the same time, we strongly oppose Article 13, which requires signatories to prohibit devices which circumvent copy protection systems. While we support in principle the idea of prohibiting the circumvention of devices that prevent piracy, any such provision must be very carefully drafted so as not to implicate legitimate, innovative technologies and services. Unfortunately, Article 13 does not meet this test.

ACIS has stated in earlier submissions to the Patent and Trademark Office, and in congressional testimony, our concerns about the language proposed by the U.S. delegation to the WIPO. The original U.S. proposal focused on devices and services that could be used in the act of circumvention, rather than on the enablement of infringement. It would apply categorically to manufacturers and distributors of devices, products or components whose primary purpose or effect was circumvention. It also would apply to the offering or performance of any services the primary purpose or effect of which was to circumvent a copyright protection system. The "primary purpose or effect" test is subjective and difficult to apply. As a result, it could easily implicate many legitimate, innovative technologies as "circumvention devices," and likewise, could implicate legitimate services and the providers of those services. Secondly, the U.S. proposal failed to clarify what would constitute a copyright protection system.

These same problems exist with respect to Article 13, paragraph 3, of the proposal for a Berne Protocol prepared by Jukka Liedes, Chairman of the WIPO Committees of Experts. The Liedes draft improves on the U.S. proposal in one way. Paragraph 1 of Article 13 is directed at infringement -- the device must be "used for, or in the course of, the exercise of rights provided under this Treaty that is not authorized by the rightholder or the law." This paragraph also introduces a "knowing requirement." Unfortunately, it lacks any qualifying language -- it simply says that "any person knowing or having reason to know that the device or service" will be used for an illegitimate purpose. Certainly, manufacturers and distributors know that their products or services will be used (by someone, somewhere) for illegitimate purposes. It is this knowledge that causes our companies such concern about the potential liability they will be exposed to under this type of provision.

Article 13 of the Chairman's draft, like the U.S. proposal, contains many ambiguities, such as the meaning of the term "circumvent." These ambiguities are inevitable in a provision intended to address technologies which do not yet exist. We believe that it would be more prudent to wait until the copy protection technologies come into existence, and then adopt carefully tailored measures to prevent their disablement for improper purposes. Alternatively, the treaty could include very general provisions requiring adoption of appropriate measures to prevent the circumvention of copy-protection systems, thereby providing signatories with sufficient flexibili ty to accommodate evolving technologies and legitimate uses. In this context, we note that at the PTO briefing held September 10, Chairman Liedes stated that Article 12 -- which deals with exceptions and limitations to the treaty provisions -- does not authorize the fashioning of exceptions to Article 13.

We also wish to register our serious reservations concerning Article 7. We completely agree with Commissioner Lehman's statements at the September 11th meeting of the Working Group on Intellectual Property, Interoperability and Standards of the State Department Advisory Committee on International Communications and Information Policy that the random access memory (RAM) copies made during browsing and caching should not be considered reproductions within the meaning of the Berne Convention, the new copyright treaty, or U.S. law. However, Chairman Liedes' notes clearly indicate that he understands paragraph 1 of Article 7 as treating such RAM copies as reproductions. The fact that Article 7, paragraph 2 permits exceptions in special cases gives us little comfort because the scope of exceptions permitted by this section is extremely narrow and because the exceptions would vary from country to country. The treatment of RAM copies as reproductions would allow content providers to increase the cost of content available on the GII. It would also increase the exposure of online service providers by making them directly liable for unauthorized RAM copies made by their systems. As we saw in the MAI v. Peak case, it could also hamper competition in hardware and software services. Increasing the cost of GII content and services inevitably will retard development of the GII, which will harm ACIS companies who supply critical hardware and software elements of the GII.

At the November 12 briefing, Chairman Liedes suggested that some of these concerns with Article 7 could be met with exceptions crafted pursuant to Article 12. This does not allay our concerns. First, as discussed above in the context of Article 7(2), exceptions adopted under Article 12 would probably vary from country to country, thereby inhibiting the development of global networks. Second, Article 12(2) narrows the range of exceptions now permitted under the Berne Convention by undermining so-called minor reservations (see note 12.08). Third, the language of Article 12, like the language of Article 9(2) of the Berne Convention before it, seems far less elastic that the language of Section 107 of the Copyright Act. In particular, Article 12 could be interpreted to be less compatible with exceptions for commercial competitive purposes than Section 107.

In short, we believe that some provisions of the Chairman's proposals will threaten the leadership of American companies in the building of the GII. We understand there are efforts underway to construct specific amendments to the Chairman's draft for the U.S. delegation to pursue in Geneva. ACIS is a member of the Digital Future Coalition and the Ad Hoc Alliance for a Digital Future. Both of these groups have developed specific language proposals that would help address our concerns (proposals attached). On Article 7, however, we feel that even the amendments we've been supporting are ultimately inadequate. The only real solution to Article 7 is to delete it.

ACIS also has serious reservations about the sui generis database proposal. We do not think this proposal should move forward in December. Such sui generis protection would, as a practical matter, overturn the Supreme Court's ruling in Feist v. Rural Telephone. This proposal would dramatically alter U.S. law relating to databases, without any meaningful domestic debate. Moreover, the language of the proposed treaty is so sweeping that it may apply to many types of works beyond databases. We do not believe the U.S. should sign onto a sui generis proposal that will necessitate major domestic intellectual property legislation in advance of serious discussions with the affected parties.

Thank you for giving us this opportunity to comment on the Chairman's proposals. We look forward to continuing to work with you on these issues.

Submitted November 22, 1996