cc: Dr. John H. Gibbons
Assistant to the President for Science and Technology and
Director, Office of Science and Technology Policy
Old Executive Office Building
17th and Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear Mr. Kupferschmid,

Thank you for the opportunity, announced one month ago in the Federal Register of October 17 (pg. 54159) to comment on the pending WIPO draft treaty proposals. The signatories to this letter are law professors, most of whom also signed the earlier Open Letter on Copyright on the National Information Infrastructure. (attached) We were gratified by the thoughtful attention paid to that letter and pleased to see that the Congress ended by agreeing that these far-reaching proposals were not yet ripe for action, in many cases were simply mistaken and would have a negative effect on privacy, free speech, academic research and commercial innovation on the Net. We are correspondingly disappointed to find that the Administration has pushed ahead to achieve even more expansive results through international action.

While no treaty would be effective without legislative action, the signature of an international instrument would put enormous pressure on the Congress to "harmonize" American law -- and thus to cut short the productive dialogue among all interested parties that has followed the failure of the Administration's initial proposal. We believe that this rush to achieve internationally that which was rejected domestically is both unwise and contrary to the spirit behind the separation of powers.

One month is scarcely enough time to comment on such important or wide-ranging international obligations and we cannot offer full commentary here. We would however note the following:

One of the Draft Basic Proposals would create a new property right over databases -- defined to include almost any compilation of "facts" -- with potentially devastating effects on research and also free speech. This proposal has been opposed by the Presidents of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine -- as well as by librarians and scholars more generally. It has also been criticised by a Washington Post editorial. The creation of a property rights in facts would interfere with the speech, debate and research protected by the First Amendment. It raises the spectre that those who wish to avoid criticism could "lock up" the facts about their organisations or companies. In addition, the dramatic expansion proposed by the database proposals could have serious effects on the accessibility of legal materials -- which, as government documents --are not subject to copyright

While the other Draft Basic Proposals contain much that is unexceptionable, they also repeat the very proposals which prompted a storm of criticism from teachers, writers, computer companies, civil libertarians and telecommunications providers.

Specifically, the Basic Proposal for the new copyright treaty is particularly problematic in the following areas.

Article 7 would treat temporary copies, such as those generated by the mere act of reading a document on the Web, as "reproductions" that would violate the exclusive reproduction right. (Individual countries could fashion exceptions by legislation -- but given the global nature of the Net this is hardly satisfactory). For the reasons mentioned in our earlier letter, we believe this to be a radical extention of copyright that is -- as yet -- unjustified by any economic or technical demonstration of need. The obvious and considerable burden it would impose on free speech and on the flow of information, and the "health" of the Net operating without such a restrictive regime both militate in the direction of greater caution. In addition, this proposal was clearly found unacceptable to users when raised as a component of the Administration's domestic proposals on Net Copyright.

Article 10's new exclusive right of communication to the public apparently subjects online service providers to strict liability for copyright infringement. This could have devastating effects on the Net. As the _Netcom_ court noted, "If Usenet servers were responsible for screening all messages coming through their systems, this could have a serious chilling effect on what some say may turn out to be the best public forum for free speech yet devised." Over-expansive liability would inhibit free speech while attempts to police this requirement by the providers themselves would undermine privacy and access and subject "fair use" to the conservative interpretation of a private body.

Article 12 raises serious questions about the continued viability of fair use and the related library and educational exemptions that are already a basic part of the balance in our current Copyright law. The three step test included in Article 12 could pose significant challenges to maintaining the balance in future efforts to update the copyright act for the digital environment.

Article 13 would restrict users rights both directly and indirectly, by imposing liability on manufacturers of devices intended to defeat copy protection schemes, even when those "devices" *were made and primarily used for entirely lawful purposes,* such as to protect privacy, make lawful archival copies etc. Thus content providers could lock up technically what they could not protect legally, and use the criminal law as a sanction to discourage the development of devices by which users could exercise their existing rights.

In conclusion:

These proposals are clearly domestically contentious and technically far-reaching. We have not been given enough time to study them; even the best informed of scholars differ over the likely effects of some aspects of the treaties. Any attempt to "ram through" an international agreement in the absence of domestic study and debate would be troublesome in terms of democratic principle. It is also likely to lead to the adoption of exceedingly bad policy with far-reaching, unintended negative effects. We ask that the United States delegation withold US agreement for these proposals until they have been properly understood and debated in the domestic forum. Many of the proposals, we believe, will not withstand the process but our intellectual property policy will be the better for it.

Signed,
(Institutions for Identification purposes only)

Professor Gregory Alexander, Cornell Law School
Professor Keith Aoki, University of Oregon Law School
Professor C. Edwin Baker, University of Pennsylvania Law School
Professor Loftus E. Becker, Jr., University of Connecticut Law School
Professor James Boyle, Washington College of Law, American University
Professor Paul Carrington, Duke Law School
Professor Caroll Chomsky, Minnesota Law School
Professor Margaret Chon, Syracuse University College of Law
Professor George L. Christie, Duke Law School
Professor David Cole, Georgetown Law School
Professor Adrienne Davis, Washington College of Law, American University
Professor Garrett Epps, Oregon University Law School
Professor Alan Feld, Boston University Law School
Professor Eric Freedman, Hofstra University School of Law
Professor William W. Fisher III, Harvard Law School
Professor Mark Hager, Washington College of Law, American University
Professor Joel Handler, University of California Los Angeles Law School
Professor Paul J. Heald, University of Georgia School of Law
Professor Mary Brandt Jensen, University of Mississippi Law School
Professor Kenneth Karst, University of California Los Angeles Law School
Professor Avery Katz, Georgetown Law School
Professor David Kennedy, Harvard Law School
Professor Christian Kimball, Boston University Law School
Professor Lewis Kurlantzik, University of Connecticut Law School
Professor David Lange, Duke Law School
Professor Mark Lemley, University ofTexas Law School
Professor Jessica Litman, Wayne State University Law School
Professor David Lyons, Boston University Law School
Professor Peter W. Martin Cornell Law School
Professor James P. May, Washington College of Law, American University
Professor Binny Miller, Washington College of Law, American University
Professor Robert L. Oakley,, Georgetown University Law Center
Professor James M. O'Fallon, Oregon Law School
Dean Russell K. Osgood, Cornell Law School
Professor Margaret L. Paris, University of Oregon Law School
Professor Jamin Ben Raskin, Washington College of Law, American U.
Professor David G. Post, Georgetown University Law Center
Professor Thomas Sargentich, Washington College of Law, American U.
Professor David Seipp, Boston University Law School
Professor John Henry Schlegel, SUNY Buffalo Law School
Professor Ann Shalleck, Washington College of Law, American University
Professor Bill Simon, Stanford Law School
Professor Girardeau A. Spann, Georgetown University Law Center
Professor Tom Stave, Oregon Law School
Professor Jonathan Weinberg, Wayne State University Law School
Professor William van Alstyne, Duke Law School
Professor Robert Vaughn, Washington College of Law, American University
Professor Alfred C. Yen, Boston College Law School

(Institutions for Identification purposes only.)