Mission of the USA
11, route de Pregny
1292 Geneva
Switzerland

Tel +41 22 749 4358 Fax +41 22 749 4314

Public Affairs Counselor:
Cornelius C. Walsh

USIS Geneva on the Internet http://www.itu.ch/MISSIONS/US/

EUR315 12/04/96

NEW TREATIES WOULD UPDATE COPYRIGHT LAW FOR THE DIGITAL AGE
(Critics worry protections will stifle Internet use) (1570)
By Wendy Lubetkin

USIA European Correspondent

Geneva -- A three-week diplomatic conference is meeting here to consider how to update international copyright protections to meet the challenges of a digital age when texts, recordings, images and computer software can be transmitted rapidly and anonymously across the Internet.

Three proposed new treaties have become the focal point of a debate about the future of information exchange on the Internet between those who say better protection will greatly expand the availability of on-line information, and those who believe it will stifle it.

Lining up on one side of the debate are the film and recording industries, some publishing companies and major computer firms, including IBM, Microsoft and Intel. On the other are consumer advocates, major library and academic groups including the National Academy of Sciences, telecommunications firms and non- governmental organizations such as the Association for Computing.

Bruce Lehman, U.S. assistant secretary of Commerce and commissioner of Patents and Trademarks, argues that the proposed changes will stimulate investment in information infrastructures and expand the potential of the Internet by allowing businesses to safely offer a whole new array of products and services on- line.

"We would like to think that this will provide the security that the people who make information products need to really start to produce dynamite products for distribution through the Internet," Lehman said in a December 3 interview.

Lehman noted that a growing number of people, particularly in the developed world, are dependent for their livelihoods on incomes generated through the sale of intellectual property. More Californians are now employed in the film industry than by the defense industry, he pointed out.

The three treaties now under consideration at the December 2-20 Diplomatic Conference of the World Intellectual Property Organization (WIPO) will update copyright protections to meet the challenges of the digital age so that businesses have the confidence to pursue new ventures on the Internet, he contends.

International copyright norms have not been revised in a substantive way since 1972 when the Berne Convention -- the 110- year old treaty which protects literary and artistic works -- was last updated.

Two of the treaties would extend into the digital environment protections for artistic and literary works (including computer software which is considered a literary work); the third, and most controversial, would become the first treaty to extend copyright protection to the creators of databases.

"With new technologies and the absence of the law, it is basically anarchy: you can't have any marketplace where you can't get paid for what you produce and distribute," Lehman said. "If you are going to decide to distribute a motion picture on-line, rather than at the video store, you are going to have to have some assurance that you are going to get paid for it."

Under copyright law, "rights" are extended to the authors of works. These rights simply establish that the work in question is indeed a form of property which belongs to its creator. "The basic rules are almost as old as the ages," says Lehman. "If you work hard to create something yourself, you have a right to control its use and to get paid when you sell it."

Currently only two rights are recognized under the Berne Convention: the right of reproduction, and the right of communication, which normally refers to broadcasting. The new treaties would introduce a third right, " a right of distribution," which would allow authors to control how and on what terms copies of their works are sold.

"You have to have property before you can take steps to protect it. All these treaties do is recognize that these intellectual creations are property," says Lehman. "It is then up to the laws of the individual country to provide how that is going to be enforced."

But opponents of the treaties argue that existing copyright protections already apply to the Internet and say creating new property rights may erect new barriers to the transmission and

sharing of information in the private sphere, via e-mail, for example.

"These treaties are seeking, in a way, to make private distribution of information illegal on the Internet," contends James Love, director of the Consumer Project on Technology, an organization started by consumer advocate Ralph Nader. "They would define an e-mail message that contains copyrighted material as an infringement of the copyright."

Currently this type of private transmission of copyrighted materials is permissible under the so-called "doctrine of fair use," a legal concept which allows certain exemptions to copyright, he pointed out.

"People have rights in the U.S. and elsewhere to make a Xerox copy of a newspaper article and to fax it to a friend or colleague," Love said. "This is an attempt to make the Internet an arena where you have fewer rights than you currently have with a fax machine or just using the mail."

Lehman said he rejected entirely the idea that the treaties would impede the free flow of information across the Internet, and asserted that the concept of fair use will be preserved in the digital environment under the new treaties.

In particular, Lehman said it was the intention of the U.S. delegation to ensure that the type of transient copying or "caching" which is built into Internet browsers such as Netscape not be understood under the new treaties as a violation of copyright.

"Ever since we have had computers, the laws of the United States and other countries have recognized that there has to be a certain amount of copying that takes place in just using a computer program," Lehman said. "It is our intention that it will be understood that that is not a violation of copyright."

The Computer and Communications Industry Association (CCIA) has expressed concern that even simple viewing of digital images might be construed as an infringement if the copies automatically generated by the act of browsing are considered reproductions.

"The adoption of unbalanced copyright laws will result in embedding land mines all along the Bridge to the 21st Century," said the CCIA, which counts AT&T, Bell Atlantic, Sun Microsystems and other computer and telecommunications giants among its members.

In a November 29 press release, the industry group argued that the treaties could result in Internet service providers being held liable for the actions of their users. CCIA members say they fear such significant potential liability will inhibit those who would otherwise invest in the Global Information infrastructure.

But members of another major Computer Industry Group, the Business Software Alliance, which includes IBM, Intel, and Microsoft Corporation, are arguing that the future development of the information society depends on strong intellectual property protections.

"While we may have individual recommendations for improvements, we believe in the main that the draft treaties represent a thoughtful balanced approach to intellectual property protection in the digital environment," BSA members stated in a December 2 press release. They urged that the treaties be finalized at the current meeting.

The controversial "Draft WIPO Treaty on Intellectual Property in Respect of Databases" has set off alarm bells among a diverse group including sports fans, meteorologists, library associations and academic institutes.

It would protect any database that represents a substantial investment in the collection, assembly, verification, organization or presentation of its contents.

"Here you are dealing with people who invest a lot of money to compile pure data that is not necessarily a copyrighted work," Lehman said. "Protection becomes a problem in a digital environment when with a few keystrokes of your computer you can download the equivalent of thousands of pages of data."

But the treaty, as it is currently worded, could "undermine our nation's progress in scientific and technical research and education," according to the presidents of the National Academy of Sciences, the National Academy of Engineering and the Institute of Medicine.

In an October 9 letter to Secretary of Commerce Mickey Kantor, they warned that unless exemptions and limitations are added to the text, the resulting treaty would "seriously undermine the ability of researchers and educators to access and use scientific data."

"Right now under copyright law you are specifically told that expressions and creativity are protected," says James Love. "The database protection proposal would change that. It would create a brand new property right in factual information."

"It would change the way stock information is owned, the way weather information is owned," he said. "Sports statistics, train schedules, television schedules, all sorts of information which is currently in the public domain, would be affected.

Lehman said "legitimate concerns" have been raised about the database treaty and the United States delegation believes "there

will still be some points that need to be clarified" during the three-week meeting in Geneva. "We want to make certain that this treaty isn't used to deny pure information to somebody, for example, weather statistics to meteorologists who need them."

Lehman said he was "mildly optimistic" that the U.S. Patent and Trademark Office would succeed in its objective of passage of all three treaties.

"There are disagreements among the various countries, there are disagreements within our own country, but I think they are pretty discreet.There is no disagreement that people have a right to get paid when they distribute a valuable product."