USIS GENEVA DAILY BULLETIN Friday, December 13, 1996 Mission of the USA 11, route de Pregny 1292 Geneva Switzerland Tel +41 22 749 4358 Public Affairs Counselor: Fax +41 22 749 4314 Cornelius C. Walsh USIS Geneva on the Internet - http://www.itu.ch/MISSIONS/US/ EUR420 12/12/96 U.S. SAYS "FAIR USE" EXEMPTION SHOULD APPLY ON THE INTERNET (Protection sought for copyright in cyberspace) By Wendy Lubetkin USIA European Correspondent Geneva -- The United States says the doctrine of "fair use" of copyrighted materials must apply on the Internet and wants that point made clear in a statement by a conference currently negotiating new laws to protect intellectual property in the digital age. Bruce Lehman, U.S. assistant secretary of commerce and commissioner of patents and trademarks, said it is "essential" that two new copyright treaties under negotiation in Geneva "permit application of fair use in the digital environment." The move to update the century-old Berne Convention -- the treaty that protects intellectual property internationally -- has caused concern among library, academic and consumer groups as well as a number of leading high technology firms. They argue that the new treaties must strike a delicate balance between the rights of copyright owners and the public interest. A key concern has been that the doctrine of "fair use" would not apply in cyberspace and that, as a result, distribution of certain information that is currently legal via mail or fax machine might become illegal via the Internet or electronic mail. In the United States, the doctrine of "fair use" permits individuals to make use of copyrighted works without the permission of the copyright owner, provided such use does not cause that owner economic harm. Over the past 200 years, this legal concept has evolved to cover such instances as quoting from a book or article in one's own work or photocopying an article for distribution in a classroom or to a friend. Most other countries allow similar exceptions to copyright law, but may refer to them as "limitations" or "exemptions." The two treaties currently under discussion at the December 2-20 Diplomatic Conference of the World Intellectual Property Organization (WIPO) are a protocol to the Berne Convention and a new instrument protecting the rights of performers and producers of phonograms. They aim to update copyright protections to meet the challenges of a digital age when texts, recordings and images can be sent around the world with a single keystroke. As the conference ended its second week, delegations had yet to turn their attention to a third and highly controversial agenda item: a treaty that would extend copyright protections to databases. Lehman said there were two reasons the conference has not begun to work on the database treaty. One is that the third treaty is sufficiently different from first two that it really cannot be debated in tandem with them. The second is that the proposal raises "some really significant issues" that delegations need more time to digest. In his December 10 statement on "fair use," Lehman insisted that the new treaties be interpreted to extend into the digital environment the same limitations and exemptions considered acceptable under the existing Berne Convention. "We are responding to the concerns of librarians, educators, and on-line service providers in the United States," Lehman said afterwards. "We want to make it clear that 'fair use' protections exist in the digital network environment for individuals and that the treaties we are negotiating are not going to restrict their appropriate use of works." In his statement, Lehman also emphasized that signatory nations should have the future flexibility to devise new exceptions and limitations to the rights granted to owners. "You have to be flexible so that as new circumstances and new technologies arise, you permit this doctrine of fair use to evolve," Lehman said in an interview. "We expect it to be extended into new uses that we can't currently project right now. If we are too explicit, we will actually prevent the doctrine of fair use from being able to evolve properly." Lehman said he was hopeful that the WIPO conference will attach a statement on "fair use" to the treaty text, thus making it part of the formal proceedings. "We were very pleased with the U.S. statement," said Adam Eisgrau, who is representing at the WIPO conference both the American Library Association and the Digital Future Coalition, a group that seeks balance in copyright laws. "The points Commissioner Lehman made were all extremely necessary and important to make, and we are delighted that the U.S. delegation made them unequivocally," he added. Douglas Bennett, of the American Council of Learned Societies, noted that other nations at the conference supported the U.S. statement. "There seemed to be a strong sentiment that there should be a statement on `fair use,'" he said. But Internet, communications and on-line companies say they still have a separate set of worries about the new treaties: They fear they could be held liable for infringements by Internet users. "We are not interested in becoming the Internet cop," said Aubrey Sarvis, vice president of Bell Atlantic Network Services at a December 11 press briefing. In a December 10 letter to President Clinton, Bell Atlantic and other companies, including MCI Communications, CompuServe and America On-Line, expressed "deep concern" that the treaty text will make them "liable without knowledge for every potentially infringing communication on the Internet." "Our companies build and operate the 'Information Highway' that figures so prominently in your vision of the 21st century," they wrote. "Not only is this technically and economically impractical, it would require us to violate individual citizens' privacy rights," the letter says about the treaty text. "The result would be sharply increased prices for Internet/online services, reduced privacy for users, and reduced connectivity among 'information have nots' in our society and throughout the world." A broad grouping of telecommunications and Internet firms at the WIPO conference including AT&T, Netscape, and MCI have formed an Ad Hoc Copyright Coalition (AHCC) to press for changes to articles 7 and 10 of the treaty. The coalition argues that article 7, which determines copyright holders' rights over reproductions of their work, is too broad. They fear it could be read to extend to "caching," the type of automated and incidental copy making built into Internet software such as Netscape. In addition, they say article 7 would limit holders' rights only through national laws, ignoring "the global and borderless nature of the Internet" and subjecting it to a "patchwork of national policies." The AHCC is also pressing for changes to article 10, which creates a new exclusive right for authors to "authorize any communication to the public of their works." The problem with article 10, the coalition argues, is that it fails to clarify who can be found liable for infringing on this new right. Coalition members said they would be forced to lobby against ratification of the WIPO treaty by Congress unless changes to the two articles are made. A number of proposed modifications are currently under consideration at the WIPO conference. Lehman said the United States "clearly does not expect service providers to monitor each and every use of the Internet." "Our position is very strongly that they are not going to be held liable for infringements over which they have no control, where they are operating as a mere conduit for someone else's work," Lehman said. "However, when they have control over the content that they are transmitting, it is not unreasonable for them to be at least in part subject to some kind of judicial process." For example, a service provider clearly could not be held liable for an encrypted e-mail message, Lehman said. "That is just the same as putting something in an envelope and sending it through the mail," he said. "In fact, there are actually laws against the service provider being able to intrude into your privacy." On the other hand, Lehman said, "there also needs to be the right of the copyright owner to go to the service provider and say, 'Mr. Smith has put my work up on his homepage on your network. Please take it down.'" As long as the service provider responded to the request, it would not be held liable, Lehman said. "If a book store is selling infringing works, a copyright holder can go and get the bookstore to stop selling the infringing works," he pointed out. Barbara Dooley, executive director of the Commercial Internet eXchange Association (CIX), an international trade association of Internet service providers, said she believed the concerns of the Ad Hoc Copyright Coalition are now being heard as government delegations are showing more flexibility. In an interesting footnote, Dooley also pointed out that the Internet -- an extraordinarily transparent medium -- actually provides new tools for pinpointing copyright infringements. By using a search mechanism, for example, an author can enter a title or a string of words and generate a list of on-line occurrences of the same phrase. Despite the complexity of the issues, Lehman insists it all boils down to a simple age-old principle: the fundamental right to ownership of property. "Really,," he said, "all that we are saying is, in the context of the Internet, thou shalt not steal."