The National Writers Union (NWU) has asked the United States delegation to the World Intellectual Property Organization's (WIPO) conference in Geneva to advocate the delay of approval of three treaties currently before WIPO.

In a November 22 letter to Assistant Secretary of Commerce Bruce Lehman, NWU president Jonathan Tasini expressed concern about proposed changes to the Protocol to the Berne Convention for the Protection of Literary and Artistic Works and the Treaty for the Sui Generis Protection of Databases.

WIPO is the international body that debates and formulates international standards for the use and protection of intellectual property. In response to the emergence of new digital technologies, there has been both domestic and international discussion about what changes, if any, need to be made in laws governing intellectual property. The NWU has been active in those discussions, within the creators' community as well as within a broad spectrum of interest groups in the U.S. and abroad.

The full text of the letter from Tasini to Lehman is attached.

"We're extremely concerned that the rights of individual authors, as well as information users, are being ignored by the Administration," Tasini said. "Having been stopped in his tracks in the U.S., Bruce Lehman has done an end-run and is seeking to do abroad what he could not get through the Congress. There should not be any rush to put in place new rules that will govern our society for many years to come. We need far more deliberate debate."

The NWU represents 4,500 freelance journalists, book authors, poets, technical writers and editorial cartoonists. The union is affiliated with the United Auto Workers. NWU president Tasini is the lead plaintiff in a landmark copyright suit, expected to be decided soon in federal court in New York, against *The New York Times*, Lexis/Nexis and other print and electronic publishers. The NWU also this year launched Publication Rights Clearinghouse, the first collective-licensing agency for writers in cyberspace. For further information, see the NWU's home page on the World Wide Web: http://www.nwu.org/nwu/

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November 22, 1996

Bruce Lehman
Assistant Secretary of Commerce of Patents and Trademarks
Patent and Trademark Office
United States Department of Commerce
Washington, D.C. 20231

Dear Commissioner Lehman:

We write to respectfully request that the U.S. delegation to the World Intellectual Property Organization's (WIPO) Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, to be held in Geneva from December 2 to 20, 1996, alter its current position and push for the delay of approval of the three treaties currently before WIPO. In particular, we are concerned about the proposed changes to the Protocol to the Berne Convention for the Protection of Literary and Artistic Works and the Treaty for the Sui Generis Protection of Databases. We expect to submit further comments in the near future. This letter is intended to outline our general concerns in anticipation of the Diplomatic Conference.

The National Writers Union is the only union for freelance writers in the United States. It represents 4,500 writers, including book authors, magazine and newspaper journalists, poets and practical writers. It is fair to say that in the past decade the union, more than any representative of freelance writers, has set the agenda for the defense of writers' rights in the United States. Quite naturally, that would include attempts to protect and enhance an individual creator's ability to use his or her copyright for the purposes of reaping economic rewards. Yet, as this document demonstrates, our views may not be considered traditional for copyright holders.

The NWU approaches the WIPO treaty from two perspectives. Obviously, we are concerned about the economic future of writers and other creators whose works will be transmitted globally in the emerging information networks. We assume that the goal of any intellectual property rights regimes must be, first and foremost, as stated in the U.S. Constitution, to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Second, the NWU's philosophy embodies deep concerns for society as a whole. Clearly, the global information infrastructure has the potential to reshape our culture and nearly every aspect of our lives. For that reason, we must voice concerns that favor the rights of information users at the same time that we seek fair compensation for our work.

Addressing first the question of safeguarding authors rights, we note that, as was the case in the White Paper, the WIPO is unwilling to recognize the danger faced by authors such as the forced sale of electronic rights for no extra compensation, the usurpation of authors' copyrights by online database providers, and the resale of writers' work without their permission by publishing conglomerates. It is true that the Berne Convention recognizes the moral rights of authors--a concept the U.S. unfortunately has historically opted not to recognize. However, even in the WIPO treaties, too often, the idea of the author is used to mean the owner, not the creator, of the work.

We are disappointed that the WIPO treaty sidesteps any attempt to deal with the massive consolidation underway in the telecommunications industries. Not once does it mention the decline in the standard of living of most writers, as well as of other creators--a decline due in large part to the stagnation, or outright decline, in pay; the theft of our work by large media corporations which commercially exploit our work and pocket the profit; and the seizure of an ever broader spectrum of rights by publishers who pay the same or less money than was paid out for print publication rights. Indeed, today, increasingly, creators are not protected by copyright law.

There is no mention of the developments similar to the following, which threaten to erode the protections of copyright for creators. We reiterate the developments we first highlighted in our critique of the White Paper:

(1). The attempt by virtually all major media companies to force all contributors to sign "all-rights" or "work-for-hire" agreements. Although we have seen "all-rights" and "work-for-hire" agreements before, the unambiguous, non-negotiable demand put forth in most of the agreements attempt to achieve a new low in the standards of conduct by powerful media conglomerates towards individual creative people. All creators have been presented with contracts demanding the rights to a work for all technologies, including those not even currently existing.

In our view, this makes a mockery of the notion of fair commerce, particularly because virtually all media companies seeking these board rights for technologies not yet existing cannot define the value of the right demanded. Clearly, this is a move to control all content absolutely, with no sharing of future profits with the original creator. In effect, these contracts rip away the right of creators to claim ownership to the product of our minds. Along with a diverse group of international creators' organizations, U.S. authors groups view this as a dangerous step.

(2). The daily, unauthorized exploitation of writers' work on electronic databases and CD-ROMs by scores of magazine and newspaper publishers. The WIPO treaty fails to make any mention, nor does the U.S. delegation seem to grasp, that that there is a serious dispute over who controls and owns works currently circulating on even the most rudimentary version of the NII. In a landmark lawsuit filed by 11 members of the National Writers Union (Tasini, et. al. vs. The New York Times, et. al.), writers allege that a systematic violation of the copyright law is being committed every day, not by individuals or libraries, but by some of the largest media companies in the world.

So, as far as we are concerned, we see no particular advantage to supporting the WIPO treaties if current laws in the U.S. are not amended to prevent these abuses. If such practices are not halted by other means, the concept of "author" will have one meaning: a corporate publishing entity rather than a human creator. And, in essence, the true meaning of the Constitutional protection of copyright to promote culture will have been obliterated.

Let us briefly comment specifically on the Protocol and on the Database treaty:

(1). The Protocol. There are many flaws in the proposed language. For example, as it relates to the scope of the Right of Reproduction. We, of course, want the legitimate status of reproductions to be protected. However, in our view, the question of what constitutes a copy is still a hotly-debated and unresolved issue. We do not support a definition of such a right until the issue is given far more consideration domestically.

As well, we are concerned about Article 13 relating to Technological Measures. Again, as creators of copyrighted works, we want to make sure our works are protected. But, such protections must be aimed at activities that are undertaken substantially for the sole purpose of infringement and to devices that have no substantial use other than infringement. Currently, the provision is so broad that it will make illegal some legitimate uses of technological equipment. We do not support restrictions aimed at limiting the ability of the individuals to have personal access to information. We do support measures aimed at protecting creators' from the unauthorized and uncompensated commercial use of their work. This issue must be discussed further.

(2). The Database treaty. We join with the many organizations from all walks of life in voicing deep concern over the proposed database treaty. For example, the question of what would constitute material that could be copyrighted by a database uses an extremely suspect criteria of "substantiality." In other words, a database operator could control information by copyrighting its database if it could prove a "substantial investment in the collection, assembly, verification, organization of presentation of the contents of the database" and/or some substantial risk to its investment by the extraction of database information and its use in the public.

In Chairman Jukka Liedes' briefing in the United States on November 12, 1996, it became very clear how complicated it will be to differentiate between "substantial" and "insubstantial." Chairman Liedes himself said such terms will need to be "interpreted and studied." While legions of lawyers may relish the thought of constant litigation in order to establish interpretations, we would argue that the notion of a sui generis protection of databases benefits only a small segment of powerful publishers, that it will only reduce the amount of information available to the public and raise the costs of information for the sole purposes of increased profits to publishers-- without any obvious benefit to society as a whole nor specifically to the individual creator.

Our overall concerns, however, have to do as much with the process as the content of the proposed changes. First, past Diplomatic Conferences convened to take up changes in the Berne Convention have always operated under the rule of consensus, a principle which required that any new sweeping change enjoy international support and, conversely, prevented any controversial new right from being adopted. The December Diplomatic Conference will not operate under the consensus rule.

We must also state, for the record, that we are concerned that by supporting the current language of the pending WIPO treaty, the U.S. is, to some extent, circumventing the democratic process in the United States. Indeed, the WIPO treaty writes into law provisions contained in legislation proposed in the U.S. Congress that were unacceptable to a large section of constituencies in the United States. That legislation stalled. Commissioner Lehman, to put a question directly to you and the Administration, what consultation and discussion did you solicit before you presented in May, according to Chairman Liedes, a U.S. proposal on the database treaty?

Our belief is that the debate over how best to amend the nation's copyright laws to adjust to the new digital era has only just begun. Premature international action by the United States delegation to the World Intellectual Property Organization (WIPO) threatens to preempt such domestic debate and to jeopardize the Global Information Infrastructure itself.

We do not believe that the ideas around which the Diplomatic Conference is being convened should be abandoned. Rather, we believe that action items for the agenda of any such conference should be limited to matters previously considered by WIPO and around which domestic and international consensus has already formed. Several such issues are ripe for action. These include the protection of computer programs, original databases, national treatment, and copyright enforcement.

To put the problem in plain English, why the rush? In the past, the Berne Convention has been changed to define international law after domestic copyright law has been adopted to account for new technologies. The changes currently under discussion are being pushed through--some could legitimately use the term "ramroded"--when most, if not all, national governments have had very little discussion. Ironically, the very idea of an emerging single market internationally, which the new treaties seeks to serve by pushing through standards to apply across the board, cries out for a careful consideration of norms that will be consistent and beneficial.

In that regard, we propose that the U.S.:

(1) formally propose that, at the December 1996 Diplomatic Conference, WIPO adopt a timetable for future discussion and action on the "Digital Agenda" that will permit its careful consideration by Congress, and that will permit the United States' delegation to take Congressional action into account in subsequent treaty negotiations;

(2) affirmatively work to assure in all appropriate WIPO (and related) bodies that no proposals related to the Digital Agenda, whatever their source, are acted upon prior to Congress' full evaluation of these important issues and action on responsive legislation.

From our viewpoint, unless the U.S. delegation adopts the posture outlined above, the treaties, in their current forms, will not be adopted by the United States Senate. As a vital and growing part of the U.S. labor movement, we are one organization that will do everything in our power to make sure that, without significant additional discussion and thoughtful changes, these treaties are not approved domestically.

We look forward to hearing from your office on this matter. We are always available for consultation on the issues touching the working lives of our members and all creators.

Sincerely,

Jonathan Tasini
President
National Writers Union