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IP: USACM on WIPO Treaty
From: Dave Farber <farber () cis upenn edu>
Date: Sat, 23 Nov 1996 06:59:57 -0500
Reply to: USACM on WIPO Treaty Date: 11/22/96 5:08 PM From: B Simons ACM (Association for Computing) November 22, 1996 Bruce Lehman Commissioner of Patents and Trademarks Box 4 Patent and Trademark Office Washington, D.C. 20231 Dear Commissioner Lehman: The Association for Computing (ACM) is concerned and welcomes this opportunity to express our views on the proposed Protocols to the Berne Convention which will be discussed at the World Intellectual Property Organization (WIPO) negotiations in December. As a society of computer professionals, we are concerned that sections of the treaty are overly broad in their restrictions on technology use and will impede the development of technologies in support of electronic publishing, electronic commerce, and on-line access. We believe that significant changes to the treaty language must be made to address these problems. Article 7- Ephemeral Copies Article 7(1), creates new liabilities for the creation of temporary, transitory documents. It requires signatories to treat the ephemeral copies of copyrighted documents which move through the network as infringements. This could eliminate browsing on the World Wide Web (e.g., using widely such available software as the Netscape Navigator or the Microsoft Explorer). This is in conflict with the reality of how the Internet and all modern networked systems operate. The design of modern computer and network systems is such that copies of data are automatically made in various parts of the systems for operational efficiency, system reliability, for various technical reasons, and for cost advantages. In particular, copies of extracts from databases would be found in (what is called) the random-access memory and in the cache memory of any computer, and in various part of a telecommunications network. These temporary copies can be stored for varying periods of time, from a few minutes through many months depending upon the operational arrangements of the system. The Article as currently drafted can be interpreted to mean that the normal and unavoidable operation of any computer would constitute an implicit infringement, even if this copying is not permanent and is incidental to the otherwise lawful use of the copyrighted material. Similarly, "copies" automatically created in the normal operations of transmitting a message through telecommunications lines would also be considered an infringement. Thus, this article is a direct confrontation of the technical arrangements found in all modern computers and networks. It is, therefore, an unworkable provision as now written. The language in 7(2) also narrowly defines the circumstances in which national legislation could permissibly limit application of the right established in Article 7(1). The Article requires proactive legislation to protect browsing. This poses extreme problems in a globally networked environment where information may flow through numerous countries and systems before reaching its destination. Service providers could be held responsible for their users browsing materials stored on machines in countries which have not enacted such legislation. Article 12- Exemptions As drafted, Article 12 allows exemptions to the Protocols only in "certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author". This makes the general formula of Article 9(2) of the 1971 Act of the Berne Convention the exclusive standard in determining when national exemptions are permitted. Signatory countries could be prohibited from enacting broad-based legislation that is consistent with the traditional copyright law in their own countries. National legislation can be targeted only to a specific point of argument with the treaty language. We believe that the treaty should not use such stringent standards in permitting national exemptions. For example in the US, the long-standing tradition of "fair use" for educational and cultural purposes may not be considered a "certain, special case". This is in conflict with Article 10(2) of the 1971 Act of Berne which articulates a "fair practice" standard for educational uses. Also, Article 12 would not apply to the types of broad exemptions that are needed for ephemeral copies (RAM or cached) as Article 7(2) narrowly specifies the conditions for national legislation in this area. The Information Infrastructure was designed to route electronic transmissions though numerous networks between the points of origination and their destination. It will be impossible to fully utilize the network if the proactive legislation in each country differs. Alternatively, it may be the case that network users in the U.S. will be limited to the most restrictive regulations adopted if electronic transmissions transverse nations with varying degrees of regulations. Article 13- Devices to Circumvent Copyright Protection Systems Article 13 would have the same undesirable effect on technological development as section 1201 of the "National Information Infrastructure Copyright Legislation" proposed in the 104th Congress which would bar the importation, manufacture or distribution of any device or service whose "primary purpose" or "primary effect" is to defeat a copyright protection system. This could adversely effect a company which legitimately develops a product that people use for different purposes than that for which it was developed. Since it is likely to be extremely difficult for a developer to collect data about the primary use of the product, it may be impossible to refute a claim made by copyright holders who argues that the primary effect of a particular device is copyright infringement. As a result, the Article could have the undesired effect of dissuading manufacturers or software producers from investing in a new technology with substantial non-infringing purposes for fear that an anxious copyright holder might pursue litigation using the "primary effect" standard. We believe that the Article should address the intent of the individual or company, not the effect of its actions or product. There could be other unintended side effects of Article 13. For example, we need secure and unbreakable forms of encryption if the Information Infrastructure is to be secure from attack by terrorists and blackmailers. Since it is impossible to prove mathematically that any form of encryption is absolutely secure, we are heavily dependent on the common-sense observation that many smart people have tried to break the encryption system and failed. But since encryption is frequently used in copyright protection systems, third party testing of encryption systems is likely to be criminalized under Article 13, thereby exposing the nation to significant potential harm. Freedom of access over digital networks is indispensable to maintain the vibrancy of the academic and research communities. The treaty, as written, will restrict such access. We urge you to encourage further debate over the issues outlined above before the final U.S. position on the Protocols is determined. We hope that you will involve the community of computer professionals in discussions to determine this position. We look forward to having the opportunity to work with you on such an effort. Sincerely, Dr. Barbara Simons Chair, U.S. Public Policy Committee of ACM
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