IP: Piracy treaty is a real turkey

[Dave Farber <farber () cis upenn edu>]

Re: WIPO --


Piracy treaty is a real turkey




Published: Dec. 2, 1996


BY DAN GILLMOR
Mercury News Computing Editor


Here's a motherhood-and-apple-pie idea: Keep pirates from stealing online 
works.


But a treaty now brewing in Switzerland would turn that sensible concept
into pure poison. As is typically the case when governments and powerful
companies are setting the agenda, the public interest isn't even on the
table. 


Negotiators from around the world who will gather today in Geneva are
planning to discuss a draft treaty from the World Intellectual Property
Organization, or WIPO. They're under pressure -- some of which is being
applied by American officials -- to approve measures that could, among
other things, make it illegal to browse the World Wide Web. 


That may sound absurd, but it's all too real. What is truly absurd is that
people who should (and I believe do) know better are behind this turkey. 


The draft treaty effectively declares that all copyrighted material stored
on a computer is illegal unless the copyright holder has given explicit
permission for it to be there. Anyone who knows how the Internet works
also knows that browsing, or searching, on the World Wide Web could be a
violation of this provision.  That is because material is temporarily
stored on the hard drives of individual users as they browse the Web. 


Backers of this part of the treaty -- Hollywood filmmakers in particular
-- say they wouldn't dream of making normal Web browsing illegal. Fine:
Rewrite the treaty to make this clear. 


That is not the only nasty provision in the draft document. Another would
give owners of databases more copyright protection than they already have,
which is plenty. 


This pernicious item would give companies almost boundless control over
collections of information. It would reverse a 1991 Supreme Court ruling
that said you can't collect a bunch of simple facts -- the issue in that
landmark case was phone book white pages -- and copyright them. Copyright
is properly reserved for creative endeavors. 


One of the major problems with the treaty provision is its vagueness. The
terms it uses are open to widely differing interpretations. But I tend to
agree with opponents who believe it is grossly unbalanced in favor of
corporate interests and against the public interest. 


The implications of this provision are enormous. Among other flaws, it
would severely limit the ''fair use'' doctrine that allows historians,
researchers and others to use small pieces of copyrighted material in
their own works. Opponents include five national library associations and
an assortment of other groups including the American Association for the
Advancement of Science and the National Academy of Sciences. 


Still another provision would outlaw any device or software that could
break copy-protection schemes. Among other bad results, this could make it
a crime to test the strength of encryption -- data scrambling -- methods
that make your communications private. 


The Clinton administration, in typical form, is carrying water for big
business. (I regret that my own company, Knight-Ridder Inc., which owns
the Mercury News, is a member of at least one trade organization backing
the treaty.) U.S. Commissioner of Patents and Trademarks Bruce Lehman says
other nations are pushing this treaty, and that the U.S. simply wants to
remain a leader on these issues, not a follower. That's half true at most;
in fact, the United States is the major force behind this abomination. 


If you care about the flow of information, you owe it to yourself to learn
more about this issue. You can start by pointing your Web browser (while
it's still legal) to the Union for the Public Domain site, which has
collected material from all sides. 


Then, if you're as appalled as I suspect you will be at the arrogance of
the treaty's backers, write and call your state's two U.S. senators. Tell
them that if this treaty reaches their desks, they should vote against
ratification. 


Should there be protections for intellectual property? Of course. I'm in
the intellectual property business, and don't want my work undermined. But
the laws already on the books seem to work pretty well. Updating them to
reflect new technology is sensible, but not without considerably more
study -- and true consideration of the public interest. 


(c) 1996 San Jose Mercury News



--
Dan can be reached at djf
Dan Gillmor, Computing Editor    E-mail: dgillmor () sjmercury com 
San Jose Mercury News            Voice: 408-920-5016 
750 Ridder Park Drive            Fax: 408-920-5917 
San Jose, CA 95190               http://www.sjmercury.com/business/gillmor/