IP: USACM on WIPO Treaty

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

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