WIPO Proposals: What Me Worry?

WIPO Considers Copyright in the Internet Age

Between December 2nd and 20th, delegates from the member States of the World Intellectual Property Organization (WIPO) convened to consider certain conventions concerning copyright in the Internet Age. The delegates attending the WIPO's diplomatic conference adopted two treaties on December 20th. These treaties acknowledge the profound impact new communication technologies will have on international copyright and attempt to strike a balance between protecting the interests of copyright owners in equitable remuneration for their works and the interest of the public in information access.

While the WIPO treaties reflect the worldwide current consensus towards digital copyrights, they shouldn't cause consternation in the United States at this time. The WIPO adopted its previous proposal concerning copyright in Paris on July 24, 1971 (called the Berne Convention). The Senate didn't ratify the Berne Convention, and Congress didn't develop an amended version of the United States Copyright Statute to comply with Berne's standards, until more than 17 years later (late in 1988). Similarly, the world's worst copyright pirates, the People's Republic of China and the Russian Federation, remained absent from the Berne copyright community until 1992 and 1995, respectively. If the U.S. adopts the WIPO treaties at its typical tortoise pace, let's look at what copyright protection might be sometime in the future.

Rock 'n Roll Digital Gold

One WIPO treaty provides protection for performers' and producers' rights in phonograms (LPs, CDs, cassettes, or MIDI files). Performers' rights have been brought to the legal fore in the past five years with the awareness that the Internet Age could change all. The WIPO said "making performances and phonograms available in the on-line context may be compared to the establishment of a global record shop, offering copies to everyone, everywhere. . . ." The U.S. recently recognized and protected performers' rights in interactive on-demand and on-line transmissions and reproductions by enacting the Digital Performance Rights in Sound Recordings Act of 1995. Most music publishers (to whom performers assign their rights in exchange for a portion of the profits) realize the gold in them thar Internet hills can be either mined or lost, and have pushed for protective legislation. The WIPO treaty provides performers and producers with these protections:

  • Moral Rights: Performers have the right to be identified and to object to any distortion, mutilation, or modification of their performances which would be prejudicial to their reputation. Presently, performers' moral rights aren't protected under international agreements, but most nations include moral rights in their individual domestic copyright laws. The U.S., however, has never explicitly protected moral rights for anything other than visual arts (paintings, pictures, sculptures) because of the blitzkrieg opponents muster whenever the issue is raised. When the Senate ratified the Berne Convention, Congress declared its passage didn't "expand or reduce" moral rights, saying, in short, nothing. In the U.S., this section could be struck in a legislative compromise.
  • Distribution, Rental, and Reproduction Rights: Performers and producers have the exclusive rights to authorize the distribution, reproduction, and rental of their performances and phonograms, respectively. Distribution is limited by the "first sale doctrine," which stipulates that once a consumer purchases a copy, he may sell it as he wishes (but he may not rent, lease, or loan computer programs or phonograms for commercial gain). Rental does not apply to not-for-profit institutions, like libraries, which rent records for a limited period of time, free of charge. The WIPO's notes to these provisions manifest the broad scope of the reproduction right: any uploading, downloading, or digitizing of performances or phonograms are always acts of reproduction, forbidden without the performers' or producers' authorization.

 

The final WIPO treaty did not include a proposed provision which permitted member States to exempt from the right of reproduction temporary, transient copies made in the course of a lawful transmission. For example, when you download from the Internet and play a song using RealAudio's player, temporary copies of segments of the song (but not the complete composition) are placed in your PC's RAM. Many music publishers assert these brief RAM-based bits are reproductions requiring a royalty. The WIPO's failure to include the transient copy exemption, and their statement "the only way to harmonize . . . the right of reproduction is to confirm that temporary reproduction falls within the scope of the right" of reproduction, may bolster the music publishers' assertions.

  • Internet Transmissions: Performers and producers have the exclusive right to transmit their performances and phonograms to the public. The WIPO says this new right, which is based upon "interactivity and on-demand access" is "designed to operate as a basic rule for the proper functioning of the electronic marketplace." In the U.S., the Digital Performance Rights in Sound Recordings Act recently set up a structure for the regulation and remuneration of digital transmissions of sound recordings. Although this Act has not been interpreted or enforced by any party or court, it may make enactment of this section of the WIPO treaty superfluous.
  • Broadcasting: Performers and producers have the right to payment for public broadcasts and communications. In the U.S., only songwriters receive compensation for public performances, e.g. , through radio and concert halls; performers and producers receive nothing. This clause would change fundamentally the fee structure for public performances in the U.S. Music organizations such as ASCAP (American Society of Composers, Authors, and Publishers), which represents songwriters, could clash with performers and producers, who will want their cut of performance licenses, when this section comes before the Senate.

 

Literary and Artistic Works

The WIPO said the treaty regarding the protection of literary and artistic works is designed to "clarify the existing, or establish new, international norms where . . . doubts exist" in applying laws in the Internet Age. In addition, the WIPO said this treaty should assist member States in devising domestic copyright laws which are appropriate. Commendable, but lofty goals, considering the Senate took 17 years to revise our copyright laws after the last WIPO treaty.

Computer Programs and Databases: This treaty confirms computer programs and databases are copyrightable and protectible works, although copyright protection may not extend to mere facts contained in databases. The U.S. already had amended its Copyright Statute in 1980 to explicitly extend copyright protection to computer programs and databases, so this provision may be redundant.

Distribution, Rental, and Reproduction Rights: Authors of artistic and literary works have the exclusive right to authorize distribution of their works. Distribution is limited by the "first sale doctrine," described above. Authors of computer programs and movies have the exclusive right to authorize rental of their works. Movie owners, however, cannot restrict rentals of their works unless they can confirm commercial rentals have led to widespread copying, and this copying has crippled their ability to hawk their wares. In the U.S., copyright owners currently own the exclusive right to rent their works and industry organizations such as the MPAA (Motion Picture Association of America) may oppose any reduction in their exclusive rental right.

The final WIPO treaty did not include any right of reproduction for literary or artistic works. The WIPO said reproduction rights for these works were regulated already by the Berne Convention. However, the WIPO conceded that some countries interpret the reproduction right to prohibit temporary RAM-based copies of these works, while other countries take a contrary view. The WIPO said "a uniform interpretation" of the reproduction right was necessary to "secure the functioning of the copyright system in a digital future," but the delegates couldn't come to a consensus. The issue of whether temporary, computer-based copies are classified as "reproductions" surely will be raised when the Senate ponders this section.

Internet Transmissions: Authors of artistic and literary works, such as computer programs, photographs, and graphic art, have the exclusive right to transmit their works to the public. Private communications ("hey Joe, here's a copy of a cool Dilbert column") which aren't transmitted further to the public are excluded. The WIPO's notes say those who merely supply server space, communication connections, or facilities for carrying communication signals are not "transmitters," implying these entities cannot be considered copyright infringers. Other WIPO notes, however, say that each country can use its own case law and national legislation to categorize who is an infringer and what is the extent of the infringers' liability. In the U.S., commercial online and Internet service providers, telco and cable companies are already objecting to any expansion in their exposure for claims of online copyright infringement. Before this section passes the Senate, expect a nasty, brutish fight.

The Encryption Debate, Again

Finally, both WIPO treaties contain clauses concerning encryption, essentially requiring countries to provide adequate remedies against encryption-defeating devices. Considering the brouhaha bollixing legislation permitting exportation of encryption programs like Pretty Good Privacy and the constant debate concerning the Clipper Chip, this section likely will cause widespread debate. The People's Republic of China, perhaps the most prolific source of copyright infringement, suggested the subject should be studied in further detail. We need not wonder why.

See you in the 21st century when President Clinton (Chelsea, that is) will be considering these treaties.

Courtesy of Marie D'Amico of Digital Media.