nettime-nl: that astounding intellectual property treaty

["Johan Speckens" <JOHAN@charlie.edc.nl>]

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Date forwarded: Mon, 9 Dec 1996 21:47:33 -0800 (PST)
Date sent:      Mon, 9 Dec 1996 21:47:03 -0800 (PST)
From:           Phil Agre <pagre@weber.ucsd.edu>
To:             rre@weber.ucsd.edu
Subject:        that astounding intellectual property treaty
Forwarded by:   rre@weber.ucsd.edu
Send reply to:  rre-maintainers@weber.ucsd.edu

[I may seem like a hardened political animal, but in reality I'm a naif
who is surprised all over again every time somebody lie to me.  That's
partly because I find it more intellectually challenging to theorize about
politics without permitting myself the easy explanation that it's all a
pack of lies.  But large parts of me genuinely resist such explanations.
That's why I find the Clinton Administration's copyright policy so hard
to get my mind around.  I don't even have categories in my mind for the
kind of brazen sleaze that has issued from that quarter from the start.
The best I can understand it, Clinton, knowing full well that he couldn't
take complete control of the government, pre-sold various parts of his
Administration to the highest bidder during his campaign.  The copyright
interests purchased a controlling interest in his copyright policy; having
gotten an early start, they hit the ground running on day one.  Only the
work of a few law professors and activists kept the principle of fair use
from disappearing in the electronic domain.  Having failed to pass their
legislation in domestic politics, the copyright interests are trying to
pass an even more extreme version of that same legislation through the back
door -- as a treaty that would take precedence over US law.  This might
seem like a bizarre situation, but in reality all that's exceptional about
it is its ability to arouse indignation.  We stood by impotently while the
political action surrounding the Telecommunications Reform Act of 1996 was
narrated in terms of cliff-hanging negotiations and last-minute compromises
between the RBOC's and the long distance companies, with the Senators all
hanging around in their offices, ready to sign off on whatever they came
up with.  Now we're making the awkward transition to the next level of
the privatization of the public policy process.  I am reminded of an old
Saturday Night Live parody of Dickens in which one David Copperthwaite got
his first job feeding parts of his body to dogs.]

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From: James Love <love@tap.org>
Subject: WIPO Conference - Press Briefing

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Info-Policy-Notes - A newsletter available from listproc@tap.org
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INFORMATION POLICY NOTES
December 5, 1996

The World Intellectual Property Organization (WIPO) is meeting from
December 2 to 20 on three treaties that would greatly restrict the public's
rights to use information.  The following is the annoucement for a press
briefing I gave on the treaties at the United Nations, in Geneva,
thrusday, December 5, 1996.  IMHO, the briefing went well.  jamie

James Love, Director, Consumer Project on Technology
Center for Study of Responsive Law, Washington, DC
In Geneva, until Sunday, at 734-9813; thereafter 01.202.387.8030

     Intellectual Property is the "capital stock" of the next century, and
the rules are important -- too important to decide in a hastily convened
conference such as this WIPO meeting.  The WIPO delegates are being asked
to ratify proposals for every country, which have never been tried in any
country.

     The U.S. Government, a major force pushing for the treaties, hasn't
moved the Internet copyright legislation out of a single Congressional
Committee yet, due to strong domestic opposition from a wide coalition of
data users and computer companies.  The U.S. Congress has never held a
public hearing on the database proposal, and almost no one in the U.S.
government has a clue what it actually does.  In Europe, no country has
yet found a way to implement the EU database directive, without causing a
meltdown in their domestic information industry.

     The three proposals being considered at the WIPO meetings would
severely restrict the public's traditional rights to use information.  In
countless areas of controversy, they resolve thorny questions about user
rights against the users, and in favor of the new supercharged
"right-owners."

     The treaties are so poorly conceived as to raise questions about the
competence of the drafters.  People are alarmed that the drafters do not
understand computers or the Internet.  No one who used and understood the
Internet would propose strict rules making RAM and temporary cache copies
of documents a presumed infringement of copyright.  No one who understands
the information industry would propose the sweeping new property rights on
facts and other public domain information (So broad that daily newspapers
would have to obtain a license to report the box scores from sporting
events).  No one who considers privacy important would have proposed
strict liability for Internet Service Providers (which would predictably
lead to very intrusive surveillance of Internet transmissions).  The early
"anti-circumvention" provisions of the treaty were so extreme that they
would have made general purpose personal computers illegal.  Errors of
these magnitude reflect a lack of understanding about the very technology
the WIPO delegates are being asked to regulate.

     The Conference organizers are deliberately misleading the public
about the status of copyright law on the Internet.  Some press briefings
imply that without the treaties, rampant infringements of copyrighted
works would be legal.  This is patently false.  Courts routinely hear
cases about the application of current copyright laws on the Internet.
New issues are raised, and these issues are resolved through normal court
processes.  These treaties are not designed to bring copyright to the
Internet.  They are designed to change copyright law, and to create very
restrictive rules for the use of information.

     Reports on the Internet about the WIPO proceeding illustrate the
hypocrisy of the meeting.  Faxed copies of news stories about the
conference from the New York Times, the Los Angles Times, the Financial
Times and other newspapers are widely distributed at the same WIPO meeting
where delegates seek to make similar "fair use" transmissions on the
Internet illegal.  Last month I asked a U.S. State Department official,
who was standing at a xerox machine, making a copy of an article on the
Treaty, how long the State Department could function if it didn't
routinely engage in endless coping and faxing of copyrighted materials
from U.S. and foreign sources.

     News reporters are typically surrounded by stacks of faxes and xerox
copies of copyrighted materials, which are circulated without permissions
from copyright owners.  These are mostly considered "fair uses" of
copyrighted materials, and not infringements.  A zero tolerance for
unauthorized use of copyrighted materials would be a disaster for news
reporting, and for most research and management activities.

     Do we really want to live in a world where governments from the U.S.
to Burma insist on precise paper trails of who receives, forwards and
shares information with whom?

     The existing frameworks for copyright law in most countries is
surprisingly robust to changes in technologies, and provides a much better
framework than the untested and unbalanced treaties considered at this
diplomatic conference.

     These and other issues will are being discussed.


                             APPENDIX A
      Examples of  groups opposing one or more of the WIPO Treaties

Sun Computers
3Com
STATS, Inc. (Sports Statistics)
The American Committee for Interoperable Systems (ACIS)
Home Recording Rights Coalition (Consumer Electronics)
Ad Hoc Copyright Coalition (Telecom and Computer)
The U.S. National Academy of Sciences
The U.S. National Academy of Engineering
The U.S. Institute of Medicine
American Association for the Advance of Science (AAAS
American Library Association
Digital Futures Coalition
National Writers Union (U.S.A.)
Electronic Frontier Foundation (EFF)
Electronic Privacy Information Center (EPIC)
Computer Professionals for Social Responsibility
Union for the Public Domain (UDC)
Consumer Project on Technology
Genealogists Against the WIPO Treaties (GAWT)


          Appendix B - Unauthorized Copying

     It isn't that the Internet has led to large scale unauthorized
reproductions of copyrighted materials -- that happens every day off the
Internet.  It is simply that the Internet makes it extremely easy to
detect unauthorized reproduction of works.  For examples, thousands of
persons make unauthorized copies of cartoons with xerox machines or for
overhead slides, to decorate offices or assist in presentations.  But when
a few individuals post unauthorized copies of Far Side Cartoons on their
personal Web pages, the New York Times reports this in a page one story as
evidence that the Internet needs to be regulated.  It is only that the
Internet makes such unauthorized uses very transparent - and hence, easy
to police.  The daily examples of unauthorized reproductions of
copyrighted works (much of this appropriate and legal under current fair
use doctrine) OFF the Internet exceed that occurring ON the Internet by
staggering margins.  What is important to police are inappropriate uses of
copyrighted materials, and the current copyright law provides ample tools
to accomplish this task.

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