Carol M. Morrissey has been the
Legislative Specialist for the Washington, D. C. office of Chicago's
Sidley & Austin for 11 years. She is a lawyer and legislative
expert who has also authored a Congressional update column for the
last 4 years.
(Archived January 27,
1997)
The World Intellectual Property
Organization (WIPO) met between December 2 and December 20 of this
year, to address three international copyright treaties which will
have incredible ramifications on the use and dissemination of
electronic information. The first two treaties which were under
consideration, on
Certain Questions Concerning the Protection of
Literary and Artistic Work and on the
Protection of the Rights
of Performers and Producers of Phonograms, were proposed by the
United States and deal with literary and artistic works and musical
recordings. The third most controversial treaty, originally proposed
by the European Union, was on
Intellectual Property in Respect of
Databases and seeks to institute new rights and protections
concerning electronic databases. The U.S. proposals can be found at
http://www.uspto.gov/web/offices/dcom/olia/diplconf/index.html.
As one would expect, there is much
misinformation and confusion surrounding the proposals. In 1995, Ron
Brown (then Secretary of the Department of Commerce) and Bruce Lehman
(Assistant Secretary and Commissioner of the U.S. Office of Patents
and Trademarks) issued a White Paper on copyrights entitled,
Intellectual
Property and the National Information Infrastructure - The Report of
the Working Group on Intellectual Property Rights. Bruce Lehman,
the head of the U.S. delegation to WIPO, was the chairman of the
Working Group. (The text of the White Paper can be located at
http://www.uspto.gov.)
This White Paper was the basis for
copyright legislation, the National Information Infrastructure
Copyright Protection Act of 1995, which was introduced in the 104th
Congress. (To see the text of the Act, go to
http://www.swiss.ai.mit.edu/~bal/legal/s982.html)
This legislation met with great resistance from both end users and the
industry and eventually failed. However, the Administration still
supports the underlying concepts presented in the White Paper and the
legislation and WIPO was the opportunity to introduce this broader
definition of copyright and what constitutes a copyright violation to
the world.
Two open letters were sent to
President Clinton after the WIPO negotiations began. On December 10, a
coalition of CEO's from Internet Service Providers (ISP's) and
communications companies issued a letter to President Clinton
expressing their concern that if the proposals were accepted, they
would potentially be liable for any copyright violations transmitted
over their systems. The group also indicated that if the treaties were
approved in Geneva they would work to prevent ratification by the
Senate. The second open letter was sent to President Clinton on
December 13 by a group of CEO's representing content providers (movie
and music industry). The letter supports the President's position and
claims that the ISP's are purposely misinterpreting the proposals to
promote a "doomsday scenario" of rising costs and diminished
access if the treaties are accepted.
Several news sources reported that
the WIPO delegates postponed consideration of the very controversial
electronic database copyright treaty to concentrate ther efforts on
the U.S. proposals. That information turned out to be correct, as the
WIPO delegates have agreed to two new treaties affecting books,
movies, other artistic works and sound recordings. Apparently, the
delegates dropped the controversial provision which would have created
a property right in databases and decided to leave the "fair use"
standards untouched.
Now that the treaties have been
finalized, the stage is set for a confrontation on U.S. soil. Under
U.S. law, treaties become effective upon the approval or "advice
and consent" of two-thirds of the Senate (ratification occurs
when it is signed by the President). Treaties are not subject to
amendment, the Senate can only attach "conditions." Outright
rejection of the treaties by the Senate could jeopardize copyright
protections for U.S. providers overseas.
Once ratified, there is still the
implementing legislation, the legislation which provides for the
actual enforcement of the provisions of the treaty. Implementing
legislation permits Congress to exercise some authority over the
practical administration of a treaty and allows for further
investigation into its intent. In this case, the treaties will be
under intense scrutiny from not only Congress, but the many parties
who have a stake in the outcome.
Please visit the WIPO web cite at
http://www.wipo.org/. All of the
Conference documents, including all of the amendments which were
offered during the Conference, are now available. For a look at some
vocal opposition to the proposals, go to
http://www.public-domain.org
or
http://www.ari.net/dfc/.
