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.
The International Process
The World Intellectual Property Organization Diplomatic Conference met in Geneva on December 2 through December 20, 1996. The goal of the Conference was to catapult the 1886 Berne Convention for the Protection of Literary and Artistic Rights, which was last amended 25 years ago, and the 1961 Rome Convention on Musical Rights, into the age of online technology and to harmonize them with the conflicting copyright protection systems that have developed around the globe.
The original Berne Convention extends copyright protections to member nations and to authors of nonmember nations who publish their works in a member country. The United States did not become a member of the Berne Convention until 1989 and implementing legislation was necessary to accord U.S. law with the Convention.
The Conference adopted and laid open for signature on December 20, 1996 two treaties, The WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty (phonograms are the equivalent of sound recordings). The treaties can be joined by countries who are not currently signatories to the Berne Convention, but they must agree to abide by Articles 1-21 of Berne. The Head of the U.S. Delegation, Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, initialed the treaties to indicate U.S. approval, but did not come to Geneva with "full powers," or the ability to officially sign off on the agreements. The U.S. did not actually become a signatory (ad referendum or subject to later ratification) to the treaties until nearly four months later, on April 12, 1997. The treaties will remain open for signature until December 31, 1997 and will enter into force three months after 30 of the signatories have ratified. As of the end of May, 24 countries have signed the treaties.
Under Article II, section 2 of the Constitution of the United States, the President has the power to "make" or negotiate a treaty. However, this power is predicated upon obtaining the advice and consent of the U.S. Senate. (The Senate may reject a treaty, approve it or approve it with conditions.) Once a treaty has been negotiated, the Department of State draws up a ratification package and officially transmits it to the Senate. When received in the Senate, it is referred to the Senate Committee on Foreign Relations, which will consider the treaty and report it out with or without amendments or conditions.
Amendments to treaties take many different forms. Some alter the actual treaty language, others clarify or narrow U.S. obligations under a treaty by interpreting specific provisions. Final Senate ratification of a treaty must be by two-thirds of the Senators present. It should be noted that if the Senate does not act on these treaties during the 105th Congress, which encompasses the years 1997-1998, all proceedings which have taken place terminate and the treaty process will begin anew with the next Congressional session.
Once the Senate gives advice and consent to a treaty, the President must make the ratification process final by "depositing" the treaty documents with the Director General of WIPO in Geneva. In cases where implementing legislation is called for, such as this, the President should wait for the completion of all Congressional action, including implementing legislation, before "deposit."
Implementing legislation provides a treaty with the legal backbone to be enforced by federal agencies. Although there has been much speculation as to the necessity of implementing legislation in this particular case, the Office of Patent and Trademarks has already put together a draft which is currently under agency review. Since there are areas of controversy, the drafters asked for input from the private sector in an attempt to establish some level of consensus. The talks eventually broke down and the resulting document has been drafted without outside input.
Once it receives agency approval, the draft implementing legislation will be transmitted to Congress and referred to the House Committee on the Judiciary and its subcommittee on Courts and Intellectual Property and the Senate Committee on the Judiciary. The Committees will review the draft to verify that it is in compliance with the treaties and that its terms are in the public interest. If the Committee is in agreement with the Administration draft, it will be introduced as the Committee bill. However, if the terms of the draft are unacceptable, the Committee will introduce its own version of the bill. The Administration legislation may still be introduced as well, leaving two versions to be considered.
Implementing legislation takes the same legislative course as any other bill. Due to the highly charged nature of the legislation, hearings will be held at which the various parties will be able to air their views. After the hearing phase of the process, the subcommittees will hold what is referred to as a markup, where members of the committee offer and vote upon amendments to the bill. Once the subcommittee has finished its work, the full committee will again markup the legislation and report it out of committee favorably or unfavorably. The bill then goes to the floor for a vote by the full House.
This process will be repeated in the House and the Senate until a bill is passed by both Houses and presented to the President.
Areas of Controversy
There are many provisions of the treaties which have engendered considerable debate and are therefore ripe subjects for the implementing legislation. Also, accompanying the treaties are "Agreed Statements," which are not legally binding as treaty text, but are included to assist member nations in interpreting the terms. However, in some cases the Agreed Statements have clouded, not clarified the issues, thus becoming part of the debate themselves.
The first provision we will examine is Article 8, The Right of Communication to the Public, which is a new right. It reads in part, "...authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, ... that members of the public may access these works from a place and time individually chosen by them." To clarify what is meant by the term "communication" the Convention adopted an Agreed Statement, which states, "It is understood that the mere provision of physical facilities for enabling or making a communication done not in itself amount to communication within the meaning of this Treaty or the Berne Convention."
Article 8 and its Agreed Statement could be interpreted as referring to the initial act of making the work available and not the provision of server space or other carriage facilities. The drafters were focusing on an infringer who posts or sends infringing content and not the online service provider. The unauthorized posting of copyrighted material to a website would be considered a violation. Despite the language of the Agreed Statement, the Internet and online service providers are concerned that they can still be held liable for third party transmissions and are lobbying for implementing legislation which would clarify the issue of their liability. Articles 10 and 14 of the Phonogram Treaty are similar to Article 8 of the Copyright Treaty, as they discuss the Right of Making Available (to the public) Fixed Performances and Phonograms.
Article 11, the "anticircumvention" provision, is entitled Obligations concerning Technological Measures. The treaty states that, "Contracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention....". Provisions similar to this have previously met with tremendous resistance in Congress, pitting the content owners, who dislike devices which circumvent technology, against manufacturers of consumer electronics devices, who are unhappy with the ramifications this will have on legal devices capable of making reproductions. Legislation with similar language which was introduced during the 104th Congress (HR 2441 and S 1284) died in subcommittee..
The treaty states that member countries must protect the rights holders, through legal remedies, against the circumvention of any technological measures (such as encryption) that protect their "digital" rights. It is important to note that the treaty speaks to the actual act of circumvention and not the product used to accomplish the act. However, the manufacturers are highly displeased with this language and want the implementing legislation to clearly indicate wherein lies the legal scrutiny - in the act or the device. Article 18 of the Phonogram Treaty mirrors the language of Article 11.
Article 12, Obligations concerning Rights Management Information, or "fair use" is our next issue. The provision states, "Contracting parties shall provide adequate and effective legal remedies against any person knowingly performing the following acts... or that it will induce, enable, facilitate, or conceal an infringement of any right covered by this Treaty or the Berne Convention." The treaty goes on to enumerate the covered acts, "...to remove or alter electronic rights management information without authority; distribute, import for distribution...without authority, knowing that electronic rights management has been removed or altered.." Finally, the treaty defines "rights management information" as, "information which identifies the work, author, owner of right in work, or information about the terms and conditions of use of the work..."
The accompanying Agreed Statement to Article 12 declares, "....Contracting parties will not rely on this Article to devise or implement rights management systems that would have the effect of imposing formalities which are not permitted under the Berne Convention or this Treaty..."
Article 12 is meant to extend the theory of "fair use" to the digital environment. The treaty mandates member nations to protect against knowing violations of the copyright management information of a work. Any knowing, unauthorized distribution, broadcast or communication of a work whose copyright integrity has been altered would therefore be a violation.
Detractors claim that the Agreed Statement does not go far enough to protect the principle of "fair use," leaving it open to attack and possible alteration. However, Mr. Lehman, in a speech before the Intellectual Property section of the American Bar Association, stated that there is no cause for concern in this area for under the treaty "fair use" will continue as before. Article 12 mirrors Article 19 of the Phonogram Treaty.
Finally we come to the issue of caching. Article 1, Relation to the Berne Convention, is accompanied by an Agreed Statement which reads, "The reproduction right set out (referring to Article 9 of the Berne Convention) and the exceptions permitted fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction under Article 9 of the Berne Convention."
The storage of a protected work in any electronic medium is now a reproduction for the purposes of this treaty. However, the issue which is not addressed by the Agreed Statement is the status of temporary caching or automatic temporary copies and whether that constitutes an infringement. The delegates apparently constructed the Agreed Statement upon rejecting any type of temporary reproduction as infringement. However, to further complicate the situation, Articles 7 and 11 of the Phonograms Treaty create new rights of reproduction for performers and producers of phongrams which cover reproductions in "any manner or form." This language, coupled with the ambiguity of the Agreed Statement have made the online service providers leery of the liabilities raised by this issue and they are lobbying for clarification of the "caching" question.
We have just discussed possible issues which could be addressed by the implementing legislation. The draft is still pending agency review, but it is rumored that the only issues the Administration draft covers are those of anticircumvention and copyright management.
Although these issues are all very much in the here and now, the Administration is already moving ahead with the next step, database protection and the commercial implications of the Global Information Infrastructure (GII). In fact, an interagency working group on Electronic Commerce has developed a draft entitled, "A Framework for Global Electronic Commerce," which is currently available for public scrutiny at the website for the President's Information Infrastructure Task Force (IITF) at http://www.iitf.nist.gov (click on "what's new"). I encourage you to take a look, for the future is not so far away as it once seemed.
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