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CongressLine - The 1996 WIPO Geneva Conference: Friend or Foe

By Carol M. Morrissey, Published on February 7, 2006

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/.