A sign-on letter for WIPO delegates

Ewald (ewald@ctaz.net)
Tue, 17 Dec 1996 08:26:42 -0700

I don't know how thrilled the Union for the Public Domain would be
to hear that an anarchist organization supports their efforts (I'm
assuming it does), but I felt you should all know about this nonetheless.

This is a letter the Union for the Public Domain (UPD) will distribute
in Geneva. (The UPD web page is at http://www.public-domain.org). If
other organizations can support the letter, please send a note to James
Love (love@tap.org, fax 202-234-5176, voice 202-387-8030) and the name
will be added. jamie

An Open Letter To The Delegates Of The WIPO Diplomatic Conference

December 17, 1996

We are writing to urge the delegates at this diplomatic
conference to defer final action on the three proposed treaties.
The discussions so far have just began to shed light on many of
the problematic areas of the treaties. We believe there is much
more to be gained from further study, and we are concerned that
hasty action on novel changes in intellectual property laws will
lead to many unanticipated problems. In this respect, one has to
ask why WIPO, a United Nations body, is acting as a super
Parliament or Congress on issues which have never been resolved
by national governments through traditional lawmaking processes.

While there are many problems with the three treaties, allow
us to highlight four areas of concern.

1. The Proposed Rights Of "Reproduction" And "Communication"
Are Far Too Broad.

In an effort to give copyright owners the broadest possible
rights, the treaties would give a new right to authorize the
"direct and indirect" reproduction of a work, "whether permanent
or temporary . in any manner or form." (Treaty 1, Article 7).
National limits on those rights would be limited to very narrow
"authorized" circumstances. Some critics say the "any manner or
form" language is so open ended that it would be illegal to
memorize a poem.

The issue of the rights of the public to use computers to
view, study and analyze works is important. Overbroad
restrictions on those rights will discourage or impair the
development of many important and useful new technologies. For
example, the new smart searching engines on the Internet's World
Wide Web routinely read hundreds of thousands, if not millions of
Web pages, in order to create indexes and abstracts of articles
and other works. These new and important software tools will
vastly expand our ability to identify and locate information.

There is also considerable concern that the "Right of
Reproduction" (Article 7), combined with the "Right of
Communication," (Article 10) are written in such a way that
Internet Service Providers (ISPs) will be liable for
infringements. Several major ISPs have noted that if they are
liable for infringements by their customers, they will be
compelled to engage in intrusive surveillance of private
communications. This indeed was the concern of eleven CEOs of
major Internet and Telecommunication firms [1], who wrote President
Clinton in opposition to the treaties on December 10, 1996.

While we prefer no action on the treaties at this time, we
would add that the proposed December 12, 1996 amendments by the
30 African countries offer a much better approach (Treaty No. 1,
CRNR/DC/56, Article 7 and Article 10), and is preferred to the
far too restrictive versions that have been advanced by the
United States Delegation.

2. The Technological Measures Are Written Too Broadly

Any language in a treaty that prohibits the development of
new information technologies is problematic, since there are
likely to be competing public interests. The Chairman's
provisions, in his December 12, 1996 drafts of Treaty No. 1
(Article 13), and Treaty No. 2 (Article 22), are far too broad.
They would make unlawful "any . . . device, product or component
incorporated into a device or product, the primary purposes or
primary effect of which is to circumvent any process, mechanism
or system that prevents or inhibits any of the rights under this
treaty." (From Treaty 1, Article 13).

Taken with the rest of these deeply flawed treaties, there
would be an enormous chilling effect on the development of new
information technologies. For example, the popular Web browser
Netscape would arguably be an illegal device, not only because it
is used for reading documents into memory to display them, but
because it has features which permit the easy reading and
downloading of source code for HTML documents, as well as digital
images. Many of us would say that these types of features have
made an important contribution to the explosive growth of the
Internet. It is worth noting that more restrictive proprietary
technologies have withered, having failed to compete with the
more open Internet model.

Also, the new generation of Internet searching and index
tools mentioned above would likely be challenged under the
proposed treaty language.

Again, the language offered as a substitute by the 30
African countries is a better approach. Countries would be
required to provide:

adequate legal protection and effective legal remedies
against the circumvention of effective technological
measures that are used by rights holders in connection
with the exercise of their rights under this Treaty and
that restrict acts, in respect of their works, which
are not authorized by the rights holders concerned or
permitted by law. (CRNR/DC/56, Treaty 1, Article 13).

The more flexible language offered by the African countries
would give each nation greater latitude in implementing anti-
circumvention legislation. This is important, given the rapid
growth of the Internet, the novelty of the technology and the
Internet culture, and the need to encourage rather than
discourage the development of new information technologies.

However, we cannot endorse even this approach, at this time.
The issue of anti-circumvention is not ripe for legislation or
treaty, given:

- the lack of sophistication by many legislators or policy
- the uncertainty concerning the extent to which new
encryption based technologies can protect rights owners
without additional legal remedies, and
- the need to gain a better model for enforcement in a world
with transitional data flows and radically different
concepts of fair use of copyrighted materials.

3. Concerns About Privacy Are Not Specifically Addressed In The

We come from a tradition of using information products and
services in ways that are mostly anonymous. The acquisition of
newspapers, books, recorded music, and listening to broadcast
television and radio can be done in anonymity. The development
of cable television, video rental stores, online communications
and other technologies are leading to an explosive growth in the
ability of the government and private corporations to conduct
surveillance of what information we receive or share with others.
It is essential for a free society that people have the practical
ability to read and share information with friends and colleagues
without surveillance. When it is possible to take different
approaches in protecting copyright owners, it is desirable and
important to seek those roads which are consistent with a
significant degree of personal privacy. This principle should be
specifically addressed in the treaties.

As noted above, there are specific concerns about privacy in
the section of the treaties dealing with the liability of ISPs.
There is also concern about the degree to which the "Rights
Management Information" may be used to provide mechanisms for
tracking document usage. Countries should be both permitted and
encouraged to limit the types of technologies used for "rights
management information" in order to protect personal privacy.

4. There Should Be No Actions Taken That Would Give A Radical
New Property Right To Facts Or Other Public Domain Information.

There is widespread opposition to the concepts underlying
the proposed database treaty, and no action should be taken at
this time. As presently drafted, the treaty would give sporting
leagues the right to license box scores of sporting events, give
stock exchanges permanent "ownership" of share prices and other
financial data, define the practice of creating abstracts of
scientific journals or web pages as an infringement of a database
extraction right, and create many other unintended consequences.

The fact that organizations such as Dun and Bradstreet,
Bloomberg, and STATS, Inc (sports statistics), vigorously oppose
the treaty because it goes too far illustrates the complexity of
this issue. Value added information providers are both producers
and consumers of information. This proposal is so deeply flawed
it cannot be salvaged at this conference. The controversy over
the database treaty should also serve as a reminder to the
delegates that the public domain in matters concerning
information is something to be protected and cherished.

5. Closing Comments

In closing, we urge the delegates to reflect upon how the
unique features of the Internet have contributed to its amazing
success, and to tread carefully when asked to dramatically change
the Internet culture. Not only is the Internet a flourishing and
dynamic place to publish information, as evidenced by the
astronomical rates of growth in usage and published content, but
there is scant evidence to suggest that there are serious threats
to the commercial content industry from infringements.

Much of the concern over unauthorized reproductions of works
on the Internet stem from the very transparency of those
reproductions, which are visible to everyone, including the
owners of the works. Indeed, the Internet indexing and
abstracting tools which are threatened by these treaties offer
perhaps the best tools yet for identifying and managing
inappropriate unauthorized reproductions of works.

This transparency of publishing activities on the Internet
is something new. We are also just beginning to understand the
engines which drive the dynamic growth of this publishing
platform. We are forced to re-think and re-examine our ideas
about fair use and other matters which are central to these ill
conceived treaties.

Finally, there is great opposition to the treaties by the
persons who should matter the most - the persons who use the
Internet, and who are alarmed to the prospects for increased
surveillance and stifling regulation of new technologies. As
delegates you should look beyond the multitude of lobbyists who
have shaped this treaty, and consider the public. We urge you to
conclude this Diplomatic Conference without taking action on any
of the treaties.

[1] PSI, Net, America Online, Bell Atlantic, BellSouth, Compuserve, MCI,
MFS Communications, Netcom On-line Communications, NYNEX, Prodigy, UUNET.

James Love / love@tap.org / P.O. Box 19367, Washington, DC 20036
Voice: 202/387-8030; Fax 202/234-5176
Center for Study of Responsive Law
Consumer Project on Technology; http://www.essential.org/cpt
Taxpayer Assets Project; http://www.tap.org
"Political rights do not originate in parliaments; they are rather forced
upon them from without. And even their enactment into law has for a long
time been no guarantee of thier security. They do not exist because they
have been legally set down on a piece of paper, but only when they have
become the ingrown habit of a people, and when any attempt to impair them
will meet with the violent resistance of the populace."

--Rudolf Rocker (Anarcho-Syndicalism, 1938)
Fight superstition and pseudo-science:
The Skeptic's Society: http://www.skeptic.com/
The James Randi Educational Foundation: http://www.randi.org/
A Skeptic's Dictionary: http://wheel.ucdavis.edu/~btcarrol/skeptic/