How a grab for copyright powers was foiled in Geneva.
Big Media Beaten Back
By Pamela Samuelson
If you read in the mainstream press that the US copyright industries will greatly benefit from the adoption of two international treaties in Geneva last December, you got half the story. True, these treaties provide stronger and more uniform international protection for American movies, sound recordings, software, and books, and they make clear that copyright and related intellectual property rights apply in cyberspace. But the real news is what didn't happen at the World Intellectual Property Organization (WIPO) gathering in Geneva, a diplomatic conference convened to hammer out a new copyright treaty for the digital age. The Clinton administration's agenda - an agenda that Hollywood and other major copyright industries lobbied hard for - was resoundingly defeated in the international forum.
The battle shaping up in the digital era pits media conglomerates against users as never before. United States law has long mediated between these two groups, assuring protection for the former and access for the latter. Copyright laws, for example, exist to protect creators and publishers from unlicensed commercial exploitations of their works. Fair use, meanwhile, generally provides users with rights to access copyrighted works for private, noncommercial purposes.
Now, on the cusp of untold new transmission mediums, the traditional balance upheld by the law is being challenged. In this new era, one group of powerful copyright holders - call them the copyright maximalists - see an opportunity to gain unprecedented control over their copyrighted works. The Hollywood industries in particular want more power over how you, the user, employ new technologies to utilize their products. They're out to take time-honored rights away from you and to wreak havoc with the expanding cadre of "information carriers" - libraries and broadcasters, telephone companies and Internet service providers - who deliver content to you.
The maximalist agenda would have given publishers rights over every temporary reproduction in computer memory (such as copies made when browsing on the Internet) and every transmission of copyrighted works in digital form. It would also have virtually eliminated fair-use rights in the digital environment and pushed much of the cost and effort of policing copyright infringement onto online service providers. (See "The Copyright Grab," Wired 4.01, page 134.) A broad coalition of organizations - including major telephone companies, computer and software companies, online service providers, the National Writers Union, university and library associations, and civil liberties and consumer protection groups - joined the fight against these policies. (See, for example, the Web site of the Digital Future Coalition at www.ari.net/dfc/.)
Congress was the first democratic forum to heed the outpourings of concern about the unbalanced nature of the proposals. In fact, there was so much opposition last spring to the administration's legislation (HR 2441 and S 1284) that it wasn't even reported out of subcommittee.
In the face of such intense opposition, the administration might have been expected to reconsider its proposals, perhaps even to compromise by incorporating some suggested changes. Instead, Bruce Lehman - chair of the administration's Working Group on Intellectual Property Rights, which formulated the agenda - decided, as he put it, to try for "a second bite at the apple." Lehman, a former copyright lobbyist who is also commissioner of the US Patent and Trademark Office and assistant secretary of commerce, headed off to Geneva wearing yet another of his hats, as head of the US delegation to copyright negotiations under the Berne Convention, the major international copyright treaty. Congress may not have liked the administration's proposals the first time it saw them, but Lehman apparently believed that if he could get them adopted in an international treaty, legislators would have little choice but to cave in.
By the end of last August, the maximalist agenda appeared to be well on its way to victory: a WIPO Committee of Experts recommended provisions, published in three draft treaties, that would have substantially implemented the maximalist proposals. Joining the Committee of Experts in approving the agenda were senior WIPO officials and the European Union. Lehman hoped to be able to persuade Congress to accept a maximalist treaty as crucial to the continued success of US copyright industries in the world market. He knew also that, once adopted, such a treaty would substantially constrain Congress from later amending US copyright law to adopt less restrictive rules. (The Berne Convention is revised only every 10 to 20 years.)
;
But those who had opposed the administration's bill in Congress knew full well that Lehman and company were hawking the same flawed proposals in Geneva. Although the opponents were not part of the official US delegation, they went in force to the conference, as nongovernment observers, and shared their concerns with delegates from the 160 nations in attendance.
In the end, the diplomatic conference became the second democratic forum in which the maximalist copyright agenda was rejected. The WIPO Copyright Treaty signed in Geneva is, as regards digital agenda issues, about as balanced and sensible a copyright agreement as it was conceivable to get. (See the Home Recording Rights Coalition Web site at www.hrrc.org/.) Especially significant was the dropping of a provision that would have treated transitory copies of works in computer memory as copyright-significant acts. In addition, a provision that threatened user rights was transformed to support fair use and similar privileges - with the explicit expectation that these will apply in the digital environment.
So completely was the maximalist agenda defeated in Geneva that one might almost assume its proponents would now give up. But that's not likely. The maximalist agenda may rear its ugly head once again in Congress. In fact, Lehman has already launched the opening salvo of his latest campaign: talking with the press in early January, he expressed concern that computer and telephone companies would try to hold ratification of the treaty "hostage" to their special interests. Lehman hopes to use such smokescreens to divert attention from the fact that the agenda he'll once again be promoting on Capitol Hill is Hollywood's.
We'd all like to think that US government employees, especially those in policymaking positions, are working on behalf of the public interest as a whole, not just for one powerful industry group. We'd also like to think that when a broad array of people and organizations bring to the administration's attention a host of serious problems with its proposals, an honest effort will be made to fix the problems before proceeding further. We'd especially like to think that the administration would not try to circumvent the democratic process by promoting via an international treaty a set of proposals so unpopular in the US that they couldn't get through Congress.
Yet since Lehman was named head of the administration's working group on intellectual property issues, he has been working on behalf of the very same highly protectionist copyright industries that he represented when he was a lobbyist. His response to widespread criticism of the maximalist legislative proposals was not to listen and try to fix problems or even to compromise on more broadly acceptable solutions. Instead, he took to Geneva one set of proposals he'd tried and failed to get through Congress and another set for which he'd not bothered to seek congressional review.
Some legislators tried to warn Lehman not to employ such tactics. Senator Orrin Hatch, who chairs the committee that oversees intellectual property legislation, wrote to Lehman last September saying: "Surely you will not want to be in the position of negotiating final language on a treaty that as yet commands no clear support in the full Senate and which may not ultimately be ratified. Congress will not wish to be in the position of having its hands tied by international developments on the basis of proposed legislation that has stalled precisely because it contains so many unresolved issues."
A recap of the intellectual property white paper's digital agenda
The Clinton administration's digital agenda for copyright law was first announced in a white paper titled "Intellectual Property and the National Information Infrastructure," published in September 1995. This document analyzed how copyright law might apply in digital networked environments. It also recommended some statutory changes, which it characterized as minor updates and clarifications of copyright law. Legislation to implement these recommendations was introduced in the US Congress in late September 1995, and the first hearing on the bills (S 1284 and HR 2441) occurred in December 1995.
The white paper recognized that the global nature of the Internet and other aspects of the emerging information infrastructure would require some international harmonization of copyright rules. But buried underneath the document's lugubrious legalese was a maximalist digital agenda for copyright law that would have radically realigned the balance of interests in that law. The white paper aimed to:
- give copyright owners control over every use of copyrighted works in digital form by interpreting existing law as being violated whenever users made even temporary reproductions of works in the random access memories of their computers;
- give copyright owners control over every transmission of works in digital form by amending the copyright statute so that digital transmissions would be regarded as distributions of copies to the public;
- eliminate fair-use rights whenever a use might be licensed;
- deprive the public of the "first sale" rights long enjoyed in the print world (electronic forwarding would be treated as a violation of both the reproduction and distribution rights of copyright law);
- attach copyright management information to digital copies of a work, ensuring that publishers could track every use made of digital copies and trace where each copy resided on the network and what was being done with it at any time;
- protect every work technologically (by encryption, for example) and make illegal any attempt to circumvent that protection; and
- force online service providers to become copyright police.
The white paper recommendations resurfaced in Geneva virtually unaltered for consideration in the WIPO Copyright Treaty. Two of the most hotly contested issues involved temporary copying and fair use.
Temporary copying
The WIPO Committee of Experts recommended that the treaty include a provision that would have given copyright owners a right to control transitory copies in computer memory. Article 7(1) of the committee's draft said that the right of copyright owners to control reproductions of their works "shall include direct and indirect reproductions of their works, whether permanent or temporary, in any manner or form." Seemingly in recognition that this grant of rights might be too broad, Article 7(2) said that countries could "limit the right of reproduction in cases where a temporary reproduction has the sole purpose of making the work perceptible or where the reproduction is of a transient or incidental nature, provided that such reproduction takes place in the course of use of the work that is authorized by the author or permitted by law."
Draft Article 7(2) was drawn in such a way that it would not, for example, have relieved a telephone company from liability for temporary copies made when an unauthorized copy of a work passed through its equipment en route from sender to recipient. These copies might have met the transient or incidental standard. However, they would not have "take[n] place in the course of use of the work that [wa]s authorized by the author or permitted by law."
Telephone, computer, software, and online service companies sent representatives to Geneva to argue against Article 7. An ad hoc alliance of such companies pointed out that requiring the reproduction "to take place 'in the course of use of the work that is authorized by the author or permitted by law' ignores the reality of the digital world." The alliance argued against placing responsibilities for ensuring compliance with copyright law on intermediate institutions, explaining that "[j]ust like the postal service cannot (and indeed should not) monitor the contents of all the envelopes it handles, it is simply not possible for an infrastructure provider to monitor whether the millions of electronic messages it transmits daily have been authorized."
Chief executive officers of 11 major US telephone companies and online service providers were so concerned about Article 7 that they wrote to President Clinton in early December to announce that they would actively oppose Senate ratification of any copyright treaty containing such a provision. (A concession proposed in Geneva that would have enabled companies to seek, country by country, exemptions from copyright liability for inadvertent transmission or storage of infringing material did not alleviate their concerns.)
The doubts and questions raised about Article 7 struck a receptive chord with many delegates, especially those from developing countries who perceived the implications for their own ability to use digital networks to communicate with the outside world and get access to resources available there. Article 7 was dropped from the treaty.
Fair use and other user rights
The WIPO Committee of Experts also recommended adoption of an article that was widely perceived as aiming to constrain broad fair-use or similar user rights privileges. In case it wasn't obvious that draft Article 12 was intended as a constraint on national legislative powers, the Committee of Experts' commentary emphasized that "[a]ny limitations or exceptions must be confined to certain special cases. No limitations or exceptions may ever conflict with normal exploitation of the protected subject matter. Finally, any limitations or exceptions may never unreasonably prejudice the legitimate interests of the author." The commentary further warned that it was "clear that not all limitations currently included in the various national legislations would correspond to the conditions now being proposed." And in case this didn't make the point clearly enough, the commentary went on to say that some limitations on rights which had previously been tolerated would now become suspect because "[i]n the digital environment, [these limitations] may in reality undermine important aspects of protection." These sentiments resonated ominously with dire predictions about fair use in the US white paper.
Fair-use advocates also worried that opponents would invoke the newly established enforcement mechanism of the Trade-Related Aspects of Intellectual Property Rights Agreement, aka TRIPS, to challenge such things as the US fair-use doctrine (which we all rely on when we make a photocopy of a news article for a friend). British publishers, for example, might be able to persuade their government to make a complaint against the US with the World Trade Organization on the grounds that the fair-use defense did not satisfy Article 12's three-step test. If the WTO agreed, the US would have to either drop its fair-use privilege or face tariffs or other trade sanctions against US products, such as computers, imported into the UK. (The WTO enforcement mechanism is why Ralph Nader called the TRIPS Agreement "trade with teeth.")
Fortunately, the Clinton administration heeded concerns about the need for fair use to be preserved, and ultimately supported, as did many other delegations, a more moderate version of Article 12. The final treaty has such a provision.
What happens next
The US Congress will soon take up legislation on digital agenda issues, and WIPO may host another diplomatic conference as soon as June 1997 to reconsider some Lehman-supported proposals for an international treaty to create a new form of legal protection for the contents of databases. The Senate, meanwhile, will have to ratify the WIPO Copyright Treaty in order for the United States to be bound by it. There will also need to be legislation to implement some aspects of the treaty. As the administration's chief intellectual property official and head of the US delegation to Geneva, Lehman will be expected to lead the way.
The only part of the WIPO Copyright Treaty for which US implementing legislation is, strictly speaking, necessary is that which aims to protect the integrity of rights management information (RMI). This provision aims to prevent the removal or alteration of electronic RMI that may, in the future, be attached to digital copies of protected works, and to prohibit distribution of digital copies whose RMI has been removed or tampered with.
The WIPO treaty's RMI provision is narrower in scope than a similar provision proposed in the US white paper and in the US submissions to WIPO. (Under the white paper proposal, for example, any effort you made to block monitoring software because you thought it invaded your privacy would make you a felon, whereas under the treaty's RMI provision, you wouldn't have done anything illegal.) But even so, there's nothing - except perhaps common sense - to stop Congress from passing the original white paper proposal rather than the provision in the treaty. Unless you want Big Brother and his squad of copyright police monitoring what you read, look out for what the implementing legislation says about protecting the integrity of RMI.
A key issue for Hollywood has been getting stronger protection against technologies and services that have infringement-enabling uses. The WIPO treaty requires that nations have "adequate" protection and "effective" remedies for violations of this kind. A very good argument can be made that existing US law meets these criteria. The Supreme Court established a standard in its Sony-Betamax decision. (The court ruled that if the only substantial use of a technology - and presumably also a service - is to aid infringement, copyright owners concerned about infringing uses can stop its manufacture and sale.) In addition, the US has a number of other laws that regulate specific kinds of infringement-enabling technologies, including one that protects the integrity of serial copy management system chips in digital audiotape machines.
Nonetheless, Hollywood is likely to press for the white paper's proposal in the treaty implementation legislation, and to argue that this stronger legal protection is necessary to satisfy treaty obligations - even though the proposal was rejected in Geneva. The white paper version would have outlawed technologies or services if their "primary purpose or effect" was to enable infringement. Computer and software companies worried that this provision was so broadly worded that it might make illegal certain legitimate reverse-engineering activities such as decompilation to get access to interface information. Computing professional groups worried that it would deter computer security research, which inevitably requires probing weaknesses of existing security systems. Developers of hardware and software devices of all kinds complained that the primary-effect test was unfair because it would put at risk substantial investments in technologies intended for legal uses if these technologies came to be used for illegal purposes. Even some lawyers were heard to complain that this provision would induce more investment in litigation than in innovation.
Another issue that bears watching during the treaty-implementation legislation is what it will say about digital transmissions. While both the white paper and the US submissions to WIPO maintained that digital transmissions were and should be treated as distributions of copies to the public under existing copyright law, each also recommended new legislation to "clarify" the matter.
The WIPO Committee of Experts rejected the US proposal and decided that digital transmissions should be treated as communications of protected works to the public (which is how broadcast transmissions are generally dealt with). The committee's proposal was approved in Geneva, which means that this - not the white paper proposal - is now the international norm.
Although the US doesn't have a communication-to-the-public provision in its copyright law - having chosen to treat broadcasting as a kind of public performance of protected works - it could easily be argued that public performance rights cover digital transmissions as well. Still, look for the maximalists to use the implementation legislation as an opportunity to renew last year's unsuccessful effort to "clarify" that digital transmissions are distributions of copies to the public. The maximalists recognize a subtle but important difference between treating digital transmissions under the rubric of a public performance or communication right versus treating them under the distribution right.
The reason for this is that "public" means different things in different contexts. A communication or performance isn't "public" unless it occurs outside a circle of friends or family. But some US case law has suggested that the distribution of an unauthorized copy to even one member of the public is a violation of the public distribution right. This means that under a distribution right approach, a transmission from one family member to another might well violate the law. The copyright maximalists want to make sure that it does.
Also lurking in the digital transmission issue is an ongoing debate about the liability of online service providers. The white paper said that providers were and should be strictly liable for all infringing activities that happen on their systems, whether they knew about them or not. It said that these providers were liable both directly (on account of the copies made and distributed via system equipment) and indirectly (on the theory that they benefitted financially when their systems were used for infringing purposes). Much of last year's opposition to the white paper legislation focused on this rule. And in Geneva, over the objections of the US delegation, the ad hoc coalition of telephone companies and online service providers swayed enough delegations that the WIPO conference approved a measure saying that merely providing facilities for digital transmissions should not be the basis for liability for unauthorized communications to the public.
In early January, Lehman was anticipating a renewal of this fight as a contest - between Hollywood on the one hand, and telephone and computer companies on the other - over who had the most clout in Congress. But user privacy and free expression interests are at stake here as well.
Intellectual property rights in data?
Lehman's single most outrageous act in Geneva was to propose an international treaty to create a new form of intellectual property right in the contents of databases. He did this before any such law had even been introduced, let alone considered, in Congress, and he pushed for it with full knowledge that there was considerable opposition to it within the administration, as well as from major science organizations, from libraries and research organizations, and even from major information publishers, such as Dow Jones & Co. and Bloomberg LP.
In one of the stranger twists in the WIPO saga, the Committee of Experts recommended adoption of a database treaty modeled on the US proposal - even though the Clinton administration backed away from endorsing it on the eve of the conference, after the presidents of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine wrote a joint letter to Secretary of Commerce Mickey Kantor to express their grave reservations. The presidents wrote that such a treaty and its implementing legislation "would seriously undermine the ability of researchers and educators to access and use scientific data, and would have a deleterious long-term impact on our nation's research capabilities."
The group found it "especially disconcerting" that these proposals had been made by administration officials for consideration at the WIPO conference "without any debate or analysis of the law's potentially harmful implications for our nation's scientific and technological development." Moreover, they wrote, although the consequences of the law "appear very grave to those studying these issues, very few individuals at the science agencies or in the academic community appear even to be aware that such changes are about to take place, nor has there been any effort made to solicit their views." The group was soon joined by a number of other concerned parties, including President Clinton's science adviser, John Gibbons.
Nevertheless, on the eve of his departure for Geneva, Lehman announced his "unswerving support" for the database treaty and his intention to conclude it.
As it happens, the provision probably wouldn't have been included even without the substantial American-based opposition it encountered. After all, the European Union was the only government that had adopted such a law, and this was so recent that no member state of the EU had actually implemented the directive in its national law by the time the WIPO conference took place. The norms of the treaty were vague (e.g., forbidding unauthorized use of a "substantial part" of a database), the idea of such a law was still very new, and some delegations to WIPO had already expressed their own strong reservations about it. So many red flags were raised from the start that the proposal was taken off the table almost immediately.
But that hasn't stopped Lehman, who is determined to get an international treaty to protect the contents of databases through WIPO as soon as possible. While still in Geneva, he tried to initiate a fast-track process for reconsideration of the treaty at WIPO within six months. He also tried to link reconsideration of the database treaty with that of an African-bloc proposal to protect folklore: Let the Africans have their folklore rights as long as they agree to give developed nations intellectual property rights in data. Database-protection legislation is also likely to be introduced in the 105th Congress.
The copyright maximalist agenda has twice been subjected to open debate in a democratic process, and it has lost on the merits. It simply doesn't make sense to give copyright owners the right to control all transitory copies in computer memories or digital transmissions of protected works. Nor does it make sense to hold intermediate institutions, such as online service providers, strictly liable for all infringements that users might commit. At stake here are significant privacy and free-speech issues, as well as serious technical and economic challenges.
Opponents of the maximalist agenda agree that there is a need for legal rules to protect the integrity of rights management information and to regulate technologies that enable copyright infringements. New legal mechanisms to protect databases from market-destructive appropriations of their contents may also be needed. But current proposals offer a cure that would be far worse than the disease itself.
There is as much need for fair use and other balancing principles in applying intellectual property laws in digital networked environments as there ever was in relation to the print medium. The true importance of these principles was recognized in Geneva: the preamble to the WIPO Copyright Treaty asserts "the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research, and access to information."
Geneva reaffirmed not only the importance of granting rights to authors to induce them to make their creative works available to the public, but also the larger public interest in protecting user interests in the digital domain. This augurs well for a digital future in which we all will want to live. These successes have, however, not come without a struggle, and more struggles clearly lie ahead.
Bruce Lehman can be reached at:
Assistant Secretary of Commerce and Commissioner of Patents and Trademarks
US Patent and Trademark Office
Washington, DC 20231
phone +1 (703) 305 8600
PR office phone +1 (703) 305 8341
fax +1 (703) 308 5258
email blehman@uspto.gov
Or contact:
Sally Katzen, Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
Chair, IITF Information Policy Committee
Old Executive Office Building, Room 350
Washington, DC 20503
phone +1 (202) 395 4852
fax +1 (202) 395 3047
email ipc@a1.eop.gov
Ira Magaziner, Senior Adviser to the
President for Policy Development and chair of an interagency working group
on electronic commerce, outlines a draft proposal of the administration's vision for intellectual property and copyright law
in "A Framework for Global Electronic Commerce" at www.iitf.nist.gov/electronic
_commerce.htm
Pamela Samuelson(pam@sims.berkeley.edu),a professor of law at UC Berkeley, wrote "The Copyright Grab" in Wired4.01. Africa 1 Hollywood 0
By John Browning
The first global attempt to adapt the world's copyright laws into the digital realm began in 1989. In that year the governing body of the World Intellectual Property Organization (WIPO) decided to deal with how computers and networks impact copyrights. The funding for this process came from WIPO's share of the fees paid for international patent, copyright, and trademark registrations. In the following seven years, WIPO's committees of experts held annual meetings to discuss what kind of property rights should be vested in bits. While the experts talked and talked, the Web was invented, the Net exploded into popular culture, and the digital age began in earnest. At no other time in history would people be quite so concerned about the impact of the technology and yet quite so unfamiliar with it. Inevitably, some of that anxiety and ignorance worked its way into WIPO's proposals.
At the heart of the world debate on intellectual property rights is a precarious balance between content users and content owners. Digitalization has sent that accrued balance spinning. Copyright holders fear that it has tipped power into the hands of users, who can now make and distribute thousands of copies with the click of a mouse. Users reckon that these fears are overblown, and worry that content consumers will be denied access to information they now take for granted - and perhaps even lose the right to speak freely. Meanwhile, the loss of geography in a digital universe has brought face-to-face all of the various and contradictory approaches to intellectual property that have evolved in different parts of the world. Against this destabilizing background, copyright experts drafted their proposals for copyright reform, and, finally, presented them to representatives of 160 nations gathered in Geneva, in December 1996.
But the Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, as it was formally called, will be remembered not so much for what it did as for what it did not do. It did not give copyright holders many of the new legal powers they asked for - mostly because delegates feared that they would use those powers to force the future into the mold of the past, and so rob the Net of its potential to create change. Nor did the conference degenerate into an economic shouting match, as previous international conferences on intellectual property matters have done, with rich countries wanting to tighten their grip on intellectual property lined up in opposition to poor ones seeking to loosen it.
The conference passed two of the three treaties before it, and postponed discussion of a third. It discussed much, and settled relatively little; the most controversial provisions were removed from the treaties before passage. Many delegates left the conference with a sense of anticlimax. "When I get back home, people will be slapping me on the back because of what's not in the treaties," one tired delegate said over his dinner of fried prawns and Diet Coke on the last evening. "But I'm used to taking credit for what I've done, not what I've left undone."
Yet leaving things undone may prove to be the conference's most worthwhile achievement. In so doing, it left room for copyright law to evolve as it has traditionally done - in national courts and legislatures, rather than by international fiat. At the same time, the Geneva conference pried copyright out of the hands of the content creators who have previously considered it their domain, and started a new international debate between information creators, transmitters, and consumers that will inform and temper national experimentation. Someday, the Geneva conference may be seen as a turning point - the time when copyright law began to take its place as one of the fundamental building blocks of a new world economy.
Leaving things undone can be disappointing. The man who arrived with the highest ambitions, and who therefore had reason to leave with the greatest disappointment, was Bruce Lehman, United States Patent and Trademark Commissioner.
Lehman came to Geneva to make the Net safe for Hollywood. Even in the closing days of the conference, when many of his proposals to extend intellectual property rights had already been derailed, Lehman remained adamant that without new powers of ownership, the big content creators - the record companies, movie studios, and book publishers - would simply stay away from the Net, and the Net would be poorer for it. He just wanted, he explained between sniffles from the cold that most delegates had come to share after two and a half weeks of late-night bargaining sessions, "to ensure that people who want to distribute stuff online will have the same sort of protection there as they do in the rest of the world." And if his proposals gave content creators more and more overlapping powers than they really needed, well, fine. The market would eventually force them to choose which ones they really needed and leave the others to languish on the statute books. Better too much law than too little.
Although the European Union backed most of Lehman's proposals, the majority of Geneva delegates disagreed. Led by a coalition of African nations - working together with Asians, Latin Americans, and, sometimes, Scandinavians, all of whom had been lobbied hard by US telecom companies - delegates in Geneva decided that most of the proposed extensions to copyright law were just too much, too soon. They couldn't yet understand all the potential ramifications of the proposals, so they wouldn't have them.
Your data or mine?
When more than 800 delegates arrived in Geneva, they had before them three draft treaties and an imperative: If WIPO could not reach some sort of agreement, it might as well close down. During the 1980s, WIPO had attempted three new treaties - on patents, semiconductors, and trademarks - and failed on all of them. That meant it had been ineffective for half of its life. Created in 1967, WIPO was in 1970 given the task of administering the two key international treaties on intellectual property: the Paris Convention of 1883 on patents and trademarks and the Berne Convention of 1886 on copyright. By bringing administration of these treaties under UN aegis, the hope was that WIPO would create global consensus on intellectual property law. Fine hope. But, given its track record, WIPO needed to achieve some agreement in Geneva or lose all credibility.
It wouldn't be easy. All three treaties were highly controversial, but each was controversial in a different way. Countries that worked together in supporting one treaty fought tooth and nail over others. Industry lobbyists, meanwhile, maneuvered in complex counterpoint to the national debates. Sitting in the last three rows of the conference hall, behind red placards marked with the acronym of their organization, were 75 trade associations, lobbying groups, and other nongovernmental organizations. They had no votes. But they had both mobile phones, to call their counterparts back home, and access to the official delegations - who, for plenary sessions at least, were seated in the five rows just in front of them, behind their own placards, which were colored blue and arranged alphabetically in French from Afrique du Sud to Zimbabwe.
During a lull in one of the debates, Peter Harter, who manages government affairs for Netscape, calculated that keeping a representative in Geneva for the three weeks of the conference cost about US$30,000 - not cheap even by lobbying standards. To justify that expense, lobbyists' lives became a constant scramble for information and access. Most of the hard bargaining took place in meetings that, officially at least, were open only to national delegates. There were working groups of national specialists to work on each treaty. Regional groups - Europe, Africa, Latin America, Asia - tried to hammer out common positions to smooth the way to global consensus. And private meetings took place in the offices that lined the conference center.
Meanwhile, lobbyists cruised the corridors, looking for sympathetic ears on national delegations to find out what was going on, huddling with other lobbyists to try to agree on a common position, then fanning out again to promote their point of view with hostile delegations. While positions were often passionately held, the arguments delivered were soft-spoken and politely argued. Where the game got rough, though, was in keeping a delegate's attention long enough to make the point. Pros seemed to subtly maneuver delegates so that their backs were to the flow of people. In extraordinary circumstance, extraordinary measures were used. Having cornered Lehman on the last day of the conference, one lobbyist simply told his rivals to leave them alone - "We're not quite through here" - even as Lehman gazed wistfully over his shoulder, as if pleading to be rescued.
And the game was played both ways. At a moment of particularly hectic lobbying, a member of the American delegation pointed out to a European counterpart that the United States Telephone Association, which opposed the US position then under discussion, was having a long, involved conversation with the Singapore contingent. "Maybe you should go over and ask for a quiet word with them," the American suggested. But, apparently used to playing by different rules, the European walked off rather pointedly in the opposite direction.
Americans played the lobbying game hardest. So active were American lobbyists that the fate of the third treaty - on the protection of databases - seems to have been settled as much in Washington, DC, as in Geneva. The proposal was based on the European Union's database-protection directive, passed in the spring of 1996. Unlike the United States, where it is entirely legal for a publisher to scan names and numbers from telephone directories onto a CD-ROM, many European countries give some ownership rights to those who expend effort in collecting facts. The database directive codified and extended those rights within Europe; the WIPO treaty would have further extended them to the rest of the world. Surprisingly, it was introduced to WIPO and championed there not by the European Union but by the United States - the very country for whom the treaty promised the most upheaval.
Less surprisingly, the greatest opposition to the treaty promptly came from the United States. Scientists were outraged at a possible threat to the free flow of research results. Broadcasters feared that they would have to start paying heavily for sports statistics. Internet companies noted that, under the vague terms of the treaty, even Web pages could be considered databases, which might restrict browsing. Even companies like Bloomberg and Dun & Bradstreet, which make their livings from the sale of electronic databases, opposed the treaty for fear that it might give stock exchanges ownership of many of the statistics in their databases.
Both in Geneva and in Washington, all of these groups demanded reassurances that their fears would not be realized. But few were forthcoming. Even in the EU, both the database directive and the proposed treaty were sufficiently different from national law that, while European nations could not get as excited about the treaty as Americans, none could point to legal precedents to demonstrate how the treaty's principles would work in practice. Meanwhile, the White House switchboard was flooded with calls from everyone from the National Academy of Sciences to the National Association of Broadcasters. The voices of the scientists, in particular, seemed to sway White House support for the treaty, and Lehman was asked to take databases off the table in Geneva.
Even as Washington and Brussels worked together on databases, though, Americans and Europeans were battling over the second treaty, on performances and sound recordings. Although the purpose of this treaty was to update copyright law for the digital realm - to take account, for example, of the differences between broadcasting a performance and making it available for viewing in an interactive medium - the arguments had little to do with technology. Instead, they revived longstanding differences over the rights of performers.
In France, copyright is administered under the Ministry of Culture, and its purpose is seen as protecting the artist. In America, copyright is administered by the Department of Commerce, and art is tempered by Mammon. One area where art and Mammon disagree is in so-called moral rights, where Europeans traditionally give artists and performers some rights to control the changes that would-be editors might want to make to their creations after they've been recorded. But the one that caused ructions in Geneva was the economic rights of performers.
Representatives of European performers, led by the French, insisted that every identifiable artist should have a share in the royalties paid whenever a recording of that performance was used. When Lehman and other Americans pointed out that such rights would make multimedia productions effectively impossible, the Europeans gesticulated with appropriate drama and insisted that performers' rights should be "inalienable." Finally, deadlock was averted by excluding visual performances from the treaty, incorporating only sound recordings, where performers are more easily identified. Moral rights were included - which may cause some interesting controversies as old performances are put into new multimedia contexts - but economic rights were left eminently alienable.
Don't shoot the messenger
While the second treaty rehashed the age-old arguments of the copyright world, the first - on the basic principles for bringing copyright into the digital age - created both new disputes and new coalitions to argue them. Debate centered on three issues: What is a copy? Who is the public? Who is a publisher? Each question raises fundamental, sometimes downright metaphysical, issues. Each also drags a new constituency into the copyright debate. But they are all unavoidable once you realize that, in an interactive world, publishing is no longer spinning something off a printing press or squirting it out of a broadcast tower - it is instead, as the treaty puts it, "making available to the public ... in such a way that members of the public may access these works from a place and at a time individually chosen by them." Although most of these questions were thrown back to national courts and governments, the arguments delineated some of the key issues of the information economy.
First to fall by the wayside were attempts to define a public. The public for a conventional work, as notes in the draft of the initial treaty point out, is defined by the distribution of the print run or the reach of the broadcasting tower. But things are less clear when a work is just "made accessible." Is it to be considered published wherever it could be accessed? Wherever it actually is accessed? Or just where it is put on to the network to become accessible? And what if nobody actually accesses it? Still published?
Answers to these questions have big repercussions, because they determine which laws apply and when. But the world's best legal minds failed in the end to agree on general principles to specify when and where something becomes a publication. The draft treaty tried to define publication as happening when and where the source was put on to the network, but, among other complications, this failed to address concerns about which laws took precedence when the same material was available from several sources at once. Finally, the article was deleted on the grounds that the Berne Convention already gave a useful, general-purpose definition of publication that could be further refined by national legislatures and courts. Besides, there were bigger battles to fight.
Japan and other Asian nations were up in arms about proposals that would effectively have turned the consumer electronics industry into a branch of publishing. In its original form, Article 13 of the draft treaty would have required countries to outlaw devices known to be used for defeating copyright protection schemes. In a broad interpretation, this might have included personal computers, which are, after all, the most common hacking device in existence. While nobody seriously expected PCs to be suddenly outlawed, consumer electronics firms didn't want to give foreign governments an opportunity to dictate what capabilities they could and could not put into their equipment.
The Asians had most to lose from Article 13, but it was a group of 30 African nations that provided a compromise all could accept. Their language calls simply for countries to provide "adequate legal protection and effective legal remedies" against crackers. For now at least, everybody gets their own shot at defining "adequate" and "effective." More important, the Africans were crucial in defeating the most controversial of all the articles in the draft treaty: Article 7, which would have included temporary copies made in the course of transmission across a network under the scope of copyright law.
One reason the Africans could tame the ambitions of the United States and the European Union so effectively is that they have few vested interests in the debate. As Norbert Yao, head of the Ivory Coast delegation and one of the more consistent opponents of Article 7, explained: "We are not familiar with digital technologies. We think they could have a lot to offer us in future, particularly in education. So we don't want to do anything that might threaten our ability to benefit from new technology - particularly when we're not sure what the real impact of the changes will be."
But the Africans' moral weight is backed up by commercial clout gained by their position as the linchpin of emerging global coalitions of industrial interests. Greg Gorman, government affairs manager
at the Computer & Communications Industry Association, began spending
a lot of time with developing-world delegates to WIPO a few years ago, when he first became convinced that the Clinton administration would not listen to anyone but Hollywood. So did Ben Ivins, assistant general counsel for the National Association of Broadcasters. What Gorman, Ivins, and others like them created were global industry groups that could speak with one voice on key issues. And the first issue to bring these coalitions to life was that of transient copies.
When the Africans declared that they opposed Article 7, telecom companies, broadcasters, and other heavyweight Washington lobbyists stood right beside them - for they feared that if transient copies were included under copyright law then they might come to share liability with copyright pirates. So did Asian countries, who, despite their willingness to censor information that offends their political and moral sensibilities, consistently supported measures to smooth the free flow of information that merely makes money. The Europeans, though, stood by the Americans. Britain, for one, pointed out that transient copies had been included in the scope of its copyright laws since 1988, and nothing in particular seems to have come of it.
Amid the to and fro of argument, Lehman seemed curiously focused on the opposition from the American telecom companies. They made him mad. Far from defending the free flow of information, he accused them of seeking special privileges and exemptions. They were, he argued, not creators of intellectual property but mere transporters, and they were getting above their station: "When you're big and powerful, you don't want the same restrictions as everybody else." (Which seems an odd argument for a man who has spent most of the past few years trying to ensure that Hollywood does not have to abide by the same restrictions as mere consumers.)
In the end, the fight over Article 7 was resolved only on the last evening of the conference. After admitting that the provision was too controversial to include in the treaty itself, the US and EU tried instead to append an explanatory statement to the effect that copyright should "include such acts as uploading or downloading from the memory of a computer." Phrase by phrase, lobbyists from both telecom companies and the developing world trimmed back that statement to relative innocuity. And even then, the African nations ensured that, unlike the rest of the treaties, which were adopted by consensus, the statement was adopted by majority vote, which gives it only the lightest of weight under international law.
As the evening progressed, the final debate threatened to wear out Jukka Liedes of Finland, the chair of the working group charged with ironing out differences on the first treaty. Liedes was so exhausted after his weeks
of negotiation that at times he seemed to be drifting away into his own private world even as he spoke. The bureaucratic maneuvering also threatened to test the patience of the delegates, who were becoming visibly fed up with the length of time taken to reach an inevitable conclusion. But impatience and exhaustion did not win the conference to the US side. The Americans tried to bring matters to a quick vote. The Africans, however, wanted a roll call to enable each foe of the watered-down statement on Article 7 to place its opposition on permanent record. Tired as everybody was, the conference was determined to give the Africans their say.
Finally, at 40 minutes after midnight on December 21, the arguing ended. Over rain-slick streets, delegates walked the two blocks from the conference hall to WIPO headquarters, where they signed the treaties, sipped champagne, and, finally, went back to their hotels to sleep at last.
Rift between go-slows and go-fasters
So what emerged from this WIPO conference? The treaties effectively provide a resolution to start bringing copyright into the digital age. While the battles fought in Geneva were not lost, neither have they yet been decisively won. Much depends on how the treaties are implemented into the laws of the nations who signed them, and the progress of the continuing international debate. What Geneva did change decisively, though, was the nature of that debate. This change was summed up in an exchange in the closing moments of the conference.
In his closing speech to the conference, Bruce Lehman congratulated the delegates for having worked so hard on their common goal: "serving the needs of the world's creative community." A few moments later, Esther Tolle, the Kenyan president of this WIPO conference, urged the delegates to go forward on quite a different common goal: "to balance the needs and responsibilities of authors and performers, communicators and the public at large." In Geneva, the era when copyright was the sole concern of the creators of culture has ended. A new balancing has begun, and, with it, a new and more complicated debate. Here are some of the milestones ahead:
Within three months, WIPO will restart work on the database treaty - together with copyright protection for folklore, which the Africans want, and protections for audiovisual products, the arena in which Europeans want to pursue their claims for strengthened performers' rights. The hurry is at the insistence of the US and the EU, which still want to use WIPO to forge new law rather than to follow national consensus. Despite the success of the two treaties, WIPO itself is too weak, and too flattered, to resist. But there is powerful opposition elsewhere.
Jerry Reichman, a law professor at Vanderbilt University School of Law, who attended the Geneva conference both as an observer for the International Council of Scientific Unions and as an expert adviser to the United States National Academy of Sciences, argues that while researchers are not irrevocably opposed to the principle of protecting databases, the few laws in existence and the treaty proposals are terrible - and three months is far too little time to figure out how to fix the laws, or to devise a workable treaty. So scientists have no choice but to do everything they can to block any database treaty.
While the US has taken the lead in trying to extend the powers of copyright holders, the EU is proving to be the place where those new powers are first embodied in law. Part of the reason lies in the EU's own political agenda. The European Union is trying to harmonize intellectual property law across its member nations, and politically it's usually easier to harmonize by granting powers than by taking them away. At the same time, Europe is a less litigious place than America - if nothing else, lawyers don't work on contingency, and losers in court cases often have to pay the other side's legal fees. So whatever new powers are granted are less likely to be pursued vigorously in court. Americans may try to argue that the European Union is setting precedents that the US should follow; if so, this argument should be ignored.
As copyright straddles the worlds of culture and economics, defining where one stops and the other begins becomes increasingly crucial. Sivakant Tiwari, the head of Singapore's delegation to the Geneva convention, inadvertently illustrated why. Asked if there was any contradiction between his country's desire to promote the free global flow of information and its determination to censor the Internet, he replied: No contradiction at all. The things that Singapore tried to block were political and moral, sex and subversive ideas; everything else was economic, and so should be free. Clear as the distinction might seem to the Singaporeans, such political judgements have a deep economic impact to the publishers of Playboy, The Economist, the Far Eastern Economic Review, and The Wall Street Journal - all publications that have been banned from Singapore at one time or another. In a global economy of ideas, free speech is free trade, and vice versa. But capturing those freedoms will require a long fight against the nations who would deny them in the name of preserving local culture.
A second crucial distinction that remains to be drawn in the networked world is between public and private. Traditionally, copyright law has allowed free private use of copyrighted material. Yet there is no consensus on the distinction between public and private in the networked world, where everything connects to everything else. When Gary Larson asked his fans not to put his Far Side cartoons on the Internet, he clearly felt that this was somehow different from pinning them to the wall of an office cubicle, or photocopying them for the company newsletter. (See "Far Out," page 128.) Is it? What about posting cartoons on an intranet? To a mailing list? A Usenet newsgroup? It took decades to evolve, case by case, the distinctions that govern copyright in the physical world; judges will now have to repeat the task in the virtual one.
Looking beyond copyright, though, some of the most intriguing, and hopeful, developments to appear in Geneva were signs that the traditional political and economic battle lines between developed and developing world might be crumbling, to be replaced by new global coalitions of industry that cut across the old North-South divide. The last time intellectual property was discussed in an international forum, under the General Agreement on Tariffs and Trade (the precursor to what is now the World Trade Organization, or WTO), developing nations, notably Brazil and India, challenged some of the basic notions of intellectual property rights. They argued that nations should have the right on humanitarian grounds to force compulsory licensing of drugs and medicines to treat their poor populations, and on economic grounds that they should also be allowed to compel licensing of "strategic" technologies to feed their fledgling economies. They lost, largely because in tit-for-tat trade negotiations, most developing countries were more than willing to swap exceptions to intellectual property laws for freer access to the giant markets of the developed world. What is somewhat surprising, and encouraging, is that these arguments were not heard again in WIPO.
In Geneva the division was not between haves and have-nots but between go-slows and go-fasters. Though some tried to brand them as pirates, the nations of the developing world did not oppose copyright per se. Indeed, many were subject to the same internal lobbying as the developed nations: performers wanted tighter protection, telecom companies wanted to avoid sharing liability with pirates, scientists and educators wanted free access to facts. Given that they have little themselves, developing-world governments have every incentive to be cautious, to examine each proposal carefully to see if it will indeed result in more content for everybody - as backers of new rights always claim, on the grounds that it will motivate creativity - or simply more for those that already have. But as they ponder, developing-world industries are discovering that, in the information economy at least, they often have more in common with their counterparts in the developed world than with industrial companies back home.
In the most optimistic scenario, the evolution of copyright laws will be a long process. National governments will experiment with new rights. National courts will argue and reargue new distinctions and precedents. Those who feel that international pirates are harming their economic interests will pursue their rights for redress under the WTO, which has already taken on the task of enforcing existing intellectual property laws. WIPO will serve both as a talking shop to monitor and define emerging consensus and, perhaps, a safety net to catch any piracy that may escape WTO's jurisdiction by sidestepping existing intellectual property laws. New global coalitions will evolve. Someday, when the process has finally succeeded, the Net will cease to be a thing argued about, but will simply be the omnipresent medium in which all arguments take place.
