Analysis of Impact of Chairman's Proposal
John Band, Morrison & Foerster
On August 30, the Chairman of the Committee of Experts on a Possible Protocol to the Berne Convention, Jukka Liedes, released his basic proposal for the substantive provisions of three treaties to be considered at a diplomatic conference this December. If adopted, the proposed provisions of two of these treaties, one relating to the protection of literary and artistic works, the other relating to databases, will inhibit the use of information in the next century and thereby stunt the growth of the information infrastructure. Additionally, they would require sweeping changes to U.S. law.
The Chairman's proposal for the treaty relating to literary and artistic works contains many harmful provisions:
Article 7 would inhibit browsing on the World Wide Web. Article 7 requires signatories to treat temporary copies, such as the ephemeral ran dom access memory (RAM) copies made in servers as a piece of information move s through the Internet, as a "reproduction" that could violate the exclusive reproduction right. While paragraph 2 of Article 7 would permit individual countries to fashion exceptions to the reproduction right "where the reproduction is of a transient or incidental nature," that would require an affirmative act of legislation. Moreover, the networked nature of the information infrastructure means that the most restrictive set of national laws would govern the conduct on the entire infrastructure.
Article 10 would substantially expand the exposure of online service providers. Article 10 creates a new exclusive right of communication to the public, which appears to be broader than either the distribution right or public performance right now granted by the U.S. Copyright Act. This new right, when combined with Article 7's treatment of RAM copies as reproductions, significantly increases the likelihood that an online serv ice provider would be found directly liable for a subscriber's infringement.
Article 12 would undermine many of the exceptions created by Congress in Sections 107-119 of the U.S. Copyright Act. The first paragraph of Article 12 commendably permits exceptions to the new exclusive rights created by this treaty. The second paragraph of Article 12, however, limits excepti ons now permitted under the Berne Convention to "certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author." While th is language is similar to that of Article 13 of GATT-TRIPS, the Chairman's notes concerning Article 12(2) state that it is intended to limit the applicability in the digital environment of "minor reservations" now permitted under the Berne Convention. Thus, it is far from clear that exceptions such as Section 110 of the U.S. Copyright Act, which permits distance learning and performance of music in religious ceremonies, would survive this standard as interpreted by the Chairman. Similarly, this standard may require a narrower application of the fair use doctrine with respect to both commercial and non-commercial uses.
95 Article 13 would restrict copying permitted by law. Article 13 corrects some of the flaws contained in earlier draft provisions relating to technological protection, but contains a new flaw. Article 13 would impo se liability on the manufacturer of devices that circumvent copy protection systems if the manufacturer had reason to know that just one out of a thousand devices he produced would be used to make unlawful copies. Thus, if a manufacturer develops a device that enables libraries to circumvent copy-protection systems for purposes of making lawful archival copies, th e manufacturer would be liable if a court ruled that the manufacturer shoul d have expected that at least one librarian would also use the device to ma ke infringing copies. Additionally, Article 13 is replete with ambiguous te rms because it attempts to regulate technology which is not yet in existence. (Disturbing language similar to Article 13 also appears in the other two treaties.)
Although the Chairman's proposal for a treaty relating to literary and artistic works contains many troubling provisions, it also contains numerous provisions which should be codified in treaty form. Article 4 concerning computer programs, for example, represents a significant improvement over earlier drafts, and is ready for immediate adoption. Similarly, Article 5 concerning original databases could be adopted with out amendment. In short, this treaty should be considered at the December diplomatic conference in Geneva, provided that the controversial articles listed above are taken off the table.
Conversely, the treaty relating to databases should not move forward in December. This treaty would create a sui generis form of protection for databases in addition to copyright. Such sui generis protection would, as a practical matter, overturn the Supreme Court's ruling in Feist v. Rural Telephone. In short, this proposal would dramatically alter U.S. law relating to databases, without any meaningful domestic debate. Moreover, the language of the proposed treaty is so sweeping that it may apply to many types of works beyond databases. Regardless of the possible merits of the proposal, the U.S. should never sign a treaty which will necessitate major domestic intellectual property legislation in advance of serious discussions with the affected parties, let alone development of domestic consensus.