Proposed Revisions to Draft WIPO Treaty Proposals



Scope of the Right of Reproduction

(1) The exclusive right accorded to authors of literary and artistic works in Article 9(1) of the Berne Convention of authorizing the reproduction of their works shall include direct and indirect reproduction of their works, whether permanent or temporary, in any manner or form.

(2) Contracting Parties shall in their national legislation create an exception or limitation to 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.


Paragraph (2) has been revised to assure consistent international legal treatment for certain temporary reproductions that occur in the course of ordinary usage of electronic devices. Because such activities occur with respect to the operation of networks and devices intended to be used in a global market setting, a uniform level of protection for such uses is necessary and desirable; otherwise, the possible imposition of liability in certain countries effectively could prevent such activities in every country connected to the network. The revisions to the text make clear that national legislation can secure the legal status of such temporary storage by creating exceptions or limitations to the general right of reproduction, but that the legitimate status of such reproductions must be secured.

Electronic devices, including telecommunications products, computers, audio and video recorders, compact disc players and televisions, typically include some form of memory device that is used in the course of transmitting, displaying, performing or using a copy or transmission of a copyrighted work. For example, "browsing" on the Internet and the loading of computer programs cause reproductions to be made in the random access memory of the computer. Portable compact disc players may store temporarily in memory a few seconds of the signal from a disc. Temporary storage also occurs in the memory circuits of broadcast and telecommunications equipment, in the course of communicating signals transmitted by others. Such reproduction is integral to the ordinary operation of the devices and networks, and the transmission and authorized usage of the copyrighted material.

In addition, the final clauses of the original text have been deleted. Requiring that the exempt reproduction must take place "in the course of use of the work that is authorized by the author or permitted by law" could impose liability upon third parties or innocent recipients that passively carry or receive infringing transmissions originated by others, and Congress would be prohibited from exempting these activities. Thus, this language preserves the ability of Congress to fashion appropriate exemptions for On-line Service Providers.



Right of Communication

(1) Without prejudice to the rights provided for in Articles 11(1)(ii), 11 bis(1)(I), 11ter(1)(ii), 14(1)(I) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, including the making available to the public of their works, by wire or wireless means, in such a way that members of the public may access these works from a place and at a time individually chosen by them.

(2) National legislation of a Contracting Party may provide that the right provided for in paragraph (1) does not apply to the communication to a specific individual of a copy of any work after the lawful acquisition of a copy of that work by the person making that communication, provided that in the case of works in digital format, the copy in the possession of the person making of the communication shall be erased or deleted substantially contemporaneously with the communication.

(3) In connection with the right provided in paragraph (1), Contracting Parties shall, in their national legislation, make adequate and appropriate provisions to limit the liability of persons who, in the course of business, operate or provide access to digital information networks.


Paragraph (2) has been revised so as to provide for exhaustion of the communication right under specific circumstances, so as to preserve the ability to dispose or transfer copies lawfully acquired by electronic means. As copies of works are distributed commercially through electronic communications, the ability to transfer or resell those copies by electronic communication will become increasingly important. This paragraph (2) therefore provides for the exhaustion of the communication right with respect to subsequent transfers, on condition that the transferor's copy of the work is erased or deleted contemporaneous with, or within a short time after, the transmission of a copy to the transferee. The paragraph also limits this right to the transfer to a specific individual, and so would not affect the liability of any individual for posting such copies generally on an electronic bulletin board, newsgroup or the like.

Paragraph (3) reflects the fact that there has been substantial progress toward resolving this issue in the U.S., and that a resolution of the outstanding controversies is expected in 1997. There seems to be some consensus that limitations on liability are required, though not yet on the precise form they should take. It is not clear that -- absent special provisions in any international agreements providing for the functional equivalent of a "transmission right" -- such limitations would be permissible. And it is important, from the standpoint of U.S. national interest, that other countries should follow our lead in this matter; otherwise, U.S. access providers may find themselves liable under the unreasonable national laws of other states. Hence, this language, which is mandatory in its general command, but non-specific as to the exact form that national laws should take.



Limitations and Exceptions

(1) Contracting Parties may, in their national legislation, provide or limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

(2) Contracting Parties may, when applying the Berne Convention, provide for limitations of or exceptions to rights granted therein in 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.


The word "only," to describe the cases in which limitations or exceptions may be provided, has been deleted from paragraph (1). The word "only" does not appear in Article 9(2) of the Berne Convention, the provision upon which this paragraph has been modeled. Inclusion of the word "only" may imply incorrectly that the scope of permissible limitations or exceptions is narrower than under Article 9(2).

Paragraph (2) has been changed to be more consistent with the wording of Paragraph (1) and Article 9(2) of the Berne Convention. The existing Berne Convention text (Paris 1971) provides specific limitations and exceptions in particular cases. The prior language might have implied that such existing limitations and exceptions were to be applied in a more restrictive manner, with uncertain consequences. The wording proposed above allows contracting parties sufficient flexibility to apply new imitations or exceptions in a consistent manner, no matter the version of the Berne Convention to which the parties have acceded.



Obligations Concerning Technological Measures

(1) Contracting Parties shall provide adequate, effective and appropriate legal protections to enable rights holders to use technological measures so as to limit access to and subsequent copying of works only to users authorized by the right holder or the law.

(2) Such protections shall include adequate, effective and appropriate remedies, constituting a deterrent and a sufficient sanction, against unjustified interference with or circumvention of such measures, including means (a) for suppressing services provided to circumvent such measures and (b) for controlling traffic in devices provided to circumvent such measures, but shall not impede either the manufacture or sale of devices that have substantial lawful uses or the lawful use of subject matter that is in the public domain.


This Article has been redrafted in a manner that gives strong protection to copyright owners without interfering with lawful devices or lawful uses. The concept of technological measures is intended to apply to a broad range of copyrighted works, protective technologies and devices that are capable of performing and copying such works. Dedicated effort and great expertise has been devoted to the development of a more specific provision, but such efforts have failed to produce a single standard of liability that equitably satisfies all interests, including the public interest. Therefore, the proposal sets forth a broad obligation and leaves to the national legislatures decisions as to the adequate, appropriate and effective means of implementation.

Works delivered by cable, satellite, network and magnetic and optical disc media increasingly are being protected against unlawful access by means such as scrambling, encryption, software envelopes or password protection. The proposed text addresses this most pressing problem for the present and future, namely, the prevention of unlawful access to copyrighted works and the subsequent copying thereof in contravention of technologies employed by the copyright owner. Because such technologies are well defined and controlled by the right holder, a legal provision that addresses these technologies poses little or no risk of imposing liability for inadvertent acts or of imposing undue design constraints on hardware manufacturers and software developers.

The proposal also obligates parties to enact measures against circumvention of or interference with the technologies without justification. It would not, however, preclude unauthorized circumvention or interference for lawful purposes. The proposal further requires adoption of sufficient sanctions against the providing of circumvention services for unlawful purposes, and against the use of devices in the course of unlawful circumvention.

The last clause of paragraph (b) of the proposal essentially is taken from paragraph 13.05 the Explanatory Notes to the original Article 13 written by Chairman Liedes, with one amendment. The word "substantial" was inserted to modify "lawful uses" for two reasons. First, because the lawful uses must be "substantial," manufacturers cannot avoid liability by demonstrating sham or make-weight uses. Second, the requirement of "substantial" uses was intended to be consistent with the standards of contributory copyright and patent infringement liability with respect to the manufacture and sale of staple articles of commerce under United States law.



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