Digital Future Coalition: Assuring Consistent U.S. Copyright Policy

 

Issue:

Whether the United States' delegation to the World Intellectual Property Organization's December 1996 diplomatic conference to amend the Berne Convention should argue that consideration of "digital copyright" proposals previously put forward by the United States should be delayed to allow domestic and international consensus to be reached on these critical issues?

Facts:

The World Intellectual Property Organization (WIPO) is an arm of the United Nations which administers the "Berne Convention for the Protection of Literary and Artistic Works," the international treaty governing copyright issues. The WIPO Governing Body is now finalizing a timetable to amend the Berne Convention by means of a new "Protocol" to this multilateral treaty to be drafted by September of 1996, and voted upon by all WIPO member nations at a formal diplomatic conference to be held in December of this year in Geneva.

The Berne Convention was last amended in 1971. Typically, the agendas of formal diplomatic treaty conferences include only those matters around which consensus has emerged both domestically and internationally within the majority of WIPO's member nations.

The United States delegation to WIPO, on behalf of the Executive Branch of our government, has strongly urged in past WIPO meetings (and continues to argue overseas) that the proposed new Protocol to the Berne Convention must include a package of proposals to update copyright law for the digital age. These proposals are essentially identical to those now before the 104th Congress (S. 1284 and H.R. 2441), which is highly unlikely to complete action on these bills prior to adjourning in October of 1996.

Serious and detailed concerns have been raised about the pending legislation and the proposed diplomatic conference's agenda in the United States and in recent international fora. These concerns are shared by major American industries, as well as by the nation's librarians, educators, and consumer and privacy advocates. No domestic or international consensus on how best to modify U.S. or international law in order to maximize the potential of "cyberspace" thus may fairly be said to exist at the present time. In addition, it is unlikely that a domestic consensus will be achievable without substantial additional debate in the 105th Congress to be convened in January of 1997.

Analysis:

As detailed in the attached chronology, the pending legislation was unveiled by the Executive Branch and introduced in Congress almost 16 months prior to the diplomatic conference subsequently proposed for December of 1996. In the intervening months, however, it has become clear that full Congressional floor debate and action on the pending legislation is highly unlikely to occur before the 104th Congress' scheduled adjournment in early October.

If the standing call of the United States' delegation to WIPO is unmodified and heeded by WIPO members, representatives of the Executive Branch will in December aggressively urge the adoption internationally of proposals which have not yet been fully considered by Congress and around which no domestic policy consensus has formed. Without regard to the merits of the proposed legislation, such action by the Executive Branch would seriously undermine the Constitution's grant of copyright authority to the Congress by reducing the Legislature's role in this critical policy arena to the mere review and implementation of hastily adopted treaty language. In practice, it would deny Congress the maximum degree of substantive input in the formulation of domestic digital copyright policy vital to the nation's economic and intellectual progress.

Proposal:

 The Digital Future Coalition does not propose that a December 1996 diplo- matic conference to amend the Berne Convention be abandoned. Rather, it believes that any such conference should be limited to matters previously considered by WIPO and around which domestic and international consen- sus has substantially formed (e.g., computer programs, original databases, and "TRIPS" enforcement provisions).

The DFC therefore urges the bipartisan leadership of both Houses of Congress, and all members of the Senate and House Committees of jurisdiction, to formally request of the Executive that the United States' delegation to the World Intellectual Property Organization: (1) withdraw earlier proposals for matters within the scope (or likely to be within the scope) of S. 1284 and H.R. 2441 to be on the agenda of the diplomatic conference to be held in December of 1996 for the purpose of modifying the Berne Convention; and (2) affirmatively indicate in all future WIPO fora that it is the position of the United States government that no such proposals should be considered by WIPO prior to full consideration in 1997 by the United States Congress of all relevant issues and the enactment of responsive legislation.

 

Events Relevant to Whether Digital Copyright Issues Should be Included on the Agenda of a 1996 Diplomatic Conference to Amend the Berne Convention

 

Sept. 1995

Secretary of Commerce and Commissioner of Patents and Trademarks unveil the "White Paper" Report of the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force in Washington and Geneva; Legislative text appended to the Report introduced verbatim in both Houses of Congress.

Nov. 1995

Joint hearing on S. 1284/H.R. 2441 held by Senate Judiciary and House Courts and Intellectual Property Subcommittee; Testimony taken from three "government witness" proponents of bills; Commissioner of Patents and Trademarks testifies -- in response to direct questions by Sen. Hatch and Rep. Boucher -- that international negotiation processes are sufficiently slow to preclude de facto preemption of Congress' copyright policy making prerogatives and responsibilities by amending the Berne Convention in 1996.

United States delegation formally presents and endorses for WIPO adoption a package of proposals substantially identical to the pending legislation; "Reservations" to delegations actions expressed by non-governmental participants, including the Computer & Communications Industry Association and Home Recording Rights Coalition.

Feb. 1996

Two half-day hearings held on H.R. 2441 in House Intellectual Property Subcommittee; House hearing record closed 1 week later.

May 1996

Senate holds first of several planned hearings on S. 1284 with single-panel session (5 witnesses); Memorial Day recess scheduled (5/24 to 5/28); "Stockholm Group" of industrialized nations meets in Rome to consider December diplomatic conference agenda; WIPO Governing Body convenes in Geneva to consider whether to formally and definitely schedule December diplomatic conference to amend the Berne Convention and to draft the conference's agenda.

July 1996

Independence Day recess scheduled (July 1 to 5).

Aug. 1996

Month-long summer recess scheduled (Aug. 3 to Sept. 3).

Sept. 1996

Draft treaty text released for comment by WIPO member delegations.

Oct. 1996

Congress scheduled to adjourn (October 4) until January 1997.

Dec. 1996

Proposed WIPO treaty negotiations to be convened and concluded.

Jan. 1997

Concluded treaty will be presented for ratification to the Senate; relevant House and Senate Committees would begin considering mere treaty implementation legislation.

 

 

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