Ad Hoc Alliance for a Digital Future
Suggested Revision to the Chairman's Basic Proposal
for the Treaty Formarly Known as the Berne Protocol
Article 7: Scope of the Right of Reproduction
Article 10: Right of Communication
Article 13: Obligations concerning Technological Measures
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 authorising the reproduction of their works shall include direct and indirect reproduction of their works, whether permanent or temporary, in any manner or form.
(2) It shall be permissible to make temporary reproductions of works where such reproductions (i) have the purpose of making perceptible an otherwise imperceptible work; (ii) are of a transient or incidental nature; or (iii) facilitate transmission of a work and have no economic value independent from facilitating transmission; these being special cases where such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
In striking the appropriate balance in Article 7, one should keep in mind the history and nature of the reproduction right. Computers did not exist in any great numbers in 1971 when the reproduction right was expressly included in the Berne Convention, and computer networks had hardly been imagined. Thus, it would be difficult to conclude that the drafters of Article 9 in 1971 thought that ephemeral copies made in computer memory fell within the meaning of Reproduction in that Article. Moreover, since its inclusion in the treaty in 1971, the reproduction right has not come, as some would have it, to be widely regarded as including temporary reproductions within its purview.
Even within the European Union, the prevailing view among academics is that outside of the specific context of software, the reproduction right does not necessarily include temporary reproductions. Moreover, even in the software context, respected academics have argued that including all temporary copies within the reproduction right would overstretch the reproduction right and that the transition into the digital networked environment does not, as such, seem to justify such a radical extension of the exclusive right.
We therefore agree with the conclusion in Note 7.14 of the Basic Proposal that some Berne Union members -- indeed we would suggest the majority -- take the view that temporary reproduction is not included within the reproduction right. Rather than merely confirming existing law, we believe, as do copyright scholars world-wide, that Article 7(1) s inclusion within the definition of reproduction of indirect and temporary copies would significantly expand the reproduction right in the vast majority of Berne Union countries. Moreover, it is difficult to foresee the consequences of this expansion, but it seems certain to bring within the scope of the reproduction right many types of technical copies that otherwise would not, were current law left to evolve naturally, be found infringing.
While we do not propose changes to Article 7(1) in this paper, we suggest that to achieve an appropriate balance Article 7(2) should be formulated in light of the above considerations. As European Commission officials have repeatedly emphasised, the treaty is intended to establish a minimum standard of rights. In this regard, it is difficult to see how Article 7(1) could have been drafted to provide a greater scope. Indeed, unless properly limited by Article 7(2), Article 7 would seem to provide a maximum scope for the reproduction right.
For these reasons, we have proposed revisions to Paragraph (2) seeking to ensure consistent international legal treatment for temporary reproductions occurring in the course of ordinary usage of electronic devices and digital networks. Since such activities occur with respect to the operation of networks and devices intended to be used in a global market setting, a uniform approach to such uses is necessary and desirable. Any other approach would mean that the imposition of a stricter definition of reproduction in certain countries effectively could prevent activities in every country connected to the network.
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 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. As stated by Chairman Liedes, these cases shall pass the three-step test of article 9(2) of the Berne Convention. See Note 7.18.
Article 7(2) has been modified to clarify that temporary reproductions occurring in the course of ordinary usage of electronic devices and digital networks fall within Article 9(2) of the Berne Convention, and hence are uniformly exempted from Article 7(1). Thus, the initial clause of Article 7(2), which would have made it subject to Article 9(2), has been omitted. Such a uniform clarification by the Contracting Parties of Article 9(2) s application in a particular case is not contrary to the Convention, and hence is permissible under Article 20 of the Berne Convention.
The final clause of the original text has also been deleted. This revision is absolutely critical: requiring the exempt reproduction to take place in the course of use of the work that is authorised by the author or permitted by law ignores the reality of the digital world. Just 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 authorised. As currently formulated, Article 7(2) would not appear to permit adoption of national laws exempting infrastructure providers from liability in cases where they unknowingly serve as conduits for infringing works. In short, in its current form Article 7(2) would, untenably, require signatories to the treaty to treat, inter alia, all the ephemeral copies of unauthorised works passing through an infrastructure provider s network as infringing reproductions.
Right of Communication
Without prejudice to the rights provided for in Article11(1)(ii), 11 bis (1)(I), 11ter (1)(ii), 14(1)(I) and 14 bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorising communication to the public of their works, including the making available 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. For the purposes of this Article, communication to the public, in respect of any given communication, means the initial act of making a work available to the public and excludes the mere provision of facilities for enabling or making any such communication.
Article 10 has been modified to clarify that the right of communication, with respect to any given communication, is limited to the initial act of making the work available to the public. As Chairman Liedes states in Note 10.10, [w]hat counts is the initial act of making the work available, not the mere provision of server space, communication connections, or facilities for the carriage and routing of signals (emphasis added).
In light of the critical importance of clarifying this issue in the digital environment, the text of the treaty itself should reflect this approach. Article 10 of the Basic Proposal had the potential of bringing within its scope the provision of communications connections or facilities, which the Chairman acknowledges should not be caught, within its scope. Our change is intended to clarify at a treaty level that they are not covered.
Our proposed language would not preclude treaty signatories from adopting national legislation imposing secondary liability upon network providers where, for example, they have actual knowledge of infringing works being disseminated via their systems. What must be avoided is the adoption of treaty language, like that contained in Article 10 of the Basic Proposal currently being considered, which could lead to the imposition of liability for direct infringement by serving as an innocent conduit for unauthorised copies.
Limitations and Exceptions
(1) Contracting Parties may, in their national legislation, provide for 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 a 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 limitations of or exceptions to rights granted therein in certain special cases which do not conflict with a 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 modelled. Inclusion of the word only may imply incorrectly that the scope of permissible limitations or exceptions is narrower than under Article 9(2), and we have therefore suggested omitting it.
Paragraph (2) has been changed to be more consistent with the wording of Paragraph (1) and the Berne Convention. The Berne Convention text provides specific limitations and exceptions in particular cases. The language of Article 12(2) of the Basic Proposal might have implied that such existing limitations and exceptions are always subject to the Article 9(2) three part test, with uncertain consequences. We would therefore suggest modifying Paragraph (2) as suggested above or deleting it altogether.
Obligations concerning Technological Measures
(1) Contracting Parties shall make unlawful the importation, manufacture or distribution of protection-defeating devices, or the offer or performance of any service having the same effect, which have the sole intended purpose of being used for, or in the course of, the exercise of rights provided under this Treaty that is not authorised by the rightholder or the law.
(2) Contracting Parties shall provide for appropriate and effective remedies against the unlawful acts referred to in paragraph (1).
(3) As used in this Article, protection-defeating device means any device, product or component incorporated into a device or product, the sole intended purpose of which is to circumvent any generally recognised process, treatment, mechanism or system that prevents or inhibits any of the acts covered by the rights under this Treaty.
Article 13 of the Basic Proposal would define protection-defeating devices by reference to their primary purpose or primary effect, and would prohibit such devices whenever a manufacturer knows or has reason to know that they could be used to make even one infringing copy. In our view, this standard is much too broad and open-ended, and threatens legitimate business behaviour and future technological development.
We have recommended modifying the text to be consistent with Article 7(1)(c) of the recent European Union Software Directive. The Software Directive deals specifically with protection-defeating devices by outlawing such devices when their sole intended purpose is unlawful circumvention. In adopting this approach, the European Union and its Member States balanced the legitimate interests of rightholders in employing protection devices to defeat unlawful reproduction with those of the public in lawful reproduction for reverse engineering and other legitimate purposes.
We believe the EU was correct in adopting this approach to protection-defeating devices in 1991. This is not to say that stricter legislation aimed at specific devices should not be adopted when it becomes clear that such legislation is necessary and appropriate. Rather, we are concerned with the proposed treaty s attempt to deal in an across-the-board manner with multi-purpose devices and devices intended to make lawful reproductions. This is why the EU Software Directive limited its reach to those devices the sole intended purpose of which was unlawful reproduction, and why we believe the new treaties should take the same approach.
We have also added a limitation that only generally recognised protection devices shall be included within the scope of this provision. This change is necessary to prevent parties from claiming that devices that were never intended to act as protection devices come within its purview.
Submitted by the European Members, October 31, 2020