Copyright committee sessions at 2002 conference in Berkeley

Monday August 5, 09:15 - 10:45

Session 1: International copyright issues: harmony or counterpoint?

Presented by the Copyright Committee.
Chair: Anne Le Lay (Bibliothèque du CNR, Boulogne Billancourt).

Copyright issues in digital music distribution

James Kendrick, Esq., Partner, Brown Raysman Millstein Felder & Steiner LLP, New York

The Internet provides a means for instantaneous dissemination of all manner of content, including copyrighted music, motion pictures and other audio-visual works, literary materials and works of visual art, throughout the world. The international copyright system, in contrast, is built on the concept of territorial protection, with each territory having developed its copyright regime based on the minimum standards set out in the main international treaties but also very much influenced by local laws, customs and business practices.

Since the enormous communication power of the Internet was recognized in the mid-1990's, efforts have been made to revise the international copyright system to accommodate the borderless world of digital transmission. These efforts have been complicated by the development of technology that allows members of the public to make and distribute virtually perfect digital copies of music, motion pictures and other economically-valuable intellectual property over the Internet to literally millions of potential users without permission from, or payment to, the copyright owners of that property. This has caused content owners to be extremely cautious in making valuable works available for widespread Internet use, and caused lawmakers to consider new technologically-based solutions to prevent unauthorized copying in circumstances where the traditional remedies for copyright infringement fail to deter such activity.

We will examine the current thinking as to the copyright rights implicated by various types of digital transmissions. We will also consider the changes in the U.S. copyright law and recent case law to respond to both the promises and the threats arising from digital transmission. Finally, we will review the as yet unfinished efforts of the countries of the European Union to implement the Copyright Directive so as to harmonize copyright legislation across the EU and reduce trading barriers both within the EU and with its international trading partners.

How the United States Is Dealing with International Copyright Agreements: Processes for Compliance

Marybeth Peters (Register of Copyrights, U.S. Copyright Office, Washington, DC)

There is no such thing as an "international copyright". Protection against use of an author's work in a particular country basically depends on the national laws of that country. International copyright treaties and conventions, however, are the underpinning of a country's international copyright obligations, and there are a number of such agreements. The oldest (1886) and primary international copyright convention is the Berne Union for the Protection of Literary and Artistic Works (Berne Convention). Other extremely important agreements are the two new WIPO (World Intellectual Property Organization) treaties which entered into force earlier this year--1) the WCT, the copyright treaty and 2) the WPPT, the Performances and Phonograms Treaty. They represent the most up-to-date international copyright norms in that they deal with "digital" issues and create a distinct distribution right. Another most; important agreement is TRIPS, the Trade Related Aspects of Intellectual Property Agreement, of the World Trade Organization (WTO) concluded in 1994 as part of the Uruguay Round of the GATT (General Agreement on Tariffs and Trade). Key provisions of TRIPS are its enforcement obligations (the first multilateral intellectual property agreement to contain such obligations) and its dispute resolution mechanism for violation of its provisions.

The United States is a member of the above mentioned agreements. The basic premise of most international copyright agreements is what is known as national treatment-the equality of treatment between foreign and national authors. There are exceptions to this rule. For example, the Berne Convention requires that member countries grant minimum term of protection--the life of the author plus 50 years. However, many countries provide terms in excess of this minimum and the Berne Convention allows member countries to limit the term of protection for a foreign author to the term of protection offered by the foreign author's country.

Today, much of focus is on TRIPS and the two new WIPO treaties. With respect to TRIPS, as of January 1, 2000, it constitutes binding minimum standards for all WTO members (with the except of UN-recognized least-developed countries.) If a country's laws do not meet these standards, the matter may be taken to the WTO Dispute Settlement Body. The United States has taken (and continues to bring) a number of cases to dispute settlement. Many of these complaints involve the enforcement obligations of TRIPS. In 1999 the European Commission brought a case against the United States contending that the 1998 Fairness in Music Licensing legislation which exempted certain public establishments (bars, restaurants, shops) from the obligation to pay public performance royalties for the playing of radio and television music was a violation of the U.S. obligations under Article 9(1) of the TRIPS agreement. (This article requires compliance with the Berne Convention.) Subsection (b) of Section 110(5) of the U.S. copyright law was found to violate both the Berne Convention (Article 11) and the TRIPS Agreement (Article 13). The United States did not appeal this decision, and the amount of damages has been determined and payment will be made...

With respect to the new WIPO treaties, the focus of the U.S. has been on how contracting states are implementing their obligation to provide "adequate legal protection and effective legal remedies" against the circumvention of effective technological measures that are used by authors and rights owners in connection with the exercise of their rights under the WCT, the WPPT and the Berne Convention. The treaties give countries flexibility in the implementation of their obligations. The questions are: what is "adequate", what is "effective" and whether prohibitions in national laws should encompass devices or can they be limited to merely conduct, that is, the act of circumventing. The United States implementing legislation was enacted in the Digital Millennium Copyright Act (DMCA). It prohibits devices and services if they are primarily designed or produced for the purpose of circumvention or have only limited commercially significant purpose or use other than circumventing. Any device or service which is knowingly marketed for use in circumventing is also prohibited. The device/service provision covers technological protection measures used to control both access to a work and copying of it. The DMCA also prohibits the circumvention of access controls; there are, however, a number of exceptions to this prohibition.

In addition, the WCT and WPPT require Contracting Parties to provide adequate and effective legal remedies against knowingly removing or altering electronic rights management information, which the WCT defines as information which is attached to a copy of a work or appears in connection with the communication of a work to the public. The "information" includes identification of the work, the author or a right owner, and terms and conditions of use or any numbers or codes that represent such information. (The language in the WPPT is similar but instead of referring to an author, it refers to a performer or a producer of a phonogram.) Implementation of these provisions has not been controversial.

Given today's global digital highway, these new treaties are critical; implementing legislation is also extremely important since specifics are not included in the treaties themselves. Yet some countries have ratified or adhered to the treaties and not enacted implementing legislation. In negotiating free trade agreements (e.g., Singapore and Chile), the United States requires countries to provide legislation carrying out the obligations of these new treaties.

Added Voices: Libraries and Library Associations

Bonna Boettcher (Chair, Legislation Committee, Music Library Association)

Library associations are essential voices in any discussion of copyright issues, including digital delivery of a variety of formats. In the United States, the Music Library Association has taken a variety of steps to insure that the concerns of music librarians are heard in discussion of digital delivery of music.

Through the work of its Legislation Committee, MLA has developed statements on copyright and fair use and digital reserves. In these statements, the Association recognizes the rights of copyright owners, but also recognizes that fair use as a right still exists and that the means of delivery is a tool: the nature of the use, not the delivery mechanism is what must be considered.

Through its copyright website, in existence since 1996, MLA's Legislation Committee has communicated opinions on a variety of copyright questions, including those involving digital delivery. The committee monitors questions raised by the membership and works to identify and respond to the issues raised. The site also serves as a means of notifying the membership of current issues and recent actions taken by MLA.

Larger U.S. library associations, such as the American Library Association, the Medical Library Association, the Special Libraries Association, and others, frequently pool their resources to address issues of concern. MLA has added its name to several actions presented by these associations, including, most recently, the challenge to the Sonny Bono Copyright Term Extension Act.

Tuesday August 6, 16:15 - 17:45

Session 2

Open working meeting, with representatives from different countries.

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