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fair use
- to: debate@fitug.de
- subject: fair use
- from: uzs106@ibm.rhrz.uni-bonn.de
- Date: Thu, 19 Dec 1996 17:57:20 +0100
- Comment: This message comes from the debate mailing list.
- Sender: owner-debate@fitug.de
Da wir hier mal darueber diskutiert hatten, w/ Kopiererabgabe etc und
ob sowas nun auch fuer Provider eingefuehrt werden sollte....
Abgesehen davon, mit Diebstahl hat Copyright nichts zu tun!!
"Geistiges Eigentum", wie passt das dazu, dass es zeitlich begrenzt ist??
Und so weiter, es ist eben kein Naturrecht, wenn es sowas ueberhaupt gibt,
sondern eher eine Art staatliches Geschenk, eine Art Wirtschaftspolitik.
Nun wird also von WIPO wegen wohl hinsichtlich fair use alles beim alten
bleiben. Was nicht heisst, dass jeder auf seiner Homepage die neuesten
Romane anbieten darf.
Heiko
voila:
(The proposed changes to the text of the WIPO
proposal (at http://www.loc.gov/copyright/wipo4.html--look way, way
down) seem trivial, but other comments in this bulletin show that
Lehman has shown respect for the key principle of "fair use" in
copyright.--Andy)
USIS GENEVA DAILY BULLETIN
Friday, December 13, 1996
Mission of the USA
11, route de Pregny
1292 Geneva
Switzerland
Tel +41 22 749 4358 Public Affairs Counselor:
Fax +41 22 749 4314 Cornelius C. Walsh
USIS Geneva on the Internet - http://www.itu.ch/MISSIONS/US/
[snip]
EUR419 12/12/96
STATEMENT FROM U.S. DELEGATION TO WIPO CONFERENCE
(Seeks to apply "fair use" doctrine to Internet)
Washington -- The following is a press statement issued December
12 by the U.S. delegation to the World Intellectual Property
Organization Diplomatic Conference in Geneva:
(begin text)
In a public statement to the diplomatic conference of the World
Intellectual Property Organization (WIPO), the United States has
stressed that the doctrine of "fair use" of copyrighted materials
should apply on the Internet and elsewhere within the digital
environment.
Bruce Lehman, U.S. assistant secretary of commerce and
commissioner of patents and trademarks, said the United States
wants it to be clear that two new copyright treaties under
negotiation in Geneva "will permit application of fair use in the
digital environment."
Commissioner Lehman told the WIPO conference the United States
believes the two new legal instruments under negotiation "should
be understood to permit contracting parties to carry forward and
appropriately extend into the digital environment limitations and
exceptions in their national laws which have been considered
acceptable under the Berne Convention."
"Similarly these provisions should be understood to permit
contracting parties to devise new exceptions and limitations that
are appropriate in the digital environment," he said in a
December 10 statement to a plenary session of the WIPO Diplomatic
Conference.
"We are responding to the concerns of librarians, educators, and
on-line service providers in the United States," Commissioner
Lehman said later. "We want to make it clear that the treaties
we are negotiating are not going to restrict their appropriate
use of copyrighted works."
The United States hopes countries at the WIPO diplomatic
conference will endorse a joint statement extending "fair use"
and related exceptions into the digital environment. The
statement would be made part of the reported proceedings of the
conference and would be made publicly available along with the
treaty text.
Jim Neal, director of libraries at Johns Hopkins University and a
member of the U.S. delegation representing the America Library
Association, "applauds the very positive endorsement of the `fair
use' doctrine advanced by the America delegation and Commissioner
Lehman" and "looks forward to the conference embracing a
statement which powerfully extends the concept of appropriate
extensions in the digital environment."
The following is the text of the December 10, 1996, statement on
"fair use" by Bruce Lehman at the WIPO Diplomatic Conference on
certain copyright and neighboring rights questions:
The United States supports inclusion of article 12 with changes
to two words in the first paragraph to make the text mirror
article 9(2) of the Berne Convention. The first change we
propose is to delete the word "only" in the second line of the
paragraph. The second change we propose is to change the word
"the" to the word "a" in the third line of the paragraph, so that
the phrase "conflict with the normal exploitation" would read
"conflict with a normal exploitation".
The United States also wishes to make clear certain
understandings with respect to article 12. It is essential that
these treaties permit application of the evolving U.S. doctrine
of fair use in the digital environment. In particular, the
provisions of article 12 should be understood to permit
contracting parties to carry forward and appropriately extend
into the digital environment limitations and exceptions in their
national laws which have been considered acceptable under the
Berne Convention. Similarly, these provisions should be
understood to permit contracting parties to devise new exceptions
and limitations that are appropriate in the digital network
environment.
(end text)
EUR420 12/12/96
U.S. SAYS "FAIR USE" EXEMPTION SHOULD APPLY ON THE INTERNET
(Protection sought for copyright in cyberspace)
By Wendy Lubetkin
USIA European Correspondent
Geneva -- The United States says the doctrine of "fair use" of
copyrighted materials must apply on the Internet and wants that
point made clear in a statement by a conference currently
negotiating new laws to protect intellectual property in the
digital age.
Bruce Lehman, U.S. assistant secretary of commerce and
commissioner of patents and trademarks, said it is "essential"
that two new copyright treaties under negotiation in Geneva
"permit application of fair use in the digital environment."
The move to update the century-old Berne Convention -- the treaty
that protects intellectual property internationally -- has caused
concern among library, academic and consumer groups as well as a
number of leading high technology firms. They argue that the new
treaties must strike a delicate balance between the rights of
copyright owners and the public interest.
A key concern has been that the doctrine of "fair use" would not
apply in cyberspace and that, as a result, distribution of
certain information that is currently legal via mail or fax
machine might become illegal via the Internet or electronic mail.
In the United States, the doctrine of "fair use" permits
individuals to make use of copyrighted works without the
permission of the copyright owner, provided such use does not
cause that owner economic harm. Over the past 200 years, this
legal concept has evolved to cover such instances as quoting from
a book or article in one's own work or photocopying an article
for distribution in a classroom or to a friend. Most other
countries allow similar exceptions to copyright law, but may
refer to them as "limitations" or "exemptions."
The two treaties currently under discussion at the December 2-20
Diplomatic Conference of the World Intellectual Property
Organization (WIPO) are a protocol to the Berne Convention and a
new instrument protecting the rights of performers and producers
of phonograms. They aim to update copyright protections to meet
the challenges of a digital age when texts, recordings and images
can be sent around the world with a single keystroke.
As the conference ended its second week, delegations had yet to
turn their attention to a third and highly controversial agenda
item: a treaty that would extend copyright protections to
databases.
Lehman said there were two reasons the conference has not begun
to work on the database treaty. One is that the third treaty is
sufficiently different from first two that it really cannot be
debated in tandem with them. The second is that the proposal
raises "some really significant issues" that delegations need
more time to digest.
In his December 10 statement on "fair use," Lehman insisted that
the new treaties be interpreted to extend into the digital
environment the same limitations and exemptions considered
acceptable under the existing Berne Convention.
"We are responding to the concerns of librarians, educators, and
on-line service providers in the United States," Lehman said
afterwards. "We want to make it clear that 'fair use'
protections exist in the digital network environment for
individuals and that the treaties we are negotiating are not
going to restrict their appropriate use of works."
In his statement, Lehman also emphasized that signatory nations
should have the future flexibility to devise new exceptions and
limitations to the rights granted to owners.
"You have to be flexible so that as new circumstances and new
technologies arise, you permit this doctrine of fair use to
evolve," Lehman said in an interview. "We expect it to be
extended into new uses that we can't currently project right now.
If we are too explicit, we will actually prevent the doctrine of
fair use from being able to evolve properly."
Lehman said he was hopeful that the WIPO conference will attach a
statement on "fair use" to the treaty text, thus making it part
of the formal proceedings.
"We were very pleased with the U.S. statement," said Adam
Eisgrau, who is representing at the WIPO conference both the
American Library Association and the Digital Future Coalition, a
group that seeks balance in copyright laws.
"The points Commissioner Lehman made were all extremely necessary
and important to make, and we are delighted that the U.S.
delegation made them unequivocally," he added.
Douglas Bennett, of the American Council of Learned Societies,
noted that other nations at the conference supported the U.S.
statement. "There seemed to be a strong sentiment that there
should be a statement on `fair use,'" he said.
But Internet, communications and on-line companies say they still
have a separate set of worries about the new treaties: They fear
they could be held liable for infringements by Internet users.
"We are not interested in becoming the Internet cop," said Aubrey
Sarvis, vice president of Bell Atlantic Network Services at a
December 11 press briefing.
In a December 10 letter to President Clinton, Bell Atlantic and
other companies, including MCI Communications, CompuServe and
America On-Line, expressed "deep concern" that the treaty text
will make them "liable without knowledge for every potentially
infringing communication on the Internet."
"Our companies build and operate the 'Information Highway' that
figures so prominently in your vision of the 21st century," they
wrote.
"Not only is this technically and economically impractical, it
would require us to violate individual citizens' privacy rights,"
the letter says about the treaty text. "The result would be
sharply increased prices for Internet/online services, reduced
privacy for users, and reduced connectivity among 'information
have nots' in our society and throughout the world."
A broad grouping of telecommunications and Internet firms at the
WIPO conference including AT&T, Netscape, and MCI have formed an
Ad Hoc Copyright Coalition (AHCC) to press for changes to
articles 7 and 10 of the treaty.
The coalition argues that article 7, which determines copyright
holders' rights over reproductions of their work, is too broad.
They fear it could be read to extend to "caching," the type of
automated and incidental copy making built into Internet software
such as Netscape.
In addition, they say article 7 would limit holders' rights only
through national laws, ignoring "the global and borderless nature
of the Internet" and subjecting it to a "patchwork of national
policies."
The AHCC is also pressing for changes to article 10, which
creates a new exclusive right for authors to "authorize any
communication to the public of their works." The problem with
article 10, the coalition argues, is that it fails to clarify who
can be found liable for infringing on this new right.
Coalition members said they would be forced to lobby against
ratification of the WIPO treaty by Congress unless changes to the
two articles are made. A number of proposed modifications are
currently under consideration at the WIPO conference.
Lehman said the United States "clearly does not expect service
providers to monitor each and every use of the Internet."
"Our position is very strongly that they are not going to be held
liable for infringements over which they have no control, where
they are operating as a mere conduit for someone else's work,"
Lehman said. "However, when they have control over the content
that they are transmitting, it is not unreasonable for them to be
at least in part subject to some kind of judicial process."
For example, a service provider clearly could not be held liable
for an encrypted e-mail message, Lehman said. "That is just the
same as putting something in an envelope and sending it through
the mail," he said. "In fact, there are actually laws against
the service provider being able to intrude into your privacy."
On the other hand, Lehman said, "there also needs to be the right
of the copyright owner to go to the service provider and say,
'Mr. Smith has put my work up on his homepage on your network.
Please take it down.'"
As long as the service provider responded to the request, it
would not be held liable, Lehman said. "If a book store is
selling infringing works, a copyright holder can go and get the
bookstore to stop selling the infringing works," he pointed out.
Barbara Dooley, executive director of the Commercial Internet
eXchange Association (CIX), an international trade association of
Internet service providers, said she believed the concerns of the
Ad Hoc Copyright Coalition are now being heard as government
delegations are showing more flexibility.
In an interesting footnote, Dooley also pointed out that the
Internet -- an extraordinarily transparent medium -- actually
provides new tools for pinpointing copyright infringements. By
using a search mechanism, for example, an author can enter a
title or a string of words and generate a list of on-line
occurrences of the same phrase.
Despite the complexity of the issues, Lehman insists it all boils
down to a simple age-old principle: the fundamental right to
ownership of property. "Really,," he said, "all that we are
saying is, in the context of the Internet, thou shalt not steal."