Victory for Web! (long)

Hi,

I hope nobody has sent this message before to the Caching community.

This more or less answeres my talk from the Caching workshop in Warsaw
last year where I raised the concern that copyright laws might interfere
with Web-techiques and Caching mechanisms...

Please read if interested in legal caching issues.

Greetings, Kurt

--
Kurt Kayser <http://www.ecrc.de/staff/kurt/> => Tel. +49 89 926 99148
ECRC European Computer Research Centre       => Fax. +49 89 926 99170
Arabellastr. 17, 81925 Munich, Germany       => E-Mail: kurt@ecrc.de
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Taken from: 
EuroEDI Week
Electronic Commerce in Europe
January 9, 1997  Edition:48
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WIPO CONFERENCE CLOSES - VICTORY FOR EUROPEANS
Brussels, Wednesday January 8:
It's not often that lawyers get excited - at least, not in 
public. But an exception there is to every rule. And the latest 
exception is Thomas Vinje, a Brussels-based lawyer acting on 
behalf of the Ad Hoc Copyright Coalition (see EEDIW, Edition 43, 
November 24, pp1).
The Coalition was extremely worried that controversial proposals,
restricting copyright on the Internet/WWW, would all but kill 
electronic commerce before it really begins. But, commonsense 
prevailed at the World Intellectual Property Organisation 
three-week (!) conference in Geneva before Christmas. Mr Vinje 
has informed all Coalition partners that: "Our victory is 
confirmed. Moreover, it is even sweeter than predicted in my last
message. The Agreed Statement on Article 7 was significantly 
improved. It now runs along the following lines: 'Contracting 
Parties confirm that the reproduction right as set out in Article
9 of the Berne Convention and the exceptions provided thereunder 
fully apply in a digital environment, in particular to the use of
works in a digital form. It is understood that the storage of a 
protected work in digital form in an electronic medium 
constitutes a reproduction within Article 9 of the Berne 
Convention.'
Mr Vinje adds: "This is something we can live with very easily, 
and is even favourable to us insofar as it emphasises the 
continued viability of copyright exceptions in the digital 
environment."
So, copyright owners can relax, service providers don't have the 
threat of onerous duties placed on them, and we can focus on the 
"big issue" making a profit from electronic commerce.
Other news from Geneva
On December 20, the WIPO Diplomatic Conference on "Certain 
Copyright and Neighbouring Rights Questions" adopted two 
Treaties:
* The WIPO Copyright Treaty and
* The WIPO Performances and Phonograms Treaty. Any member State 
of WIPO may accede to the Treaties. (see EEDIW, Edition 46, 
December 16)
Both Treaties include provisions which offer responses to the 
challenges of digital technology, particularly the Internet. They
provide an exclusive right for authors, performers and producers 
of phonograms to authorise the making available of their works, 
performances and phonograms, respectively, to the public, by wire
or wireless means, in such a way that members of the public may 
access them from a place and at a time individually chosen by 
them (language which covers on-demand, interactive transmissions 
in the Internet.) 
In relation to that right, and the rights of communication to the
public, in general, the Conference adopted an agreed statement 
expressing the understanding that the mere provision of physical 
facilities for enabling or making a communication does not itself
amount to communication. 
The Treaties contain provisions on obligations concerning 
technological measures of protection and electronic rights 
management information, indispensable for an efficient exercise 
of rights in digital environment.
The Conference also discussed whether or not specific provisions 
are needed concerning the application of the right of 
reproduction concerning some temporary, transient, incidental 
reproductions, but did not adopt any such provisions since it 
considered that those issues may be appropriately handled on the 
basis of the existing international norms on the right of 
reproduction, and the possible exceptions to it, particularly 
under Article 9 of the Berne Convention.
Both Treaties recognise a right of distribution to the public of 
copies. They leave to national legislation to determine the 
territorial effect of the exhaustion of rights with the first 
sale of a copy (and, thus, whether or not parallel import is 
allowed).
The WIPO Copyright Treaty also contains provisions on the 
copyright protection of computer programs and original databases 
and on the right of rental in a way similar to the TRIPS 
Agreement. 
Furthermore, the WIPO Copyright Treaty raises the minimum 
duration of protection of photographic (which in the Berne 
Convention now is 25 years) to the duration of protection of 
other works under the Berne Convention (50 years).
The WIPO Performances and Phonograms Treaty covers the protection
of the rights of performers other than their rights in the 
audio-visual fixations of their performances, and, in addition to
the above-mentioned provisions related to the digital technology,
and the provisions on the right of distribution, it also contains
protection on other economic rights of performers and producers 
of phonograms in a more or less similar way as in the 1961 Rome 
Convention and, as far as the right of rental is concerned, in a 
way similar to the TRIPS Agreement. The Treaty also recognises 
moral rights for performers in respect of their live aural 
performances and their performances fixed in phonograms.
The minimum duration of protection of the rights covered by the 
Treaty practically corresponds to the duration under the TRIPS 
Agreement (50 years) rather than under the Rome Convention (20 
years).
The Conference also adopted a resolution expressing regret that, 
in spite of the efforts of most delegations, no agreement was 
reached on the rights of performers in the audio-visual fixations
of their performances and calling for the convocation of an 
extraordinary session of the competent WIPO Governing Bodies in 
the first quarter of 1997 to decide about the schedule of further
preparatory work in view of the adoption of a protocol to the 
Treaty on such rights, not later than in 1998. 
The Conference did not discuss the draft Treaty on Intellectual 
Property Rights in Databases which would have granted protection 
also for non-original databases. It adopted a recommendation on 
the convocation of an extraordinary session of the competent WIPO
Governing bodies to decide on the further preparatory work of 
such a Treaty. (EEDIW will monitor the situation and report later
in 1997).
What the European Commission said
Before the WIPO conference kicked-off on December 2 last, an 
official communique was received at WIPO headquarters in Geneva, 
from the European Commission.
The Director General of WIPO received the following letter from 
Ambassador, R.E. Abbott, Deputy Head of Delegation, European 
Commission, Permanent Delegation to the International 
Organisations in Geneva:
"I am writing to you in connection with the Diplomatic Conference
organised by the World Intellectual Property Organisation in 
Geneva (next month) concerning certain copyright and neighbouring
rights questions. 
"As you know, one of the issues for consideration at the 
Conference concerns the status and voting rights of the European 
Community in the Conference and eventual treaties under 
negotiation. In this connection the European Community and its 
Member States have recently communicated their position to the 
members of WIPO which participated in the meeting in May this 
year of the Assembly of the Berne Union. 
The text of the letter, the copy of which is attached to 
Ambassador R.E. Abbott's letter, is dated October 28, 1996, and 
signed by Ambassador Anne Anderson, Permanent Representative of 
Ireland and by Mr. Ian Wilkinson, Deputy Head, Charge d'Affaires 
a.i., European Commission, Permanent Delegation to the 
International Organisations in Geneva, is as follows: 
"Dear Ambassador,
"We are writing to you on behalf on the European Community and 
its Member States in connection with the WIPO Diplomatic 
Conference on certain copyright and neighbouring rights questions
which will take place in Geneva from December 2 to 20, 1996.
"We would like, in particular, to follow up on some of the issues
that were examined in the context of the Preparatory Committee 
for the Diplomatic Conference (Geneva, 20-22 May, 1996) and which
have been reflected in the Basic Proposal for the Final Clauses 
of the treaties and the Draft Rules of Procedure of the 
Diplomatic Conference published by the WIPO International Bureau 
(documents CRNR/DC/3 and CRNR/DC/2, respectively).
"The issues in question concern the status of the European 
Community as a contracting party to the treaties and its voting 
rights both in the Assembly of the future treaties and in the 
Diplomatic Conference. 
"First of all, we would like to confirm that the EC and its 
Member States welcome the Contracting Party status provided for 
the EC in the Basic Proposal for the Final Clauses as a practical
and legally sound solution. The basis for this status resides in 
the existing state of Community competence. This competence stems
from the authority which the member States have given to the 
institutions of the Community to adopt legislation having binding
effect within their territories.
Legislative measures
A significant number of EC legislative measures have been adopted
over recent years in the Copyright and Related Rights area 
(including the sui generis protection of databases). These 
legislative measures cover a number of the issues in the current 
negotiations in WIPO (included in annex to this letter is a list 
of this legislation and the references to the text as published 
in the Official Journal of the European Communities*). To that 
extent that the provisions of the proposed agreements affect 
these legislative measures, or alter their scope, the European 
Community has, under the Treaties establishing the European 
Community, exclusive competence to enter into the agreements. 
"As to the question of the voting rights of the European 
Community both under the Assembly of the future treaties and at 
the Diplomatic Conference, as well as the question of any 
conditions relating to the exercise of such voting rights, the 
European Community and its Member States would like to restate 
that no extra or additional vote for the EC is being requested. 
The idea is that the EC should be able to vote, in place of its 
Member States, on matters that are within its exclusive 
competence. This is the logical consequence of the EC having its 
own legal status under international law and having exclusive 
competence over a number of the issues which will be covered by 
the future treaties. In no case will the votes exercised by the 
Community and its Member States exceed the total number of its 
member States party to the treaties. 
"As to the question of any conditions relating to the exercise of
the vote by the EC, we consider that a recent relevant example 
regarding the status and voting rights granted to the European 
Community is the Marrakech Agreement establishing the World Trade
Organisation applicable to the Agreement on Trade Related Aspects
of Intellectual Property Rights - the so called TRIPS Agreement. 
"There are no conditions applicable to the exercise of the 
Community's right to vote on matters within its competence in the
context of the World Trade Organisation.
No objections to taking part
"On a related issue, we would also like to take this opportunity 
to explain a little further the position of the EC and its Member
States with regard to the possibility of other intergovernmental 
organisations becoming contracting parties to the eventual 
treaties. We have no objections to such a provision being 
included. Our position is that it is inherent in contracting 
party status in an international treaty under traditional rules 
of international law that the party has exclusive competence and 
authority over some or all of the subject matter of the treaty in
question with regard to certain nationals and with respect to a 
certain territory. 
"An intergovernmental organisation should also have the authority
to enter into international relations in the place of its Member 
States on the issue in question. Only on these grounds will any 
intergovernmental organisation have the necessary legal authority
to warrant contracting party status. This is the reasoning which 
supported the position adopted during the recent meetings in 
Geneva and which will underline the position to be taken in the 
Diplomatic Conference in December this year".
Future problems?
So, can we take this to mean that the EC is happy to take a 
fairly laid-back position, or might it be tempted to use its 
voting weight to try and steer future developments in certain 
directions? The latter scenario seems most likely, given the 
outcome of voting last month.
Further information:
WIPO
Tel: +41 22 730 92 46
Fax: +41 22 733 54 28
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