11:47 AM Dec 23, 1996

WIPO: COPYRIGHT, NEIGHBOURING RIGHTS IN DIGITAL AGE

Geneva 23 Dec (Chakravarthi Raghavan) -- A diplomatic conference under the auspices of the World Intellectual Property Organization concluded Friday after adopting two international treaties, updating rules on protection of Copyright, Performances and Phonograms, to take account of the digital age.

It would encourage and enable performers to authorise access to their works via the new internet media.

An Article of the Copyright Treaty provides that authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.

Atleast for now, the two treaties have avoided provisions that would have put right restrictions around the open Internet system and its more democratic communications.

The two treaties adopted were the 'WIPO Copyright Treaty' and the 'WIPO Performances and Phonograms Treaty', and each of them will enter into force three months after 30 instruments of ratification or accession by States have been deposited with the Director-General of the WIPO.

Over 100 countries participated in the Conference of whom 13 signed the Final Act on the Copyright Treaty and some 57 (including the EC) signed the Performances and Phonograms Treaty.

Several of the key developing countries said that their ratification or acceptance would depend on what the United States would be doing. While most of them expect the US to ratify and accept the treaty, given the conflicting interests within the US industries, and their likely lobbying of the Congress, this is not a foregone conclusion, they said.

Ending three weeks of difficult negotiations, with some conflicting interests within the major information industries (hardware and software) of leading industrial countries making compromises difficult, the two treaties are remarkable both for what they encompass, and those that they don't.

The US and the EU had to give up their efforts to use the treaties to get more rights than in the Berne Copyright treaty and the WTO's Trade-Related Intellectual Property Rights (TRIPS).

Efforts to write in more restrictive definitions about 'exhaustion of rights', against allowing 'parallel imports' and extend the holders rights to cover all kinds of rental rights failed.

Attempts to expand the scope of the protection to cover all kinds of 'databases', involving no originality or expression, but mere 'substantial investments' in creating the data bases had also to be given up, because of the vehement protests it had aroused in the US from the scientific community and other public interest groups.

The attempts to have a very restricted definition of 'reproduction' rights were given up because of the opposition of the 'on-line' services and internet access providers who vehemently opposed provisions that would have legally made them responsible for any infractions.

An agreed statement adopted by the conference said of the 'reproduction right' visavis the Copyright Treaty: "Contracting Parties confirm that the reproduction right, as set out in Art. 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention.".

A similar statement about reproduction right was also adopted in respect of the WIPO performers and Phonograms Treaty.

Put off too were efforts to extend the scope of the Performers and Phonograms Treaty to the audio-visual sector.

The WIPO is to convene extraordinary sessions of the competent WIPO Governing Bodies for preparatory work on a treaty on intellectual property rights in databases and a separate one for a protocol to the WIPO Performances and Phonograms Treaty to cover audio-visual performances.

Already on the WIPO agenda is the issue of protection of rights of communities and their folklore -- an issue that has some relationship to the audio-visual issue.

On this last, the US view (propelled by its highly commercial audio-visual industry), which also had support from developing countries with a similar audio-visual industry (as in India for e.g.) clashed with the traditional Continental and Latin American views which placed greater weight on the rights of performing and audio-visual artists.

As a result, these tricky issues were put off for further study.

A view that ultimately prevailed at the Conference was that while it was necessary to adapt the provisions of existing treaties to cover the digital technology and its implications for the information age of the 21st century, not enough was known to enable international rules to be framed applicable worldwide, and it was necessary, with the agreed broad principles, to provide flexibility to countries in framing laws and regulations.

The two treaties expressly recognise in their preambles the need to maintain a balance between the rights protected and the larger public interest particularly education, research and access to information.

There were efforts to have a more restrictive provisions in respect of 'exhaustion of rights' and 'parallel imports' as also in respect of compulsory licensing provisions in respect of broadcasts.

These too failed.

Also given up were attempts to write international rules on 'reproduction' rights in terms of the digital technology use.

The Conference merely adopted an agreed statement to the effect that the reproduction rights set out in Art. 9 of the Berne Convention, and the exceptions permitted under it, would fully apply in the digital environment.

While not having the same force as a provision in the treaty, the agreed statement of interpretation has a political value, the EC claimed later.

The US also had to give up -- because of the violent conflicts among differing interests within the United States -- its efforts to define 'reproduction' in terms of the digital communication in a more restricted way than in the Berne Convention, and which would have choked off the burgeoning internet system.

Both the United States and the European Union, who have been the driving force behind the rush to conclude the diplomatic conference with treaties, had sought to use the process to gain advantages they had failed to get in the Uruguay Round Trips negotiations.

If they had succeeded, while these 'gains' would only have been in terms of copyright, it would have been used as a precedent to have similar provisions on the entire range of intellectual property rights under the TRIPs, through a review process slated for 2000.

At a press briefing Friday, the US Asst. Secretary of Commerce and Patent and Trade Marks Office, Mr. Bruce Lehman, distanced the USA, from the proposals in all these areas given up, and said these had been proposed by the 'experts committee' that had prepared the basic proposals for the diplomatic conference.

At a separate press briefing, the EC representative conceded that the new treaties had not really created new rights or wrote prohibitions and restrictions not already covered by the Berne Copyright Convention and the Rome Treaty on performers rights, but had adapted them for digital age.

The Performances and Phonograms Treaty, in its definition of 'performers' has brought in its scope folklore.

"Performers", it says, "are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore.

The EC explained that the provisions relating to the audio-visual sector had to be given because of lack of agreement.

In the course of the negotiations, the US came up with some ideas which contained elements for an agreement, but there was little time to address them, the EC said.

The conference saw some traditional North-South divides (such as in resisting efforts to ratchet up obligations of the developing world -- through new provisions that could then serve as a precedent to have written into the TRIPS accord and the use of WTO integrated dispute settlement to enforce them. But there were other divisions and differences that cut across these traditional ones.

Some developing countries felt that the opportunity of the WIPO negotiations, and the US anxiety to have some treaty concluded quickly, could be used to specify the limitations of the new rights and broadly define public use and public interest. Some others felt that in an area of such flux, flexibility at national levels should be preferred and no straight-jacket rules would be useful.

One developing country participant said that several of the issues were issues that found sectors of industry and new technology in the United States deeply divided, and thus it had not been possible for the US to get its norms enforced on the rest of the world as it normally tries.

The whole field is virgin, and to the extent that other countries use their national flexibility rights to deal with the problems and find solutions, gradually a basis for harmonisation would arise in the future, he added.