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Latest international property rights treaties recognize software authors and recording artists

Software makers, telcos, and content providers appeased -- despite some lingering concerns

By Rebecca Sykes, IDG News Service

January  1997
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Boston -- An international property rights agreement signed late last month in Geneva is no panacea, but observers agreed that the majority of the language seems to reach the requisite compromise of the various interested parties.

Representatives at the World Intellectual Property Organization's (WIPO) diplomatic conference agreed, December 20, on a copyright treaty protecting works of authorship, including computer software. They also signed a sound recording treaty which recognizes the rights of recording artists. Both treaties in essence specify that copyright infringement is wrong, but lets each nation determine what constitutes infringement and how infringement should be monitored and enforced. The treaties thus require each nation to draft its own treaty implementation language, which may or may not require the changing of that given nation's existing laws.

In spite of their diverse points of view, software makers, telecommunications carriers, and content providers were generally pleased with the treaties. Uncertainties around some of the specific language in the treaties may account for their accord.

Telecommunications carriers' primary concern was being held liable for transmitting copyrighted materials. MCI Communications Corp. was relieved that one position in particular, Article 7, had been dropped from the treaty. Article 7 would have extended copyright protection even to such temporary copies as are created in routine transmissions, including every time a packet comes into a router.

"Since Article 7 was so odious to the health of the Internet... removing it was a major victory," said an MCI spokesman who asked not to be named. However, there's still language that needs to be implemented and how that is written is very important, he said.

But a software industry group, which supported Article 7, had a different take on its exclusion from the treaty.

"Just because [Article 7] was eliminated doesn't mean that the delegates didn't recognize the importance of it," said Diane Smiroldo, vice president of public affairs at the Business Software Alliance, which represents software makers including Apple Computer Corp., Lotus Development Corp., and Microsoft Corp. The telcos' "spin on this is that [Article 7] is dropped and that it's been tabled" but if that were true the BSA would not be supporting the treaty, which it is, Smiroldo said.

In fact, according to Smiroldo, though it has yet to be drafted, the delegates in Geneva indicated they would attach a footnote to Article 7 which would expressly address the question of temporary copies. However, the BSA supports the part of the treaty that has been finalized.

The "treaty provides very strong assurances that copyright holders will be able to protect their works on the Internet," Smiroldo said.


Content providers content with treaties
Content providers seeking strong protections for copyright holders were generally happy with the treaties as well, including the Creative Incentive Coalition (CIC), a content-rights group whose 18 members range from the Motion Picture Association to Microsoft.

The treaties take some important steps forward in recognizing the need for copyright protection, said Steven Metalitz, counsel for Washington, D.C.-based CIC. Though the treaties' effects will be minimal in countries with strong existing copyright laws, such as the U.S., "it will help to raise minimum standards around the world," Metalitz said.

For example, in Korea, distributing pirated material is not illegal, so unless authorities can prove pirates copied the material as well as distributed it, the pirates go free, Metalitz said. Under the new treaty, this would change, he said.

The European Commission also announced support for the treaties. The agreements will "provide a stable legal framework which will promote international trade in information society services and will give consumers access to a wide variety of new products while at the same time facilitating the fight against piracy in all of its forms," said Mario Monti, European Single Market Commissioner in a printed statement.

But not everyone was pleased with the treaty. Some disputed WIPO's position as the implementing body, including James Love, a project director with the Center for Study of Responsive Law, a consumer advocacy group based in Washington, DC. In the past, WIPO has sought to extend norms previously determined by given countries, but with copyrights, WIPO is attempting to impose a standard before it has been formulated at a national level, Love said.
"We don't think it's appropriate for [WIPO] to be acting as a world parliament," Love said.

But CIC lawyer Metaliz said that WIPO had not turned from its usual path with the treaties. "Historically, international copyright norms have not just ratified what everybody already has in place," Metalitz said.

--Rebecca Sykes, IDG News Service, Boston Bureau
(Elizabeth de Bony, IDG News Service, Brussels Bureau contributed to this story)

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