Report of the WIPO Diplomatic Conference 2-20th December 1996

PRESS RELEASE: for immediate release
January, 1997

by Sandy Norman
IFLA Copyright Adviser

IFLA delegation

The IFLA team consisted of Sandy Norman, IFLA Copyright Adviser, Adam Eisgrau, legal counsel for the ALA, and Jamie Wodetzki, ex-ACLIS and now a working lawyer in Australia. Adam was also representing two other organisations as well as IFLA. One of these was the Digital Futures Coalition of the USA. IFLA was also represented on the Ad Hoc Digital Coalition, a coalition of European telecommunication companies and Internet service providers which was spearheaded by Thomas Vinje of solicitors Morrison & Foerster.

IFLA, as an NGO, had been invited to the conference with observer status. Observers were not allowed to make any oral interventions. The strategy for making our voice heard had to be by supplying written statements. These could then be backed up by lobbying individually in the breaks from the main discussions.

Jamie had been at the Conference from the beginning and Adam arrived on the 4th. They both stayed until the end. I arrived on Monday 9th in the afternoon and left on Friday 13th in the morning. The main discussions on the treaties had barely started when I arrived. Most of the business had been taken up with administration and protocol, so I did not miss anything of importance.

IFLA Position

Copies of the IFLA Position Paper and the Response to the WIPO Draft Proposals had been distributed as planned to all the Government delegations and NGOs. From feedback, it had been well received.

IFLA also drafted an expanded position on Article 12 which made a strong case for the deletion of 12(2) which, as proposed, would limit the present exceptions already in Berne. Article 12 - Limitations and Exceptions - was arguably the most important Article for us as we were fighting against the view from that fair use and library privileges should not continue in the digital environment. The library team approved the IFLA paper (Appendix 1- not available at the moment) and so we had it duplicated and distributed to all delegations. Many delegations were then targetted to persuade them to support this proposal.

Discussions of the Conference

Appendix 2 contains a digest of the discussions on Articles 7, 10, 12, 13 & 14 which took place during the week beginning 9-13th. It can be seen that the IFLA position on Article 12(2) was widely supported.

During the intervals between discussions, the library supporters (IFLA, EBLIDA etc.) discussed tactics. We were joined, and sometimes overwhelmed by, the Digital Futures Coalition and the Ad Hoc Coalition representatives. There was still plenty to do behind the scenes to ensure that our points of view were heard and considered. We had been successful in persuading various government delegates to put forward many of IFLA's viewpoints, however it was essential that our concerns were reflected in the treaty language.

Norway had put forward a written proposal to delete Article 7(2) and suggested some additional wording to Article 7(1). As it was a good working solution, our team agreed that we should support this proposal. Adam still believed that there was a good chance that Article 7 could be deleted altogether.

By Wednesday 12th December, it had been generally felt that Article 12(2) would now be dropped, largely because of IFLA's work. However, Article 12(1) was not enough as it stood and we needed to put forward suggestions for additional clarification in order for Contracting Parties to be able to provide for exceptions and limitations to the existing rights of Berne and also the new rights under the treaties. Several delegations were approached to consider some further wording by IFLA. Also, we were concerned that Article 10, as drafted, was not good for the library world. If every communication to the public had to be authorised, this might affect internal library communication as well as remote communication. We were also worried about browsing and the liability of Information Service Providers. A further text was drafted (without attribution) intended to draw attention to the problems.

On Thursday 12th December, the main committee convened late in the afternoon to receive a copy of the Partly Consolidated Text of Treaty Number 1. It was only "partly consolidated" because Chairman Liedes said he had not had time to incorporate all proposals. There was much criticism from the floor (mainly from Cote d'Ivoire and Nigeria) on the way the work had been handled and there were many questions about the lack of openness.

In the new draft, Article 7 had hardly been changed at all and the Chair admitted that this was still "totally open". The Norwegian proposal to delete 7(2) had not been adopted. However, IFLA's original proposal to delete 12(2) had been incorporated, despite hesitation by the Chair. Another success was some additional wording in the preamble which had been proposed by EBLIDA:

"Recognising the need to maintain a balance between the rights of authors and the larger public interest, particular education, research and access to information, as reflected in the Berne Convention,".

Articles 10, 13 and 14 had not been changed at all.

I had to leave on Friday 13th and relied on reports from Jamie and others. There had been very few meetings of the main committee. Most of the activity was taking place behind the scenes. The government delegate meetings were in selected groups - and NGOs were excluded. No-one really knew what was going on which gave rise to many rumours. Changes to 12(1) using our revised text as well as revised texts of 13 and 14 were proposed by Israel. Some of these changes were supported by other delegations. There was also a lot of discussion on a revised wording for Article 10.

At the session on Sunday 15th, it was agreed to put to bed the non-controversial items. As it happened only parts of Article 1 and 2 were adopted! There was every indication at that stage that the conference would not agree a treaty at all. Further reports later later in the week were not good for libraries. Government delegations, fed up by being lobbied, were becoming elusive.

By Wednesday 18th it was clear that the Database Treaty was out (it had not even been discussed). On Treaty 1 (copyright), the conference was in deadlock on Articles 7, 10 and 12. The ground we had gained in having 12(2) deleted was lost as in a further draft, it was back in. There had been a strong lobby from the other side. We were promised that a revised wording would be put forward but, at that time, there was no meeting planned where it could be raised, so this had not happened. On Article 7, rumour had it that the UK were putting forward a compromise which was not likely to be in our favour. There was still the possibility that Article 7 could be killed. We did not know what was happening on Article 10. The EU and the US did not want the original language changed.

Delegates were becoming very tired and fed up. They were working late into the night to agree some text. It was very dispiriting, and we feared an unfavourable compromise. However, after long nights and early mornings of negotiations and discussions, a fairly good compromise on the WIPO Copyright Treaty was adopted just before midnight of the 20th December 1996. The plenary session continued after that and the Treaty was signed by most of the members at 2 o'clock in the morning of 21st December 1996. Treaty 2 (the Performers and Phonograms Treaty) was also adopted but Treaty 3 (the Database Treaty) was left for a later occasion.

Summary and Conclusions

The results may be summarised as follows:

• an addition to the Preamble (as proposed by EBLIDA);
• the deletion of Article 7 - Right of Reproduction, replaced by a partly agreed statement and a partly voted statement;
• the adoption of Alternative B of Article 8 - Right of Distribution with amendments
• Article 9 - Right of Rental only applies to commercial rental
• adoption of Article 10 with amendments and an agreed statement
• adoption of Article 12 with amendments and an agreed statement

An agreed statement is given as an interpretation tool for the articles adopted by the members of the Union at the Diplomatic Conference. Individual statements given at the meeting for certain articles do not have this status.

The full text of the two treaties will be available from the WIPO secretariat at the end of January 1997. Full text of all the 91 WIPO documents may be found on their website (www.wipo.int). In Appendix 3 is the text which was handed out at the WIPO Conference.

IFLA, EBLIDA and the Ad Hoc Coalition can safely claim a victory on several counts. The team worked hard and proved to be a very powerful force. Many government delegates were sympathetic to our cause and therefore were willing to listen to and adopt our suggestions. There were many comments on the strength of the library lobby - even from publishers! I think we can be congratulated.

I should mention also the strength of strategic lobbying. There were many geographic alliances formed: the African Group, the Latin-American Group, the Asian Group, the Nordic Alliance. They became strong forces against the might of the US and Europe. We were particularly successful with the Asian Group.

Sandy Norman
IFLA Copyright Adviser
January 1997

Appendix 1 - not available

Appendix 2

Article 7 - Scope of the Right of Reproduction

The Chairman, Jukka Liedes, opened by saying that acts which are not relevant in economic terms should be excluded from this new interpretation of the Right of Reproduction. Many other delegations made the same point also. If it has no economic value it should be excluded. It was difficult to see at this stage how that view reflected in his draft text.

Singapore proposed a new wording to the Article and made a case for fair use. Liedes made it clear that fair use was not under discussion at this stage. The CEC suggested changing 7(1) by deleting "shall include" and inserting "includes" instead. This followed the suggestion made in the EBLIDA position paper. The CEC declined to give a position on 7(2) saying it needed to be clearer in scope and added value. This was interesting as they had been very clear on their position before.

Denmark had "profound doubts" about 7(2) and said that, as the exceptions would have no economic value or significance, it should be deleted. Their delegation did not agree with 7(1) saying that it would cause unnecessary difficulties. Sweden also agreed that 7(2) should be deleted.

Canada preferred to delete Article 7 altogether as they said it was not flexible enough for legislators. They said that temporary or transient copying was already covered by Article 9 of Berne.

The USA supported Article 7(1) as drafted and they said that they would support clarifications to resolve ambiguities in 7(2). They would not be supporting the Singapore amendment preferring to work with Liedes' text as drafted.

The UK supported the CEC position and pointed out that what was proposed in Article 7 was already enshrined in the UK Copyright, Designs and Patents Act 1988.

South Africa said that they had no problem with 7(1) but were concerned about 7(2). They made the point (which was in the IFLA response) that to leave the exceptions to national legislators would mean that there would be conflicting international laws. They believed the exceptions should be mandatory and expressed an interest in the views of the Singapore delegation.

Australia wanted to know whether 7(1) was intending to clarify or extend Article 9 of Berne, as there seemed to be differing interpretations by the various national delegations. Users needed to be reassured about exceptions and 7(2) did not give them this reassurance. 7(2) should be mandatory if, as they believed, 71) extended Berne Article 9.

Norway supported 7(1) but said that 7(2) should be deleted and replaced with a text indicating that temporary and transient copies are not reproductions in the same way as 7(1).

India made the point that 7(2) could not be deleted without 7(1).

Many other delegations spoke either indicating support for the draft or endorsing comments already made by other delegations. Liedes, in his summing up said that 7(1) had been endorsed by "an overwhelming majority of delegations" (which was not what was perceived by IFLA). No-one challenged this either, so it will be minuted thus. On 7(2), he said there were two options: improve the language to include flexibility on reproduction which was of no economic value; or make limitations mandatory. He then added a third option: to delete 7(2) altogether.

Article 10 - Right of Communication

Most delegations seemed to support this Article and there were, surprisingly, very few comments. As this was seen as an extremely important proposal, this appeared strange - almost a conspiracy. It may be that few delegations realised its implications. The Chair summarised by saying that there was broad acceptance but that the interpretation of "the public" should be widely interpreted.

Article 12 - Limitations and Exceptions

Liedes introduced this proposal by saying that all Berne limitations would continue to apply as long as they conformed to Article 9(2) of Berne. He drew attention to his Note 12.09 about important values in society.

The USA opened the discussion by proposing that the word "only in 12(1) should be deleted and that "the normal exploitation" should be changed to "a normal exploitation". The delegation then stressed the importance of fair use continuing into the digital environment. This statement had been agreed largely because of pressure from the American library community.

Denmark, although supporting 12(1) said they had doubts about 12(2) because it lacked clarity. They supported the US proposed changes in wording to 12(1). They stressed that any new rules should not be a straitjacket for areas which are essential for the functioning of society, and that the three-step test had been introduced to counter the problems with photocopying and may not be suitable for situations in the digital environment. They said that the Conference should make it clear that if the rules were strengthened, the limitations and exceptions should be strengthened too (IFLA's point). Education, scientific research, library activities and the needs of the handicapped were mentioned.

India supported the US proposed changes in wording to 12(1). In 12(2) they pointed out that the language had to be modified to reflect the existing exceptions. There should be scope for national legislations to make exceptions. There are more exceptions in Berne than 9(2) (IFLA's point).

Korea followed the IFLA position and suggested deleting 12(2).

Singapore supported the US proposed changes in wording to 12(1) and said that 12(2) should be deleted. They read out many of the points in the IFLA paper.

Hungary said that they had serious concerns about 12(2) which, as drafted, appeared to restrict existing rights. They suggested deleting 12(2) also or otherwise interpreting it in some way so that the sense did not negate the existing rights of Berne.

New Zealand supported the US proposed changes in wording to 12(1) and said that they shared the concerns already expressed on 12(2).

Tanzania was broadly in favour of 12 as drafted.

Sweden supported the US proposed changes in wording to 12(1) and said that they were not sure whether 12(2) would cover all the existing exceptions.

Cameroon made the point about a global approach to exceptions being necessary. They had no objections to the wording.

China supported the points made by the USA, Sweden, India and Korea and agreed 12(2) should be deleted.

Norway supported the US proposed changes in wording to 12(1) and agreed with the views of Denmark and Hungary about not negating the existing exceptions of Berne.

Chile said there should be a review of Article 12. They supported Korea that 12(2) should be deleted.

The Netherlands supported the existing exceptions. They said that it was too early to determine further exemptions and supported more discussion.

Thailand supported the US proposed changes in wording to 12(1) and agreed with Korea about the deletion of 12(2).

The UK delegation said they supported the principle of Berne and TRIPS and would be willing to assist with drafting. They wished to align themselves with those who wanted to keep exceptions in the digital age. They felt the present text provided an appropriate balance between rights owners and users but they would be willing to consider minor drafting amendments.

Finland supported the US proposed changes in wording to 12(1). They were inclined to think that 12(2) should be deleted.

Australia was happy to adopt the approach regarding support for 12(1). They wished to underscore the Note 12.09 about the important values in society not being forgotten.

Many others spoke but said nothing new. The Chair summed up by saying that there were doubts expressed on 12(2). He asked those willing to produce revised texts to put them in writing.

Articles 13 and 14 - Technological and Rights Management Issues

Ghana indicated that these measures were vague and would lead to confusion. They would be unable to implement Article 13. The Asian group were protesting against this. They suggested changing "primary purpose" to "sole purpose" in 13(3).

Korea said that they had already put forward written proposals. There were using the argument (also in the IFLA paper) that there should be no measures which prevented lawful use - library archiving etc. should be considered lawful, for example. They stressed that it was important to make sure that the general public were not kept out of the information society.

South Africa associated itself with Ghana. They had difficulties with the current wording and were proposing an amended version of Article 13. (Many of the other African states stood up to support Ghana). Canada said that some of the wording was unacceptable. Lawful acts should be considered. Works in the public domain do not need protection for example.

Singapore supported Ghana in changing "primary" to "sole". They said that Article 13 catches both legitimate and illegitimate uses. They also questioned whether the problem was a real or potential one and said that laws should not be based on conjectures. Regarding Article 14, they said they were concerned with the scope. Limitations and exceptions were needed here too.

CEC said that the wording of Article 13 would have to be improved. They were aware of the need to achieve the right balance to allow for legitimate use. They said that the element of knowledge was important and showed an interest in South Africa's proposals. They felt that Article 14 may be too wide in scope and not particularly defined.

Jamaica suggested some minor amendments to Article 13 emphasising that knowledge is a prerequisite.

New Zealand generally supported Article 13 but subject to changes. They said that it was a civil issue not a criminal one. The knowledge element should be emphasised.

The UK made it clear that the UK had already adopted these protections. However, they said that thee drafting should be looked at to cater for legitimate acts. They supported the CEC proposals.

Australia said that the language restricted access to material not in copyright or subject to copyright. Its use should be confined to those with a clear intention to break copyright.

Norway agreed that a narrower scope was needed and that lawful use must not be prevented.

Many more spoke more or less on the same lines. The Chair summed up by saying that some delegations do want these measures; some support; and some offer drafting advice. He agreed that lawful acts should be considered.

Appendix 3

SUBSTANTIVE PROVISIONS OF TREATY No. I

Preamble

The Contracting Parties,

Recognizing the need to introduce new international rules and clarify the interpretation of existing rules in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments,

Recognizing the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works,

Emphasizing the outstanding significance of copyright protection as an incentive for literary and artistic creation,

Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention,

Have agreed as follows:

ARTICLE 1

(1) This Treaty is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, as regards Contracting Parties that are countries of the Union established by that Convention. This Treaty shall not have any connection with treaties other than the Berne Convention, nor shall it prejudice any rights and obligations under any other treaties.

(2) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the Berne Convention for the Protection of Literary and Artistic Works.

(3) Hereinafter,"Berne Convention" shall refer to the Paris Act of July 24, 1971 of the Berne Convention for the Protection of Literary and Artistic Works.

(4) Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention.

AGREED STATEMENT FOR THE RIGHT OF REPRODUCTION (PREVIOUS ARTICLE 7)

Contracting Parties confirm that the reproduction right, as set out in Article 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.

UNAGREED STATEMENT FOR THE RIGHT OF REPRODUCTION (ADOPTED BY VOTE)

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.

ARTICLE 2

SCOPE OF COPYRIGHT PROTECTION

AGREED STATEMENT ARTICLE 2:

It is understood that in applying Article 2 of this Treaty, the expression "country of the Union" in Article 2 to 6 of the Berne Convention will be read as if it were a reference to a Contracting Party to this Treaty, in the application of those Berne Articles in respect of protection provided for in this Treaty. It is also understood that the expression "country outside the Union" in those Articles in the Berne Convention will, in the same circumstances, be read as if it were a reference to a country that is not a Contracting Party to this Treaty, and that "this Convention" in Articles 2(8), 3, 4 , and 5 of the Berne Convention will be read as if it were a reference to the Berne Convention and this Treaty. Finally, it is understood that a reference in Articles 2 to 6 of the Berne Convention to a "national of one of the countries of the Union" will, when these Articles are applied to this Treaty, mean, in regard to an intergovernmental organization that is Contracting Party to this Treaty, a national of one of the countries that is member of that organization.

ARTICLE 3

Contracting Parties shall apply mutatis mutandis the provisions of Articles 2 to 6 of the Berne Convention in respect of the protection provided for in this Treaty.

ARTICLE 4

Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.

AGREED STATEMENT ARTICLE 4:

The scope of protection for computer programs under Article 4 of this Treaty, read with Article 2, is consistent with Article 2 of the Berne Convention and on a par with the relevant provisions of the TRIPS Agreement.

ARTICLE 5

Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, as protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation.

AGREED STATEMENT ARTICLE 5:

The scope of protection for compilations of data (databases) under Article 5 of this Treaty, read with Article 2, is consistent with Article 2 of the Berne Convention and on a par with the relevant provisions of the TRIPS Agreement.

ARTICLE 6

(1) 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.

(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author.

ARTICLE 7

(1) Authors of:

(i) computer programmes;
(ii) cinematographic works; and
(iii) works embodied in phonograms as determined in the national law of Contracting Parties, shall enjoy the exclusive right of authorizing commercial rental to the public of the originals or copies of their works.

(2) Paragraph (1) shall not apply:

(i) in the case of computer programs where the program itself is not the essential object of the rental; and
(ii) in the case of cinematographic works, unless such commercial rental has led to widespread copying of such works materially impairing the exclusive right of reproduction.

(3) Notwithstanding the provisions of paragraph (1), a Contracting Party that, on April 15, 1994, had and continues to have in force a system of equitable remuneration of authors for the rental of copies of their works embodied in phonograms may maintain that system provided that the commercial rental of works embodied in phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of authors.

AGREED STATEMENT ARTICLES 6 AND 7:

As used in these Articles, the expressions "copies" and "original and copies," being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects.

AGREED STATEMENT ARTICLE 7:

It is understood that the obligation under Article 7(1) does not require a Contracting Party to provide an exclusive right of commercial rental to authors who, under that Contracting Party's law, are not granted rights in respect of phonograms. It is understood that this obligation is consistent with Article 14(4) of the TRIPS Agreement.

ARTICLE 8

Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter (1)(ii), 14(1)(ii) and 14 bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication, to the public of their works, by wire and wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

AGREED STATEMENT ARTICLE 8:

It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention. It is further understood that nothing in Article 10 precludes a Contracting Party from applying Article 11bis(2).

ARTICLE 9

In respect of photographic works, the Contracting Parties shall not apply the provisions of Article 7(4) of the Berne Convention.

ARTICLE 10

(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

AGREED STATEMENT ARTICLE 10:

It is understood that the provisions of Article 10 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.

It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.

ARTICLE 11

ARTICLE 12

(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

(2) As used in this Article, "rights management information" means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.

AGREED STATEMENT ARTICLE 12:

It is understood that the reference to "infringement of any right covered by this Treaty or the Berne Convention" includes both exclusive rights and rights of remuneration.

It is further understood that Contracting Parties will not rely on this Article to devise or implement rights management systems that would have the effect or imposing formalities which are not permitted under the Berne Convention or this Treaty, prohibiting the free movement of goods or impeding the enjoyment of rights under this Treaty.

ARTICLE 13

Contracting Parties shall apply the provisions of Article 18 of the Berne Convention to all protection provided for in this Treaty.

ARTICLE 14

(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.

(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.