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Bringing the Global Information Society to a standstill...

Property rights and the new WIPO treaties

With the advent of the Information Society, it is generally agreed that current legislation needs to be extended, amongst other things, in the field of property rights. However, in elaborating the basis for such a legal framework - as is the case of the current World Intellectual Property Organisation (WIPO) Diplomatic Conference - there seems to be some difficulties on the part of legislators to recognise the specific aspects of the Information Society. Their failure to so could have devastating results.

Here are a number of ways in which the proposed WIPO Protocols fail to take into consideration the specific nature of the Global Information Society:

  1. Making copies
    The Protocol defines the copyright owner's rights to include temporary, or so-called ephemeral, copies. However the process of transmitting information across the Internet requires the creation of temporary copies. As a result, if the Protocol were to be accepted, each and every network operator or Internet Service Provider (ISP) on the route of information across the network would be potentially in breach of copyright regulation.

  2. Jurisdiction in a global context
    One of the major problems of the current legal system in terms of the Global Information Society (GIS) is that jurisdiction is defined nationally whereas the GIS has no such frontiers. The WIPO Protocol makes specific reference to the possibility of stopping material at the frontier thus providing tangible evidence that the fundamental change due to the Information Society has not really been grasped by the legislators.

  3. Responsibilities
    Another of the major problems in the GIS is the need to fix the degree of responsibility of the actors involved. In the case of Property Rights - as in the case of illegal and harmful content on the Internet - one of the question is to know to what extent carriers and access providers are responsible for what they transport. Telecommunications companies and ISPs maintain that they cannot feasibly control the mass of material they handle, especially if it is encrypted. In addition, such a control would raise serious privacy problems. In the version of the Protocol to be submitted to the WIPO Diplomatic Conference, carriers and access providers are considered fully responsible for the material they transport or handle. Telecoms and ISPs argue that the resulting risk run by them would deter many from making the necessary investments in the GIS.

  4. Prohibition of "protection defeating devices"
    In its drive to protect copyright owners, the Protocol proposes to prohibit all tools designed to get round copyright protection. Much innocuous software could fall within jurisdiction of the protocols as it could also be used to avoid copyright protection.

Breaking with the logic of taxing copies

Beyond these urgent, practical questions and the potentially devastating consequences if the proposed WIPO protocols are accepted, the long-term question is whether or not the current notion of copyright is appropriate to a digital society. In an age when making copies was considerable work, basing the payment of authors' and owners' rights on the creation of copies made practical sense. In the digital age, the endless multiplication of high quality copies has not only become commonplace but even essential to trade across the network. Is there not another way of ensuring a just retribution of authors' and owners' rights other than by basing it on the idea of copying? John Perry Barlow suggested taxing the proximity in time and space, arguing that the closer we are to the original "performance", the more value it has. Although this logic only applies in certain circumstances, it has the great merit of breaking with the stranglehold of the long-standing idea that rights can only be exercised in terms of copies.

Alan McCluskey, Saint-Blaise, 2nd December 1996.

My special thanks to Brian Thackray (formerly) of ASLIB for drawing the WIPO Diplomatic Conference to my attention.

Further reading

  • The EU Green Paper on Copyright and Related Rights in the Information Society - COM(95) 382.
  • There is also an excellent paper prepared by the Ad Hoc Alliance for a Digital Future entitled "Towards the Digital Future: Achieving an Appropriate Balance in a New Treaty on Copyright", which comments on the WIPO Protocols from the point of view of telecoms and ISPs. Unfortunately this paper is not available on the Web. You might try to obtain it from British Telecom, France Telecom, Finnish Telecom, Philips, MCI, Telecom Eirean, Tele Denmark, Bell Atlantic,... who are all part of the Alliance.
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Created: December 2nd, 1996 - Last up-dated: December 2nd, 1996