WIPO Treaty: Worse than CDA Deadline 22 Nov 96 for comment to Congress WIPO was introduced this spring to Congress. It is not understood by either the Clinton administration or the Congress and few of the public are aware of the problem! CP internal bad mouthing and intellectual assignations need to to come to a dead halt --if we want the net at all, or for the net to be an information provider, the impact of the CDA would be chump change for peanuts in comparison. The WIPO clauses involving rights to collections of what are commonly public domain "fact" will become private property --literally; even more so than the restrictions of the 'fair use' conventions. The availability of knowledge emasculated; the impact on web is catastrophic; web information and fair use policies are gutted. My message to Bubba, West Publishing, and the rest of the greedy bastards: Cyberspace and Freedom are Information. FUCK your WIPO, too. -attila ------------------------------------------------------------------------------------------------------- The following message is an excerpt of a message from James Love <love@tap.org> forwarded by attila <attila@primenet.com> see Consumer Project on Technology: http://www.essential.org/cpt ------------------------------------------------------------------------- . Sports fans in the United States will be surprised to learn .that U.S. Government officials are pressing for the adoption of .an International treaty that will (if enacted) significantly .change the ways sports statistics are controlled and .disseminated. The treaty isn't specifically directed at sports .statistics -- it is a much broader attempt to create a new property right in facts and other data now in the public domain -- but it will have an enormous impact on the legal rights [...] on sports, stock prices, weather data, train schedules, data from AIDS research and other facts are controlled.... See, for example: http://www.news.com/News/Item/0,4,3208,00.html The treaty addresses much more fundamental issues regarding ownership of information currently in the public domain... I am deleting the bulk of the report for brevity, including only the definition of the "database" as it applies to WIPO. .WHAT IS A DATABASE? WHAT ISN'T A DATABASE? . .The treaty would protect "any database that represents a .substantial investment in the collection, assembly, verification, .organization or presentation of the contents of the database." . .This term should be understood "to include collections of .literary, musical or audiovisual works or any other kind of .works, or collections of other materials such as texts, sounds, .images, numbers, facts, or data representing any other matter or .substance" and "may contain collections of expressions of .folklore." The "protection shall be granted to databases .irrespective of the form or medium in which they are embodied. . .Protection extends to databases in both electronic and non- .electronic form" and "embraces all forms or media now known or .later developed. . . Protection shall be granted to databases .regardless of whether they are made available to the public. This .means that databases that are made generally available to the .public, commercially or otherwise, as well as databases that .remain within the exclusive possession and control of their .developers enjoy protection on the same footing." . .WHAT ARE EXTRACTION AND UTILIZATION RIGHTS? . ."The maker of a database eligible for protection under this .Treaty shall have the right to authorize or prohibit the .extraction or utilization of its contents." What is "extraction"? .Extraction is defined as, "the permanent or temporary transfer of .all or a substantial part of the contents of a database to .another medium by any means or in any form." "Extraction . . . is .a synonym for `copying' or `reproduction' . . . by `any means' or .`any form' that is now known or later developed." . ."Utilization" is defined as "making available to the public all .or a substantial part of the contents of a database by any means, .including by the distribution of copies, by renting, or by on- .line or other forms of transmission," including the right to .control the use of the data "at a time individually chosen by .each member of the public." . .WHAT IS A "SUBSTANTIAL PART" OF THE DATABASE? . .The treaty sets out tests for determining if an extraction is ."substantial," and these tests are both highly anticompetitive, .and extremely broad in scope. . .The "substantiality" of a portion of the database is assessed .against the "value of the database," and considers "qualitative .and quantitative aspects," noting that "neither aspect is more .important than the other . . . This assessment may also take into .account the diminution in market value that may result from the .use of the portion, including the added risk that the investment .in the database will not be recoverable. It may even include an .assessment of whether a new product using the portion could serve .as a commercial substitute for the original, diminishing the .market for the original." . .Then the treaty adds that a "substantial part" means any portion .of the database, "including an accumulation of small portions . . .. In practice, repeated or systematic use of small portions of .the contents of a database may have the same effect as extraction .or utilization of a large, or substantial, part of the contents .of the database." .In the US implementing legislation, the only types of data use .that would not be regulated would be "insubstantial" parts, ."whose extraction, use or reuse does not diminish the value of .the database, conflict with a normal exploitation of the database .or adversely affect the actual or potential market for the .database." Under this language, a database owner could say that .it might in the future want to charge for each transmission of a .fact or an element of a database as part of its "normal .exploitation" of the database. With the Internet and digital cash .this claim is likely to be made. The public would not have "fair .use" rights, since fair use is only defined in matters involving .copyright. . .FOR HOW LONG? 15 YEARS, 25 YEARS, OR FOREVER? . .The Treaty would require a minimum term of protection (15 years .in the EU proposal, and 25 in the United States proposal) for the .database. But this is extended each time the database is revised .or enhanced. According to the draft treaty, "any substantial .change to the database, evaluated qualitatively or .quantitatively, including any substantial change resulting from .the accumulation of successive additions, deletions, .verifications, modifications in organization or presentation, or .other alterations, which constitute a new substantial investment, .shall qualify the database resulting from such investment for its .own term of protection." . .The provision on revisions raises the specter that protection for .many databases will be perpetual. This could indeed be the case .if the original versions of the database are only "licensed" by .the vendor for a limited period of time, so that the only .available versions would be the new ones, which would have a new .term of protection. [Database vendors write these restricted use .licenses now]. . . The proposals for a new legal environment for publishing .facts are outlined in a draft treaty on "databases" that will be .considered at a December 1996 meeting of the World Intellectual .Property Organization (WIPO), in Geneva, Switzerland. See: . . www.public-domain.org/database/database.html . . The proposal would require the United States and other countries to .create a new property right for public domain materials. "Texts, sounds, .images, numbers, facts, or data representing any other matter or .substance," will be protected. . . The treaty seeks, for the first time, to permit firms to ."own" facts they gather, and to restrict and control the .redissemination of those facts. The new property right would lie .outside (and on top) of the copyright laws, and create an .entirely new and untested form of regulation that would radically .change the public's current rights to use and disseminate facts .and statistics. American University Law Professor Peter Jaszi .recently said the treaty represents "the end of the public .domain." . .Copies of the proposed treaty, a federal register notice .asking for public comment, and independent commentary can be .found at: . . http://www.public-domain.org/database/database.html . .WHO IS PUSHING FOR THE DATABASE TREATY? . . In 1991, the US Supreme Court ruled (in the Feist decision) .that the facts from a telephone "White Pages" directory of names, .addresses and phone numbers were not protected under the .copyright laws, and that in general, "facts" could not be .copyrighted by anyone. The Feist decision alarmed several large .database vendors, who crafted this new "sui generis" property .right that would protect facts, and just about everything else. .[The vendors have already succeeded in obtaining a directive on .the database proposal from the European Union, although no European .country has yet passed legislation to implement the treaty]. The .most active supporter of this new property right is West .Publishing, the Canadian legal publisher. A West Publishing .employee chairs a key ABA subcommittee which wrote a favorable .report on the treaty. A number of very large British and Dutch .database vendors are also lobbying hard for the treaty. .West wants the new property right to protect the "page .numbers" and "corrections" it adds to the judicial opinions it .publishes in paper bound books. Telephone companies want to .protect the names, addresses and telephone numbers they publish, .and other database vendors what to protect scientific data or .other non-copyrighted government information they publish. In .seeking to protect these items, the treaty was written to stamp ."owned by" labels on a vast sea of information now in the public .domain. Copyright experts J.H. Reichman and Pamela Samuelson .say it is the "least balanced and most potentially anti- .competitive intellectual property rights ever created." see: . . http://ksgwww.harvard.edu/iip/reisamda.html . . In Feist, the Supreme Court noted: . (a) Article I, Sec. 8, cl. 8, of the Constitution mandates . originality as a prerequisite or copyright protection. The . constitutional requirement necessitates independent creation . plus a modicum of creativity. Since facts do not owe their . origin to an act of authorship, they are not original and, . thus, are not copyrightable. . [From the Syllabus of the opinion, at: . . http://www.law.cornell.edu/supct/classics/499_340v.htm . .Since facts cannot be copyrighted, the supporters of the .treaty have framed this as a new "sui generis" property right, .which will have a separate statutory framework. "Originality" or ."authorship" will not be required. . .As a "sui generis" property right, the database proposal .does not incorporate the fair use principles from copyright that .reporters and value added publishers often take for granted. The .leagues would be able to require license to publish box scores or .other statistics in any media. One can imagine a world where the .leagues wouldn't require licensing of box scores to print based .periodicals like daily newspapers, but that a much more .controlled regimen would evolve on the Internet. The leagues .could require licensing of box scores and other statistics for .Internet publications, or linking to the leagues own web sites, .such as: . . www.nba.com . www.nba.com . www.nhl.com . .WHAT CAN YOU DO? . . The government is taking comments on the database treaty .through November 22, 1996. If you don't think the government .should rush into a new regulatory scheme for sports statistics, .let them know. . You can email your comments to: . . diploconf@uspto.gov . .If you want to know more about his proposal, check out: . . http://www.public-domain.org/database/database.html . .Two law professors who have studied the treaty extensively are: . .Professor Pamela Samuelson, University of California at Berkeley, .Voice (510)642-6775, pam@sims.berkeley.edu . .Professor Peter Jaszi, American University, School of Law, Voice .(202) 885-2600, pjaszi@wcl.american.edu . . APPENDIX . .Extracts from James Love, "A Primer On The Proposed WIPO Treaty .On Database Extraction Rights That Will Be Considered In December .1996, October 29, 1996, . . http://www.essential.org/cpt/ip/cpt-dbcom.html -- Cyberspace and Freedom are Information. FUCK your WIPO, too. -attila