[d@DCC] Quick summary of treaties...

Russell McOrmond russell at flora.ca
Mon Aug 2 12:25:38 EDT 2004

  I hope that a number of people in this community will be sending replies
to the "Interim Report on Copyright Reform".


Part of my own reply was contained in my reply to the CIPPIC questions.

  What is missing is a reply to all the points in the WIPO copyright and
Performances and Phonograms Treaties.  Are there summaries people are 
aware of written from the perspective of our communities?  Just reading 
through the treaties here is my point-form thoughts.

Major areas of concern:

  - Legal protection for DRM.  This is the #1 issue, and should be a
show-stopper to ratification of this treaty.  This is an anti-copyright
policy that protects media and software monopolies (third parties to
copyright, but should be first parties to competition policy) against the
interests of legitimate rights holders (creators of intellectual property,
owners of physical property, citizens, etc).

  - Making Available right -- this is yet another layered right.  If we 
were talking in terms of replacing the right to control "copies" to this 
right then that would be fine, but this is not how this is being 

  - Generally the addition of yet more layered and complex monopoly
rights, exactly the opposite policy direction to the simplification that
is needed to make copyright legitimate in the eyes of citizens whose 
activities it now regulates.

Copyright Treaty

Article 1 - Relation to the Berne Convention
  - how does it connect with Berne - claims it can't contradict (ya, 

Article 2 - Scope of Copyright Protection
  - scope of copyright is still on expressions (RWM: unless of course the 
"ideas, procedures, methods of operation or mathematical concepts" are 
encoded within DRM)

Article 3 - Application of Articles 2 to 6 of the Berne Convention
  - may need to

Article 4 - Computer Programs
  - "Computer programs are protected as literary works", (RWM: unless of 
course various member states want to *also* protect them as information 
processes under patent law, and to warp the concept of a literary work to 
allow the interfaces to be eligible for copyright as well)

Article 5 - Compilations of Data (Databases)
  - I see no point to this, other than to create "yet another right" to to
be managed by more lawyers. Like the rest of this treaty it is bad public
policy simply because it complicates rather than simplifies copyright.  
If copyright is to be enforced on private citizens then it must be
simplified, and this type of policy "thinking" must go.

Article 6 - Right of Distribution
  - Ditto above.  The "making available to the public" is yet another
layered right.  I would be supportive of this right if it was a
replacement for all other rights, but that has not been the context it has
been used it.  There should only be "one right", and no longer attempts by
the music "publishing industry", "music recording industry", and the new
"music making available industry" (distribution? Who knows what these
cartels will call themselves) all claiming that a single act can be paid
for (payment to collective) and infringing at the same time.

Article 7 - Right of Rental
  - This needs more attention.  This is a repeal of part of the first sale 
doctrine, and yet another cash grab.

Article 8 - Right of Communication to the Public
  - This is the article usually discussed as the "making available".  
Again, this is not discussed as a replacement of all other rights, but as 
yet another layered right likely to be managed by yet another layer of 
lawyers and lobbyists.

  I would be supportive of this right as a *replacement* of other rights:
that a copyright holder could have the exclusive right of "authorizing any
communication to the public of their works, by wire or 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".  If they exercised this right, then
they could no longer claim that any 'copying' that didn't involve a
further communication to the public of the work was an infringement.  
This would mean that any format conversions (DVD to disk, CD to MP3
player, etc) of a work lawfully communicated into a home could never be
considered an infringement or eligible for any royalty.

Article 9 - Duration of the Protection of Photographic Works
  - ignore Article 7(4) of the Berne Convention....

Article 10 - Limitations and Exceptions
  - Fair Use/Dealings is allowed, but must be excessively narrow and not
meaningful (IE: "does not conflict" with the claimed rights of the
  - this is bad policy as copyright needs to have clear boundaries that
can be understood by laypersons.  These boundaries are not loopholes, but
requirements to make copyright legitimate/respectable, understandable and

Article 11 - Obligations concerning Technological Measures
  - Since "effective technological measures" cannot ever exist by the very
nature of TPMs used in the context of DRM, this should be a null-article.
(There are no secrets as the so-called "attacker" is the intended
recipient, and thus nothing that is legitimately considered
  Unfortunately far too many policy makers do not understand the A.B.C.
basics of DRM, and thus anti-circumvention of DRM will be allowed to be
abused in anti-copyright ways.  This article has no redeeming value for
either legitimate copyright holders or the general public, and should be a
show-stopper to any adequately aware jurisdiction to ratification of the

Article 12 - Obligations concerning Rights Management Information
  - There is no value to this article for "rights holders" (copyright 
holders and the public).  It is either a repeat of activities that would 
already have been illegal (claiming to be someone else as a matter of 
fraud, redistributing or making copies as a matter of copyright 
infringement).  It just adds further complexities to an already 
over-complex act that *MUST* be simplified to be workable.

Article 13 - Application in Time
  - essentially that any new rights are retroactive to all works not yet 
expired into the public domain.

Article 14 - Provisions on Enforcement of Rights
  - details on ratification  - "no placebos allowed".

Article 15 - Assembly
  - details on meetings of states/etc.

Article 16 - International Bureau
  - WIPO will do paperwork...

Article 17 - Eligibility for Becoming Party to the Treaty
  - Canada is a party.

Article 18 - Rights and Obligations under the Treaty
  - "All your base are belong to us".
  - special interests get new rights, everyone else gets obligations.

Articles 19-25
  - more paperwork

WIPO Performances and Phonograms Treaty 

Article 1 - Relation to Other Conventions
  - Similar to WCT A1

Article 2 - Definitions
Article 3 - Beneficiaries of Protection under this Treaty
Article 4 - National Treatment
  - just read them...  Nothing unexpected in this type of Treaty...

Article 5 - Moral Rights of Performers
  - Attribution and Integrity (distortion, mutilation) already protected
in Canada.  There is no mention of Integrity (association with
groups/causes/etc), but Canada already has this anyway...
  - Moral rights may or may not be protected after death.

Article 6 - Economic Rights of Performers in their Unfixed Performances
  - I believe Canada already has these as well (authorize communication 
and fixation).

Article 7 - Right of Reproduction
  - Ditto - If any of these are new rights in Canada, please correct me.

Article 8 - Right of Distribution
  - Same as WCT Article 6, but for Performers 

Article 9 - Right of Rental
  - Same as WCT Article 7, but for Performers 

Article 10 - Right of Making Available of Fixed Performances
  - Same as WCT Article 8, but for Performers 

Article 11 - Right of Reproduction
  - For Producers of phonograms

Article 12 - Right of Distribution
 - Same as WCT Article 6, but for Producers of phonograms

Article 13 - Right of Rental
 - Same as WCT Article 7, but for Producers of phonograms

Article 14 - Right of Making Available of Phonograms
 - Same as WCT Article 8, but for Producers of phonograms

Article 15 - Right to Remuneration for Broadcasting and Communication to
the Public
  - exception to copyright to legitimize broadcast piracy of .. --- Oops.  
This is not new in Canada, so not relevant to discussion of treaty ;-)
  - 15(4) says there is a royalty for "making available" as well as other 
uses -- sounds like royalty layering to me.

Article 16 - Limitations and Exceptions
 - Same as WCT Article 10

Article 17 - Term of Protection
 - "At least" 50 years from end of year of performance/fixation.
   (shows the nature of what special interests this protects for sure -- 
may be higher, but not lower)

Article 18 - Obligations concerning Technological Measures
 - Same as WCT Article 11

Article 19 - Obligations concerning Rights Management Information
 - Same as WCT Article 12

Article 20 - Formalities
 - No formalities
   - this is a concept that needs to be reverse for all of copyright.  
Maybe no formalities for a short initial term of a few years, but
formalities should be required for longer terms.

Article 21 - Reservations
  - This is an all or nothing treaty.

Article 22 - Application in Time
 - Same as WCT Article 13

Article 23 - Provisions on Enforcement of Rights
 - Same as WCT Article 14

Articles 24-33 - Administration,etc..

 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Petition for Users' Rights, Protect Internet creativity and innovation
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