Results of the WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions

Kurt Kemper
World Intellectual Property Organization



The World Intellectual Property Organization (WIPO), a specialized agency within the United Nations family, has, among other tasks, the role of safeguarding, developing, and promoting international norms on the protection of industrial property and copyright. These norms (essentially consisting of a network of multilateral treaties, some of which have a long history and tradition) must be adapted from time to time to meet the requirements of new technological and marketplace developments.

In recent years, the most important challenge for copyright law, at the national level as well as at the level of international norm-setting, has been the advent of digital technology and the dramatic increase of its use, in particular on digital communication networks such as the Internet.

Many national legislators have not responded to this challenge to date. However, the global nature of the challenge led about 130 states--at the WIPO Geneva Diplomatic Conference of 2-20 December 1996--to adopt two international treaties that establish an advanced international copyright regime for the digital environment, especially for the dissemination of copyrightable material in the global information infrastructure. In the headlines, these treaties were christened "Internet Treaties," which is about as correct as headlines can be. This paper focuses on the two new treaties: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The texts of the new treaties, with the Agreed Statements of the Diplomatic Conference attached, are available on the WIPO Internet site:

Protection by copyright and the free flow of information

The new global communication networks serve many users who basically desire to exchange, obtain, and share information, such as opinions, ideas, and the results of scientific research or other specially acquired or collected knowledge. These users may tend to consider copyright an impediment to the exchange and expansion of ideas and knowledge. This aspect of copyright policy was not just brought about by the growth and the globalization of electronic communication networks and is not being solved for the first time in the new treaties. The problems, however, have become more complex:

As a traditional principle, the copyright protection granted for a literary or scientific text or other creative work extends to its expression and not to the ideas expressed in it. This principle is expressly confirmed by the WCT (Article 2). It also means that the pure knowledge element contained in such a work is not protected by copyright and consequently can be exploited without restriction. As the WCT also confirms, copyright protection of a work does not extend to procedures, methods of operation, or mathematical concepts as such (Article 2).

Electronic information databases are a source of information that is becoming ever more important and attractive in connection with online access through global networks. The WCT (Article 5) confirms that databases are protected by copyright in so far as they are intellectual creations by means of a selection or arrangement of their contents only and further confirms that this protection does not extend to the collected information itself. So, merely using the accessed informational contents of the database does not constitute a copyright infringement.

The desire of authors to offer free access to their own contributions to Internet communication is often so dominant, especially in certain scientific areas, that they have no interest in copyright protection. On the basis of copyright laws (and this, again, is a traditional basic principle that remains unchanged by the new treaties), authors are always free to renounce any exploitation rights they hold, whatever their motive for doing so. Practices of renunciation will continue to the extent the right holders consider appropriate.

There is another limitation to the effect of copyright in the Internet environment: In general terms, copyright allows the holder to control communication to the public only, while communication within a private circle is copyright-free. Thus, a copyright holder cannot prevent his or her work from being communicated from one person to another on a private basis, whether such communication is made by traditional mail or by electronic mail, via the Internet. The new treaties leave this principle untouched. Some attempts were made during the preparatory work to draw the exact borderline in the treaties between what is public and what is private, but this could not be achieved for lack of agreement. Determining this borderline remains the domain of national legislators or courts.

Despite these built-in limitations to copyright protection on communication networks, the role of copyright remains extremely important, and its basic positive function in the information society deserves to be emphasized. The Internet needs a maximum of valuable substance of the greatest variety to be made available. Most of these contents will only be offered over the Internet if copyright protects their creators and producers by establishing a marketable right. That is why the Diplomatic Conference aimed at contributing to the worldwide development of the global information and communication infrastructure by providing clear copyright protection for the dissemination of copyrightable creative material in this new infrastructure. Examples of these materials are creative writings of any kind and purpose, photography, cinematographic works, music recordings, computer programs, creative databases, and mixes of these kinds of works in complex multimedia products.

The major achievement: full provision of the rights to control digital network dissemination

The cornerstone of copyright protection is the exclusive right to exploit (or to market) the work in any manner that is significant in economic terms. This would include any kind of dissemination of a work to a multitude of people constituting a public. However, globally, the author's monopoly so far has been enshrined only in very few legal systems. The international copyright treaty system has emerged and developed by enumerating and adding single exclusive rights, spelling out specific ways of exploitation--often for special categories of works--subsequent to technological and market developments like the advent of cinematography, sound recordings of music or broadcasting, radio, and television. The last major adaptation of the international protection system was undertaken about thirty years ago, in the Stockholm revision of the Berne Convention for the Protection of Literary and Artistic Works. At that time, digital technology and digital network communication had not yet appeared as an important issue for the protection and dissemination of copyright works. Even in the late eighties and early nineties, when intellectual property became a subject of worldwide trade negotiations in the GATT Uruguay Round, it was only the catalog of copyrightable works that was expanded to the digital environment by including computer programs and databases, while the issue of the right to exploit protected works of any kind through electronic network dissemination was left unresolved, until it was dynamically taken over in WIPO's concurring effort to supplement the existing treaty system, in 1995. In less than two years of negotiation from then, the WIPO Treaties of December 1996 have remedied the situation. The WCT, which is dedicated to the rights of authors and supplements the Berne Convention, provides for a widened and generalized right of the author to control any communication of his or her work to the public, including digital network dissemination. The core of this most important Article 8 of the WCT deserves to be quoted and reflected on thoroughly: "The 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."

The first point to be underlined is the notion of "any communication to the public." This generic term is familiar to copyright lawyers from the Berne Convention, where it is employed with further specification: limited to certain techniques of communication, such as wireless diffusion of signs, sounds, or images; certain kinds of works, namely dramatic, dramatico-musical, and musical works; and certain presentations of works constituting the basis for the act of communication, such as a performance or broadcast of a work. These specifications have narrowed the scope of the right of communication to the public in the Berne Convention as a consequence of the various step-by-step revisions of that convention, following technological developments. The merit of the new treaty is that it abandons this legal technique and enshrines the right of communication to the public in a completely abstract manner, giving way to the underlying principle that the author should have the right to control any exploitation of his or her work that is operated in an immaterial way--that is, without physical distribution of copies--and paving the way for any new technological development in the future. It is worth noting that the digital technology that led to the modernization of the legal framework (rather than the continued revision of the international copyright system) has not found a specific expression in the operative articles of the new treaty. It is just a preamble that underlines the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works.

A second point that has been clarified in the provision of the treaty quoted above is the clarification that the act of communication to the public includes the act of making a work available to the public in such a way that members of the public may access the work from a place and at a time individually chosen by them. This clarification reflects a particular feature of communication possibilities in the digital environment that are characterized by huge networks ramified to the utmost as well as by the interactivity of the communication flow. These factors lead to an individualization of the communication flow from the source to the individual members of the public to whom the communication is offered. This clarification was necessary because, in the traditional concept of copyright law, communication to the public was an act in which the same content was communicated at the same time to all members constituting a given public, maybe even assembled at the same place.

Those are the rights of authors to control digital dissemination. The situation is different for performing artists--such as singers and musicians--and for phonogram producers. To these right holders, the second treaty--the WPPT--grants a right to control not just any communication to the public, but, more narrowly, the making available of their performances and phonograms "in such a way that members of the public may access them from a place and at a time individually chosen by them." For these right holders, the interactivity element of the communication process is not just a variation but a prerequisite for the exclusive right to control digital dissemination. For other forms of communication--such as digital broadcasting of music programs or so-called music subscription services--the opinions of the negotiators were divided. According to an agreed statement of the conference, the delegates were unable to achieve consensus on differing proposals for aspects of exclusivity to be provided in certain circumstances and have therefore left the issue for future resolution. So, in the second treaty, the individual accessibility or interactivity element is the common denominator for the exclusive right. What is the reasoning behind this restrictive approach? It is mainly an assessment on economic elements of the music industry, more precisely, the sound recording industry. It is assumed that the electronic delivery of sound recordings on individual consumer demand (a technology that exists but is not yet widespread) could replace or severely affect the established distribution of the products of the phonographic industry, while it is not so evident that the forms of digital dissemination of recorded music might have a similar effect.

The reproduction right and digital technology

The exclusive right to reproduce their work has been the backbone of the international protection of authors. It has secured the traditional process of manufacturing physical copies and distributing them through various sale steps. In the preparatory work of the Diplomatic Conference, strong efforts were undertaken to give more precision to the scope of the reproduction right in the digital environment. The proposed articles on this subject were the most controversial in the conference. The areas of greatest dispute had to do with reproductions of a temporary and either transient or incidental nature that may occur during transmissions in digital networks. In the end, the negotiators saw no other way to resolve the conflict of opinions and interests of the various stakeholder groups than to abandon the attempt to specify the reproduction right in the treaties themselves. Only the basic recognition of the reproduction right for performers and phonogram producers in the WPPT and the reproduction right of authors in the Berne Convention are specified. However, two agreed statements adopted by the conference recognize that the reproduction right applies fully in the digital environment--in particular to the use of works, performances, and phonograms in digital form--and that the storage of a protected work, performance, or phonogram in digital form in an electronic medium constitutes a reproduction within the meaning of the relevant articles of the Berne Convention and the WPPT.

The first of these sentences is a clear confirmation of what is already contained in Article 9(1) of the Berne Convention, which extends to reproductions "in any manner or form." So, in a way, the agreed statement that employs technology-specific language underlines the fact that the provisions of the treaties, including the Berne Convention, on the reproduction right deliberately avoid using technology-specific language in order to apply broadly.

Exclusive rights of copyright holders and limitations and exceptions to those rights in the digital environment

Where copyright holders enjoy exclusive economic rights, these monopolies of exploitation in many circumstances need some moderation through built-in limitations and exceptions, for the sake of various opposing interests of the society. Some of these restrictive elements have been precisely covered in the international copyright system, in particular the Berne Convention; others are covered by national legislation or case law in contracting states. Examples are the fair use or fair dealing exceptions in common law countries or the more narrowly defined exceptions for private copying in other countries. The two new treaties (Articles 10 of the WCT and 16 of the WPPT) contain a parallel provision on limitations and exceptions, each applicable to all exclusive rights provided in the treaty and each leaving options to the national legislators. This open solution was adopted after controversial discussions on the role and significance of the so-called traditional limitations and exceptions in the new digital environment; for example, on the freedom of browsing the Internet or on the advantages of digital technology with regard to the educational tasks of public libraries.

The question of whether limitations or exceptions have to be more widely or more narrowly defined when applied to the rights controlling digital dissemination remained unresolved. However, agreed statements were adopted explaining that these clauses of the treaties permit contracting parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws that have been considered acceptable under the prevailing international instruments. These statements further explain that the clauses permit national legislators to devise new exceptions and limitations that are appropriate in the digital network environment.

In the near future, it will be interesting to examine and compare the provisions that the various national legislators adopt in compliance with this new international legal background.

Service providers and other participants on the Internet and their liability for copyright infringement

Many players participate directly or indirectly in digital network transmissions of copyrighted material: those whose activity aims at selecting and providing the material; those who dispose of the networks or parts of them, like telecommunication companies; those who provide other hardware facilities in the network; those who offer network access to users; and others. If copyrighted material is disseminated on the network without the necessary rights having been acquired from the right holder, which of the various players is legally responsible for copyright infringement and can be held liable to pay damages or punished for criminal infringement? Obviously, liability is most evident in the person who takes the entrepreneurial initiative to disseminate protected material on the network. But what about the indirect contributors to the network communication, who may not have the right or the ability to control the contents that are stored or transported on the network or who, in economic terms, are not in a position to exercise such control? In principle, this legal problem predated the advent of digital network communication, for example, in broadcasting or by use of traditional telecommunication facilities. Assessing the liability for copyright infringement in complex cases has always been a task to be resolved under the rules of national laws. International copyright treaties traditionally have not dealt with the conditions of liability for infringement. Lack of standardization in this area has not been felt as inconvenient. However, before and during the Diplomatic Conference, an alliance of organizations including telecommunication companies and service and access providers tried to obtain an express clause exempting them from direct liability. While the conference did not find such a solution possible, it agreed on a statement that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of the WCT or the Berne Convention.

Technological measures of protection and rights management information

When the new rules on copyright in the digital network dissemination were being prepared, it was recognized that the new or clarified exclusive exploitation rights in this environment had to be secured by accompanying legal measures. On the Internet, right holders will increasingly need to apply technological protection--for example, encryption--as well as digital codes containing information that identifies their products and the conditions of their use. The two treaties do not oblige right holders to rely on such techniques for their own protection, but they oblige the states to give supportive legal protection in national legislation if right holders do apply such techniques. The relevant provisions of the two treaties (Articles 11 and 12 of the WCT and Articles 18 and 19 of the WPPT) have been shaped in a rather general way, as it is not yet clear in which direction the relevant technology will develop.