Remarks about the Internet in International Copyright Conventions
The law of copyright in international conventions as this relates to the Internet is drawn from the Berne Convention for the Protection of Literary and Artistic Works (the "Berne Convention") and the WIPO Copyright Treaty (hereafter "the Treaty" or "the WIPO Treaty").'
The Berne Convention is the instrument of reference for international intellectual property rights. The WIPO Copyright Treaty takes up the main provisions of the Berne Convention to which it refers.
Moreover the WIPO Copyright Treaty is a particular arrangement within the meaning of Article 20 of the Berne Convention for the countries which are party to the Treaty and which are members of the Berne Union: the Berne Convention allows the Member States of the Union to enter agreements which give them more extensive rights than those defined by the Convention or which contain provisions not contrary to its own. Thus it is necessary to interpret the provisions of the WIPO Treaty under the terms of the Berne Convention.
While the Berne Convention lays down the fundamental rights of authors, it does not solve all the difficulties posed by the dissemination of works on networks. A first attempt to remedy this was made within the framework of GATT leading to the Agreement on Trade-Related Aspects of Intellectual Property Rights ('TRIPS Agreement'3 )of the Marrakesh Agreement Creating the World Trade Organisation. Another initiative led to the adopting of the WIPO Copyright Treaty by the Diplomatic Conference held in Geneva in 1996. The Copyright Treaty, together with the Performances and Phonograms Treaty adopted by the same Diplomatic Conference, sets out a number of rules regarding the digitised transmission of works with particular emphasis on networks, as indicated in the Preamble, where the Contracting States recognise:
"the need to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the questions raised by the new economic, social, cultural and technological developments,"
"... the development and convergence of information and communication technologies on the creation and use of literary and artistic works."
We wish to make two remarks about the provisions introduced regarding the circulation of works on digital networks. First, existing intellectual property rights, stemming from traditional means of broadcasting, are defined in the WIPO Treaty in order to improve the definition of their scope in the digital environment. Secondly, the 1996 Diplomatic Conference, being aware of the practical difficulties posed by the enforcement of copyright, adopted certain provisions to guaran-tee that authors" rights should be efficiently protected.
1. Definition of rights
Although a definition of the scope of applicability of intellectual property rights is available, certain questions remain.
The availability of works on the Intemet has led to a debate on the scope of intellectual property rights. Does the traditional right of reproduction include the digital reproduction of a work and also the various transitory stages of reproduction such as temporary or transitory copies? Is the right of representation not better adapted to define the transmission of a work on the Intemet and its display on screen? Does the right of distribution not include the communication of works via a network or is it restricted to the distribution of works in physical media? Is the right of rental not applicable to works made available on networks since, by connecting to a network, users can access works and use them just as if they had rented them from a phonogram or video rental shop? Does the right of communication introduced by the WIPO Copyright Treaty answer the need for circulation of works on the Internet and how does it differ from the rights of reproduction, distribution and rental? Does the circulation of works on the Internet not involve several of these rights?
The traditional definition of intellectual property rights leaves certain doubts on their application to the Intemet. The Treaty introduces new rules but more importantly it clarifies the scope and limitations of existing rights. The Agreed Statements on the WIPO Treaty only contains interpretative rules either of the Treaty or even of the Berne Convention. According to the WIPO Treaty, the right of reproduction as defined in Article 9 of the Berne Convention applies to the digital environment and includes the storage of works in digitized form on an electronic medium. Indeed, to quote from the Agreed Statement Concerning Article 1(4) of the WIPO Copyright Treaty:
"The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment and in particular to the use of works in digital form. 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."
The draft Treaty submitted to the Diplomatic Conference8 was discussed at length and led to the adoption of the above-mentioned Agreed Statement rather than to the inclusion of a specific provision in the Treaty itself. In particular there was considerable debate as to whether temporary or transitory reproduction, irrespective of the form or medium, was included in the right of reproduction.
The right of distribution and the right of rental provided for in Articles 6 and 7 of the Treaty respectively can only apply to physical copies of a work. Indeed the Agreed Statement concerning Articles 6 and 7 of the WIPO Copyright Treaty states that:
"the expressions 'copies' and 'original and copies' refer exclusively to fixed copies which can be put into circulation as tangible objects."
The right of communication is recognised under Article 8 in the following terms:
"... authors of literary and artistic works shall enjoy the exclusive right of authorising 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."
Article 8 gives authors an exclusive right for all communications to the public. Moreover it specifies that the right of communication to the public which it establishes includes the making works available to members of the public in any circumstances, i.e. "they may access these works from a place and at a time individually chosen by them". This choice of words refers to the process followed by anyone who connects to the network and accesses a work within the framework of the public communication of this work, be it from one's home, one's office, one's hotel room or one's friends' house. As the Memorandum of the Basic Proposal submitted to the Diplomatic Conference puts it9: ""What counts is the initial act of making the work available, not the mere provision of server space, communication connections or facilities for the routing of signals.10 The Memorandum goes on to add that interactive on-demand acts of communication fall within the scope of this provision.(11) The provision of physical facilities for enabling or making communication does not in itself amount to communication to the public.(12) However, the documents adopted by the Diplomatic Conference leave certain issues unresolved.
1.2 Unresolved issues
They come from deficiencies in the definitions, from the exceptions and from the legal value of the Agreed Statements.
1.2.1 Insufficiencies in the definitions
The coexistence of the rights of reproduction and of communication generates certain uncertainties. These two rights are exercised simultaneously when a work is made available on the Internet since its communication to users necessitates several acts of reproduction on different sites during transmission on the network.
While the Agreed Statement on Article 1(4) of the Treaty, which deals with the interpretation of Article 9 of the Berne Convention, specifies that the right of reproduction applies to the digital environment and includes the storage of works, the Treaty remains silent on the coexistence of these two rights. Both are involved in the circulation of works on the Intemet: because there is storage, the right of reproduction applies - even several times where the distributor decides to set up several sites in order to facilitate access to the works which it wishes to make available13 and so does the right of communication since this is precisely the point of Article 8. Would the right of reproduction not become accessory to the right of communication and as such might it not in certain legal systems disappear altogether as an autonomous right?
However, the right of reproduction may not necessarily apply equally to all parties. It may be agreed that from the angle of the reproduction right the distributor is responsible for copies which have to be made and stored on electronic media before making works accessible to end users in a network environment, in addition to its responsibility for the act of distribution - governed by the right of communication - which he has undertaken. On the other hand, and users will be responsible for the reproduction of the works on their computers which is a consequence of their own decision and, as the case may be, for any subsequent paper printout.
Yet the distributor will in some way charge users for the sums which he will have paid to the authors. It will have to request the authors' authorisation to reproduce their works on the sites of its choice,15 according to whatever legal regime applies in each case - since one can assume that the sites displaying the works will be located in several different countries. Yet authors will not be permitted to invoke this exclusive right against end users as they will have had no control over the organisation of the distribution of their works to the public.
The Berne Convention provides for a large number of detailed exception in several of its articles.16 The well-known general exception to the right of reproduction in Article 9(2)17 remains popular since the TRIPS Agreement adopts the same criterion under Article 13 and applies it to all the rights set out under the Agreement. Similarly, the WIPO Copyright Treaty adopts the same criteria in Article 10(1) and applies them to the rights it sets out. Article 2 of the Treaty provides that in implementing the Berne Convention States must restrict limitations or exceptions to the three criteria set out under Article 9(2) of the Convention. However, the Agreed Statement complicates the matter regarding exceptions as it does not refer to any specific case but allows contracting States to carry forward and extend "into the digital environment limitations and exceptions in their national legislations" and adds that Article 10 must be interpreted as permitting them ""to devise new exceptions and limitations that are appropriate in the digital network environment".
By referring to the criteria in Article 9(2) of the Berne Convention without giving any specific reference, the Treaty opens a door for new exceptions which certain governments might wish to introduce regarding the use of works in the digital environment. This might apply for example to copies required for technical reasons - known as temporary, transitory or volatile copies - or to hidden copies made by access providers. It is regrettable that the Treaty should not have been more specific by listing the exceptions. New and so far unthought of exceptions may significantly curtail the protection of author's rights granted by the Treaty. The issue of new exceptions justified by the development of new communication technologies may result in a complicated system of differentiation between cases where copyright would apply fully, those which would only justify the payment of a royalty and those which would constitute exceptions.
The three-step test of the Beme Convention, adopted in Stockholm by the 1967 Diplomatic Conference, gives governments great freedom to enact exceptions. The three-step test is an economic criterion, which means that if a government does not consider that a new use prevents the normal exploitation of a work (i.e. known technical or commercial methods) nor causes undue prejudice to the author's legitimate interests, it may decide to add it to the national list of exceptions.18 On the contrary, enumerated exceptions only lead to the record of the non-respect of author's rights (i.e. counterfeiting), not to the establishment of a prejudice in order to decide whether a right has been infringed. Special cases will have to be decided by national legislatures. Since neither the Berne Convention, the TRIPS Agreement nor the WIPO Treaty provide any element to guide in the identification of such cases, national legislatures will have the power to decide whether a situation or a new form of technical exploitation constitutes an exception. Since the two other tests - i.e. where the normal exploitation of a work is prevented and where the author's legitimate interests suffer undue prejudice - are not precisely defined, a legislature or a court win be free to decide to leave new phenomena outside the monopoly of intellectual property rights if it considers that they are exceptions compared with traditional forms of exploitation which would not face competition from these new means of exploitation.
1.2.3 Legal scope of the Agreed Statements
The Treaty is comprised of: (i) a first part from the Preamble to Article 24 and (ii) a second part entitled "Agreed Statements Concerning the WIPO Treaty". The Agreed Statements include definitions which have not been introduced into the body of the Treaty by the Conference. Do the Agreed Statements possess the same legal value as the Treaty and, if not, what then is their legal scope? Article 2(1)(a) of the Vienna Convention on the Law of Treaties, of May 3, 1969, defines a treaty as:
"... an international agreement concluded between States in written form and governed by international law, whether embodies in a single instrument or in two or more related instruments and whatever its particular designation."
According to this definition, the Agreed Statements can easily be regarded as parts of the Treaty.(19) Yet the Agreed Statements were not included by the Diplomatic Conference in the WIPO Treaty and unlike the Treaty - from the Preamble to Article 24 included - they are not subject to ratification by contracting States. Nevertheless they have legal value as an element of interpretation of the Treaty.20 They were adopted21 by the contracting States at the Diplomatic Conference which adopted the Treaty itself. The positions of states, whatever form or expression they take, can make all or some of the Agreed Statements binding and give them the same force as the Treaty itself. Given that the legal scope of the definitions set out in the Agreed Statements is not entirely clear, the advances of the WIPO Copyright Treaty are somewhat inconclusive. The Treaty has introduced new provisions regarding standards with a view to providing solutions to the questions raised by the circulation of works in the digital network environment. This also obliges Contracting States to introduce provisions permitting the implementation of an effective protection of authors' rights through concrete action.
2. Implementation of rights
The WIPO Treaty comprises two categories of measures: (i) those to be taken by the Contracting States to enforce the protection of copyright and (ii) the technical measures and information which must appear in the works.
2.1 Measures concerning the enforcement of rights
Both the TRIPS Agreement and the WIPO Copyright Treaty include provisions aimed at an efficient protection of works. As we mentioned in our introduction, the provisions of the TRIPS Agreement were not enacted specifically to address the issues raised by the dissemination of works in a networked environment.
The TRIPS Agreement provides that the national legislation of the Contracting States must include "enforcement procedures ... to permit effective action against any act of infringement of intellectual property rights covered by this Agreement . . ."22 The TRIPS Agreement includes many detailed provisions on this point which consider civil and administrative procedures (evidence, injunction, damages, disposal of infringing goods and implements used to produce them, provisional measures), the suspension of the release of counterfeiting goods by customs authorities and penal procedures (monetary fines, imprisonment, seizures and confiscation). Article 14 of the WIPO Treaty includes provisions aimed at a similar objective: governments undertake to enact "the measures necessary to ensure the application of this Treaty." Article 14 also provides that "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 . . ." including expeditious remedies.23 These provisions give Contracting States great freedom in choosing the means to achieve these goals and are far less detailed than similar provisions of the WIPO Treaty.24
2.2 Technical measures
Because of their ever-increasing importance, technical measures are vital to intellectual property lawyers as an instrument for the protection of rights, in that computerisation offers news means of information, control and protection. The WIPO Copyright Treaty establishes two categories of provisions: (i) under Article 1125 concerning the obligation for Contracting States to provide adequate protection against the circumvention of technical copyright protection measures; (ii) under Article 1226 on the necessity of sanctions against persons who would remove information on the rights management system or who would distribute or sell copies of works without the relevant rights information.
Concerning the obligations on technical measures, the Treaty does not provide for the circumvention of all technical measures but only of those which are implemented by authors or their beneficiaries in connection with their protected rights. Therefore the provisions of the Treaty do not apply where a work is not protected or where certain rights have no protection due to an exemption. Concerning the rights information management, it should be noted that this refers to information permitting the identification of the author, the work and the owner of the rights as well as the terms and conditions of use of the work. Moreover, the Agreed Statement on Article 12 points out that the implementation of the provisions of the WIPO Treaty should not result in "imposing formalities which are not permitted under the Beme Convention or this Treaty, prohibiting the free movement of goods or impeding the enjoyment of rights under this Treaty". 27
These provisions are restricted to the circumvention of, and remedies against, the removal or alteration of information pertaining to the rights management system; they do not concern the technical measures or the information itself - which according to certain views should be compulsory.28 It is the responsibility of the beneficiaries, if they so wish, to implement technical protection measures and to provide information on the rights management system. Only the publishers or the producers of works will be able to decide on these matters. However, authors will be able to oblige them to take appropriate measures. Authors obviously have a vested interest in technical measures and the insertion of electronic information being made compulsory.
A frequently raised issue concerns the possibility for users to circumvent technical measures where authors or their beneficiaries would, by imposing technical measures of control, prevent legitimate uses of works by the public, as is the case for works in the public domain, uses that constitute exceptions or the decompiling of a software program. Furthermore, the threats to privacy which these measures might pose are a sensitive issue. For example the notion of privacy includes the possibility of making copies for family use; therefore technical devices prohibiting copy would be illegal and as such should offer users the option of circumventing them. This would depend on the definition of privacy implied by this issue and also on the justification of the exemption for private copying, i.e. whether private copying is justified on the grounds that it is impossible to control it without infringing users' privacy or whether members of the public have a right to make copies for their private use.
International provisions constitute both useful guidelines and rules that have to be observed, based on the Beme Convention. However, being often of a very general nature, they leave a fair amount of leeway to governments. Several issues remain unsolved, particularly as concerns copyright exemptions and the legal scope of the Agreed Statements on the WIPO Treaty. The legal process for the ratification of the Treaty is in progress in several countries, such as the United States of America and within the European Union,29 where the Proposed Directive on the Harmonisation of Certain Aspects of Copyright and Neighbouring Rights in an Information Society, as put forward by the European Parliament and the Commission, aims at harmonising national legislations in the Member States before they ratify the WIPO Treaty.30 It is also to be noted that attempts to reach a balance between authors' and users' interests have resulted in an increasing limitation of authors' exclusive rights. The information society leads to the liberalisation of communication.Borders are disappearing. Restrictions to the circulation of works are not well perceived by the public. In its preamble, the WIPO Copyright Treaty takes stock of the increased interest of users as follows:
"The Contrasting parties ... 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 Beme Convention...".
Finally, the development of technical measures calls for further reflection. Certain regulations on data-encryption which are currently enacted may have a significant impact on copyright law.