Note: This article is © Karl-Erik Tallmo. Anyone is, however, free to spread and publish this article in its entirety or in parts on the Internet, in print, or by any means of publication, without any economic compensation to the author, provided that the republished text or parts of it is not altered and that the author's name is included. If the whole article is published, this notice must also be included.

 Copyright Alert


by Karl-Erik Tallmo

(Note: this text may be distributed freely on the Net and elsewhere.)


YOU COULD NOT SHARE  an interesting newspaper clipping in electronic form with a friend, and you could not re-check something you read in a digital book of your own - without paying for a second look. And you would not be able to search for information on the World Wide Web, since everything you have no use for, which you pass along the way, would nevertheless cost you money, or, you would not be allowed to see this material for evaluating its relevance.

This is not the way we envisioned the leap into the digital age of knowledge and learning, was it? However, this could be the copyright lobby's Christmas gift to us, if the proposed addendum to the Berne convention will be accepted at a diplomatic conference in December.

You who are reading this are probably fairly used to surfing the Internet. Even if the term "surfing" has a somewhat superficial sound to it and will, perhaps, be replaced by a more organized and pointed quest for knowledge, this basic tenet of the World Wide Web remains: namely, to be able to move seamlessly between a network of cross referenced texts, pictures and perhaps even sound and video.

At this point, we are rather tired of deceptive metaphors such as infobahn and the electronic superhighway, since they are, naturally, just as static and inflexible as their analog equivalents. Still, the similarities are plausible in one respect: namely that one can move about, just as in a city or on a country road, peering into storefronts and studying posters outside a theater or museum.

The limitless possibilities of window shopping that the real world provides have, thus far, been successfully transferred to the digital realm. It has been taken for granted that one can move from one place on the World Wide Web to another, partaking of the images and text provided, and for the most part, completely for free.

Now, however, this basic tenet of the World Wide Web is being threatened. In a proposed expansion of the Berne Convention, the United Nation's World Intellectual Property Organization (WIPO) has suggested a disturbing new definition of what defines reproduction. According to the WIPO definition, reproduction is generated every time something is copied to computer memory, even if these copies are only extant for a couple of seconds.

The WIPO proposal also places a considerable level of responsibility upon Internet service providers to ensure that their servers do not contain illegal copies which would involve copyright violations. The difficulty of overseeing continually changing bodies of information, containing many gigabytes, has been previously discussed and, it was thought, dismissed from current debate.

In addition, rules regarding copyright for databases, in their function as collections or compilations, are to be drawn up, as are rules for how extraction should be judged.

These proposals have caused a sort of subdued outcry among the world's users (those people who partake of the information and are not copyright holders), including individuals, librarians and various distributors of electronic information. Many do not really dare to believe what they hear, both because the proposals are extremely vague, leaving the field wide open for various interpretations, and because there is such an incredibly short period of time to discuss the issue. The proposal has only been in its final form since August, and a decision is going to be made already in December 1996.

The Internet community has not reacted as strongly as to earlier threats, like president Clinton's encryption chip or the Communications Decency Act. Does anyone remember the fight about the GIF digital image format in January '95? All of a sudden Compuserve and Unisys wanted practically everyone who handled GIF images to pay royalty to Unisys, who had developed the compression algorithm at work in this digital format. The Internet community fought back very efficiently, and invented a new format (GEF), that could replace GIF if need be. By that, GIF would have become a completely dead format, incapable of generating any money whatsoever to the rights holders. Could it be, that the GIF battle was a sort of preliminary test on behalf of the copyright lobby extremists? If so, did they learn anything?

A New Reproduction With Each Viewing

According to Article 7 of the WIPO proposal, every copy that is made, "in any manner or form," is considered a reproduction. The commentary clarifies this to mean that any "direct or indirect" copying, either "permanent or temporary" constitutes reproduction. In comment 7.05 it says specifically: "It may as well be a copy of the work on the hard disk of a PC, or in the working memory of a computer."

Viewing a picture on a Web page involves downloading it into one's own internal computer memory in order that it may be viewed on the screen. This is, in fact, a requirement to utilize anything digital, be it from the Net, from a CD-ROM or from a floppy disk. Information must be interpreted in a way that is understandable to humans (i.e. letters and words in a recognizable language, or forms and colors for images), and this can only be done using some form of equipment that oversees and retains that which is being processed. In other words, some form of memory, a computer memory, is required.

By definition, the reading of digital information requires that the information be copied into a computer memory, even if that information only exists in the memory for a few seconds. It is this fact that the copyright lobbyists now have discovered. They perceive that money is slipping through their fingers. But they probably do not fully perceive the consequences of the proposed new copyright legislation that they have been party to formulating, nor how counter productive it is over the long term.

Americans probably recognize the WIPO proposal. It is roughly the same ideas as in the proposed 1995 House bill - The National Information Infrastructure Copyright Protection Act - which was postponed last spring. Now, through international organizations, this proposal is revisiting America - and the rest of the world.

It is clear from Article 10, "The Right of Communication", that it is difficult to distinguish between distribution and reproduction in the digital world - and that the people behind the WIPO proposal are prepared to make the most of this. There are even glimpses here of a return to the view that, for example, regular viewing of a video recording of a television program for private use is something that cannot occur without the permission of the copyright holder.

In 1984, Universal and Walt Disney Productions unsuccessfully tried to sue Sony for complicity in copyright violations because it was selling Betamax videotape recorders, with which television could be recorded, facilitating the reproduction of the film company's work. The United States Supreme Court, however, ruled that there was legitimate "fair use" for "time-changing purposes." (Article 3 of the WIPO proposal is somewhat disturbing in this regard: "When literary or artistic works are made available to the public by wire or wireless means in such a way that members of the public may access these works from a place and at a time individually chosen by them, [...] Contracting Parties shall, [...] consider such works to be published works.")

There is, however, still a clear distinction between a picture on a TV screen and a picture on a computer monitor, despite both of them consisting of cathode ray tubes. In the one case, a computer memory is involved, in the other it is not. A videotape can be replayed at home an innumerable number of times. One has purchased the right to see it as often as one wishes, without further cost, so long as one does not, for example, arrange showings for the whole neighborhood and charge admission. The same film shown digitally on a computer screen will, however, mean a new "reproduction" is created every time it is shown. As a result, it must be accounted for.

In the early 90's, new rules for printed works were proposed within the European Union: public libraries would no longer be permitted to lend books without permission from the author. Each library would have been forced to draw up contracts with each and every author, almost like a publisher. The organisation EBLIDA was formed to fight against this proposal - and it was stopped. Now, however, similar ideas are haunting the digital world.

Previously, copyright questions were primarily something that concerned producers of books, records, films etc., but now a significant portion of the responsibility is being shifted to the consumer side, to the readers and viewers. Even WIPO states this fact in comment 3.06: "In traditional publishing, copies are first manufactured and then distributed. In electronic publication through networks, copies are produced at the recipient end after the act of dissemination."

Article 12 does allow every country to make certain exceptions from the proposed protocol, but only "in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author."

The Digital Future Coalition, an association of both official and private organizations, including libraries and educators as well as the technological sector, draws the conclusion that Articles 7, 10 and 12 would, "inhibit browsing on the World Wide Web; discourage construction of the global telecommunications network and its 'access ramps;' and seriously jeopardize the ability of individual nations to craft exemptions from liability for desirable business and educational purposes."

And not only network publications would be affected. In contrast to printed books, which one buys once and for all, one would never have completely "bought" an electronic book. A CD-ROM disk would be more expensive the more times its content was accessed. Hardly something that will stimulate reading and development.

The advocates for this proposal say that "of course the copyright holders would like payment for their work."

Of course! That is not the problem.

The problem is, rather, that many of the rights that we have gotten used to in the analog world would, by the definition of reproduction proposed by WIPO, disappear. There would be no right to send interesting newspaper clippings in electronic form to a friend, no right to re-sell a digital book, no right to look at multimedia works before deciding to buy them.

This is an extreme interpretation say the proponents. No businessperson in their right mind would completely ban customer browsing before a purchase. "One would never be successful if one didn't show one's products," said Ken Kay from the Creative Incentive Coalition, cited in the June issue of Politics Now's Netwatch. But, according to the proposal, viewing - "making the work perceptible" - is specifically included as an example of reproduction where exemptions would have to stipulated in local agreements.

And, as everybody knows, not all business people abide by fair business morals. Take, for example, the Swedish fortune seekers in the company "Control Alt Delete" who register known businesses' domain names so that they can sell them back for a price to the companies later on. There would no doubt be racketeers in the industry who would quickly capitalize on these sorts of ambiguities.

"The Internet is one gigantic copying machine," said David Nimmer, a Los Angeles lawyer, in an article in the Economist of July 27th this year. Maybe so, but the Internet is also one gigantic detective machine, for one finds stolen material much more readily here than in the real world.

If one wants to find out whether a text has been illegally distributed, all one has to do is use a search engine, Alta Vista for example, and search for a characteristic formulation and see if there are any hits. One will no doubt soon be able to do this with images as well, which are stored in long formatted strings of code.

On the Internet, it is customary to first ask the service provider to willingly remove the protected material, rather than immediately calling up McKenzie-Brackman. If those responsible do not willingly comply, the server can be cut off from the Internet by the internal regulatory mechanisms that exist. Last March a new such regulator was created: The Virtual Magistrate, which is meant to resolve disagreements in a quicker, more effective manner that is appropriate for the Internet community.

This is not to say that traditional legal measures would not be appropriate.

On the contrary. Many of the crimes that people are in an uproar over can be prosecuted under current law; the distribution of child pornography, slander, etc. are no less criminal if they are conducted on the Internet, than if they occur on TV or in print.

As editor of The Art Bin, I set up pretty conventional contracts with the contributors. I buy the permission for one publishing occasion in The Art Bin. The following is part of one of my contracts (note that The Art Bin is considered to be both a database and a periodical):

"The permission to publish applies only to this periodical/database. Thus, reproductions of the paintings may not be accessible in more than one electronic periodical/database at the same time, although the editor keeps backup copies of all of the content in The Art Bin, accessible to him or his co-workers only. The digital reproductions shall be accompanied by a copyright line and a clear indication that the image may be downloaded on the end user's own computer for personal use only.

Should the periodical/database be discontinued, the editor is not permitted to continue the disseminattion of reproductions of these paintings in digital form."

The possibility of browsing freely at a library, the option of photocopying for personal use or to inform colleagues, has long been a sort of lubricant in the information distribution machinery, which is essential to both acquire and exchange knowledge, so that new ideas and new knowledge can arise. It is incredibly shortsighted to try to squeeze money out of an endeavor that can give multiple returns later on, both for society at large, and for the individual owner of the information in question. I wonder, for example, if today Apple Computer does not regret keeping the Macintosh operating system a secret for so long.

If stricter rules are now put into place, there is the question of whether abidance could be controlled at all. I believe that laws, in some instances, might express a consensus in society, where people express a shared moral understanding. Even if it is difficult to monitor abidance to the law in question, it could function as a sort of common statement, a manifestation. But then it should, of course, be something that has support in the public's general sense of justice, i.e. that one should not sexually abuse children.

And in this general sense of justice certain principles should be cherished, such as the principle of public access to official records, the freedom of information, and the freedom to exchange knowledge. Vague regulations of the type proposed would probably only serve to reduce the general willingness to respect laws at all.

The individual users have no representatives of their own in this case. Libraries and librarians are on their side, of course, and library associations are doing a good job in forming public opinion on this matter. It is important, however, to realize that this is something that will affect not just institutions and scientists, or research and public libraries. The implications of this proposal will find their way into each and every home. Each and every home computer, every laptop computer, even portable audio CD players equipped with "skip protection" memory, and digital videoplayers, all of it would turn into potential tools for crime. Without licensing and control, they would become mini destilleries, producing illegal reproductions of protected works, a sort of digital moonshine.

If one is an Uncle Scrooge, with dollar signs for eyes, then of course uncontrolled reproduction for personal use must be regarded as an enormous, unexploited market. The alleged motive behind controlling this market as well, is said to be that if the copyright owners receive more money, then there is a greater incentive for them to create new works that the public can enjoy. Perhaps, perhaps not; for more than likely, it would become more expensive to subscribe to Internet services and to purchase CD-ROM products.

Internet pioneer, Vint Cerf, the former president of The Internet Society, and now with MCI, said in May, according to the Washington Post, that the National Information Infrastructure Copyright Protection Act then being proposed could force service providers to increase prices dramatically, in order to cover their economic liabilities.

Until now, it has been practical, even for the maximalists (supporters of the most stringent control and regulation possible) to allow fair use and copying for personal usage. For how could it regulated? With copyright police knocking on doors? Hardly. But in our digital age, the maximalists have found a tool that is neater and less reminiscent of old Soviet style. The computer. Everybody probably remembers Microsoft's registration wizard? A similar function could register exactly what is happening on everybody's hard drives.

Another question is how many reproductions should be considered to be created when a computer program is in use. Article 4 equates computer code in a program to a literary work. As a result, a reproduction of this work is considered to be created every time it is read into a computer's working memory. But according to article comment 7.12, a reproduction is, in principle, also created even when parts of the work are copied (the thought being that eventually the entire work could be transferred over and reconstructed). Fragments of programs are constantly being transferred in and out of internal memory when a computer is operating. So, the tax meter would have to be operating almost as quickly as the processor itself.

The Responsibility of the Service Providers

Articles 10 and 7 of the WIPO proposal suggest that those who provide space on a server on the Internet are also responsible to ensure that copyrights are not violated. This is a difficult situation to interpret, however. The boundaries between communication and publishing are not clear. Is a service provider responsible only for the material it publishes or is it also responsible for items that are stored temporarily, for shorter or longer periods of time, on its server?

In the above mentioned Washington Post article, Vint Cerf said that, "the architecture of the Internet, the volume of traffic it carries, federal privacy laws, the quantity of copyrighted works, and the legal complexity of copyright law," make monitoring and policing a provider's network for infringing material impossible.

If service providers were to be burdened with the responsibility for what was on their servers, then certain companies would also have a good pretext for reading their employee's private e-mail, so that no unauthorized reproductions of copyright protected texts could be exchanged, either within the internal network or externally.

Databases and the Extraction of Data

In a special proposal regarding a treaty for databases, which will also be presented in December, article comment 2.05 equates data extraction with copying and reproduction. 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." But a "substantial part" can be rather little as is suggested in comment 2.10 where it states: "According to item (v), 'substantial part' means any portion of the database, 'including an accumulation of small portions'".

The Digital Future Coalition believes that, at least in the United States, this could mean that quoting something as trivial as a domain name would constitute an infringement of rights, as would the usage of regularly occurring scientific look-up tables which are available in electronic format.

In the most pessimistic scenario, any form of quotation of an electronic source could be illegal. It would parallel what the Swedish Data Inspection Board long claimed, that every machine searchable name constituted a person registry which, in turn, meant that every newspaper article that was written on a computer and which contained personal names was a de facto database, for which legal permission was required. This new protection of databases would mean that every quote from an electronic text could, in the worst case scenario, be defined as an extraction from a database. The case stands or falls on how one defines a database.

In a letter of November 7th to Dr. John H. Gibbons, the Assistant to the President for Science and Technology, representatives of prominent American library organizations (Association of Research Libraries, American Library Association, American Association of Law Libraries, Medical Library Association and the Special Libraries Association) said the following:

"There is a long tradition in the United States of protecting expression but not the facts. This tradition is based on an appreciation that such a policy stimulates innovations in the public and private sectors, supports the educational process, and 'promote[s] the progress of Science and the Useful Arts.' The progress of knowledge is furthered by the reuse of information in other works. We believe that the database proposal would undermine this tradition."

In Volume 50 of the Vanderbilt Law Review, J. H. Reichman and Pamela Samuelson comment regarding this special database proposal, saying that, "lobbying pressures converted the final version into one of the least balanced and most potentially anti-competitive intellectual property rights every created."

In the general WIPO proposal, there is also a section regarding databases, Article 5. Strangely enough, there it says that, "this protection does not extend to the data or the material itself." May the discussions resound loudly in Geneva this December!

Protests Against the Proposal

In most cases, it is the worrisome, poorly thought out and drastic regulations in the WIPO proposal that are meant to apply generally, while the more reasonable modifications and sound exemptions are relinquished to the local negotiation partners in every country. Such is the case with the right of reproduction for personal use, as well as with the possibility for "second-hand" sales (Article 8), etc.

Research, education and business are increasingly being conducted across all boundaries via global networks. The readers of electronic on-line publications are often spread throughout many countries, and even that which they read can be spread across the globe. This very article has references in the form of links to servers in the United States, Sweden and Chile. Copyright laws of today have an entirely new topology in which to operate, an almost utopian existence, in the original sense of the word, meaning 'having no place'. Therefore, it would be of serious consequence not to harmonize even the exceptions. Otherwise, the thousands of international man-hours spent in the work towards harmonization were a complete waste of time. In the worst case, they will count as an alibi for national arbitrariness; perhaps a malignant form of arbitrariness in states with a less tolerant attitude towards traditional ideals of freedom, such as freedom of information and of the press.

The Royal Swedish Library has expressed its reservations in a letter to the Swedish Ministry of Justice. The library considers WIPO's proposal to be "unclear and insufficiently thought out" and it recommends that the proposal be allowed to rest for, "a period of analysis and discussions with representatives of the user side", in other words, with all of us who partake of copyright protected information.

Frans Lettenström, of the Swedish Royal Library, suggested a position on this issue before the Federation Internationale d'Information et de Documentation at a conference in Graz, Austria, at the end of October of this year. In the final document, the FID among other things, states that "the role of society's collectors and disseminators of knowledge (such as libraries, archives, museums and other information operators) might be destroyed", and recommended that the voting regarding Articles 5, 7, 10, 12 and 13 should be delayed by at least six months for further discussions among users, especially people within the library and teaching communities.

On November 4th, representatives for library organizations and the telecommunications industry wrote a letter to the President of the European Commission, Jacques Santer, in regards to the WIPO proposal. The letter calls the proposals "unripe" and the signers expressed their fears that "the true commercial and social potential of networked digital technology may never be fully realised if the international laws of copyright are modified in a way that fails to adequately appreciate the very essence of how the GII actually functions".

Right. One must realize the essence of that which is new. In the 15th century, Angelo Poliziano of Florence was opposed to the invention of the printing press: "The most simpleminded ideas may now in an instant be reproduced in thousands of copies and be spread abroad." Sounds familiar? Had the monks had conservative trade unions at the time, they probably would have demanded that printed books cost as much as handwritten ones, and that they could not be printed in more than one copy.

On its homepage, the International Federation of Library Associations and Institutions (IFLA) points out that copyright is something that can stimulate intellectual activity and should not hinder access to information and ideas. It further states that ideas that are accessible digitally, should not be made accessible only to those who can afford to pay. "Unless librarians and individual end users have clear rights, without prejudice to the legitimate interests of rights owners, this will create a greater divide between the information rich and the information poor," writes the IFLA, reminding us of a classic tenet of universal education.

Through time, from Andrew Carnegie, who built libraries, to H.G. Wells, who envisioned a global universal brain, to Ted Nelson, who laid out his hyper universe, Xanadu, many people have had grandiose visions for universal education. When we are now standing on the threshold of making all this possible, it would be paradoxical if everything was stopped by something so unnecessary as good ideas being realized in a bad way.

Of course the copyright legislation should be modernized and harmonized. Just not like this.

(Translated from Swedish by Henrik Nordström and Karl-Erik Tallmo.)

Further reading:

The Swedish Royal Library's reservations to the WIPO proposal (in Swedish)
The WIPO proposal
IFLA (International Federation of Library Associations and Institutions)
FID (Fédération Internationale d'Information et de Documentation), statement, suggested by Swedish delegate Frans Lettenström
Digital Future Coalition, valuable commentaries to the different articles of the WIPO proposal
National Writers Union Calls for Delay in Approval of WIPO Treaties. Letter (November 22, 1996) from NWU's Jonathan Tasini to Bruce Lehman, Commissioner of the Patent and Trademark Office in the U.S.
Public domain, overview on this subject with lots of further links

This article is  © Karl-Erik Tallmo. Anyone is, however, free to spread and publish this article in its entirety or in parts on the Internet, in print, or by any means of publication, without any economic compensation to the author, provided that the republished text or parts of it is not altered and that the author's name is included. If the whole article is published, this notice must also be included.

[English Homepage]
[Svensk bassida]
[Articles menu]