Albuquerque, NM
May 14 -16, 1997
James G. Neal, Eisenhower Library Director
Johns Hopkins University
It was with some trepidation that I approached the WIPO sessions in Geneva. I will try to provide a historical context for international copyright and a sense of the political pressures behind what WIPO tried to do last December.
International protection for artistic and literary works extends back to the late 19th century. The treaty with the longest history, the greatest number of adherents, and the highest level of protection is the Berne Convention. It was established in 1886 under the auspices of the French writer Victor Hugo, and has 130 member states. It imposes a series of requirements on the participating countries: each must enact national laws that offer foreign and national authors consistent protection.
This 19th century milieu is important because in the United States at that time there was rampant piracy, particularly of West European music, literature, and science. Throughout the 19th century the United States had a strong tradition of misappropriating intellectual property, an important context to understand.
One may question whether it is possible to have international law extend to intellectual property, but I think that we have a growing consensus of common principles shared by a majority of the countries in the world, which produces the equivalent of international copyright protection, achieved through treaties such as that which WIPO provided.
There are three principles that are really unique to this international arena—terms that don’t enter into the U.S. copyrighting experience. The first is national treatment, wherein one country promises to protect the works of foreign authors in the same manner in which it protects the works of its own authors. This is a central tenet of an international copyright agreement.
The second principle is territoriality: this allows one country’s copyright law to apply only within that country’s borders. Territoriality is partly to blame for the diversity of national copyright laws and the conflict that sometimes develops across borders.
The third principle, which I have only in the last year been able to articulate, much less understand, is the principle that is bundled up in the Berne Convention: moral rights. In the U.S., Great Britain, and most other common law countries, copyright law reads more like an economic charter, offering the author economic incentives to creativity, to encourage investments. But under the conventional European approach—an approach that has been adopted in Latin America, Africa, and Japan—the author’s work is considered a personal extension of that individual. The author’s right to her own work is considered one of the basic rights of man, an idea born from the French Revolution. The Berne Convention sought to protect the intimate connection between the author and her work through the principle of moral rights. Moral rights include the right of paternity, which allows the author to decide how, when, and where to first publish their work, as well as the right to be credited as author. Also included in moral rights is the right of integrity, which gives the author the legal right to prohibit the work’s reuse, destruction, or any alteration that would reflect adversely on the author’s honor or reputation. I had never heard of these concepts before I moved into the international copyright arena. As you can imagine, it was quite instructive for Doug and me to listen to representatives from 26 countries about their concepts of fair use. It has become a concept that has spread out across the world in a very powerful way, one which I believe will eventually revolutionize the way we look at international copyright agreements.
Let me give you a bit of copyright history. By the early 1950s there was a growing recognition that international copyright protection had to be strengthened. It is important to note that China, the Soviet Union, and the United States were not part of the Berne Convention. The Universal Copyright Convention met in 1952, drawing many of the world’s countries together to create a new framework for the resolution of disputes and to bring themselves out of isolation. Then, in 1961, the Rome Convention extended the protection of copyright to musicians, to producers of sound recordings, and to the radio and television broadcasting industry.
It was in the 1980s that increasing pressure for greater copyright regulation began to be applied. Rampant piracy was again rearing its head. Videos, sound recordings, and software became really vulnerable to abuse on a worldwide basis. Digital technology entered the scene, and its advent was forcing a rethinking of the copyright protections. Global markets were critical. One of the weaknesses of the Berne Convention was that it lacked an effective settlement procedure. Even though there was an understanding that things needed to be worked out, they had made no provision whereby individuals in two separate countries could come together to resolve those differences through international agreement or discussion.
Finally, in 1994, a very important set of agreements was reached. Called the General Agreement on Tariffs and Trade, the GATT agreement, it also contained a Trade-related Intellectual Property agreement, TRIPS. So when you hear about the GATT-TRIPS agreement, know that it led to WIPO.
GATT-TRIPS extended copyright protection to computer programs and databases. It also extended and recognized the exclusive right of copyright holders. It articulated an international standard for copyright use and called for enforcement requirements in domestic legislation. Countries may not ratify GATT without taking action to curb copyright abuse at home. It was in this context that WIPO was convened last year.
The debate’s three-week progression demonstrated the extraordinary complexity of the legal and technical issues discussed in Geneva. We had politicians there as well as advocates from all types of industries, but we did not have a lot of copyright experts sitting on the national delegations. So understanding had to be achieved before agreements could be reached.
There was also a significant financial interest at risk. That’s why, as Doug indicated, the major world leaders in terms of entertainment and publishing were there, protecting the perhaps trillions of dollars that were at stake in the decisions being made at WIPO. In terms of technology and network experience, the Latin American, African, and South Asian delegates came to the table with a very different set of perspectives and expectations than that of many of the other countries involved. Ultimately, the intellectual property perspective of the United States and western Europe took over, but it is important to recognize that the developing countries demonstrated and asserted power at WIPO. For example, their total opposition to the database treaty was one of the reasons why the treaty didn’t come to the table. They also pushed repeatedly for the discussion and treatment of folklore as a concept and as an intellectual property, something which has been followed up on, and about which there continues to be great international animosity.
It was an extraordinary process to observe, as well. Although I was not there for the first five days of the conference, I hear that these days consisted of protracted and frustrating debates on structures, committees, and who would sit where.
What did we learn? One, that we really need to maximize the coalitions and partnerships that we have developed. As Doug suggested, the issues that we were particularly involved in were not the central issues on the table, and we were able to neutralize the problems and advance our interests because we had important players there with whom we had partnered domestically in terms of liability and copyright information control issues. Having that partnership in place and all of the nongovernmental organizations working on our behalf helped us tremendously. The issues we were concerned with were only part of what they had at stake, but because they had partnered with us they felt a sense of obligation to continue to represent and advance our interests. That was key to the success we had at WIPO, and I think it will continue to spell success domestically.
We also need to realize that the information needs of our users, whose interests we represent in these debates, are seriously in conflict with the interests of those fighting electronic piracy and enabling Internet commerce. Those interests are what, in my view, WIPO was all about. We don’t fit easily into that debate, but an important point was added to the preamble of the treaty, accepting and recognizing the concept of fair use as an American initiative. This is an extremely powerful recognition of the role that the not-for-profit educational library community plays.
As we move forward, we need to keep our primary objective in mind. When I lecture on copyright, I always try to remember the true goal of the educational community in the intellectual property arena: we must develop policies for intellectual property management that enable broad and easy distribution and reuse of materials by scholars and students and that foster a competitive and supportive market for scholarly communication and creative work. We tried to keep this issue in the WIPO debates.
In conclusion, I will quote from a report that I gave to the ALA: “The treaties, particularly considering their provisions for action at the national level on many issues, will require extended domestic debate before approval and implementing legislation can proceed.”
Prue has briefed us on the difficult and troubling nature of the implementing legislation now being circulated. It requires our careful attention. The war continues, and WIPO was just one battle, albeit an important one, on copyright in the cyberspace frontier.
Thank you.
Copyright � 1998 by James G. Neal