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Property Organisation Negotiations Letter

Mr Williamson,

Draft Treaty on Databases

We wish to express the concern of the New Zealand Internet community about the draft Treaty on Databases to be discussed at the World Intellectual Property Organisation (WIPO) negotiations in December, and to suggest that public debate on this important issue should be encouraged.

The Internet Society of New Zealand recognises the need to protect investments made in large data collections. However we believe the draft Treaty in its present form could prevent the Internet community from accessing much information which has traditionally been in the public domain, and could also greatly hinder the ability of Internet users, from schoolchildren to scientists and commercial users, to pursue their interests and work.

For reasons detailed in this letter, we urge the New Zealand Government to reevaluate several key areas of the draft Treaty, and we advise that it would not be in the interests of New Zealanders to vote for it until major revision and discussion has taken place.

A key issue is the question of how "fair use" of protected information would work. That is, the right of people to look at copyrighted work and extract and comment on sections of it without being in breach of copyright. The issue of "temporary" copies of work briefly looked at by a computer user, which would would be considered a copy for copyright purposes under the draft Treaty, would impact on the important "browsing" nature of current Internet use.

Though "fair use" is protected under New Zealand copyright regulations, New Zealand regulations in respect of this and other issues would have to closely follow a Treaty agreement, meaning that existing New Zealand regulations are likely to be overruled.

Under the Treaty, those considered to be the "owners" of a set of data, even if it was weather reports, sports results, financial data, or other information formerly deemed public information, would be able to limit access to it. Libraries, for example, could suffer major adverse effects. Perpetual protection granted to databases under the Treaty is extreme given the time limits conferred by traditional intellectual property laws. The issue of inclusion of importation rights requires further discussion.

In short, the provisions of the Treaty appear to have been devised to benefit commercial publishing interests at the expense of maximising the present and future benefits of databases to the global community, of which New Zealanders are a part.

We would appreciate the opportunity to assist deliberations on future revisions and developments of the Treaty.

There follows further analysis of problems of the Treaty:

Article 7 - Ephemeral Copies

Article 7(1), creates new liabilities for the creation of temporary, transitory documents. It requires signatories to treat the ephemeral copies of copyrighted documents which move through the network as infringements. This could eliminate browsing on the World Wide Web. This is in conflict with the reality of how the Internet and all modern networked systems operate. The design of modern computer and network systems is such that copies of data are automatically made in various parts of the systems for operational efficiency, system reliability, for various technical reasons, and for cost advantages. In particular, copies of extracts from databases would be found in what is called the random-access memory (RAM) and in the cache memory of any computer, and in various parts of a telecommunications network.These temporary copies can be stored for varying periods of time, from a few minutes to many months depending upon the operational arrangements of the system. The Article as currently drafted can be interpreted to mean that the normal and unavoidable operation of any computer would constitute an implicit infringement, even if this copying is not permanent and is incidental to the otherwise lawful use of the copyrighted material. Similarly, "copies" automatically created in the normal operation of transmitting a message through telecommunications lines would also be considered an infringement. Thus, this article is a direct confrontation of the technical arrangements found in all modern computers and networks. It is, therefore, an unworkable provision as now written.

The language in 7(2) also narrowly defines the circumstances in which national legislation could permissibly limit application of the right established in Article 7(1). The Article requires proactive legislation to protect browsing. This poses extreme problems in a globally networked environment where information may flow through numerous countries and systems before reaching its destination. Service providers could be held responsible for their users browsing materials stored on machines in countries which have not enacted such legislation.

Article 12 - Exemptions

As drafted, Article 12 allows exemptions to the Protocols 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". This makes the general formula of Article 9(2) of the 1971 Act of the Berne Convention the exclusive standard in determining when national exemptions are permitted. Signatory countries could be prohibited from enacting broad-based legislation that is consistent with the traditional copyright law in their own countries. National legislation can be targeted only to a specific point of argument with the treaty language.

We believe that the treaty should not use such stringent standards in permitting national exemptions. For example, in New Zealand the long-standing tradition of "fair use" for educational and cultural purposes may not be considered a "certain, special case". This is in conflict with Article 10(2) of the 1971 Act of Berne which articulates a "fair practice" standard for educational uses. Also, Article 12 would not apply to the types of broad exemptions that are needed for ephemeral copies (RAM or cached) as Article 7(2) narrowly specifies the conditions for national legislation in this area.

The Information Infrastructure was designed to route electronic transmissions though numerous networks between the points of origination and [their] destination. It will be impossible to fully utilize the network if the proactive legislation in each country differs. Alternatively, it may be the case that network users in New Zealand will be limited to the most restrictive regulations adopted if electronic transmissions traverse nations with varying degrees of regulation.

Article 13 - Devices to Circumvent Copyright Protection Systems

We note points made by the USACM public policy committee that Article 13 would have the same undesirable effect on technological development as section 1201 of the "National Information Infrastructure Copyright Legislation" proposed in the 104th Congress which would bar the importation, manufacture or distribution of any device or service whose "primary purpose" or "primary effect" is to defeat a copyright protection system. This could adversely effect a company which legitimately develops a product that people use for different purposes than that for which it was developed. Since it is likely to be extremely difficult for a developer to collect data about the primary use of the product, it may be impossible to refute a claim made by copyright holders who argue that the primary effect of a particular device is copyright infringement. As a result, the Article could have the undesired effect of dissuading manufacturers or software producers from investing in a new technology with substantial non-infringing purposes for fear that an anxious copyright holder might pursue litigation using the "primary effect" standard.

We believe that the Article should address the intent of the individual or company, not the effect of its actions or product. There could be other unintended side effects of Article 13. For example, we need secure and unbreakable forms of encryption if the New Zealand information infrastructure is to be secure from attack by terrorists and blackmailers. Since it is impossible to prove mathematically that any form of encryption is absolutely secure, we are heavily dependent on the common-sense observation that many smart people have tried to break the encryption system and failed. But since encryption is frequently used in copyright protection systems, third party testing of encryption systems is likely to be criminalized under Article 13, thereby exposing the nation to significant potential harm.

Freedom of access over digital networks is indispensable to maintain the vibrancy of the academic and research communities. The treaty, as written, will restrict such access. We urge you to encourage further debate over the issues outlined above.

Yours sincerely,
Jim Higgins
Internet Society of New Zealand

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