Net Law : A Cyberspace Agenda for Publishers: Netlaw Five

Net Law

A Cyberspace Agenda for Publishers: NETLAW FIVE

Charles CLARK*

PREFACE

“We had to understand where business was going and how we could play a vital role. We had to learn, adapt and be open to new ideas. We set out to build a 747 in mid-air while piloting a DCIO; we couldn’t stop or refuel, we couldn’t deviate off course. We had to run a business while we built a new one.”

Many publishers will recognise, with some wryness, that analogy recently made by Ms Coccoli Palsho, President of Dow Jones Interactive Publishing, on moving from print-on-paper to digital publishing. And that quite remarkable feat has had to be accomplished in unprecedentedly fast time. The overall context, often quoted, is that ra&o took thirty-seven years to reach its first 50 d i o n listeners. TV took fifteen years to reach the same target. The World Wide Web took just three years. Internet use keeps growing at an astonishing annual rate of approximately 45 percent. Accordmg to the most recent annual survey from Network Wizards, about 43 million machines are now connected to the Internet.

The available statistics increasingly suggest that growth is becoming global, and no longer confined to the United States and Europe. Some recent reports inhcate:

China will become one of the world’s largest Internet markets as early as 2003. China is already the fastest growing Net market in Asia, with the number of online users expected to reach 6.7 million by the end of 1999. In Australia, the penetration of the Internet continues to grow; almost 1.3 million, or 18 percent, of households had Internet access in early 1999.

- Even in Arabia, nearly 1 million people now have Internet access.

This fifth version of NETLAW has been drafted at a time of enormous and still- increasing concentration by very many national, regional and international bodies- both business and governmental-on the place of intellectual property rights in the

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* Copyright Adviser to The Publishers Association, London and to the Federation of European Publishers, London; General Counsel, International Publishers Copyright Council, London, U.K.

Warmest thanks are due to Lex Lefebvre of the International Association of Scientific, Technical and Medical Publishers (STM), Benoit Mtiller of the International Publishers Association (IPA) and Anne Bergman-Tahon of the Federation of European Publishers (FEP) for their thoughtful support and input (including much documentation) throughout the drafts of NETLAW; to Richard Swetenham of DG-XIII whose Quick Links and LABNEWS services have provided essential news terms; and finally and firstly, to Marian Donne of The Publishers Association, without whose tireless, constant and most generous help NETLAW FIVE would never have been finished!

A list of contents can be found at the end of &s article.

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evolution of the digital, global society. For example, the drafting immediately follows the major International Conference on Electronic Commerce and Intellectual Property held by the World Intellectual Property Organization (WIPO) in Geneva.’

The prime aim of NETLAW is to promote security of investment and trading by publishers through recognition of copyright as the tradmg system for works of the mind. Only through such recognition can publishers invest with confidence in value-added information services and then deliver them to the benefit of users with all kinds of interests.2

SECTION ONE: The Latest Standards for Copyright

A. IMPLEMENTING THE WIPO AGENDA

1. INTRODUCTION

The adoption by the European Commission on 10 December 1997 of the draft Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society was an important event in the evolution of the copyright system in the new hgital world. The overall aim of the draft Directive is given early in the Explanatory Memorandum which accompanies the draft-“to present harmonising measures in order to bring about a coherent and favourable environment for creativity and investment in the framework of the Internal Market.” The emphasis of that language on a coherent and favourable environment for creativity and investment is most welcome to authors and publishers, and should be used by them as a measure against whch to judge the detailed provisions of the draft Directive, as the text comes now, as an Amended Proposal, under detailed scrutiny in the Council of Ministers.

The Explanatory Memorandum also sees the draft Directive as implementation of a significant number of the new international obligations in the two new WIPO Treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty: “The proposal implements and integrates the obligations under the new WIPO Treaties in the light of the acquis communautaire and of the needs of the Internal Market.”

For publishers, there are four key sets of provisions in the WIPO Copyright Treaty:

- the right of reproduction; - -

- obligations concerning technological measures and rights-management

the right of communication to the public; the right of distribution; and

information.

1 The WIPO International Conference on Electronic Commerce and Intellectual Property, held in Geneva from 14 to 16 September 1999. It is frequently referred to in this article.

2 For NETLAW FIVE, apart from a heavy amount of general updating (even although NETLAW FOUR was published only in May 1999). the former Section Two, Liability in Cyberspace, has been incorporated into Section Four, Towards Global Electronic Commerce. The former Section Three becomes Section Two, and a new Section Three has been added to reflect the changing perspectives of the leaders of collective management of rights, as the collecting societies explore their potential roles in the digital world.

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This fifth version of NETLAW is offered as the draft Directive moves, following a First Reading in the European Parliament, to the Council of Ministers, with a text revised by the Commission in the light of Amendments approved by a Plenary Session of Parliament on 10 February 1999. In the detail which follows, the text of the fourth version of NETLAW has been updated to reflect the latest representations by the Federation of European Publishers and the Rightholders Coalition to the Council of Ministers Working Party.

The emphasis in the Exploratory Memorandum on acquis commirnautaire is important. A Communication from DG-xv of November 1996 specifically stated with respect to the reproduction right:

“ ... the guiding principles can be derived &om the acquis communautaire. Accordmgly, the right of reproduction should be adapted to the digital environment. In more cases than at present, therefore, rightholders may enjoy, without limitation, the exclusive right to authorise or prohibit acts of reproduction.”

2. FROM COPYRIGHT TO CONTRACT

It is this very welcome perception that digital is indeed different which lies behind the equally welcome emphasis on contractual solutions. In relation both to the reproduction right and to the communication to the public right, the Explanatory Memorandum shifts the focus of attention away from the bundle of limitations and exceptions which has developed over many years in the print-on-paper environment towards contractual licensing solutions. As to reproduction, the Memorandum states:

“ ... with respect to the use of digtized material by libraries, online as well as offline, initiatives are ongoing in a number of Member States, notably the United Kingdom, where library privileges are most developed, to arrive at more flexible contractual solutions.”

As to communication, the Memorandum states:

“In view of the significant economic importance of the use of dgitized works by libraries and equivalent bodies and their users, a number of ‘library initiatives’ are being undertaken, with a view to arriving at new solutions involving licences based on contracts. Their aim is to ensure adequate control and a fair economic return to the rightholders involved, while enabling users of protected material, such as non-profit libraries, to provide their information services even more efficiently and at affordable cost. First results appear to be promising, as it seems that it is possible to arrive at mutually satisfactory solutions for all parties involved, including libraries.” (emphasis added).

The United Kingdom, as indxated by the Commission, is leading the way in Europe in developing “flexible contractual solutions”, especially between publishers and librarians. It may be helpful to remind ourselves that although we tend to talk about libraries in general, there are at least four different library sectors and each has its own agenda:

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national libraries, whose agenda is driven by deposit and archive issues; libraries in higher education institutions (HEIS), whose agenda is dnven by


teaching, learning and research, and covers collective licensing, the authorisation of course packs etc., for the academic and student body; public libraries, whose main concern is access by their members, the public, to information and knowledge; libraries in the for-profit R&D-driven industries, for whom privacy over what information they are accessing is seen as critical in their highly competitive environment.

The Publishers Association (PA) has taken the lead in establishing working groups with the Joint Information Systems Committee (JIsc), a grouping of senior higher education academics and librarians, which has led to two major documents:

A Framework for Material Supplied in Electronic Form-basically, a model for higher education site licensing; and Guidelines for Fair Dealing in the Electronic Environment.

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That PA/JIsc model has recently been developed into four sets of model licences

- for public libraries; - for academic consortia; -

- for corporate uses.

Outside the United Kingdom in Europe, the Netherlands has made a similar and important initiative, noted in a joint Press Release of 9 July 1998 from the Scientific and Professional Publishers of the Dutch Publishers Association and Innovation Scientific Information Supply. The Release reads in part:

by John Cox Associates on behalf of a group of senior subscription agencies:

for academic single institutions; and

“The commercial publishers of professional and scientific information (‘publishers’) and the scientific education and research institutions (‘institutions’) aim to provide, each from their own perspective, authorised users (as defined in the licence) with wide-ranging and unrestricted access to information. The institutions and publishers wish to work together and have fiuitfd negotiations to realise a better service to students, lecturers and researchers on a sound economic basis for both parties. The transition period &om a ‘print environment’ to electronic information requires considerable investments of both publishers and institutions. The institutions recognise that payment is required for information that is published by commercial publishers, because they have to receive reasonable remuneration for the value they add to the information and to cover the costs they thereby incur. Both publishers and institutions aim to draw up licensing condtions and price models that on the one hand meet the need for publishers to operate on a sound commercial basis, while on the other hand conforming with what the institutions are able to afford within reason.”

These initiatives are strongly encouraged by two European Parliament First Readmg Amendments at Recitals 28 and 29 bis, both of which are part of the draft Directive in Amended Proposal form, presented to the Council, and dated 21 May 1999. Recital 28 concerns the interests of non-profit-malung libraries; the First Reading Amendment 21 to the Recital reads:

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“. . . whereas, therefore, specific contracts or licences should be promoted which, without creating imbalances, favour such establishments and the disseminative purposes they serve.”

Recital 29bis is new, and follows Recital 29 which concerns the scope of exceptions. Recital 29bis, as First Reading Amendment 24, reads:

“. . . whereas the exceptions referred to in Article 5(2) and (3) must not, however, prevent the definition of contractual relations designed to ensure fair compensation for the holders of copyright and related rights.”

The above initiatives, encouraged by the Parliament and the Commission of the European Union, represent important, constructive bridge-building at a time when a debate on contracting is spreading from the United States. One overall context has recently been offered by Professor Gail Evans, an Australian academic:

“The advent of information licensing signals a dramatic transformation in the ordering of information in our society. Since the age of the printing press, the law of copyright, a system of granting statutory monopolies for sufficiently innovative works, has been the primary form of legal protection accorded to information. However, the ascendancy of contract over copyright is a reflection of information as the most valuable economic unit. In the information age, there is every indication that the legal ordering concept of contract is being used to sustain a society based on the commodification of information.”

Professor Evans is clearly aiming at the possible development of possibly unfair licensing practices which may possibly in the global economy require transnational user and consumer protection. Possible and possibly are stressed here, but publishers should be aware that in Europe the debate has begun.3

The main features, for publishers’ interests, of the Amended Proposal for a Directive on Copyright and Related Rights in the Information Society, currently being debated in the Council Working Party will now be reviewed.

3. REPRODUCTION RIGHT

Article 2 of the Amended Proposal provides that Member States shall grant to authors “the exclusive right to authorise or prohibit drect or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part.” This text is close to that proposed in the Chairman’s draft text for the Diplomatic Conference in Geneva in December 1996: “drect and indirect reproduction, whether permanent or temporary, in any manner or form”. That formula was not adopted by the Conference, so that the re-assertion by the Commission of the wide scope of the right of reproduction, especially in relation to acts of digital reproduction, in Article 9 of the Berne Convention is welcome.

3 Recent relevant publications are: Legal Licensing or Contested Copyright by David Nimmer at the IMPRIMATUR F o m in June 1999 in London; and Code as Code by Professor Bernt Hugenholz of the Institute for Information Law, University of Amsterdam, presented at the September 1999 meeting ofthe Legal Advisory Board of DG-xu; finally, the International Coalition of Library Consortia issued in April 1999 an important set of draft Guidelinesfor Technical Issuesfor Contract Negoh’ationz.


4. COMMUNICATION TO THE PUBLIC RIGHT-INCLUDING THE RIGHT OF MAKING

AVAILABLE WORKS OR OTHER SUBJECT-MATTER

As the Explanatory Memorandum notes: “In economic terms, the interactive on- demand transmission is a new form of exploitation of intellectual property.” The recognition of that phenomenon and the consequent fashioning of the new generalised Communication to the Public Right in the WIPO Copyright Treaty may well be seen as the major achievement ofthe Diplomatic Conference. The text ofArticle 3.1 follows tlosely Article 8 of the WIPO Copyright Treaty. Article 8 reads:

“1. Member States shall provide authors with an exclusive right to authorise or prohibit any communication to the public of the originals and copies of their works, by wire or wireless means, including the making available to the public of their works in such a way that membee of the public may access them &om a place and at a time individually chosen by them.”

The text seems to recognise that individual users accessing data from different places at different times constitute “the public”. However, there is some ambivalence throughout the Explanatory Memorandum and the Considerunts clauses concerning the publidprivate issue.

Article 3.3 restates, in effect, the Community case-law that the provision of services does not give rise to exhaustion of rights. Thus, as the Explanatory Memorandum correctly asserts:

‘ I . . . the communication to the public of a work or other subject-matter, whether by wire or by wireless means, is an act which can be repeated an unlimited number of times and will always require authorisation, within the limits set out by the law.”

A new Article 3.4 states:

“The mere provision of physical facilities for enabling or making a communication does not in itself amount to an act of communication to the public within the meaning of this Article.”

The wording of this Amendment shadows the wording of an “Agreed Statement Concerning Article 8” of the WIPO Copyright Treaty which emerged from the WIPO Diplomatic Conference of December 1996.

5. EXCEPTIONS TO THE RESTRICTED ACTS OF REPRODUCTION AND OF

COMMUNICATION TO THE PUBLIC

The Commentary on Article 5, which deals with exceptions to the restricted acts of reproduction, of communication to the public and of dstribution, makes the very important point that Article 5 sets out a list ofpermitted exceptions which is exhaustive:

‘‘Member States will not be allowed to provide for any exceptions other than those enumerated.” (emphasis added).

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To what extent Member States would need to revise their present laws to eliminate any limitations/exceptions which lay outside the listing of Article 5 is a matter which will need careful study in the months ahead. There are certainly major problems for the United Kingdom in Article 5. Chapter 111 of the U.K. Act of 1988 sets out “Acts Permitted in Relation to Copyright Works”, and runs from Section 28 to Section 76!

A Note from the German Presidency, dated 30 June 1999, reflects in great detail the discussion on Article 5 during its Presidency, which, indeed, ended on 30 June 1999. It is clear from the Note that the Council Working Party is, as the Finnish Presidency gets into its stride, far away from consensus. Indeed, there is a clear indication in a draft for a new Article 5.3(k) that the search for harmonisation may be effectively abandoned. The draft of that Article reads:

“Use in certain other cases of minor importance where exceptions already exist under national law provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community, without prejudice to the exceptions and limitations contained in this Article.”

One exception to the right of reproduction is mandatory:

(a) Article 5.1-Temporary Acts $Reproduction

“Temporary acts of reproduction referred to in Article 2, such as transient and incidental acts of reproduction which are an integral and essential part of a technological process, including those which facilitate effective functioning of a transmission system, whose sole purpose is to enable use to be made of a work or other subject-matter, and which have no independent economic si&icance, shall be exempted fiom the right set out in Article 2.”

Firstly, the new language, “such as”, has the effect of broadening the exception when it needs to be, in the interests of rightholders, as narrow as possible. Secondly, a comma needs to be inserted after the phrase “incidental acts of reproduction” and before the following phrase “which are an integral and essential part”. The word “which” qualifies temporary acts of reproduction.

The failure by the Commission to incorporate the wording proposed by the Parliament on Amendment 33-“such uses must be authorised by the rightholders or permitted by law”-leaves a major issue unresolved. There is all the difference in the world between stating here that certain acts of copying are not acts of copying (when the act of copying is the basic act protected by copyright) and the approach of the draft Directive on E-Commerce (see Section Four, 3, below). Recognising that a copy is a copy is a copy, the E-Commerce Directive states that there is liability, but then sets up watertight defences for transient acts of copying carried out in the course of provihng a copy to a lawful user.

The new wording includes a new phrase: “including those which facilitate effective functioning of transmission systems.” This language appears to exempt all acts of caching fi-om the scope of the right of reproduction. This view is supported by Recital 23, which reads:


“Whereas the exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, such as transient and incidental reproductions, forming an integral part ofand essential to a technological process carried out for the sole purpose of enabling the use .fa work or other protected subject-matter, and which have no separate economic value on their own; whereas under these conditions this exception should include acts of caching or browsing.” (emphasis added).

There is, however, a hstinction between transient copies that make a transmission feasible and transient copies which facilitate. And the new Explanatory Memorandum seems to confine the exception to copies which make the transmission feasible. The relevant sentence reads: “At the same time, it is now explicitly confirmed that this condition is also &lfilled by those copies that make the transmission feasible.”

As Darrell Panethiere has explained in his comprehensive article:

“This issue of caching, which is much in the news, provides a useful example of a policy argument being advanced in the guise of an alleged technical issue. It is often said that the copying of complete works on the hard drive of a computer to facilitate the later retrieval of those works-which is the essence of caching-is technically necessary to the operation of the Internet. This is not really the case. The Internet operated for years before caching was introduced as a measure to improve efficiency and speed of operation. Caching is simply an extremely efficient means of creating a digital warehouse of copies (with or without authorisation) in order to avoid the trouble of having to go back to the source whenever retrieval is desired. It is always, of course, more quick and efficient from the copier’s point of view simply to copy the works of others than to obtain permission in advance to do so. Caching only presents a question of degree-a policy issue-as to whether this new, additional form of copying should be allowed free of existing liability for the copier. Caching presents no question of ‘technical ability to control copying’, even though it is universally presented as such an issue.”4

There must be some question mark over the extension of this exception at Article 5.1 to all acts of caching.5

The major unresolved issue of whether the uses which follow the definition of “temporary acts” in Article 5.1 should be uses authorised by the rightholders requires in-depth analysis by the Council Working Party of the relationship between Articles 2 and 5.1. Not once, but twice in Article 5.1 back-reference is made to Article 2, where the right of reproduction is defined as an “exclusive right to authorise . . . reproduction.” It is arguable, therefore, that the exemption of Article 5.1 is, on the present worchng itself, only exercisable in relation to reproductions authorised by authors of their works.

(b) Article 5.2

Member States may provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:

“5.2(a). In respect of reproductions on paper or any similar medium, with the exception of

4 T h e Basisfor Copyright Iflfringement Liability, 13 E.I.P.R., London, 1997. 5 For a f d analysis of caching, see Professor Bernt Hugenholz, the Legal Report fo the DIPPER Project.

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musical works in published form, effected for the use of any kind of photographic technique or by some other process having similar effects, provided that the rightholders receive fair compensation.’’

The Federation of European Publishers (FEP) has welcomed the addtion by the Commission, following the European Parliament, of the condition of fair compensation for reprography. Most EU Member States have reprographic regimes which provide for compensation for the rightholders, i.e. authors and publishers. It is therefore important that the Copyright Directive recognises the situation.

“5.2(c). In respect of specific acts of reproduction made for archiving or conservation purposes, by establishments which are not for direct or indirect economic or commercial advantage, such as, in particular, libraries and archives and other teaching, educational or cultural establishments.”

This exception, basically for libraries, has been too widely expanded. The broadening of the list of exempted establishments now includes virtually all establishments.

O n the other side, the FEP has welcomed the definition of the acts allowed by non- profit establishments which can only be for archiving or conservation purposes. The exception, publishers must maintain, is to the right of reproduction, not to the communication to the public right. The original Explanatory Memorandum states clearly:

“This exception does not apply to the communication to the public right. In view of the economic impact at stake, a statutory exemption for such uses would not be justified. Thus, for instance, the making available of a work or related subject-matter by a library, or an equivalent institution, from a server to users online should and would require a licence of the rightholder or hs intermediary, and would not fall within a permitted exception. Any other solution would severely risk conflicting with the international obligations which have been reinforced by the two new WIPO Treaties, i.e. with the normal exploitation of protected material onhe , and would unreasonably prejudice the legitimate interests of rightholders. For instance, the communication of copyright protected material by a library, or its making available via a library home-page, will in many cases be in competition with commercial online deliveries of material (whether library, audio-visual or other protected subject-matter) .”

(c) Article 5.3

Member States may provide for limitations to the exclusive right of reproduction provided for in Articles 2 and 3 in the following cases:

“5.3(a). Use for the sole purpose of illustration for teaching and scientific research, as long as the source is indicated, and to the extent justified by the non-commercial purpose to be achieved, on condition that the rightholders receive fair compensation.”

The FEP has welcomed the introduction by the Commission, following the European Parliament, of the notion of fair compensation, as it considers that the cost of social, educational and research policies ought to be assumed by society as a whole and


not only by rightholders. In addition, the FEP has urged the Council to limit this exception to short excerpts to eliminate the uncertainty over the word “illustration”.

“5.3(b). Uses for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, and to the extent required by the specific disability.”

This provision is now very widely drafted, moving from a provision for the benefit of the blind and partially sighted to the benefit of people with a msability. This should, it is suggested, be resisted unless a very clear justification can be proved by Member governments. In relation to the partially sighted, it must also be remembered that commercial publishers provide a service of publishing large-print eltions, and this should not be put at risk. The FEP has entered into an exchange of views with the European Blind Union.

(d) Avtide 5.4

The exceptions and limitations provided for in paragraphs 2.2.3 and 3a shall only be applied to certain specific cases, and shall not be interpreted in such a way as to allow their application to be used in a manner which unreasonably prejudices the rightholders’ legitimate interests or conflicts with the normal exploitation of their works or other subj ect-matter.

The incorporation ofthe three-step test from the Berne Convention, which is now applied to all limitations and exceptions in Article 10 of the WIPO Copyright Treaty, is welcome. The use of the word “specific” instead of the Berne wording “special” is, however, unacceptable, and must be changed through the Council of Ministers Working Group. Further, Article 9(2) of the Berne Convention sets out three cumulative tests. Not only does the draft Directive get the sequence out of order, but it seems to replace the cumulative test with optional tests. These are not trivial drafting points. They go to the whole effectiveness of Article 5.4.

Technical measures are the principal means by which rightholders will protect their works and license their delivery in the digital environment. It is essential that the use and protection of these measures not be questioned by the existence of exceptions. Otherwise a wide range of circumventing equipment could be manufactured and put on the market, under the excuse that it is used for an exception, but without any control as to by whom and for what purposes it is used in reality. This would inevitably lead to excess.

The FEP has, therefore, supported the amendment of the European Parliament, a d l n g to Article 5.4 the following provision:

“These exceptions and limitations must not prevent the use of technical means to protect works with the aim of safeguarding the interests of the rightholders nor prejudice the protection of these means as referred to in Article 6.”

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6. PROTECTION OF TECHNOLOGICAL MEASURES AND RIGHTS-MANAGEMENT INFORMATION

Articles 6 and 7 of the draft Directive derive from Articles 11 and 12 of the WIPO Copyright Treaty. Article 11 requires contracting parties, broadly, to provide legal protection and legal remedies against the circumvention of technological measures which restrict acts which are not authorised by authors or permitted by law. Article 12 requires contracting parties, again broadly, to provide legal protection and legal remehes against the removal or alteration of any electronic rights-management information without authority.

(a) Article 6

T h e Amended Proposal text of Article 6 now reads as follows:

“Article &Obligations as to technical measures

1. Member States shall provide adequate legal protection agamst the circumvention without authority of any effective technological measures designed to protect any copyright or any rights related to copyright as provided by law or the sui generis right provided for in Chapter III of European Parliament and Council Directive 96/9/EC, which the person concerned carries out in the knowledge, or with reasonable grounds to know that he or she pursues that objective. Member States shall provide adequate legal protection against any activities, including the manufacture or distribution of devices, products or components or the provision of services, carried out without authority, which:

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(a) are promoted, advertised or marketed for the purpose of circumvention; or (b) have only a commercially significant purpose or use other than to circumvent; or (c) are primarily designed, produced, adapted or performed for the purpose of

enabling or facilitating the circumvention of any technologd measures designed to protect any copyright or any right related to copyright as provided by law or the sui gerzeris right provided for in Chapter III of European Parliament and Council Directive 96/9/EC.

The expression ‘effective technologcal measures’, as used in this Article, means any technology, device or component that, in the ordinary course of its operation, is designed to prevent or inhibit the infkingement of any copyright or any rights related to copyright as provided by law or the suigeneris right provided for in Chapter III of Directive 96/9/EC. Technological measures shall be deemed ‘effective’ where the access to or use of a protected work or other subject-matter is controlled through application of an access code or any other type of protection process which achieves the protection objective in an operational and reliable manner with the authority of the rightholders. Such measures may include decryption, de-scrambling or other transformation of the work or other subject-matter.”

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The Rightholders Coalition comments:

“Article 6 of the origmal proposal was flawed in two respects. First, it did not cover ‘components’ of equipment, thereby allowing a wide range of ‘hacking’ equipment to be manufactured and marketed. Second, it was limited to measures that rendered works


accessible, thereby omitting many copy-protection measures. The European Parliament has adopted amendments (49 to 54) correcting these flaws. The Rightholders Coalition supports these amendments, and welcomes the fact that the Commission has included them in its amended proposal. However, the Rightholders Coalition notes that the Commission’s text on Article 6 also leaves an ambiguity on the relation between technical measures and exceptions. h c l e 6 protects technical measures only in so far as they ‘prevent an infringement’. This could mean that every time there is an exception, technical measures would not be protected and circumvention would be authorised. As explained above, this would allow circumventing equipment to be put on the market without any control of its real use, and exceptions should be accommodated in alternative ways. We therefore support the wording of the European Parliament, stating that technical measures are protected when they ‘protect a copyright or a neighboring right’. Finally, the Rightholders Coalition notes that the Commission’s text on Article 6 gives a definition of effective technical measures that is totally new to the Directive: according to the new proposal, technical measures shall be deemed ‘effective’ where the access or use of the protected work , . . is controlled through application of an access code or any other type of protection process ‘which achieves the protection objective in an operational and reliable manner with the authority of the rightholders.’ The term ‘reliable’ is widely open to criticism, since it means that technical measures that are not reliable would not be protected. Who will decide, how and on which criteria, that technical measures are reliable? What about the fact that virtually anyone could demonstrate that a technical measure, even if it is effective, might not be ‘reliable’ and thus not protected? As a result, we ask for the deletion of the word ‘reliable’,’’

To those comments fi-om the Rightholders Coalition we might add that there is increasing concern over the effect of the word “effective” (if one might so put it). The word appears at Article 6.1 and 6.2. Similarly, “without authority” at Article 6.1 and 6.2 has also been queried. To whose “authority” are these references made? There is fairly common ground on the structure of Article 6. The devil lies, as always, in the detail.

(b) Article 7

The Amended Proposal text of Article 7 now reads as follows:

“Article 7-Obligations concerning rights-management information

Member States shall provide for adequate legal protection against any person performing without authority any of the following acts: (a) the removal or alteration of any electronic rights-management infomiation; (b) the distribution, importation for distribution, broadcasting, communication or

making available to the public, of copies of works or other subject-matter protected under this Directive or under Chapter 111 of Directive 96/9/EC from which electronic rights-management information has been removed or altered without authority. If such person knows, or has reasonable grounds to know, that by so doing he is inducing, enabling or facilitating an infringement of any copyright or any rights related to copyright as provided by law, or of the sui generis right provided for in Chapter 111 of Directive 96/9/EC.

The expression ‘rights-management information’, as used in this Article, means any information provided by rightholders which identifies the work or other subject-

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matter referred to in this Directive or covered by the sui generis right provided for in Chapter III of Directive 96/9/EC, the author or any other rightholder, or infomution about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information. The first sub-paragraph shall apply when any of these items of information are associated with a copy of, or appear in connection with the communication to the public of, a work or other subject-matter referred to in this Directive or covered by the strigeneris right provided for in Chapter III of Directive 96/9/EC.”

There has been virtually no comment on the text of Article 7-indeed, the Explanatory Memorandum which accompanies the Amended Proposal of 21 May 1999 makes no comment at all. The text is reproduced here, however, because Article 7 is a fundamental underpinning of the development within the context of electronic copyright-management systems (ECMS) of the digtal object identifier (DoI) (see Section Four, 2, below). Publishers must, therefore, keep a close eye on any discussion in the Council Worlung Party.

7. THE U.S. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)

The following account of highlights of the Act was issued by the Association of American Publishers in October 1998:

“The main purpose of the DMCA is to implement the two WIPO Copyright Treaties adopted in December 1996. Passage of the implementing legislation is the critical pre-condition for U.S. ratification of the Treaties. When ratified by at least thirty nations, the Treaties will effectively raise the international standards of copyright protection to those provided under U.S. law, and establish the basis for their application in the digital environment. In broad terms, here are some of the ways in which the DMCA (as approved by Congress this past week) will serve the interests of book and journal publishers in strengthening copyright protection in digital environments and the global market-place: - Circumvention of Technological Measures: The DMCA will make it illegal to manufacture

or provide devices or services that circumvent encryption or other technological measures used to protect the rights of copyright owners in copyrighted works; in some cases, the act of circumventing such measures will itself be outlawed. Copyright Management Information (CMI): The DMCA will make it illegal to knowingly alter, remove or falsify CM1-r to knowingly traffic in copies of works linked with CMI that has been so altered, removed or falsified-with an intent to enable or conceal copyright iniiingement. Enforcement: The DMCA will establish both civil and criminal penalties for violations of the prohibitions regarding circumvention and CMI. Rights of Copyright Owners and Related Limitations: The DMCA explicitly preserves, without modification, existing rights of copyright owners and the limitations on such rights, including fair use. Clariication of Online Service Provider (OSP) Liability: The DMCA clarifies the rules concerning the liability of OSPS for copyright inhngements occurring on their systems and networks. Without changing existing law on what constitutes an infringement (or a defence to an infringement), or existing legal doctrines under which a party may be held responsible for infiinging conduct by another (except with respect to universities and their faculty), the legislation allows OSPS to avoid liability for monetary damages and certain kinds of injunctive relief while providing incentives for OSPS to ‘take-

-

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-

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110 THE JOUKNAL OF WORLD INTELLECTUAL PKOPEKTY

down’ infringing material on their systems when they have knowledge, awareness or notice of such material. Concerns d Libraries and Educational Institutions: The DMCA addresses concerns of potential adverse effects &om the anti-circumvention provisions on these entities and other users of copyrighted works, without legalising a market in circumvention devices or creating a &r use ‘right of access’ to copyright works. The legislation also ‘updates’ current copyright-law exemptions for library preservation and replacement of copyrighted works by permitting linuted use of digital technologies for such purposes, and provides for a study to be done by the Copyright Office on issues regarding the use of copyrighted works in the provision of distance education.

That study has now been completed. Given that distance education is an international phenomenon facing all publishers, attention is drawn here to the Summary of Testimony on behalf of the Association of American Publishers presented by Pat Schroeder on 24 June 1999.”

-

B. THE DATABASE DIKECTIVE

1, INTRODUCTION

Publishers have taken a strong interest in this EU Directive since, in some ways, it represents a version of an independent “publisher’s right”. Publishers are neither authors nor neighboring/related rights owners. Yet their creative role in nurturing authors’ talents and the vital role of their investment in the production and marketing of the works they help to make available are universally acknowledged. Publishers in the digital environment are increasingly investing in non-material services rather than in material products, so that copyright protection should protect the full creativity vested in the flow of information they make possible. The publisher organizes the supply of information, and in doing so adds considerable value to it. That added value needs its own protection. Indeed, the stronger the protection granted to the publisher, the greater the incentive to him to design the flow of information so that it can be interactively interrogated and used through authorised access. In brief, the sui generis right in the EU Database Directive is as near as publishers are ever likely to get to a publisher’s right.

The key elements of the Directive are as follows:

(i) A database is defined as a collection of works, data or other independent materials arranged in a systematic or methodical way and capable of being indvidually accessed by electronic or other means. (a) The intention of “collection” is to place the nature of a database firmly in the tradition of Article 2(5) of the Berne Convention as affected by Article 10 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). That is, the items collected no longer need to be copyright works: this Berne plus approach is clearly essential for copyright protection of most databases, since they will usually consist of both copyright and non-copyright materials. It is suggested, however, that the criterion for originality will make

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copyright protection thin. (b) The intention of “indvidually accessed” is to exclude collective works, such as films. This feature suggests that while some multimedia works w d have features that are individually accessible, others, as sophistication of creative direction increases over time, will not. This draft Directive is not a multimedia Directive.

(ii) (a) The text adopts the wording of the software Directive on originality. Article 3.1 reads, “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright.” (emphasis added). (b) Article 3.1 is to be read together with Recital 15-“whereas such protection should cover the structure of the database.” The essential point is that the copyright protection offered by the text is only for the expression of the database, which is protectable by copyright. Some databases will pass the test of originality; many may not. It is very likely that the maker of a database will bypass the uncertainties of copyright protection and seek protection under the new m i generis right (see (iii) below) which protects the contents of the database which the maker has put together, regardless of whether the structure qualifies for copyright protection or not.

(iii) The Directive confirms the creation of an entirely new suigeneris right, outside copyright itself but neighboring to a neighboring right (if one may put it that way). The text requires Member States, under Article 7, to:

“ ... provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents, to prevent acts of extraction and/or re- utilisation of the whole or a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.”

It is very important to understand the wide scope of the definition of database. It applies to print-on-paper, as well as to digitized databases. Thus, a newspaper will be a database, since it is clearly a collection, methodically arranged, whose materials are capable of being indvidually accessed. An issue of a learned journal is, equally clearly, a database, whether issued in paper or electronic form. All sorts of collected data are likely to form databases-hence the central importance of this new sui generis right to publishers.

2. INTERNATIONALIZATION OF THE SUI GENERIS RIGHT

Even as some EU Member States still grapple with implementation of the Database Directive, all Member States are also talung part, led by DG-xv of the Commission, in a database at WIPO on the possible internationalization of the new sui generis right. A Response in June 1998 by the International Publishers Copyright Council (IPCC) to a


Questionnaire from WIPO was well supported by other creative industries. That led to an initiative by WIPO to IPCC to make presentations of the publishers’ position on internationalization to many regional meetings. IPCC finalized a Briefing Paper in June 1999 which is reproduced here as an Annex to this article.

The sui generis right will become the economic basis of licensing of databases as services online, and sale or licensing/rental of databases offline.

Both criminal-law and civil-law sanctions should be available against infnngement. The only realistic answer to the commonly asked question, “HOW may infringements be identified?” is, as with copyright infringements, “with difficulty”! However, the work on unique identifiers, e.g. the digital object identifier and electronic copyright management systems currently being intensively developed may provide means of identieing unauthorised uses (see Section Four, 2, below).

3. THE COLLECTIONS OF INFORMATION ANTI-PIRACY ACT (HR 354)

At the present time, it is not possible to forecast how the legislation under consideration by the Congress of the United States, i.e. HR 354, will end up. An excellent presentation by Mr Mitch Glaziefi to the 1999 WIPO Conference7 should be referred to by those publishers with a close professional interest. In general, Mr Glazier, had this to say:

“. . . the bottom line is clear. The United States must enact new federal legislation to protect developers against piracy and unfair competition, and thus encourage continued investment in the production and distribution of valuable commercial collections of information. Such legislation will improve the market climate for collections of information in the United States and around the world; ensure protection for U.S. collections abroad on an equitable basis; place the United States in an important position in an emerging international consensus; and provide a balanced and measured response to the new challenges of digital technology. This Bill seeks to advance those goals.”

SECTION Two: Harmful Content and Freedom of Expression

1. INTRODUCTION

The international debate on whether, and how far, content on the Internet should be regulated is of great interest to book publishers, since they are one of the last unregulated media industries. Nobody tells a book publisher in advance what he can or cannot publish. Liability falls post-publication.

The anarchic-mindedness of the Internet brought this tribute from an American Court in the 1996 case concerning the Communications Decency Act, American Civil Liberties Union (ACLU) u. (in effect, as the Court put it) the U S . Government:

6 Chief Counsel to the Subcommittee on Courts and Intellectual Property Committee on the Judiciary, U.S.

7 Supra, footnote 1. House of Representatives.

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“Just as the strength of the Internet is chaos, so the strength of our liabihty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects . . . As the most participatory form of mass speech yet developed, the Internet deserves the highest protection fiom government intrusion.”

Yet the dangers of unsuitable material being located and communicated over the

“It is in the dark corners of the Internet that paedophiles around the world are able to

Internet are real. As one commentator has put it:

exchange information and disturbing pornographic photographs of children.”

2. THE EU COMMUNICATION AND ACTION PLAN

In the European Community, a Communication was issued on 1 December 1997 which proposed an Action Plan on promoting safe use of the Internet. The Communication draws attention to the wide variety of concerns-not only child pornography-comprised:

national security (instructions on bomb-making, illegal drug production, terrorist activities); protection of minors (abusive forms of marketing, violence, pornography);

discrimination); economic security (fraud, instructions on pirating credit cards);

-

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- protection of human dignity (incitement to racial hatred or racial

- - information security (malicious hacking); - protection of privacy (unauthorised communication of personal data,

electronic harassment); protection of reputation (libel, unlawful comparative advertising); intellectual property (unauthorised distribution of copyrighted works, e.g. software or music).

The Community’s Action Plan was adopted as a Council Decision on 21 December 1998. It proposes measures in four Action Lines, fiom the period from 1 January 1999 to 31 December 2002, with a total budget of 25 million ECU.

- -

The measures and Action Lines are as follows: “1. Creating a safe environment (through industry self-regulation)

Acknowledging the important work that has been taken by the European Internet industry in this respect, the Commission will build on existing hotline initiatives and encourage further initiatives on self-regulation and Codes of Conduct. Hotlines have proved to be an efficient tool to gather information on illegal content. Information gathered through the hotlines will be of vital importance to prevent that content considered illegal under current law shall be allowed to flourish on international networks. The global nature of the Internet, however, requires these initiatives to be pan-European and indeed international. Action will be taken to establish networks of hotlines and improve liaison with law enforcement. Implementation of Codes of Conduct will be supported along the lines of the 24 September 1998


Recommendation on the Protection of Minors and Human Dignity. In connection with the Codes of Conduct, a system of visible quahty labels will be promoted.

2. Developing filtering and rating systems Various means of filtering and rating will be thoroughly examined in a European context, aiming at providing users with a palette of different tools to protect themselves and their families against undesirable material. The Action Line will be putting its focus on validation of rating systems in relation to European content providers, integration of rating into the content creation process, benefits of these technical solutions and provision of third-party rating systems. Again, for solutions to be effective, initiatives wd be taken to facilitate international agreement on rating systems.

Closely linked with the other Action Lines, this Action Line will prepare the ground for awareness actions to be carried out by the Member States. The actions will be identifying multiplier bodies and most appropriate channels, media and content to reach the target audience; preparing basic material; and adapting it for linguistic and cultural specificities. The encouragement of full-scale awareness actions will be made through a call for proposals for follow-up action by the Member States.

As no single measure in itselfwd be sufficient to improve the users’ possibility to protect themselves and to achieve the objectives of the plan, additional action will be taken to evaluate the impact of Community measures, to assess legal implications and co-ordmate with similar international initiatives.”

3. Encouraging awareness actions

4. Support actions

3. THE BERTELSMANN FOUNDATION/INCORE INITIATIVE

In September 1999, the Bertelsmann Foundation sponsored, together with INCORE, a very productive conference in Munich. The Foundation, recognising that n o State, Internet industry o r enforcement agency can handle this complex area o n its own, took a co-ordinated approach, commissioning four reports entitled:

The Concept of Self-Regulation and the Internet -

- Filtering the Internet - The Issue of Hotlines - Legal Regulation, Law Enforcement and Self-Regulation

with an overall document based on the four reports and dmussions by an expert network.* That document is entitled Self-Regulation of Internet Content.

In many ways, the Bertelsmann Foundation and INCORE have set the agenda for the next stage of co-ordmated policy. As the Foundation states i n the document:

“No single approach, relying on one form or one set of actors, can provide a solution in such a changing and shifting environment. For a public response to be effective, it must be integrated, systematic and dynamic, sensitive to public needs and national differences within a framework that encourages robust communication. Only such a systematic approach- bringng technological potential together with the energies and capacities of government, industry and citizenry-has the promise of success in meeting what often seem to be competing goals. Given the global and borderless architecture of the Internet, such a

8 The Bertelsmann Foundation’s Web site is (chttp://www.stiftuiig.bertelsmann.de>>

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systematic approach requires not only co-ordination at a national and regional level, but its scope must be international. A systematic, self-regulation-based approach is especially desirable because the alternative- reliance on the overbroad, highly intrusive regulation, with laws differing across national borders-yields short-term, often crisis-driven, mostly ineffective solutions. And these responses cannot meld together the complicated political and social objectives in a successful way. The illusion of action is no substitute for a considered and comprehensive, flexible and dynamic approach.”

4. EXAMPLES OF HARMFUL CONTENT

It should not be assumed, from the rather abstract text offered so far, that there is much rhetoric and little action. The following news items, if entirely random, do suggest the increasing determination of different “players” to pursue illegal and undesirable material.

(a) International-Press Release

“Internet content rating association fomed. The Internet Content Rating Association (ICRA) has been formed to create an international Internet content rating system that protects children and free speech on the Web. The voluntary self-rating system will be both user- and provider-friendly, and culturally non-specific and objective, based on the established RsACi content rating system. The founding companies of ICRA include AOL Europe, the Bertelsmann Foundation, BT, Cable & Wireless, Demon Internet (U.K.), EuroIsPA, IBM, Internet Watch Foundation, Microsoft, Software & Information Industry Association and T-Online Germany.”

.. (b) German y - R e u ters

“Cyber-cops btist Net porn ring. Police cracked an international online child porn ring after a team of Bavarian ‘cyber-cops’ found thousands of pornographic images of children as young as three in a chat room. Raids on private homes in Germany, Switzerland, Sweden, Britain, Norway, the United States and Canada Wednesday led to confessions by several suspects.”

(c) T h e Netherlands-Reuters

“Dutch court jails twofor Internet racism. Two right-wingers who posted racist material online were jailed for a month by a court in The Hague in a ground-breaking case. According to Meldpunt Discriminatie Internet (MDI), an Internet body monitoring racism, it is the first case in which racial discrimination on the Internet has been punished in the Netherlands.” (emphasis in original).

(d) The United Kingdom

“A businessman was given an eighteen-month suspended sentence for running the U.K.’s largest porn operation &om servers located in America. The Judge ruled the images were uploaded from the United Kingdom and were therefore subject to British law. The defence


claimed the evidence against him was inadmissible because it was gathered from a U.K. computer rather than from the server it originated from. Under the Police and Criminal Evidence Act, every computer involved in a crime needs to have a certificate to prove it was working properly when the crime was committed. The Judge found that only the seized computer needed a certificate.”

The Register

“Net agency to track drug gangs and paedophiles. The government is setting up a unit of professional code-crackers to track drug runners and paedophile rings on the Internet. The unit will get A20 million in government funding, and will be staffed by encryption specialists from GCHQ, as well as new recruits from the private sector. It is expected to be called the Government Telecommunications Advisory Centre (GTAC) .”

(e) The United States

“New IsPjilters pornographic, violent content (Newsbytes.com). A new, family-targeted Internet service provider (TsP) wiU use artificial intelligence and an extensive database to keep pornographic, violent, and hate-oriented Web sites from reaching the eyes ofits customers.”

“Game blocker to be installed on Windows. Microsoft plans to introduce a feature in its Windows operating system allowing users to determine what kinds of games can be played on the computer. Such a feature could enable parents to keep a game with gruesome violence, offensive language or nudity from being played, based on the game’s content rating.”

5. FINAL WORD

The final word in Section Two belongs to those who battle against the overspill of techniques for control of unsuitable material into techniques for political control:

Press Release

“The twenty enemies .f the Internet. Reporters Sans FrontiPres names forty-five countries which restrict their citizens’ access to the Internet-usually by forcing them to subscribe to a State- run Internet Service Provider. Twenty of these countries may be described as real enemies of the Internet because they control access totally or partially, have censored Web sites, or taken action against users. They are: the countries of Central Asia and the Caucasus (Azerbaijan, Kazakstan, Kirghizia, Tajikistan, Turkmenistan and Uzbekistan), Belarus, Myanmar (Burma), China, Cuba, Iran, Iraq, Libya, North Korea, Saudi Arabia, Sierra Leone, Sudan, Syria, Tunisia and Vietnam.”

SECTION THREE: The Role of Collective Munagement

1. INTRODUCTION

Let us start with one moment of recorded history:

“We must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of their community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the art be retarded.”

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Those were the words of Lord Mansfield in a case which involved the rights and wrongs of the copying of maps, decided over two hundred years ago, Sayre v. Moore, in 1785. And the task of reconciling the interests of those-authors and their business partners, publishers-who create copyright works with the interests of those--students, teachers, researchers, people in the professions and in business, the general public-who use copyright works, is still with us. The reproduction rights organizations (-0s) have been, ever since the pioneering work of the German RRO, WORT, a central agent in malung that reconciliation effective.

Yet, what the RROS have historically delivered is, as one American commentator put it some years ago, a form of degradation, not reward on indrvidual terms, but compensation on standard terms. What we are now seeing is a movement among RROS, their authors and their publishers, to return control to the authors and publishers-the rightholders-on terms set by them individually.

2. THE CLA’S RAPID CLEARANCE SERVICE (CLARCS)

CLARCS is an early form of the return of control to the rightholders. It was introduced as the Copyright Licensing Agency’s (CLA) Rapid Clearance Service to meet some quite specific needs. It was first established to provide a simple, cost-effective service to business, to allow business to obtain permission to make photocopies fiom books, journals and periodicals, at fees specific to the publication determined by the copyright holder.

It soon became apparent that this simple transactional clearance system had further applications, not least in education, where the preparation of university study packs or course readers was becoming more widespread in the United Kingdom. While CLARCS revenue is still a small proportion of CLA’S overall income (above L20 million per annum), it does feature strongly in the Agency’s plans for the future, not least because it gives much more control back to the rightholder.

CLARCS is essentially a transaction processing system. It is based around two databases: one of works, with associated fees and conditions; and a second database of registered users. Each transaction links a user with a work; the details are recorded in a transaction file. It is a straightforward accounting process and the transaction is a simple double-entry transaction: a cre&t entry to the work, and a debit entry to the user. The transactions can be recorded as they take place, in real time, or reported post hoc (batch processing). If registered post hoc, the user can obtain in advance a relevant subset of the works, fees and conditions database. For the user, in short, CLARCS offers the great advantage of predictabhty.

3. LICENSING DIGITIZATION

One development of CLARCS for the management of rights in the hgital, as


opposed to the traditional, print-on-paper medium, is a proposal in 1998 by CLA to license digitization for higher education institutes. Four key principles have been set by rightholder groups.

(a) Transactional Only

Because of the quite different nature of the technology, particularly in terms of its potential economic impact, there will be no blanket digitization licence equivalent to the CLARCS photocopying agreement with universities. All digitization will be transactionally managed and cleared via CLARCS.

(b) Exact Page Representation

The licence will only permit the production of exact representations of the original printed page.

(c) RighthoIder Opt-In

Digitization clearance will only be available for those works whose rightholders have given CLA a positive mandate. However, as a result of wide consultation, CLA, the Authors Licensing and Collecting Society (ALCS) and the Publishers Licensing Society (PLs) are confident that a substantial majority of the important rightholders concerned (authors and publishers) will opt in.

(d) Rightholder-Determined Fees

The fees in respect of the digitization and use of material wdl be determined by the

As at mid-September 1999, over seven hundred publishers have signed up to the rightholder concerned.

new E-CLA mandate, and over one hundred HEIS.

4. MULTIMEDIA RIGHTS CLEARANCE SYSTEMS (MMRCS)

The phrase “the one-stop shop” is now universally used to describe both “shops” which will license rights to multimedia producers and also those which will, as an information broker, give the producer information on where to go to acquire rights, perhaps a member representative association which is mandated by individual rightholders to license their rights; perhaps through such an association, an individual publisher/producer; and perhaps through the publisher/producer, the original creator of the work in question. (There can be considerable historical uncertainty as to who owns which rights!)

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The collecting society in conjunction with the collective one-stop shop may deal in both functions, that of licensing the producer on set terms and that of informing the producer where the relevant licensor is to be found. The politics of handling the synchronisation right are instructive in that respect.

Driven by the wish to avoid imposition of statutory licence regunes, the Member Countries of the European Union and countries beyond Europe have shown great vigour in recent years in setting up one-stop shops. However, there are many uncertainties. There are considerable divergences of management style, e.g. KOPIOSTO in Finland reports that any licensing structures would need to incorporate all of six options:

(i) rightholders are contacted indwidually, and they issue licences individually; (ii) rightholders issue their licences individually, but their contact information is

registered in a common database of rightholders. Users have access to the services of this information centre;

(iii) rightholders use an intermediary when issuing licences, but decide individually in each case whether a licence is granted and the associated conditions;

(iv) rightholders use an intermediary when issuing licences, but decide in each case whether a licence is granted. In an affirmative case, the licence is granted on standardized conditions;

(v) the same as option (iv), but the consent of rightholders is only requested in cases involving political, religious, advertising and simdar contexts;

(vi) rightholders mandate the organization to grant licences in all cases.

This is in strong contrast to the intentions of SECAM in France to become a one-

- SDRM, mechanical rights; - SACEM, essentially musical rights; - - - -

It must be doubted whether this level of dlversity in a cross-border environment can be sustained. There may be a need to harmonise the repertoire of rights in which the collective one-stop shop is dealing. Again, we are dealing with a cross-border phenomenon, and some standardization is likely to be needed by multimedia producers seeking to clear rights.

Even where there is a strong will to set terms individually, can some standardization of levels or bands of fees be developed? One great advantage in negotiating such bands in relation to fees for photocopying has been predictability. That is, the user bodies

stop shop, licensing on standard terms on behalf of the following members:

SACD, rights in dramatic works; SCAM (auteurs multimedia); SGDL (Son'&! des Gens de Lettres); SDI, photographers working in advertising via SCAM; ADAGP, painters, sculptors and photographers.


could work out what they would be liable to pay for various levels of use, and budget for those in advance (or simply abandon a project early on as financially unrealistic).

(a) V E ~ I

These uncertainties were noted in the final Report of a Working Group on MMRCS, set up by DG-XIII of the European Community and chaired by the present author. The Report led quickly to an EC-hnded project entitled Very Extensive Fbghts Data Information (VERDI) whose aim is to link together the services of existing multimedia rights clearance centres in six countries: Finland, France, Germany, Ireland, the Netherlands and Spain. Italy also participates in the project. KOPIOSTO is co- ordinating VERDI.

The VERDI project has several levels:

(i) a rights data information network between six existing systems; (ii) a licensing network system model; (iii) a content delivery system model for a limited amount of selected content.

The project will establish a balance between different licensing options: - in cases where rightholders want to give licences individually, the service will

only be contact information; licensing through rights clearance centres will enable rightholders to set prices individually, while, at the same time, a centralized service is offered to the users; in collective ahnistration systems, rightholders authorise a collecting society to grant permissions to use their works on uniform tariffs and conditions.

The project will also produce an analysis covering all European countries concerning different categories of works in order to clarify the current situation of rights and rightholders. The results of this analysis can be used as an awareness action, both in Europe and in other areas. The WIPO has been invited to participate in the evaluation of this project.

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(b) INDECS-Interoperability of Data in the E-Commerce Systems

VERDI is not the only EC project in the area of ~ ~ M R C S . The Commission has identified and funded no less than ten priority projects. The projects address the networking of existing collectively managed MMRCS in six Member States (see VERDI above), interoperability of digital content identification systems and rights metadata within multimedia e-commerce INDECS, sector-specific MMKCS for book publishing (EFRIS), audio-visual (TVFILES, PRISM) and music (ORS) rights, integration of electronic copyright management and MMRCS (BONAFIDE), protection of creative contributions in a collaborative networked multimedia title development environment

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(BC), best clearance practices for educational multimedia (COMPAS) and exploitation of regional public broadcasters’ archives supporting minority-language culture and regional small- and mehum-sized enterprise (SME) development (RCTRIDW).

Apart from VERDI, collecting societies are also active in INDECS-Interoperability of Data in the E-Commerce Systems-which is an international initiative of rights owners creating metadata standards for e-commerce, in order to support network commerce based on intellectual property. The project is supported by the European Commission’s INFO2000 programme and more specifically in the area of MMRCS, whch falls under Action Line 3.2 of the 1NF02000 programme (Triggering European Multimedia Potential-Trading Multimedia Intellectual Property Rights).

INDECS expects seven tangible results from its work, which aims to provide a coherent framework for co-operation and partnership with other metadata interest groups:

a generic metadata model for intellectual property trading in a network environment, which serves as the basis for its work; the application of the metadata model to other major schema, provihng the basis of “crosswalks” between data from different sectors; practical solutions for “person identifiers”(human and corporate); a web standard for content metadata management by expressing the metadata model in XML and resource description framework (RDF); a “metadata registry” system based on translating metadata from one schema to another withn RDF; an F ~ F model of the generic data model; proposals for formal standardization to be submitted to the appropriate standards bodies before the end of the project in February 2000.

The following details of this very important project were gven by Tarja Koskinen- Olsson, the Chief Executive of KOPIOSTO, the co-ordmating organization for the project, and Chair of the International Federation of Reproduction Rights Organizations (IFRRO), at the 1999 WIPO Conference.9

The participants in the INDECS project include copyright management organizations representing different creation types, like KOPIOSTO (co-ordinator of the project), and representatives of the sound recording and publishing industries (IFPI and EDI~EuR). Representatives of most creative industries are represented in the project through affiliation. The INDECS affdiates include the following organizations:

-

-

- -

-

- -

- - BBC (British Broadcasting Corporation) - CIEPS (ISSN Centre) - -

ALPSP (Association of Learned & Professional Society Publishers)

CISAC (International Confederation of Authors’ & Composers’ Societies) FEP (Federation of European Publishers)

9 Supra, footnote 1.


-

- IDF (International DOI Foundation) - - - IPA (International Publishers Association) - ISBN (International ISBN Agency) - - U.S. Copynght Office.

The tools under development include the IP commerce data hctionary, including a legal data dictionary, &rectory of persons, and metadata standards for IP declarations and transactions.

During autumn 1999, the final evaluation of this project will take place. A conference entitled “Metadata, Intellectual Property and E-Commerce-The Way Ahead” was to take place in Washngton, D.C., on 15 November 1999. The Conference was supported by the Copyright Office and the U.S. Patent and Trademark Office.

In the future, WIPO could play an important role as a forum where initiatives like INDECS are evaluated, and dssemination of the results debated among governments and the private sector.

STM (International Association of Scientific, Technical & Medical Publishers)

IFLA, UBCIM (UBC/IM of the International Federation of Library Associations) IFRRO (International Federation of Reproduction Rights Organizations)

RIM (Recording Industry Association of America)

(c) ByLine

The final project to which attention is drawn here is a fascinating initiative in electronic rights management taken by the British Authors Licensing and Collecting Society called ByLine.

The electronic age, ALCS notes, is providing new possibdities to collecting societies, most of which have developed three particular capabilities: they know the repertoire (who wrote, painted, filmed, or otherwise created what); they operate within a clearly defined, though constantly developing, legal infrastructure; and they know the whereabouts of the creators. These intrinsic elements of know-how are particularly relevant in electronic rights management, where they can supplement work done by agents, synhcation services and publishers’ own rights departments. There are certainly a number of new areas of opportunity for collecting societies whch build on their core skills in offering an efficient management process and an economic return at a comparatively low cost.

ALCS’S ByLine service is one example. ByLine is an online news syndication service, the first on the Internet to deliver copyright text material, and the licences by which it can be republished, electronically. Newspaper publishers and journalists are able to upload articles electronically to ccwww.universalbyline.com)), granting ByLine the right to sell licences on their behalf. Regstered end-users-publishers and editors- are able to search and view full-text versions of articles on the database, and to purchase

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licences tailored to a wide range of uses. In addition, ByLine demonstrates other technical and methodological innovations:

the first application on the Internet of text watermarking, by which an undetectably watermarked file containing the article is downloaded to the user as proof of purchase and forms part of the audt trail of licence use;

- “Cheshire cat” technology which prevents “print screen” and other unauthorised downloading by making the text vanish at the mouse’s approach;

- the use of Agital object identifiers throughout the process, putting ALcs at the forefront of numbering methodology.

During its six-month trial as part of the IMPRIMATUR project, ByLine began to make sales fiom its accumulated content. Now three hundred journalists have posted nearly seven hundred articles. ALCS expects these figures to rise rapidly when the service is launched commercially in late autumn 1999.

-

5. THE ACCOUNTABILITY OF COLLECTING SOCIETIES

As the role of the collecting societies changes, as this author has put it “from keepers of the last-chance saloon to pioneers of the wdd cyberwest”, so some governments may break into the open their concerns over the control of collecting societies which have often lain beneath the surface. Section Three ends, therefore, with an extract from the very interesting address by Daryl Williams, the Attorney-General of Australia, on the final day of the WIPO 1999 Conference:lo

“The international federations of collecting societies make a very important contribution to effective copyright protection and enforcement in developing counties. They have a fundamental role in helping to make copyright work on the ground-not only for owners but also for users who want to do justice to the owners. As copyright is traded and accessed more and more online, the contribution of collective administration to the building of copyright licensing infrastructure will become even more important. At the same time, there also arise the issues of the accountability of collecting societies, and of possible government intervention. Australia has found that both the number of collecting societies and the extent of their licensing activities have grown rapidly in recent years. Calls for greater accountability of societies have come not only 6om licensees of the materials that they control, but also 6om their own members. The general laws governing corporations, to which collecting societies are subject, and the general laws on competition to which they are partly subject, have been questioned as being inadequate to address these concerns. I predict that governments will come under pressure to achieve the right level of regulatory supervision of collecting societies, as they assume an increasingly important role in the distribution and accessing of copyright material online.”

10 Supra, footnote 1.


SECTION FOUR: Towards Global E-Commerce

1. INTRODUCTION

According to Forrester Research:

“Large tracts of online economic terrain remain unconquered. But not for long. Business-to- Business e-commerce will draw 90 percent of the projected US$ 1.4 trillion in total Internet-based business by 2003, and business-to-business intermediaries are blazing the trail. In dozens of industries, they’re slashing costs, speeding transactions, wringing efficiencies and forging new relationships.”

Two comments: first, every forecast of the growth of e-commerce outbids its predecessor; second, this forecast, made in May 1999, emphasises that by far the majority of e-commerce dealings wdl be business-to-business, rather than business-to-consumer. Indeed, the 90 percent forecast is steeper than a fairly recent 80 percent forecast.

An EU Communication entitled The Need for Strengthened International Co-ordination, from DG-XIII in February 1998, urges the creation of an international charter:

“New business configurations are appearing, particularly in information-based sectors. Companies, including SMES, are establishing world-wide networks linking research, production, assembly and distribution. Services, in particular information services (e.g. consultancy, banking, insurance, travel, publishing, marketing, sales, advertising, etc.) can now be produced in one country and exported to another via electronic networks. The wide range of activities now technically possible can only be fully exploited if an international enabling framework emerges.” (emphasis added).

Publishers share the concerns of other cultural industries regarding the key legal topics for such a framework, e.g. security, privacy, uniform commercial codes, electronic payment systems, taxation and tariffs, electronic contract formation, etc., but they share with the music recordmg industry a special interest as deliverers of electronic content in e-commerce. A customer can be informed on the Internet about a new motorcycle; he can settle payment for the motorcycle on the Internet, but the Internet cannot deliver the motorcycle to him. STM publishers, however, can and do deliver learned material in all disciplines over the Internet, so that what is now called ECMS is a subject of paramount importance to them.

2. ELECTRONIC COPYRIGHT-MANAGEMENT SYSTEMS

A report entitled The Publisher in the Electronic World, prepared in 1994 for IPCC by the present author, set out the necessary ECMS scenariol’ under the heading The Answer to the Machine is in the Machine:

“The questions surrounding the electronic use of copyright materials are not so much ‘How shall we prevent access and use?’ as ‘How shall we monitor access and use?’ Generally

11 For a recent international perspective on the whole ECMS field, see the paper entitled Electronic Riyhts Management Systems. delivered to the 1999 WIPO Conference (supra, footnote 1) by Dr Daniel Gervais, the very experienced and expert Vice-president, International at the Copyright Clearance Centre (CCC), U.S.A.

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speaking, intellectual property is made available to the public so that it can be used, and mechanisms which simply prevent use eventually defeat the very reason for which the material was created at all. After all, to publish is to make something available to the public. The real issue is to link identifying, monitoring, control and reward. The ideal is a system which can undertake several different tasks, preferably all at the same time. A system must be able to identify copyright materials, to track usage, to verify users, and to record usage and appropriate compensation. In addition, the system should provide security for the integrity of the copyrighted material (freedom from tampering) and some level of confidentiality or privacy for the user. It might also provide the user with a price list showing various costs for different uses and individual materials along the model of a retail establishment.”

T h e Digital Object Zdentijier

The essential pre-conhtion for such a scenario is a unique identifier, an electronic equivalent, to put the point very crudely, of the ISBN or ISSN. The international community of publishers has developed the DOI system to provide a unique identification mechanism for content, and also a way to link users of the materials to the rightholders (or their agents) to facilitate automated digital commerce in the new digital environment. l2

A presentation entitled DOI: Current Status and Outlook was made by Dr Norman Paskin, the Director of the International DOI Foundation, at the recent 1999 WIPO Conference.13 In it, Dr Paskin set out the basics as follows:

“The DOI was an outgrowth of a program of the Association of American Publishers to develop tools to enable management ofcopyrightable materials in an electronic environment. In order to protect something, it is first necessary to uniquely and unambiguously designate what that entity is. The Do1 therefore began as a practical initiative in unique persistent naming, as the first part of a fuller implementation to include tools to manage the persistently named entities themselves. At its simplest, the Dor system offers: - - The second of these two steps associates the identifier with some specific information; the simple way in which this was done was to route to a publisher’s Web site. The Do1 therefore becomes a specifier for routing to an occurrence of a piece of material on a publisher’s Web site, and many of the prototype demonstrations and current practical implementations of DOI embody this functionality. However, the intent of the DOI is not for this to be the end- point, since restricting all uses of material to routing via the publisher’s Web site is neither possible nor productive. The Dor is intended as a public identifier for use in many applications and for local uses, and as with other information identifiers the Dot should be independent of specific applications-an identifier that can be freely used in many contexts and by many users.’’

a persistent identifier of intellectual property; and a mechanism to resolve that identifier to some useful information or service.

‘2 The DOI initiative has been strongly welcomed throughout the international copyright community: further

l 3 Siipru, footnote 1. information, which develops every week, is available at the DOI Web site <chttp://www.doi.orgn.


3. THE EU DRAFT DIRECTIVE ON E-COMMERCE

A briefing note from Bird and Bird, a major firm of solicitors in London which specialises in media law, conveniently summarises the main features of the original draft Directive (hrther condensed here).

The Commission recognises that differences between national laws will have an impact on the development of the online industries in Europe. Accordingly the draft Directive addresses the following five issues that the Commission considers to be key in providing a coherent framework for the Single Market in the field of e- commerce:

- Information Society Service Providers - Commercial Communications - O n h e Conclusion of Contracts - Liability of Intermediaries - Implementation.

(a) Scope of the Directive

The Directive applies to the provision of information services. “Information services” are any service:

- normally provided for remuneration; - at a distance; - by electronic means; -

The virtue ofthe draft Directive is its provision that Member States may not restrict the freedom to provide information society services (Article 3). The effect of this provision is crucial. It means that if the service is lawfully provided in a Member State where the provider is established, then its provision by that provider in other Member States is also lawful.

The draft Directive is subject to derogations &om the principle of free movement (Article 22) and expressly does not apply to the areas of:

taxation and data protection flows (Article 22); copyright and neighboring rights, e-money, collective investments in financial services, direct insurance and unsolicited commercial communications (Annex 11).

at the indlvidual request of a recipient of services.

- -

The draft Directive also does not apply to contractual obligations regardmg consumer contracts (Annex II), a derogation that considerably undermines the purpose of the draft Directive in attempting to stimulate business investment in online services and provide legal certainty. Service providers will still have to understand the intricacies of each Member State’s national consumer protection laws.

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(b) As Regards Service Providers

A “service provider” is any natural or legal person providing such services. A service provider is established where it pursues an economic activity using a fixed establishment for an indeterminate duration. The presence of the technical means of technologies required does not constitute an establishment (Article 2).

Member States wdl have to compel information society services to render easily accessible, in a drect and permanent manner to their recipients and competent authorities, certain information includng:

name, address of establishment and details for quick and drect contact (i.e. e-mail address); any registration number or trade register entry; the activities covered by any applicable authorisation scheme; as regards regulated professions, any bohes of registration, professional title, rules and places where the service is regularly provided;

-

- - -

- VAT number where applicable.

Subject to certain conditions, service providers avoid liabihty, other than for prohibitory injunctions, in respect of certain access, cachng and hosting services. (References in the draft Directive to the “recipient” of the service are intended to include both the recipient and the provider.)

Mere conduits (Article 12): In the case of a service that comprises transmitting information from a service recipient across the network or providing access to it (including the automatic, intermediate and transient storage of the information), Member States must provide the service provider with an exemption fiom liability as regards the information transmitted absent the provider initiating the transmission, selecting its recipient or selecting/modifying the information contained in it.

Caching (Article 13):“f In the case of a service that comprises transmitting information from a service recipient across the network, Member States must provide the service provider with an exemption from liability as regards the automatic, intermehate and transient storage of the information, performed for the sole purpose of malung more efficient the information’s onward transmission to other recipients of the service at their request, on condition that it:

- -

does not mo&fi the information; complies with condtions on access to it and industry standard rules as to updating it; does not interfere with industry standard technology used to obtain data on usage of the information; acts expedtiously to remove or bar access to the information on receipt of actual knowledge that the initial source has been removed &om the network,

-

-

l4 See also supra, Section One, A.5.(a).


and/or access to the information has been barred and/or such removal/barring has been ordered by a competent authority.

Hosting (Article 14): In the case of a service that comprises the storage of information from a service recipient, Member States must provide the service provider with an exemption from liability as regards such storage on condition that it:

does not have actual knowledge that the material is illegal or, for damages claims, of facts or circumstances from which such illegality is apparent; and/or acts expeditiously to remove or disable such information on obtaining such knowledge.

-

-

(c) Commercial Communications

A commercial communication is any form of communication designed to

Member States are to ensure that such communications comply with the following: - - -

promote, hrectly or indirectly goods, services, or the image of a company.

they are clearly identified as such; it is clear on whose behalf they are issued; promotional, discount offers, etc., are clearly identified as such and the conditions attaching to them are easily accessible, presented accurately and unequivocally (with similar rules in respect of games) (Article 6).

An unsolicited commercial communication sent by e-mail must be clearly and unequivocally identifiable as such as soon as it is received (Article 7).

Electronic contracts-Formation: With certain exceptions, Member States are obliged to ensure that their legislation allows contracts to be concluded electronically (Article 9).

The following principles must be introduced into Member State legislation in respect of click-wrap type contracts, where consent is signified by technological means such as clicking on an icon (Article 11). The contract is concluded when the recipient of the service:

- - has confirmed such receipt,

has received acknowledgement of his acceptance, and

both of which are to be effected as quickly as possible. They are deemed to happen when the applicable party can access the acknowledgement or receipt.

Electronic Contracts-Information: Member States are to provide that, except where otherwise agreed by professional persons, the manner of formation of a contract by electronic means shall be expressed by the information society service provider clearly, unequivocally and prior to the conclusion of the contract (Article 10). This shall include the following information:

the steps to be taken to conclude the contract, to be set out in a way that ensures informed consent is given;

-

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- - -

whether the contract is to be filed/accessible; how handling errors are to be corrected; except where otherwise agreed by professional parties, any applicable code of conduct.

(d) Implementation

The draft Directive has a series of provisions aimed at implementing its other requirements.

As mentioned earlier, the draft Directive was issued in late 1998, and, thanks to a very fast First Reading by the European Parliament in spring 1999, has reached the stage of an Amended Proposal from the Commission, which is now before a Council of Ministers Working Party.

Of main interests to publishers are the provisions on the liabhty of intermeharies. An Executive Summary to the original draft Directive states:

“To facilitate the flow of e-commerce activities, there is a recognised need to clarifjr the responsibility of online service providers for transmitting and storing third-party information (i.e. when service providers act as ‘intermediaries’). To eliminate the existing legal uncertainty and to bring coherence to the different approaches that are emerging at Member State level, the proposal establishes a ‘mere conduit’ exemption, and limits service providers’ liability for other ‘intermediary’ activities. A careful balance is sought between the different interests involved in order to stimulate co-operation between different parties, thereby reducing the risk of illegal activity online.”

The main point to note at this stage is that the Commission, in its Amended Proposal, has made no substantive changes at all to the liability provisions at Articles 12, 13 and 14, summarised above. Nor has the Commission changed its view, set out at Article 15, that:

“Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12 and 14, to monitor the information which they transmit or store nor a general obligation to actively seek facts or circumstances indicating illegal activity.”

Two final comments:

(i) Given that the draft E-Commerce Directive is now at the same stage (i.e. as an Amended Proposal before a Council Worlung Party) as the draft Copyright Directive, the Rightholders Coalition returns to the quite extraordnary (to many) stand-off between the liability provisions of the E-Commerce Directive and the Copyright Directive.15 The Coalition comments:

“The E-Commerce Directive is now at the same stage in the legislative process as the Copyright Directive. The ‘time-lag’ between the two Directives has been nearly erased. Telecom operators and Internet service providers have long argued that Article 5.1 of

l5 See also supra, Section One, A.5(a).


the Copyright Directive (providing an exemption &om the core right of reproduction for temporary copies) was vital to ensure that they could not be held liable for copyright infiinging material in the absence of horizontal rules on liability. However, this is no longer a viable position, as such rules are now clearly on track for adoption. The argument for the European Parliament’s amendment to Article 5.1 of the Copyright Directive, which establishes the general rule that temporary copying must be authorised by the rightholder, should now prevail, given that all liability issues which this may raise for network and service providers will be resolved in the E- Commerce Directive. Logic demands that issues of liability be dealt with in the E- Commerce Directive and not the Copyright Directive.”

(ii) The Rightholders Coalition has also targeted the lack of threshold conditions in the Amended Proposal:

“Threshold conditions are minimum standards, which service providers must comply with in order to be eligible for any limitation on liability. Rightholders have consistently made it clear that a balanced solution needed to include threshold conditions. It is notable that the U.S. legislation (Digital Millennium Copyright Act) included two important threshold conditions applicable to service providers that are lacking fiom the E-Commerce Directive. We find it unacceptable that rightholders in the United States should be better protected than those in the EU, considering the traditionally strong protection afforded in Europe to authors and other rightholders.”

This version of NETLAW turns now to a few topics whch are central to the development of e-commerce. The major element in e-commerce for publishers is, of course, the protection and encouragement of intellectual property itself at the highest level-the IPA mantra “Respect Copyright, Encourage Creativity” rings true down the years. Section One of this version of NETLAW deals in some detail with the issue.

Through Annex II to the draft Directive on E-Commerce, a number of derogations are made to Article 3 (which sets out a country-of-origin rule for information society services in general). For publishers, the most important derogations are in respect of copyright, neighboring rights and database rights. The question then immediately arises of what regime ir to govern the very complex interaction between intellectual property and private international law, to which we turn now.

4. JURISDICTION, APPLICABLE LAW, RECOGNITION AND ENFORCEMENT OF

JUDGMENTS

A judge, faced with a case with foreign element, will ask himself these questions: - - -

In Europe, the first and last questions are answered by the Brussels Convention of 1968 in the countries of the EU, and by the Lugano Convention of 1989 in the European Free Trade Association (EFTA) countries.

am I legally competent, do I have jurisdiction to hear this case? if I do have competence, what law do I apply? will my judgment be recognised and then enforced outside my jurisdiction?

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(a) Jurisdiction

Under these Conventions, the general rule is that if the defendant is domiciled in one of the EU or EFTA countries, the plaintiff must sue in the State of the defendant’s domicile (Article 2), but there is an exception under Article 5(3) which provides that in matters relating to tort, delict or quasi-delict, the defendant may be sued in the courts of the place where the ha&l event occurred.

(b) Applicable Law

Here we must bear in mind the particular nature of Internet activity. In a print-on- paper world, the making of a pirate edition of a work is likely to take place in one geographical area, that of the manufacture of the edition. In the digital world, however, as the Business Software Alliance put it in 1995:

“As we see it, there are five central stages in any transmission of a work: two that take place on the transmitting end (creation and upload), two that take place on the receiving end (download or access, and use) and the physical act of transmission that takes place along the telecommunications system itself.” (emphasis in original).

Given this considerably more complex world, there is intensive discussion in both academic and trading circles on which country’s laws are applicable to an alleged infringement of copyright. A recent and very impressive academic analysis of t h s issue has been made by Professor Jane Ginsburg in a presentation to a group of consultants brought together by WIPO in December 1998. Her conclusion concerning choice of laws for infringement cases is:

“I recommend adoption of an approach combining certain aspects of the Satellite Directive

The law applicable to the entirety of a defendant’s alleged Internet infringement is the law of the country in whch the server that hosts the alleged infringing content is located, so long as this country’s domestic copyright law is consistent with Berne Convention (and WIPO Copyright Treaty) norms.

2. If the law of the country identified in #1 is inadequate, then the law applicable to the entirety of the defendant’s alleged Internet infringement is the law of the country in whch the operator of the Web site on which the allegedly infiinging content is found has its residence or principal place of business, so long as this country’s domestic copyright law is consistent with Berne Convention (and WIPO Copyright Treaty) norms.”

with alternative points of attachment: 1.

(c) Recognition and Enforcement $Judgments

We can, in Europe, turn back to the Brussels and Lugano Conventions. O n recopt ion , Article 26 of the Brussels Convention states:

“A judgment given in a contracting State shall be recognised in other contracting States without any special procedure being required.”


And on enforcement, Article 31 states:

“A judgment given in a contracting State and enforceable in that State shall be enforced in another contracting State when, on the application of any interested party, the order for its enforcement has been issued there.”

The outstandmg major question is put by Professor Adrian Sterling, in a briefing paper for the British Copyright Council Worlung Group (intended for internal circulation) as follows:

“Can the Brussels Convention be amended so as to become international in membership and effect, permitting action in any Convention country as regards unauthorised placing of protected material on a Web site in any other country? If that approach is not practical, should there be a new international Convention permitting any rightowner of a Convention country to take action concerning the unauthorised placing of protected material on a Web site in any other Convention country?”

Ths complex subject will be affected by two concurrent developments. First, with no consultation whatsoever, the EU Commission adopted, in July 1999, a draft Regulation moddjnng the Brussels Convention.

In July 1999, Mike Pullen, of Dibb Lupton Alsop, wrote in these terms to all Commissioners:

“Iunderstand that the Commission is due to adopt the amended text of the Brussels Convention as a regulation (Brussels Regulation) pursuant to new powers given by Article 65 of the Amsterdam Treaty. I also understand that the Commission is proposing to adopt the Rome II Convention on non-contractual liability as a regulation (Rome Regulation) pursuant to the same powers. I have the following serious concerns on this matter: 1. The proposed Article 15(c) of the Brussels Regulation together with Recital 13 would

create a situation in which the courts of a consumer’s country of habitual residence can take jurisdiction over contractual disputes with an e-commerce service provider established in another EU State merely on the basis that its Web site can be accessed by consumers in the receiving State.

Thls is completely contrary to the fundamental internal market principles of country of origin and mutual recognition. It also undermines the framework for e-commerce set out in the Commission’s proposed Directive and other Directives (for example the Distance Selling Directive, the Television Without Frontiers Directive and the Data Protection Directive) .” After strong protests, a Hearing was called for 5 and 6 November 1999. Second, a proposed “Convention on Jurisdiction and the Effects of Judgments in

Civil and Commercial Matters” has emerged from a Hague Conference on Private International Law. A preliminary draft was hstributed in June 1999, and the Special Commission concerned was to meet to give approval to the draft in October 1999.

5. COMMERCIAL COMMUNICATIONS

There has been strong support in publishing circles in Europe (e.g. from the

NET LAW 133

European Publishers Council and the International Communications Round Table) for the proposal to require mutual recognition of services that comply with the laws of their EU country of origm. It is, in practice, impossible for SMES to comply with the laws of all Member States. As noted above, however, among the derogations at Annex 11 are “contractual obligations concerning consumer contracts”. Is this, one may ask, sensible, or indeed workable?

(a) Online Conclusion of Contracts

Article 9 of the draft Directive on E-Commerce requires Member States to “ensure that their legislation allows contracts to be concluded electronically”. (emphasis added). The requirement complements the proposal for a Directive on the validity of electronic signatures (see below).

In concrete terms, the Commission states:

“Member States will have to: - - -

repeal provisions which manifestly prohibit or restrict the use of electronic media; not prevent the use of certain electronic systems as intelligent electronic agents; not give electronic contracts a weak legal effect, the result ofwhich would be to favour in practice the use of paper contracts; adapt the formal requirements which cannot be met by electronic means ... Legal uncertainty as to the interpretation of formal requirements is the most frequent obstacle to the effective use of electronic contracts. Examples of formal requirements which the Member States will have to examine and, where appropriate amend are:

Requirements as to the medium lrsedfor the contractual process: that the contract be on ‘paper’, that the contract be ‘written’, that a ‘letter’ (letter of confirmation, letter of intent) be sent, that a ‘document’ be presented, that a specific ‘form’ be used, that there be an ‘original copy’ of the contract, that there be a certain number of ‘original copies’ (e.g. one per person), that the contract be ‘printed’ or ‘published’. Requirements as to human presence: that the contract be negotiated or concluded by natural persons or in the presence of both parties, that the contract be negotiated or concluded in a specific place. Requirements as to the involvement ofthird parties: that the contract be prepared or authenticated by a notary, that the contract be concluded in the presence of witnesses, that the contract be registered or lodged with a person or authority.”

The reference by the Commission to a contract requiring preparation or authentication by a notary is curious, since Annex I excludes the activities of notaries from the scope of the Directive. This itself is curious. Perhaps there is a fearsome pan-European trade union of notaries. Is what is needed not the reverse? That is, the creation of a new profession of dlgital notaries-and indeed is that far from the profession of issuing dlgital certificates, an activity much encouraged by national Chambers of Commerce?

-

(b) Digital Signatures

In July 1999, the Council of the European Union adopted a common position o n


the proposal for a Directive on a Common Framework for Electronic Signatures. The Directive aims to facilitate the use of electronic signatures as well as contributing to their legal recognition. It would establish a legal framework for electronic signatures and certain certification services, in order to ensure the proper hnctioning of the internal market in this area.

Other objectives are to promote the interoperability of electronic signature products, and to build trust in electronic signatures. Although digital signatures based on public-key cryptography are currently the most recognised form of an electronic signature, the common position follows a “neutral” approach as far as the various technologies and services capable of authenticating data electronically are concerned. This approach takes into account the rapid technological development and the global character of the Internet.

A common position will be formally adopted, without debate, at a forthcoming Council session.

The role of certification services will be important. Certification Service Providers d provide hgital certificates to link a dgital signature to an indwidual, or to verify, for example, that an individual is a director of a company.

There has recently been news of a new non-profit organization called Global Trust Authority which has been created to work as a certification authority. It is backed by more than eight hundred banks and financial institutions from several European countries, includmg B e l p m , France, Italy, Portugal, Ireland, Spain, Switzerland, the Netherlands and the United Kingdom, as well as Canada and Japan. The United States has not joined the initiative so far. The authority wlll have its headquarters in Belgium.

(c) Encryption Policy

In October 1997, the European Commission issued a Communication entitled Ensuring Security and Trust in Electronic Communication: Towards a European Framework for Digital Signaturer and Encryption. The Commission’s work on digital signatures is summarised above. The work on encryption has, of course, to be seen in both the EU and the international context.

The importance of this subject in the EU can be bluntly put. There d be no internal market for e-commerce without an internal market for cryptography. The danger is that Member States, fearful that widespread use of strongly encrypted communication will reduce their ability to fight crime and prevent terrorism, will proceed with incompatible national regimes, and thus create obstacles to the functioning of the Internal Market.

The international context is equally important. A recent Position Paper from the International Chamber of Commerce (Icc) gave succinct conclusions:

“In view of the hndamental need for secure communications in international commerce . . .

NET LAW 135

to prevent theft and fraud, to combat industrial espionage and to protect critical trade and financial interactions which may require authentication or digital signature-encryption is an indispensable tool enabling business to allow the secure transmission of critical data over international networks. A practical solution must be found as soon as possible with respect to regulations concerning the application of encryption methods. The ICC therefore calls on governments to: 1.

-

Remove barriers to trade and impediments to the use of commercially available encryption methods. This can be accomplished by: removing unnecessary export and import controls, usage restrictions, restrictive licensing arrangements and the like, on encryption methods used in commercial applications; enabling interoperability of networks by encouraging global standardization; maximising the freedom of choice of users. Work together with industry to resolve these barriers by jointly developing a comprehensive national policy on encryption. The ICC believes that this working relationship would also encourage R&D and international co-operation in the field of advanced secure technology.”

- - 2.

As to “removing unnecessary export and import controls”, a very recent announcement that the Clinton Administration in the United States is planning to relax controls on encryption software exports is being met with guarded optimism from industry executives.

6. DOMAIN NAME SYSTEM (DNS)

First, why should publishers be concerned with domain names at all? The answer has been cogently given by Jonathan Cohen, the interim President of the Intellectual Property Constituency, in written testimony to the US. Congress, as follows:

“The copyright industries have a vital interest in the efficient hnctioning of the Domain Name System (DNs). The companies in this industry operate thousands of Web sites using .com and country-code Second Level Domains. These Web sites have become indispensable for the promotion and marketing of every kind of copyrighted material, from books and other printed matter to music and sound recordings, from audio-visual material to databases, and of all kinds of computer software, including both business and entertainment applications. Increasingly, these sites are becoming venues, not only for providing information about and technical support for these products, but also for the online delivery of copyrighted materials in digital form.

As it becomes more and more common for copyrighted works to be distributed in digital form, a domain name abuser can not only weaken, tarnish or dilute a copyright-based company’s marks; it can also usurp some or all of the market for the company’s product. A brand name like Toyota, Fiat or Cadillac can be undermined through laxity in DNS administration; but realistically it is not yet possible to distribute automobiles over the Internet. By contrast, pirated copies ofpopular songs or recordings, hit video games, current movies, and the best-selling computer programs or books can increasingly be found on, and downloaded from, the sites of domain-name thieves, or even from sites whose names do not directly threaten trademark interests.

...


Thls unique vulnerability requires companies in the copyright industry to ask not only how the DNS can be used to promote, market, transmit and distribute legitimate products, but also how it can be used to fight the accelerating trend toward online digital piracy. This trend is a major impediment to the development of e-commerce, and iflefi unchecked will threaten the viability of the World Wide Web itself as a venue for global business.”

The second point to touch on, given the need so well expressed by Jonathan Cohen for some regme for the management of domain names, is, what is happening? ICANN is happening-the Internet Corporation for Assigned Names and Numbers. In a lively presentation at the 1999 WIPO Conference,16 Esther Dysol, the interim Chair of ICANN, opened by describing ICANN as “a private corporation set up to manage the Internet’s plumbing”! Rather more fUy and formally, she described ICANN as a private sector initiative responsible for overseeing the management of the DNS, which allows Internet addresses (for example, Web pages and e-mail accounts) to be found by easy-to- remember names, instead of numbers:

“Thanks to DNS, users can find the server at 140.147.248.209 simply by typing ccwww.congress.got0) into their browsers. Headquartered in California, ICANN is a non-profit corporation structured to make decisions on the basis of Internet community consensus. As ICANN’S start-up phase progresses, its Board of Directors wiU be elected in part by a global membership of individual members of the Internet community and in part by organizations representing the business, technical, non-commercial and academic communities.” (emphasis in orignal).

Thirdly, the work of ICANN has, in some ways, been parallel to work by WIPO, which on 30 April 1999 published a Final Report. As LABNEWS stated, in June 1999:

“The Report highlights certain questions arising out of the interface between domain names and trademarks protected by intellectual property rights, and recommends the adoption of a number of improved standard practices for registrars. The Report’s key recommendations include: - the establishment of a minimum ‘best practices’ code for all generic top-level domain

name registrars; the collection of contact details on domain name applicants by regstrars so that intellectual property owners can enforce their rights; the creation of mandatory dispute settlement procedures to deal with cases of bad faith and abusive registration of domain names that violate trademark rights; and the creation of a system allowing owners of globally famous or well-known marks to obtain an exclusion prohibiting any person other than the owner &om registering the mark as a domain name.”

-

-

-

For the reasons stated by Jonathan Cohen, the international publishing community might consider some formal input to the developing work of ICANN o n DNS.

l6 Supra, footnote 1.

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ENVOI

In a paper, Electronic Business, the U.K. Alliance for Electronic Business has offered the following intriguing thought:

“A useful analogy may be drawn with maritime law that has, over many years, provided trading procedures and processes that are understood internationally as a coherent set of principles that guide trade. Our goal must be to create something similar for electronic trade.”

We may not, however, have hundreds of years for the task.

Annex

International Publishers Copyright Council Briejkg Paper,]une 1999

NEED FOR AND JUSTIFICATION OF A SUI GENERIS SYSTEM OF PROTECTION

The potential of the Global Information Society depends on a WIPO Global Treaty which wdl provide an “umbrella” for national Member States’ legislation for the protection of databases. Clearly, those legislations will need to be substantially equivalent, and in particular, and most importantly, there needs to be substantial equivalence between the EU Sui Generis Right and the current formulations in the United States of a misappropriation approach as in the Collections of Information Anti-Piracy Act (HR

The central justification for an international treaty on the sui generis system of protection for databases is that databases are central to establishing the Global Information Society. Information databases lie at the heart of the entry of information of all kinds--scientific, technical, professional, financial, business etc.-into the system of services w h c h is sent round the world by the Internet.

354).


We approve and adopt the following extract from the intervention of Dr Reinbothe, leading the Delegation of the Commission of the European Communities at the WIPO Information Meeting on Databases from 17 to 19 September 1997:

“Not only had few technologcal applications produced a revolution in the size and uses to which databases could be put, but those applications were at the very source of the Internet itself, which depended in large part on the databases which fed the system, just as it depended on the software and the communications technology which operated the Internet and which operated related infrastructures in the information society. Therefore, databases played a central role. Their economic importance was steadily increasing. Third, and finally, just like any other electronic material, they were susceptible to being duplicated and transmitted anywhere in the world at the touch of a button. Databases were at the essence and the origin of the information society from which all wanted to benefit. They were particularly vulnerable. This raised the need to secure protection world-wide.”

We approve and adopt also the following extract from the speech in the U.S. Senate on 19 January 1999 by Senator Hatch:

“American database providers render an invaluable service by collecting, organizing, and disseminating billions of bits of information from myriad sources of every possible sector of our economy. They give us such widely used tools as phone books, directories, catalogues, almanacs, encyclopaedias, and other reference guides. They provide specialized products like statistical abstracts, medical and pharmaceuticals reference tools, stock quotes, pricing guides, genealogical data and countless other sources of information for businesses, researchers, scientists, educators and consumers. Indeed, it is the information they collect that allows us to predict the weather, to treat disease, to preserve our national security, to use computers to communicate over global networks, like the Internet, to travel, to buy a home, and even to watch the evening news.”

POSSIBLE ALTERNATIVES FOR A SUI GENERIS SYSTEM

The most common protection has in the common-law countries lain in copyright. And, indeed, the dominant position of the U.K. database industry inside the EU has been due to the protection for investment provided in copyright by the low level of orignality required by U.K. case-law known as “skill, judgment or labour”. That protection has become notably “thinner” through the adoption throughout the EU of the higher-level test of “the author’s own intellectual creation”, in the Database Directive. Both the uncertainty of this thin copyright protection and the virtual certainty that computer-assisted and indeed computer-generated databases will not pass the new originality test mean that an alternative form of protection for makers of databases is needed.

The main interests which publishers have in copyright and neighboring rights are security of trading, and authenticity. They will measure any initiative against the first yardstick-“will this initiative promote security of tradmg, so that we can invest with confidence that our products or services are not pirated with impunity?” Equally, publishers are deeply concerned with their own professional reputations; the American Medical Association has recently explained how much effort it puts into validating the

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certification and licensing of information on physicians in its &rectory so that it can be relied upon by insurance companies and hospitals and other healthcare organizations. Database producers invest in quahty products with careful validation and put their names on them as a level of insurance to the customer.

Equivalent protection to that now provided in the EU wdl be required of any State for which export of its own industries’ databases to the EU is important. Those States whch claim that a tradtional copyright regime is sufficient have simply not understood that protection in the EU will depend, in copyright, on getting over the new hurdle of “the author’s own intellectual creation” and/or, outside copyright, in having a protection for the makers of databases equivalent to the EU’s suigeneris regime.

The conclusion must be not only that copyright is not an acceptable alternative system, but that its very failings in respect of compilations of data have led &rectly to the Sui Generis/Misappropriation initiatives.

The a priori economic right which the sui generis right represents was developed, interestingly, out of a first formulation which conceived the right as a special rule of unfair competition. That the right was, in years of intense debate in Europe, so developed indicates clearly that unfair competition is not a sufficient protection. In the words of a Member of EU DG-xv in an article on the Common Position reached by the EU Council of Ministers in 1995, the stri generis right is an economic right which “has nothing to do with unfair competition remedies because it does not sanction behaviour a posteriori and because it provides for a term of protection.”

Finally, the sui generis right is tradable [see Directive, Article 7(3)]. Just as book publishers have elaborated licensing systems on the basis of the economic right of copyright, so database publishers and producers will be able to “slice and dice” information into new packets of data and then elaborate systems of sale and/or license of them on the basis of the economic right of sui generis protection.

NATURE AND EXTENT OF A POSSIBLE SUi GENERIS SYSTEM OF PROTECTION

Discussion of the sui generis right is bedevilled by the ingrained habit of some commentators of importing into the debate concepts relevant to copyright. The sui generis right is not an intellectual property right. It is not helpful and indeed confusing to view the object of protection, the scope of protection or the scope of limitations/exceptions through copyright spectacles.

The IPCC would support a broad “umbrella” approach by WIPO to defining, first, the object of protection, second, the minimal threshold of investment (not limited to deployment of financial resources, in the EU Directive, but includmg also the expenhture of time, effort and energy), third, the acts protected against (extraction and re-utihzation in the EU model) and fourth, limitations/exceptions (see also Main Elements below).


THE IMPACT OF A POSSIBLE SUI GENERIS SYSTEM ON ACCESS TO DATABASES

Given the security of trading offered to database publisherdproducers by the suigeneris right, an international treaty will promote very strongly the creation and licensing of information databases of all hnds. Providing protection will not restrict access-n the contrary it wiU enable, through licensing systems, more dormation to become avadable.

The importance of licensing systems has been stressed in a recent paper from the Association of American Publishers (h~) entitled Contractual Licensing, Technological Measures, and Copyright Law:

“Through contractual licensing, publishers are able to provide information or information access to specific classes of users, in ways that are carefully tailored to the specific nature of the product and needs of the users. This flexibility, in many instances, can have the effect of making information more widely available, or available to certain users at significantly lower cost. Examples are myriad. Publishers can adjust prices and other terms of availability to distinguish among commercial and non-profit users. Different packages of value-added features and minimum needs can be created and separately priced to accommodate larger and smaller users, corporations, educational institutions, and libraries. Since users pay for the type and amount of access and use they need, high-quality information products and services can be made available to users who could not otherwise afford them. Thus, for example, as a single user paying a modest cost and agreeing to the terms of a standard form license agreement, an individual investor can be given access to the same information that is provided to a commercial investment firm under the terms of a negotiated but much more costly and complex license agreement.”

The example, in the last sentence quoted above, of the single user with the standard form licence getting the same high-value information as the commercial investment firm underscores the point that providmg protection does not restrict access, but makes it more available to some who would not otherwise be able to afford it.

The representatives of the International Confederation of Scientific Unions and of the World Meteorological Organization expressed, on the contrary, at the WIPO Information Meeting of September 1997, their concerns that commercial database-makers might “lock up” scientific information so that the i?ee exchange of data in a co-operative not a competitive spirit, which characterises scientific advance, could, to the enormous damage of that advance and contrary to the public interest, be severely restricted. IPCC responds to these concerns in the words of D r Reinbothe, leadmg the Delegation of the Commission of the European Communities in its intervention at the WIPO Information Meeting:

“The Delegation stressed [that] what was concerned was the private sector activity of the development and commercialization of databases for commercial exploitation. Where public interest requirements applied to provide for the public, and possibly free, availabhty of information &om whatever sources, the rules which the European Community and its Member States proposed would not inhibit such use. As an example, where meteorological information was collected by certain means and the public interest and safety of human life, shipping and aviation security, etc., dictated the free exchange, processing and use of such information, in such a case, the proposal of the European Community and its Member States would in no way detract from those public interest goals and associated freedoms. However, that did not prevent a private operator from separately collecting, processing and

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marketing the same information, perhaps with additional information added, or special processing done to produce specific results for other purposes, for example, use by insurance companies for risk-assessment purposes, in addition to the public interest tasks already mentioned. It was the latter activity, for example, risk-assessment purposes and so on, which had an exclusively commercial context, which involved time and effort in its operation and which could only operate in a commercial market.” (emphasis added).

It is therefore clear that commercial private industry investment as the basis of the suigeneris right is inherent in the EU Directive, and indeed quite explicit in the opening words of Article 1402 of the HR 354 Bd in the United States:

“Any person who extracts, or uses in commerce, all or a substantial part, measured either quantitatively or qualitatively, of a collection of information gathered, organized, or maintained by another person through the investment of substantial monetary or other resources, so as to cause harm to the actual or potential market of that other person.. .”

MAIN ELEMENTS OF A PROTECTION SYSTEM

Subject-Matter and Criteria of Protection

It will be neither possible nor helpful to attempt, at international treaty level, to pin down in statutory language the meaning of qualifjing language such as “substantial” in relation to investment, or “insubstantial” in relation to extraction. In the long term, juhcial interpretation is a safer procedure. Thus, in the United Kingdom the Copyright Acts contain no definitions of either originality or substantiality, but cases decided over time have given considerable security of meaning to interested parties. Admittedly ‘over time’ can mean a considerable number of years or even decades, but the procedure is, on balance, preferable to what may be very damaging over-restrictive statutory language in a digital world we are only just entering.

Rightholders

The “maker of the database” as the rightholder can, perhaps, only be defined by the criteria for investment which define the making. Article 7.1 of the EU Directive requires a substantial investment “in either the obtaining, verification or presentation of the contents” of the database. If a publisher/producer cannot demonstrate a substantiality of investment in one of these three activities, then he is not a sufficient “maker” for the purposes of the Directive.

Exceptions

To answer the specijic last question of the WIPO Questionnaire of 1998 first- “Should there be specific exceptions for developing countries?”-the answer is NO. One of the most exciting features of new technology is that it may allow developing countries to by-pass some present analogue channels of communication and enter at


once into the &&a1 channel. Some developing countries, e.g. I d a , have very expert computer-related skills, and it is not dfficult to forecast for the near future investment by industries in such countries in database creation and communication. It will be no service to such industries to have their own national laws riddled by internationally approved exceptions to rights.

Ingeneral, the issue of exceptions does need revisiting. Article 9 of the EU Directive combines a narrow view with some uncertainties of meaning (e.g. what are “the purposes of Illustration” in Article 9(b)?). As Professor Bernt Hugenholtz has suggested: “Apparently, the users’ fieedom to extract or re-utilize insubstantial parts of the database was considered, by the European legislation, to be sufficient.”

It may, indeed, be possible that “umbrella” WIPO treaty language on exceptions might require the EU itself to re-visit the Directive, possibly as part of the examination of the suigeneris right built into the Directive at Article 16.3.

There are, interestingly, important safeguards in HR 354, e.g. for extracting or use of information for non-profit educational, scientific, or research purposes in a manner that does not harm the actual or potential market for the product or service (Section 1403(d)(i)). Government data is expressly excluded from protection at Section 1404. Further, Section 1403 also allows “any person” to make use of a database to verify the accuracy of information gathered, organized, or maintained by that person.

Duration of Protection

The EU Directive started with the Scandinavian “catalogue right” period of ten years, and ended with fifteen years renewable. Under the U.S. initiative at HR 354, protection for a period of fifteen years is provided from the time of the investment.

EXERCISE AND INFRINGEMENT OF RIGHTS

The sui generis right will become the economic basis of licensing of databases as services online, and sale or licensinglrental of databases offline.

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Table of Contents

PREFACE

SECTION ONE: The Latest Standardsfor Copyright IMPLEMENTING THE WIPO AGENDA - 1. INTRODUCTION 2. FROM COPYRIGHT TO CONTRACT

4.

A.

3. REPRODUCTION RIGHT

COMMUNICATION TO THE PUBLIC RIGHT-INCLUDING THE RIGHT OF

MAKING AVAILABLE WORKS OR OTHER SUBJECT-MATTER

EXCEPTIONS TO THE RESTRICTED ACTS OF REPRODUCTION AND OF

COMMUNICATION TO THE PUBLIC

5.

(a) (b) Article 5.2 (c) Article 5 .3 (d) Article 5.4

Article 5.1-Temporary Acts of Reproduction

6. PROTECTION OF TECHNOLOGICAL MEASURES AND RIGHTS-MANAGEMENT INFORMATION

(a) Article 6 (b) Article 7

7. THE U.S. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)

B. THE DATABASE DIRECTIVE 1. INTRODUCTION 2. 3.

INTERNATIONALIZATION OF THE SUI GENERIS RIGHT

THE COLLECTIONS OF INFORMATION ANTI-PIRACY ACT (HR 354)

SECTION Two: Harmful Content and Freedom of Expression 1. INTRODUCTION

3. THE BERTELSMA" FOUNDATION~NCORE INITIATIVE

2. THE EU COMMUNICATION AND ACTION PLAN

4. EXAMPLES OF HARMFUL CONTENT

(a) International-Press Release (b) Germany-Reuters (c) The Netherlands-Reuters (d) The United Kingdom (e) The United States

5. FINAL WORD

1. INTRODUCTION SECTION THREE: The Role of Collective Management

2. THE CLA'S RAPID CLEARANCE SERVICE (CLARCS)


3.

4.

5. SECTION FOUR:

1. 2.

3 .

4.

5.

6. ENVOI Annex

LICENSING DIGITIZATION

(a) Transactional Only (b) Exact Page Representation (c) Rightholder Opt-Zn (d) Rightholder-Determined Fees

(a) I / E R D I

(b) (c) ByLine

Towards Global E-Commerce INTRODUCTION

T h e Digital Object Zdentijer

(a) Scope ofthe Directive (b) As Regards Sewice Providers (c ) Commercial Communications (d) Zmplementation JURISDICTION, APPLICABLE LAW, RECOGNITION AND ENFORCEMENT

(a) Jurisdiction (b) Applicable LAW (c ) Recognition and Enforcement ofJudgments

(a) Online Conclusion o f Contracts (b) Digital Signatures (c) Enctyption Policy DOMAIN NAME SYSTEM (DNS)

MULTIMEDIA RIGHTS CLEARANCE SYSTEMS (MMRCS)

ZNDECS-znteroperability o f Data in the E-Commerce Systems

THE ACCOUNTABILITY OF COLLECTING SOCIETIES

ELECTRONIC COPYRIGHT-MANAGEMENT SYSTEMS

THE EU DRAFT DIRECTIVE ON E-COMMERCE

OF JUDGMENTS

COMMERCIAL COMMUNICATIONS

Copyright 0 Charles Clark 1999

Net Law : A Cyberspace Agenda for Publishers: Netlaw Five

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