NATIONAL INFORMATION INFRASTRUCTURE




9. INTERNATIONAL IMPLICATIONS



a. BACKGROUND



Other countries -- including Australia, Canada, Finland, France,
Germany, Japan, Singapore, Sweden, the United Kingdom -- and the
European Union are conducting their own studies on their planning for
implementation of their national information infrastructures. At the
February 1995 G-7 Ministerial Meeting on the Global Information
Infrastructure (GII), the Ministers noted that unless rules for the
effective protection of intellectual property are taken into account
from the outset, the development of the international information
superhighway will be severely hindered. How disparate domestic
information infrastructures will evolve into a GII will depend on the
rules of the road, and one of the most important sets of rules will
be those ensuring protection for the works of intellectual property
that move through international channels and into the emerging
national information infrastructures. As a result, Ministers endorsed
the need to work in international fora, including the World
Intellectual Property Organization (WIPO), to achieve standards for
the adequate and effective protection of intellectual property in
international electronic commerce.



Development of the GII will make copyright laws and international
copyright rules a concern for every user. When the globe is blanketed
with digital information dissemination systems, a user in one country
will be able to manipulate information resources in another country
in ways that may violate that country's copyright laws. Indeed, it
may be difficult to determine where and when possible infringements
may take place because, under the present level of development, a
user in France can access a database in the United States and have a
copy downloaded to a computer in Sweden. Whose copyright law would
apply to such a transaction? Because copyright laws are territorial,
and the standards of protection embodied in the international
conventions leave room for national legislative determinations, acts
that may constitute infringement in one country may not be an
infringement in another country. The complexity that such a system
creates will make "electronic commerce" over the information
superhighways difficult unless the United States moves promptly to
identify needs for protection and initiates efforts to work toward a
new level of international copyright harmonization.



U.S. copyright industries are significant contributors to the
United States' current trade accounts, reducing our balance of
payments deficit by some $45.8 billion in 1993. Inadequacies in the
present system of intellectual property protection for copyrights and
neighboring[1]
or related rights, and the consequent losses to these industries from
piracy and from trade barriers arising from differences in forms of
protection, have been estimated by industry to cost them $15 to 17
billion annually. Improved protection for copyrights and neighboring
rights would contribute to reducing these losses and improving the
balance of payments.[2]



An important aspect of the participation of foreign entities
through a GII in the U.S. domestic information infrastructure is the
provision of adequate and effective intellectual property protection
in the country wishing to participate. To the extent that
participation in the NII can be linked to the provision of
intellectual property protection, it will promote the ability of U.S.
businesses to use the NII and the GII to disseminate works to foreign
consumers via other countries' information infrastructures. If
commercial enterprises are to make full use of the capabilities of
the NII to communicate and deliver information and entertainment
products, there must be assurances that their intellectual property
rights will be protected effectively under strong copyright laws in
all countries participating in a GII.



In considering linkages, careful consideration will have to be
given to obligations under international intellectual property
treaties and other international agreements, such as the North
American Free Trade Agreement (NAFTA) and the World Trade
Organization (WTO) Agreement on the Trade-Related Aspects of
Intellectual Property (TRIPs Agreement), especially in view of the
various intellectual property and market access provisions in those
agreements.






b. INTERNATIONAL FRAMEWORK



In the 1970's, then-U.S. Register of Copyrights Barbara Ringer
observed that if Justice Story considered copyright to be the
metaphysics of the law, then international copyright is its
cosmology. That message is brought home to us in 1995 by the need to
evaluate the applicability of copyright in the context of the
complexities of international commerce in information and
entertainment products via advanced information infrastructures.



First, one must understand that there is no such thing as an
international copyright, but rather, there is an international system
that sets norms for protection to be implemented in national laws.
Several international treaties link together the major trading
nations and establish both minimum standards for protecting, under
their own laws, each others' copyrighted works and the basis upon
which protection is to be extended (e.g., national
treatment).



The situation is further complicated because there are two major
legal traditions applicable to the protection of what the United
States regards as copyrighted works. To understand the complexities
of the international copyright law system and the international
treaties, it is necessary to have a basic appreciation of these two
major legal regimes.[3]



The United States and other countries that follow the
Anglo-American or common law legal tradition have "copyright" systems
in which the principal focus is on promoting the creation of new
works for the public benefit by protecting the author's economic
rights. This is seen as part of the basic "social contract" between
the State and its citizens. This theory is reflected in the patent
and copyright clause in Article 1, Section 8, clause 8 of the
U.S. Constitution. The thesis is that providing such protection will
induce the creation of more works which will "promote the progress of
science" and redound to the public benefit. History has validated
this principle which benefits the public as well as creators of
copyrighted works.



Countries that follow the civil law tradition, however, regard
authors' rights as natural human rights, or part of one's right of
personality. As a part of this tradition, in addition to the
protection of the author's economic rights, the protection of the
author's "moral rights" is an essential part of the system.[4]
Moral rights, as reflected in Article 6bis of the Berne
Convention, include the right of an author to be named as the author
of a work and the right to object to uses of the work which could
bring dishonor or discredit on the author's reputation. Often, in
civil law systems, moral rights reflect a part of the author's
personality and are non-transferable, and may be not waivable.
Economic rights, in some instances, may be subordinated to moral
rights. Under these systems, only works which are original, in that
they reflect the personality of the author, are entitled to authors'
rights protection. Productions that do not meet this originality
requirement, but still merit some protection, are protected under a
system of "neighboring rights."



Needless to say, with such divergent theoretical bases, the
copyright and the authors' rights systems are sometimes in conflict.
One of these areas of conflict is in the nature and level of rights
for owners of neighboring rights.



Neighboring rights are similar to the rights protected by
copyright or authors' rights and are applied to protect the rights of
producers of phonograms, performers and broadcasters. Under the
copyright system, many of the rights covered under neighboring rights
are protected as copyright rights. For example, under the U.S.
copyright law, sound recording producers and performers are regarded
as joint authors of sound recordings. Under droit
d'auteur (or authors' rights) systems, such producers' and
performers' rights would be protected as neighboring rights.
Neighboring rights, while similar in economic character to authors'
rights, may be protected at a lower level than authors' rights and
are entirely separate and distinct from the higher-level rights
granted to authors.






c. INTERNATIONAL TREATIES AND AGREEMENTS



THE WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO)



WIPO is responsible for the administration of, and activities
concerning revisions to, the international intellectual property
treaties.[5]
The principal WIPO copyright and neighboring rights conventions
include the Berne Convention for the Protection of Literary and
Artistic Works (Paris 1971) (Berne Convention),[6]
the International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations (Rome
Convention),[7]
and the Geneva Convention for the Protection of Producers of
Phonograms Against the Unauthorized Reproduction of their Phonograms
(Geneva Phonograms Convention).[8]
UNESCO[9]
and WIPO jointly administer the Universal Copyright Convention (Paris
1971),[10]
which is a lower-level copyright convention that was negotiated in
the years following World War II largely to bring the United
States into the world of international copyright. Virtually all of
the members of the Universal Copyright Convention are also members of
the Berne Convention, and by the terms of the conventions the Berne
Convention governs relations between members of both.



The Berne Convention is the principal international copyright
convention and includes the most detailed provisions. In 1989, the
United States joined the Berne Convention, which is the largest
copyright convention.[11]
While it is generally regarded as providing adequate international
standards of protection, some believe that it should be updated to
account for advances in electronic communications and information
processing technology. Its members come from the world's major legal
traditions -- the Anglo-American common law copyright system and the
European civil law droit d'auteur system. However, despite its
level of detail, as previously noted, and in part because it must
accommodate differing legal traditions, in some areas its standards
may be insufficient to deal with the world of digital dissemination
of copyrighted works.



The principal treaty for the protection of neighboring rights, the
Rome Convention, was adopted in 1961, and is considered by many to
include standards that are inadequate for dealing with the problems
raised by current technological advances and the level of trade in
the products and subject matter affected by its operation. It
provides for the protection of producers of phonograms against
unauthorized reproduction of their phonograms, for performers to
prevent certain reproductions and fixations of their performances and
it provides limited rights for broadcasting organizations. The Rome
Convention requires that these rights endure for a period of 20
years. It also provides for protection against certain "secondary
uses" of phonograms, such as broadcasting, but it contains the
ability for members to reserve, or decline to implement, this right.
The United States is not a signatory to the Rome Convention.



The Geneva Phonograms Convention provides for the protection of
phonograms against unauthorized reproduction and distribution for a
minimum term of 20 years. It does not require signatories to provide
a performance right in sound recordings. The United States belongs to
the Geneva Phonograms Convention.



WIPO has convened a Committee of Experts on a Possible Protocol to
the Berne Convention to account for developments since the 1971
revision of the Convention, and a Committee of Experts on a Possible
New Instrument for the Protection of Performers and Producers of
Phonograms to consider how to provide improved rights for performers
and producers of phonograms.



 



THE WORLD TRADE ORGANIZATION (WTO)



In addition to the traditional WIPO forum, other international
fora now have a significant role in intellectual property policy
formulation. The TRIPs Agreement, concluded during the recent Uruguay
Round Negotiations, is administered by the World Trade Organization
(WTO). The TRIPs Agreement sets significant standards for the
protection of copyright and related rights. Perhaps most importantly,
it contains provisions to ensure that parties to the TRIPs Agreement
fully implement obligations under it.



After defining the relationship between the TRIPs Agreement and
the Berne Convention, the TRIPs Agreement reiterates the basic
principle of copyright protection -- that protection extends only to
expression and not to ideas, methods of operation, or mathematical
concepts.[12]



Article 10 of the TRIPs Agreement confirms that all types of
computer programs are "literary works" under the Berne Convention,
and requires each WTO country to protect them as such. It also
requires copyright protection for compilations of data or other
material that are original by reason of their selection or
arrangement.



Article 11 of the TRIPs Agreement requires member countries to
provide exclusive rights for authors or their successors in title to
authorize or to prohibit commercial rental to the public of originals
or copies of their copyrighted works for at least computer programs
and cinematographic works. The obligation as to rental rights for
cinematographic works need not be implemented unless rental has led
to widespread copying that is having a material effect on the
author's exclusive right of reproduction.



Article 12 of the TRIPs Agreement provides minimum standards for
the term of protection for copyrighted works. The term of protection
for most works is the life of the author plus 50 years, but whenever
the term of protection is not linked to the life of a person, it must
be a minimum of fifty years, except for works of applied art or
photographs.



Article 9(2) of the Berne Convention bars imposition of
limitations on, or exceptions to, the reproduction right except when
such limits or exceptions do not conflict with a normal exploitation
of the work and do not unreasonably prejudice the legitimate
interests of the right holder. Article 13 of the TRIPs Agreement
widens the scope of this provision to all exclusive rights in
copyright and related rights, thus narrowly circumscribing the
limitations and exceptions that WTO member countries may
impose.[13]



Article 14 of the TRIPs Agreement goes beyond the obligations of
the Rome Convention and the Geneva Phonograms Convention and requires
member countries to provide sound recording producers a 50-year term
of protection and the rights to authorize or prohibit the direct or
indirect reproduction and commercial rental of their sound
recordings. However, a WTO member country that on April 15, 1994, had
a system of payment of equitable remuneration to compensate for
rental of recordings is permitted to keep that system.[14]



The Agreement requires WTO countries to make it possible for
performers to prevent unauthorized sound recording or reproduction of
their live performances. Broadcasting organizations are to be
accorded similar rights, although member countries have the option of
providing protection consistent with the Rome Convention or providing
owners of copyright in works broadcast the right to prevent the same
acts. The Agreement also makes Article 18 of the Berne Convention
regarding copyright protection of existing works applicable to sound
recordings.






d. COPYRIGHT COMPARED TO AUTHORS' RIGHTS



Countries with common-law copyright systems such as the United
States, and countries with authors' rights systems such as those in
Europe, have in some cases defined the rights of certain categories
of right holders differently. For instance, European performers, both
in audiovisual works and in sound recordings, enjoy certain statutory
rights that U.S. performers do not. In the United States, these
performers rights are guaranteed under contractual or collective
bargaining agreements between the audiovisual producers and the
performers' unions. Broadcasters have been concerned that
harmonization of protection along European lines might have
implications for the establishment of performance rights in sound
recordings. A consequence of this divergence is that U.S. performers
and producers have been denied the ability to share in remuneration
for the use of their products and performances in some countries.






e. NATIONAL TREATMENT



The principle of national treatment is the cornerstone of the
great international intellectual property treaties -- Berne and
Paris. It also has been the keystone of international trade treaties,
such as the General Agreement on Tariffs and Trade and the recently
established WTO. It is of enormous significance to our copyright
industries. As a general matter, the principle of national treatment
means that under a nation's laws, a foreigner enjoys no lesser rights
and benefits than a citizen of that nation receives, subject to the
specific terms of the relevant international conventions. In
copyright terms, it means, for example, that a German work for which
copyright enforcement is sought in the United States would be treated
under U.S. law exactly as if it were a U.S. work.



Some argue, however, that intellectual property rights should be
granted only on the basis of reciprocity. The concept of "material
reciprocity" means that the United States should grant a right to a
foreigner only if his or her country grants U.S. citizens the same
right. Under this scenario, the work of a German citizen would only
be able to obtain protection under the U.S. law to the extent that
German law provided the same, or at least equivalent, protection to
works of a U.S. citizen.



 



THE BERNE CONVENTION



Article 5(1) and 5(2) of the Berne Convention establish the
principle of national treatment for works protected by
copyright.[15]
Under Article 5(1), there is an obligation to grant to nationals of
countries of the Berne Union national treatment in respect of the
rights specifically covered by the Convention. This point is not
disputed.[16]
However, with respect to any new rights which may be hereafter
granted, some have taken the position that the national treatment
obligation applies only to the minimum rights in the
Convention.[17]



 



THE ROME CONVENTION



The fundamental problem with the Rome Convention is that, while it
generally imposes a national treatment obligation, it permits a
number of reservations and exceptions that allow a Member to avoid
that obligation for important rights otherwise provided for in the
Convention. Article 3.1 of the TRIPs Agreement provides that
"[i]n respect of performers, producers of phonograms and
broadcasting organizations, this obligation [national
treatment] only applies in respect of the rights provided under
this Agreement."[18]
It also provides that a Member may avail itself of the "possibilities
provided in . . . paragraph 1(b) of Article 16 of the
Rome Convention . . ." relating to reciprocity for the
broadcasting right in respect of phonograms.[19]



 



THE TRIPS AGREEMENT



Additionally, the TRIPs Agreement includes a national treatment
obligation.[20]
In respect of copyright the TRIPs national treatment provision
incorporates the standards of the Berne Convention, but in respect of
neighboring rights, it allows members to impose the exceptions to
national treatment permitted by the Rome Convention.[21]
Permitting such exceptions can lead to problems in the implementation
of a GII.



 



THE NAFTA



The NAFTA includes a very broad national treatment provision that
does not include the possibility of making the broad exceptions
provided for under the TRIPs agreement.[22]






f. PRIVATE COPYING ROYALTY SYSTEMS



The manner in which portions of the audio and video private
copying royalties collected in some European countries are
distributed to claimants may prove to be an impediment to future
development of the GII if a similar approach is adopted in respect of
digital information dissemination systems. To illustrate, France's
Law of July 3, 1985 (1985 Law) establishes a system of neighboring
rights protection for performers, audiovisual communication
enterprises, producers of phonograms and producers of videograms. The
1985 Law, inter alia, grants specified categories of right
holders an entitlement to equitable remuneration in respect of the
private copying of their works. Some of the 1985 law's provisions are
based on reciprocity and thus discriminate against, for example,
foreign motion picture interests. Consequently, those provisions may
be inconsistent with France's obligations under the Berne Convention
and the Universal Copyright Convention, at least to the extent that
they apply to Berne or UCC protected subject matter and rights. If
this pattern is followed in implementing future legislation, serious
impediments to the development of the GII may arise.






g. MORAL RIGHTS



The author's moral rights are provided for under Article
6bis of the Berne Convention which requires recognition of the
right of an author to be named as the author of a work (the right of
paternity) and the right for an author to object to uses of a work
which would bring dishonor or discredit on his or her reputation (the
right of integrity).[23]
The controversy over moral rights was one of the reasons that kept
the United States out of the Berne Convention for over a century.
However, during that time our legal regime evolved and when the
United States finally joined Berne, the Congress determined that no
changes to U.S. law were necessary to comply with the moral rights
provisions of Article 6]bis. Congress found that the
existing panoply of remedies available under U.S. common law, various
state statutes and Federal laws provided sufficient moral rights
protection. These findings were explicitly stated in the Berne
Convention Implementing Act.[24]
When the Congress was convinced that enhanced protection for moral
rights was necessary, legislation was passed.[25]



For the United States, the question is what should be the scope of
moral rights under our law. What is the appropriate role for Federal
and state legislation? There are even serious Constitutional
questions about the possible scope of moral rights legislation that
could be part of our Federal copyright law. Such rights would have to
be seen as promoting the progress of science and useful arts. They
would have to be viewed as part of the Constitutional quid pro
quo of providing protection in order to promote creativity. Some
have argued that such a justification may prove difficult to
make.



Even among Berne members, the nature and scope of moral rights
varies considerably from country to country, but regardless of their
scope and extent, moral rights are typically not transferable and
sometimes, may not be waived. The fact that these rights are
non-waivable may create difficulties for the commercialization of
works in the GII environment. A current report of the multimedia
study committee of the Japanese Institute for Intellectual Property
suggests that there may be a need either to permit the specific
waiver of the right of integrity or to limit its application in the
digital world.[26]






h. CONFLICT OF LAWS



Conflict of laws issues may arise in GII-related copyright
infringement actions. Resolution of these issues determines what
country's law the court should apply. If the infringer and the
infringement are in the United States, the U.S. Copyright Act would
apply. However, different situations may present themselves which
will raise conflict issues. For instance, users in country A, where
certain actions are not considered copyright infringements, may use
works located on servers in country B, where such actions are. Which
country's law controls the resolution of a copyright infringement
dispute -- the country from which a copyrighted work is uploaded or
to which it is downloaded, or the country where the host server is
located? In the case of direct transmissions, which country's law
applies -- the country of origin of the transmission or the
transmitter, or the country of the reception? It may be that rights
of the copyright owner are exercised in each country. These issues,
however, may be no more problematic than the current conflict issues
that arise due to the use of telephones, fax machines or modems in
international commerce.






i. HARMONIZATION OF INTERNATIONAL SYSTEMS



There is little dispute that worldwide high-speed digital
communications networks will have an enormous effect on the way in
which works of authorship will be created, stored, communicated to
the public, distributed and paid for. The communication revolution is
now bringing new opportunities and new challenges to creators and
users of intellectual property. The full implementation of the NII
and the GII will have an immense effect on our economy, and
implementation of such systems internationally will have an equally
broad impact on world-wide commerce. The United States must be
committed to finding the means to preserve the integrity of
intellectual property rights in the materials that will flow in the
commerce created in this environment. This is a daunting challenge in
the context of the U.S. domestic market. It is an even greater
challenge to lay an international groundwork which will ensure
adequate and effective protection throughout the world.



As we move toward a world where dissemination of entertainment and
information products through on-demand delivery services operating
through interactive digital information communications networks is
the norm, it may be necessary to harmonize levels of protection under
disparate systems of copyright, authors' rights and neighboring
rights, and consideration should be given to ways to bridge the gaps
among these systems.



If the GII is to flourish, then the intellectual property rights
that will undergird the economic structure supporting these
infrastructures must unequivocally be granted in national legislation
fully on the basis of national treatment for all rights and
benefits. However, there is some controversy over the scope of the
national treatment obligation under the Berne Convention and its
application to what some may regard as newly created rights and
subject matter. Similar questions arise under other international
copyright and neighboring rights conventions as will be later
discussed.



The United States is committed to making progress in WIPO toward
improving international protection for works protected by copyright
and authors rights and the subject matter of neighboring rights. Such
progress is essential, especially in view of the needs to deal with
the intellectual property issues associated with the emerging GII.
The transition into a world-wide information society demands both a
narrowing of the focus on specific issues in the cases of the Berne
Protocol and the New Instrument, and the expansion of the WIPO
efforts to encompass the digital world in both areas.



In the emerging world of the GII with its digital distribution
systems and multimedia works, distinctions among the rights of
authors, producers and performers that are the basis for the
separation of copyright and neighboring rights are rapidly becoming
irrelevant. This new world of information superhighways will mean
economic growth, jobs, and exports for all economies to the benefit
of authors, producers and performers. Governments need to consider
carefully the implications of the inevitable development of the GII
for their national economies and their copyright systems. The work in
WIPO is relevant to the rapidly emerging digital world of the GII in
order to set sound policy, and select the essential elements of the
present Berne Protocol and New Instrument texts and work toward
reaching international agreement on them.



Discussions on a Berne Protocol and New Instrument afford an
opportunity to consider what enforcement norms, beyond the broadly
applicable disciplines clearly established in the TRIPs text, will be
necessary if rightsholders are to be adequately protected in the
NII/GII environment. Thus, rather than replicate the TRIPs
enforcement provisions -- which would be redundant and would create
the very real possibility of conflicting norms -- work on a Berne
Protocol and New Instrument should focus on issues not addressed in
TRIPs, such as protection of rights management information, the use
of technical security measures and the prohibition of devices and
services whose primary purpose or effect is to defeat technical
security measures.



One of the most important issues for international norm setting is
to define the nature of a dissemination of a work or a transmission
of a work in digital form. Is it a public performance of the work or
a reproduction and distribution? Can it be all at the same time? How
do rules concerning the right of importation apply in a digital
environment? Just as these questions are critical in the domestic
context, they are equally acute in the context of international
treaties and harmonization of levels of protection. The right to
distribute copies of a work by transmission should be included both
in the Berne Protocol and the New Instrument, perhaps as a separate
right, as an aspect of a distribution right, as part of a right of
communication to the public, or an aspect of the reproduction right.
While this is an issue that needs much further discussion, the United
States believes that such a right is an important part of the Berne
Protocol and New Instrument which would be aimed at meeting the needs
of the emerging GII.



Provisions to prohibit decoders and anti-copy prevention devices
and services also should be included in the Berne Protocol and the
New Instrument.[27]
The Protocol and the New Instrument should also include a prohibition
of the fraudulent inclusion of rights management information and the
fraudulent removal or alteration of such information.[28]



To permit the effective development of the GII, national treatment
must be the basis for protection in any intellectual property
agreement. At an absolute minimum, national treatment must apply to
the minimum obligations established in any agreement in WIPO. The
author or rights holder should be able to realize fully the economic
benefits flowing from the free exercise of his or her rights in any
country party to the Protocol or New Instrument. The United States
continues to believe that, in respect of any work, this is required
by Article 5 of the Berne Convention. To do otherwise in either a
Berne Protocol or another agreement on copyright protection would be
contrary to Article 20 because it would be a derogation of rights
existing under Berne and would not be an Agreement to "grant to
authors more extensive rights than those granted by the Convention,
or contain other provisions not contrary to this Convention" as
provided for under Article 20.[29]
To the extent that it has been agreed that the principles of the New
Instrument should follow those of the Berne Convention, to do
otherwise in respect of related rights would be contrary to the
letter and the spirit of the Convention.



U.S. copyright legislation has granted rights that some other
nations may regard as new rights beyond those set forth in the Berne
Convention -- for example, rental rights in computer programs, sound
recordings, and musical works embodied in sound recordings -- and has
done so exclusively on the basis of national treatment. The United
States has instituted a system of royalties on blank digital audio
recording media and digital audio recorders. Benefits from these
rights have all been granted on the basis of full national treatment.
The United States believes that this is consistent with our
obligations under the Berne Convention and other international
intellectual property and trade treaties and agreements.



The author or rights holder should be able to realize fully the
economic benefits flowing from the free exercise of his or her rights
in any country participating in a GII. This is required by Article 5
of the Berne Convention. To do otherwise in either a Berne Protocol
or another agreement on copyright protection would be contrary to
Article 20 because it would be a derogation of rights existing under
Berne and not be an Agreement to "grant to authors more extensive
rights than those granted by the Convention, or contain other
provisions not contrary to this Convention" as provided for under
Article 20. To protect new works or to grant new rights in respect of
new or presently protected works on the basis of reciprocity, would
be contrary to the letter and the spirit of the Convention.



As the GII continues to develop through the international
interconnection of NIIs, rules must be formulated to protect the
economic rights of providers of entertainment and information
products. Such rules should be based on principles of national
treatment along the lines of the following:




   
   
1. Each country participating in the GII must accord to
   nationals of another country participating in the GII no less
   favorable treatment than it accords to its own nationals with
   regard to all rights and benefits now, or hereafter, granted under
   its domestic laws in respect of literary and artistic works or
   fixations[30]
   embodying such works.

   
   
2. Benefits must include the same possibility to exploit and
   enjoy rights in the national territory of a country participating
   in the GII as the respective country grants to its own nationals.

   
   
3. No country participating in the GII may, as a condition of
   according national treatment, require rights holders to comply
   with any formalities in order to acquire rights in respect of
   literary and artistic works or fixations embodying such
   works.





In addition to these issues of general concern, there are issues
that are applicable specifically to the Berne Protocol and to the New
Instrument.



Following the Supreme Court decision in the Feist
case,[31]
there is increasing concern that many valuable, factually-oriented
databases may be denied copyright protection, or that courts may
determine infringement in ways that severely limit the scope of
copyright protection for data bases. Providing for a sui
generis unfair extraction right to supplement copyright
protection may prove to be useful in view of legal developments in
various national laws and should be given serious consideration. How
a right, such as the unfair extraction right proposed in the EU
database directive, could protect such databases should be carefully
evaluated.



Additionally, the issue of multimedia works will take on an
important international dimension. If these are regarded at the
international level as works in a new, separate category, the issue
of their coverage under the existing conventions and the rule of
national treatment will be open to debate. If, however, as current
discussions seem to indicate, they are subsumed into the existing
categories of works, establishing meaningful rules internationally
will be simplified.



Further study to determine what existing rights should be
clarified or what other rights may need to be adapted to the emerging
digital environment are underway both in domestic and international
fora. However, some issues merit identification here, and one of
those is the level of protection to be accorded to sound
recordings.



Many believe that the time has come to bring protection for the
performers and producers of sound



recordings into line with the protection afforded to the creators
of other works protected under the Berne Convention. This includes
providing high-level standards for rights and benefits granted on the
basis of national treatment. This is necessary for a number of
reasons. First, there is no just reason to accord a lower level of
protection to one special class of creative artists. Second, the
extent of international trade in sound recordings makes it imperative
that standards of protection be harmonized at a high level. Third,
and perhaps most importantly, the digital communications revolution
-- the creation of advanced information infrastructures -- is erasing
the distinctions among different categories of protected works and
sound recordings and the uses made of them.



Concerns also have been raised over the extent and scope of moral
rights in the world of digital communications. Some believe that the
ability to modify and restructure existing works and to create new
multimedia works makes strengthening international norms for moral
rights more important than ever before. Others take the view that any
changes to international norms for the protection of moral rights
must be carefully considered in the digital world. The United States
agrees with this view. Careful thought must be given to the scope,
extent and especially the waivability of moral rights in respect of
digitally fixed works, sound recordings and other information
products.



There are issues such as digital fixation, storage and delivery
that will need to be taken into account in the New Instrument. There
are also questions concerning the scope of rights and the right
owners that might be covered by the New Instrument. To the extent
possible, definitions in the New Instrument should be identical to
those in the Berne Protocol. Otherwise, differences in phrasing could
lead to differences in interpretation, and jeopardize the "bridging"
of the New Instrument with the Berne Convention and the Protocol.
Many of these issues are critical to the United States and other
countries.



To attain the needed level of protection internationally, ways to
span the differences between the continental droit
d'auteur and neighboring rights systems and the Anglo-American
copyright systems must be developed. An essential element of this
effort will be to harmonize levels of protection by establishing
standards that can be implemented through either system.



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Posted on 10/5/95 v1

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