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The WIPO Internet Treaties

From analog to digital

The current copyright law originated in an analog world, a time of cassettes and video recorders. Compared to analog copying technology, digital technology such as CD or DVD burners or PC’s can cheaply produce unlimited copies with no loss of quality: The hundredth copy of a copy is identical to the original in sound and image. Digital technology not only allows copying content, it can also be used for protecting content. Thanks to copy protection and controlled access, impermissible uses can be prevented.

The technological breakthrough caused by digitalization has become even greater with the internet. The internet is a means for transferring digital content throughout the world in a cost-effective way. Borderless communication has brought many advantages and increased the accessibility of information. The idea of the free flow of information – unimpeded access – resonates more than ever. The downside of the development, however, has been that the internet is also a place of abuse: for example, copyright-protected content being provided without permission through file-sharing.

Two international treaties

Such considerations needed to be taken into account in the harmonization of international copyright law. The WIPO Internet Treaties – which refers jointly to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) – created in 1996 set new standards for securing author’s rights and certain related rights in the digital age. It is Switzerland’s goal to meet these standards in its copyright law revision.

The WCT concerns the protection of works while the WPPT guarantees a minimum protection for musicians and record producers.

The WPPT does not cover the rights of broadcasters, audiovisual producers or actors. However, their needs are currently under discussion and efforts are being made to adapt the international level of protection accordingly.

 

 

CORE ISSUES IN THE WIPO INTERNET TREATIES

Improving on-demand rights

On-demand rights refers to the right to make a work accessible to the public through a communication network such as the internet. Online music stores are dependent on this right. They are required to acquire licenses not only from the authors but also from the performers and producers for their business. In Switzerland, authors already hold an exclusive on-demand right. Now, parties protected under the related rights provisions in the WPPT must also be guaranteed this right. This means that Swiss copyright law needs to be extended in the area of related rights.

 

Broadcasters have responded by demanding that the on-demand right be limited so that they can make their broadcasts accessible without having to negotiate individually with each rights holder involved in an integrated broadcast recording. This demand is controversial among some of the rights-holder groups.

Better protection for the performers

Protection for performers has been improved through two measures in the WPPT: The first is that folkloric performances are also protected along with performed works; the second is that performers also now have a moral right to their work.

a) Protecting folklore

Folkloric traditions, such as flag twirling, are the product of a community which has been practiced and developed over generations. However, such folklore is not considered works in the sense of copyright.

Equating the performances of works with those of folklore is controversial and will continue to be discussed. Those in favor of this position make no practical difference between folkloric presentations and the presentation of creative works. Those against it argue that the term folklore is unclear and that equating it with creative works would lead to unjustified royalty obligations.

 

b) Protecting the moral right of performers

The protection of moral rights is already well-developed under Swiss civil law. The only amendment needed to conform to the international provision is to add "the right to recognition."

 

 

 

PROTECTION THROUGH TECHNOLOGICAL MEASURES

What are technological measures?

Technological measures refers to the use of special technology in equipment and computer programs designed to prevent users from accessing or copying digital content without permission or authorization. Copy protection on audio CD’s, regional coding on DVD’s, and password protection for online music stores or publishers providing newspapers, magazines and scientific papers online are forms of technological measures.

Why should technological measures be legally protected?

Technical developments have simplified and lowered the cost of producing and circulating first-class copies in great quantities. Technological measures are meant to assure that rights are upheld and, with that, offer a basis for new forms of business. But such protection is imperfect: Experts and professionals can crack the protection code without much difficulty (software is easily found on the internet). To counteract this, it was decided at the international level to legally prohibit the circumvention of such technology, thus creating yet another obstacle to piracy.

The impact of technological measures

Technological measures can have negative effects because they can limit fair uses of a work – such as making a copy for private use – or even make them impossible.

 

 

This protection can conflict with the legitimate interests of users and consumers.

What are the requirements of the WIPO Internet Treaties?

Protection of technological measures became an object of international regulation through the WIPO Internet Treaties. The treaties oblige the signatory states to guarantee "adequate legal protection and effective legal remedies against the circumvention of effective technological measures." How effective technological measures is defined is left up to the signatory states. The minimum protection which must be provided is to prevent any acts with protected works and performances for which the rights holder has not agreed and which are also not allowed by law.

In addition to the technological measures, the WIPO Internet Treaties also protect the so-called rights management information. This information, such as contact information about the rights holder, is coded into the digital carriers and may not be changed or suppressed without permission. Protecting rights management information is not controversial in Switzerland.

The situation in other countries

In addition to Switzerland, numerous other WIPO member states have signed the WIPO Internet Treaties and have already partially implemented them in their national law. The EU and its member countries will also join the two treaties.

Since the treaties only define a minimum standard of protection, the signatory states are free to implement measures which go further. Two such measures which go beyond the minimum protection have had effect worldwide:

• The US Digital Millennium Copyright Act (DMCA). This act also has an impact on free trade agreements signed between the US and other countries.
• The EU Copyright Directive (Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society). This directive should assure the most unified implementation of the WIPO Internet Treaties into the legislation of the EU member countries.

Potential influences on the Swiss copyright law.