Mr. Keith M. Kupferschmid Commissioner of Patents and Trademarks Box 4, Patent and Trademark Office Washington, DC 20231 November 22, 1996 Dear Mr. Kupferschmid, I am writing in response to your request for comments on the Chairman's Text of the Diplomatic Conference on Certain Copyright and Neighboring Rights Questions. The Electronic Frontier Foundation (EFF) is a civil liberties organization that works on issues involving personal rights and freedoms in digital technologies. We are very concerned about several aspects of the current proposals, and we appreciate the opportunity to provide you with our views. Problems With the Database Treaty Proposal There are many problems with the "Sui Generis Protection of Databases" treaty proposal. This treaty should be taken off the agenda in Geneva until interested parties within the United States have had the opportunity to discuss and debate the serious implications of its passage. There have been no public hearings on this proposal. It is premature to take any official U.S. stance at this time. This treaty would completely undermine the 1991 U.S. Supreme Court decision in Feist Publications, Inc. v. Rural Telephone Service. In Feist, the Court rejected a claim of copyright for data from a telephone directory's white pages, finding that facts cannot be copyrighted and that obvious items, such as listing names, addresses, and telephone numbers in alphabetical order, are not sufficiently creative to qualify for copyright protection. The Feist decision was based on the grounds that facts cannot be copyrighted or otherwise removed from the public domain. By creating a new property right for facts, the treaty will impose regulations on the use of facts. Under the treaty, private monopolies for the maintenance of public data will be sanctioned, and individuals will have to pay for facts in the public domain. This is particularly troubling because in the United States many government databases are maintained by private contractors. The pieces of information contained within those databases rightfully are part of the public domain; there is no other source for this information. The private vendors who receive government contracts to maintain information owned by the people should not be given a property interest in that government information. Furthermore, under the proposed database treaty, the government will be permitted to avoid compliance with the Freedom of Information Act (FOIA) if it uses private contractors, since the contractors will be said to have property rights to the public information. In addition, there are problems with several definitions contained within the treaty. The definition of "database" is all-encompassing and will include many things that are not traditionally considered to be databases, such as collections of government documents. The term "substantial" is troubling, in that it takes into account the database maintainer's perceived lost value in the marketplace. Under this definition, it is reasonable to assume that even small portions of information used from a database would be considered a substantial portion of the database and would constitute violation of the treaty. With no fair use rights, database users would be precluded from using any bits of information they receive from a database if the database maintainer has charged for that information. It is also unclear as to when the term of protection begins to start again. It seems from the language of the treaty that any changes to a database (i.e., any addition of data) will reset the clock for protection purposes. This will give database maintainers an infinite copyright in their databases. The treaty also includes strong civil and criminal penalties for third-party disseminators of this information. Internet service providers and others who merely provide the conduit for communications should not be held liable for any unauthorized actions of their users. Yet this treaty attempts to establish system operator liability under international law. Finally, as in the proposed "Protection of Literary and Artistic Works" treaty, the database proposal is accompanied by very strict prohibitions against the "importation, manufacture or distribution of protection-defeating devices . . . by any person knowing or having reasonable grounds to know that the device" may be used for circumventing the rights created in the treaty. This turns current Supreme Court law (See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)) on its head; today a technology is legitimate to make, import and distribute if it has ANY legitimate uses -- not if ALL of its uses are legitimate. Under this novel theory, common office supplies like correction fluid and scissors could be outlawed because they can be used to eliminate copyright markings on documents. The Supreme Court made the correct call for society; the social good of an entire technology should not be suppressed merely because it causes quantifiable or alleged harm to one party. Furthermore, the "protection-defeating device" restriction obviously covers both reverse-engineering tools and encryption technology. Reverse engineering is the process of discovering exactly what a competitor has built by detailed examination of an end-user product. Eliminating the legal right to reverse-engineer makes it much easier to establish monopolies enforced by the state. This harms society by slowing the flow of improved products, benefiting the few at the expense of the many. The restriction also makes it illegal to "crack" or seek to crack encryption systems, an essential part of building real security into encryption systems (including copy protection systems). Only if a security system is constantly open to public testing and scrutiny can its worth be assured and its security be improved. It's clear that this part of the law would not stop criminals from circumventing technical copy protection systems; the much larger crime they are involved in is the theft of the intellectual property itself. But it would stop professors, students, and competitors from studying copy protection systems to analyze their flaws and propose improvements. And it would prohibit consumers from being able to obtain products which they would use in completely legal and legitimate ways; for example, to recover access to their own encrypted files. Problems with the Literary and Artistic Works Treaty Proposal As with the "Sui Generis Protection of Databases" treaty proposal, EFF has many concerns about the "Protection of Literary and Artistic Works" treaty proposal to be considered by the diplomatic conference. The way it is currently written, Article 7 would inhibit browsing on the World Wide Web. Article 7 requires signatories to treat temporary copies, such as the ephemeral random access memory (RAM) copies made on servers as a piece of information moves through the Internet, as a "reproduction" that could violate the exclusive reproduction right. Temporary reproduction for technological purposes should not be given copyright protection. All electronic communications would be copyright violations under this provision. Article 10 would substantially expand the exposure of online service providers. Article 10 creates a new exclusive right of communication to the public, which appears to be broader than either the distribution right or public performance right now granted by the U.S. Copyright Act. This new right, when combined with Article 7's treatment of RAM copies as reproductions, significantly increases the likelihood that an online service provider would be found directly liable for a subscriber's infringement. Article 12 would undermine many of the exceptions of the U.S. Copyright Act. Article 12 would apparently eliminate exceptions that currently permit the use of copyrighted works for distance learning and performance of music in religious ceremonies. These are but two examples. It may also narrow the application of the fair use doctrine with respect to both commercial and non-commercial uses. Article 13 contains the exact same troubling language as the proposed "Sui Generis Protection of Databases" treaty (discussed above) that would make reverse-engineering and the cracking of encryption illegal. In conclusion, the Electronic Frontier Foundation believes that it is premature for the United States to take a public stance on the issues involved in the "Sui Generis Protection of Databases" treaty proposal. If the United States does take a stance, we strongly urge that it propose the rejection of the current draft. We hope that the U.S. delegation will pull that proposal from discussion in Geneva until a national debate has taken place. EFF has the same level of reservations about the "Protection of Literary and Artistic Works" treaty proposal in its current form. Thank you for consideration of our views on these important issues. Please feel free to contact me if I can provide you with any additional information. Sincerely, [sig] Shari Steele, Staff Attorney Electronic Frontier Foundation ssteele@eff.org P.O. Box 649 301/375-8856 (voice) Bryans Road, MD 20616 301/283-5337 (fax)