Only once more – and then Marry Christmas and Happy New Year to everybody, including Professor Geist and his devoted followers: the 1996 WIPO Diplomatic Conference, the WIPO Treaties and the balance of interests

December 23rd, 2009 by Dr. Mihály Ficsor Leave a reply »

Christmas is two days away; I have to concentrate on my eight grandchildren. I am really not in the mood to deal with copyright, and I do not want to read books, articles and blogs about it this year anymore. However, a colleague of mine in Germany (he may not have been in full Christmas mood yet like me) sent me an e-mail asking me to correct somebody’s allegations which he has found obviously untrue (in fact he has used certain adjectives to describe his opinion about those allegations, which, however, I – sticking on the spirit of what is called, at least in my country, the holiday of love – definitely do not want to quote). So, I have visited the source indicated by him, and yes, I have found Professor Geist’s friendly comments about my post politely remarking that I might be wrong about the interpretation of the 1996 WIPO Treaties concerning the coverage of the anti-circumvention provisions. To prove this, he quotes Professor Pamela Samuelson who, on the basis of what happened – at least according to her – at the Diplomatic Conference, states that the Treaties do not obligate Contracting Parties to extend protection against circumvention devices.

I have decided reluctantly to react to this, and then truly do not want to deal with this weird quarrel anymore. It is completely useless to present arguments against heated ideological discourse and sheer hatred campaigns trying to suppress any contrary views. I am immune against it, as someone who has survived a serious illness. In the decades through which we were constrained to live under a communist regime, this was so customary; everybody who did not agree with the collectivist ideology, there was no discussion about it; he simply became enemy and the agent of the “imperialist forces.” There were no blogs at that time; there were only newspapers and radio, but the style was the same as in these “digital activist” blogs; even the words and expressions are so familiar. Ask about this the many Hungarians who fled to Canada after our beautiful but failed uprising in 1956! We who have suffered a lot – I too as a child and adolescent as a member of a family which, together with many others, was a victim of serious persecution because my uncle bravely spoke out against the communist ideology – have become resistant. Nevertheless, at the same time, we are sensitive to those phenomena where some people try to settle disputes in the style of those “glorious” years, and we may be ready to say some words just in order that our social environment make use at least the wisdom of the saying: “Experience is a wonderful thing; it helps us to recognize our mistakes when we commit them again.”

One of the reasons for which I have decided to react is that I do respect Professor Samuelson, even if I do not always agree with her on everything. Nevertheless, it seems to me that, as regards this issue, she has based her position on a piece of information received from others that has not been correct. Let me explain why.

I know her and I knew her already in 1996, and now that I have read her statements on what happened at the Diplomatic Conference concerning the issue of anti-circumvention devices, it seemed to me that I did not see her in Geneva, although I was sitting, on the rostrums of the main hall of the Conference Center and the smaller room where the informal negotiations took place, for three weeks facing the delegates and other participants. I have refreshed now my memory on the basis of my database. It reflects the following: There were cca. 800 participants at the Diplomatic Conference, among them somewhat more than 540 delegates; the rest were representatives of IGOs, NGOs, lobby groups, and we, the staff of WIPO Secretariat. Professor Samuelson was not present at the Diplomatic Conference.

I do not know from whom she has heard the story on the basis of which she formed her opinion, but I submit that her source was not reliable. There may be some legends, there may be some wishful-thinking-driven misunderstandings, there may be some misinterpretations, there may be some irrelevant afterthoughts. However, the real story was different was different that what Professor Samuelson heard.

I have a lot of material here in my computer; it does not take time to retrieve it.  I was about to do so when now I have seen that Barry Sookman has just posted a response to Professor Geist also quoting the comments on this issue from Jörg Reinbothe’s and Silke von Lewinski’s and from Jane Ginsburg’s and Sam Ricketson’s excellent books and from the Guide to the WCT published by WIPO.  These publications reflect what has truly happened in December 1996 and what kind of interpretation follows from it on the basis of the relevant provisions (Article 31 to 33) of the Vienna Convention on the Law of Treaties (which lists the sources on which interpretation of treaties may be based, but, of course, do not recognize hearsay as such a source).

The authors of the above-mentioned publications may also be qualified as lobbyist of the “big industries” since they say in essence the same as I do. And they may be qualified in particular,  as  lobbyists of the US industries, not only Jane Ginsburg, this wonderfully honest and independent academic, but also the Australian Sam Ricketson, the German Jörg Reinbothe and Silke von Lewinski, as well as the WIPO Secretariat. There is no chance for them anymore; they have lost there chance to be qualified as honest academics and international officials, respectively; they are not only wrong but hostile agents to be condemned in hatred blogs. Well deserved condemnation waits for them in Canada. Who knows: also street demonstrations, with widely bawled slogans, with inscriptions condemning them as dirty traitors (then if somebody would have the reminiscence of the way certain indoctrinated guards tried to settle social “debates,” it would be regarded as an exaggeration; maybe but there would be good reason for some people to feel like that).

Jörg Reinbothe and Silke von Lewinski do truly have direct reliable information of what has happened at the Diplomatic Conferences as the head and a member of the negotiating team of the European Community. They were and are in the possession of all their senses and those who know them – contrary to some blindly overheated activists – would hardly question their honesty.

However, as the above-mentioned provisions of the Vienna Convention tell us, the interpretation of the texts of the relevant provisions is not supposed to depend only or mainly on what the participants saw and heard during certain informal consultations, and even very much less on what somebody has heard indirectly as a report or hearsay about it.

Pamela Samuelson writes the following in respect of the text adopted at the Diplomatic Conference: “The inclusion of terms like ‘adequate’ and ‘effective’ protection in the treaty will mean that U.S. firms will be able to challenge national regulations that they deem deficient.”

I do agree with this and the sources quoted by Barry Sookman also certainly do so. The only thing I would add, and the above-mentioned authors certainly also would, is that, of course, not only the U.S. firms are able to challenge national regulations that are deficient because they do not provide for adequate legal protection and effective legal remedies but any stakeholders of any Contracting Party of the two Treaties.

This is the main point. The issue depends on whether or not a Contracting Party may offer adequate legal protection and effective legal remedies if it only establishes a defense line in domestic or office environment where the actual acts of circumvention are performed. All the authoritative sources do agree that this is nearly or totally impossible for reasons of practicability and privacy protection. Of we accepted that this is the only way, it would mean that the Diplomatic Conference has adopted a text which cannot be applied; it would not be effective.

The Vienna Convention and the international doctrine on the law of treaties, however, demand from the interpreters and implementers of treaties to choose that alternative interpretation which in such a case is also available. In this case, the building of defense line in the stage of so-called preparatory acts, with duly balanced provisions in respect of other legitimate interests, is definitely such an alternative.  This is the basis of the obligation to apply it by the Contracting Parties.

This is what is described by Jane Ginsburg and Sam Ricketson in their analysis quoted by Barry Sookman:  “An interpretation that disfavors effective protection against circumvention by limiting the prohibited conduct to the sole act of circumvention, rather than encompassing the provision of devices as well, would it be inconsistent with art. 11’s direction that member States ‘shall provide adequate legal protection and effective legal remedies against the circumvention.’”[1]

And this is also to which the WIPO Guide to the WCT refers in this way:

“CT-11.14. It is foreseeable that, in general, acts of circumvention of technological  protection measures will be carried out in private homes or offices, where enforcement will be very difficult.  In addition to the technical difficulties for trying to control such situations, there may also be objections based on privacy considerations.  Therefore, if legislation tries to only cover the acts of circumvention themselves, it cannot provide adequate legal protection and effective legal remedies against such acts, which, thus, in spite of the treaty obligations, would continue uncontrolled.

“CT-11.15. Nevertheless, it is still possible to provide such protection and remedies.  For this, it should be taken into account that, in view of the complexity of the technologies involved, in most cases, acts of circumvention may only be performed after the necessary circumvention device or service has been acquired.  Their acquisition normally takes place outside the private sphere in the special market place of these kinds of devices and services.  Thus, the possible way of providing protection and remedies as required by the Treaty is stopping unauthorized acts of circumvention by cutting the supply line of illicit circumvention devices and services through prohibiting the manufacture, importation and distribution of such devices and the offering of such services (the so-called ‘preparatory activities’).[2]

It is, however also worthwhile referring to refer to the preparatory work and negotiation history as reflected the only relevant source, the Records of the Diplomatic Conference, which under Article 32(1) of the Vienna Convention is also an important source to confirm the ordinary meaning of the text as the basic source by virtue of Article 31(1).

The preparation and adoption of the two Treaties took place on a completely Member-States-driven manner. The WIPO Secretariat only participated in the process where, and only to the extent that, the Member States invited it to do so. In the final sessions of the WIPO preparatory committees, when the delegations were supposed to submit “treaty-language” proposals on the basis of the invitations committees’ decisions, two kinds of proposals were presented on technological protection measures.[3]

First, the U.S.-submitted proposals[4] (supported by the Group of African Countries[5] – and by the European Community and its Member States[6]) required the prohibition of, and providing appropriate remedies against, “preparatory acts.” A comment by the U.S. delegation in the preparatory committee made it clear that what it proposed was “provisions to prohibit decoders and anti-copy prevention devices and services”[7] (in this context, “decoders” mentioned as devices other than anti-“copy control” devices clearly referred to devices for the circumvention of “access control” measures).

The second category of treaty-language proposals submitted in the WIPO committees (by Argentina[8] – supported by the Group of Latin American and Caribbean Countries[9] – and Brazil[10]) did not refer to technological protection measures in general, but rather directly to the two categories of technological measures. They proposed the prohibition of both disabling “access control” measures in the form of coded signals and disabling “copy control” measures, and in addition to the prohibition of the acts of circumvention of such measures, the delegations of those countries also proposed the prohibition of making, importing and distributing circumvention devices. 

No other treaty-language proposals were submitted in the preparatory committees, and no opposition was expressed at the committees’ meetings to the proposals covering both kinds of technological measures and the “preparatory acts.” The delegation of the Republic of Korea made certain comments without presenting any treaty-language proposal, but it did not concern this issue (the delegation stressed that the protection of technological measures should not be applied in respect of non-copyrighted materials and works in the public domain), while the delegations of China and Japan simply reserved their position.[11]

The relevant provisions of the drafts of what became the two Treaties submitted to the Diplomatic Conference (as “Basic Proposals”) foresaw the prohibition of “preparatory acts” and used the general term “protection-defeating devices.”[12] The notes added to it in the Basic Proposal confirmed that the draft provisions’ was consistent with the proposals by the U.S., the E.C., Argentina and Brazil mentioned above (also referring to the above-mentioned comments made by China, Japan and the Republic of Korea).[13]

The reports of Main Committee I and the Plenary of the Diplomatic Conference did not contain any statement or reference to any intention of any delegation to narrow the scope of the protection of technological measures from what was proposed previously.

It is to be noted that, at the Diplomatic Conference, certain delegations spoke about the issue of access to works for beneficiaries of certain exceptions.[14] The comments stressed that the protection of technological measures should not endanger access to works from benefitting from certain exceptions (e.g., covering acts “permitted by law”) that are important from the viewpoint of the public interest. This is an important but different issue which I discussed in my previous post in the light of how it was solved – according to our experience in a reasonable and satisfactory way – in the European Union (in the few cases where TPMs – “DRM” systems – are still applied at all due to the nature and value of the works involved.)

As regards the issue of the protection against “preparatory acts” – which as indicated above was proposed during the last stage of the committees meetings, not only by the US Delegation, supported by the Group of African countries, but also by Argentina and Brazil, supported by the Group of the countries of Latina America and the Caribbean – the records of the Diplomatic Conference reflect that there was no disagreement among the delegations on whether the protection of technological measures should include prohibition of such preparatory acts. The limited debate about the prohibition of circumvention devices (or as the draft treaties referred to them, “protection-defeating devices”) only concerned the question of whether the provisions should refer to the “primary purpose” or to the “sole purpose” of the devices.[15] No idea was presented to suggest that an appropriate protection of technological measures could be achieved without establishing the first line of defence by prohibiting the  “preparatory acts” at this earlier stage and no proposal was made that only “direct” acts of circumvention should be prohibited.

The provisions on technological measures that were finally adopted were presented as compromise language among all the proposed texts discussed earlier. Their more general language was worked out in the course of informal consultations. They were acceptable to all delegations and were adopted unanimously.[16] Accordingly, in addition to the what follows from the obligation to provide for adequate legal protection; namely that it cannot be fulfilled without this, there is no reasonable basis to presume that the adopted provisions did not correspond to the previous understanding among the delegations that adequate protection of technological measures required the proscription of “preparatory acts” (irrespective of certain differences among the delegations concerning the concrete purpose of the devices to be covered).

-.-.-.-.-

No, the two Treaties – everybody knows who participated in the process – was not “my” treaties or the WIPO Secretariat’s treaties; they were proposed, prepared, negotiated and adopted exclusively by the international community represented by the delegations of cca. 120 countries, including Canada, of course, which also has signed the treaties. Nevertheless, Canada, of course, may decide not to join the 88 and 86, respectively and soon more, countries as a Contracting Party.

No, the correct interpretation of the relevant provisions of the treaties presented by Jörg Reinbothe, Silke von Lewinski, Jane Ginbsburg, Sam Ricketson and others including myself, also in the WIPO Guide, has not been rejected by the Contracting Parties. I have just counted recently that, in fact, there are more countries where there are prohibitions against the so-called “preparatory acts” discussed above than the present number of Contracting Parties of the Treaties. Not only all the traditional trading partners as the US, Mexico or the EU and its Member States, but also such other important countries as China and Russia. This can hardly be characterized as a failure.

No, the two treaties do not exclude the adoption of a “made-in-Canada” approach to implement the treaties. The basic obligations should be respected, such as granting adequate – truly adequate – protection against unauthorized circumvention activities, but there are also broad flexibilities; for example, regarding the fundamental issue of the interface between TPM protection and the opportunity of benefitting from exceptions important from the viewpoint of public interests. It has been regulated in different “made-in” styles; in the EU, in a “made-in-EU” style – different from the “made-in-US,” “made-in-Japan” and other styles – and, according to our practical experience, in quite a satisfactory way (which does not mean that the other styles could not be satisfactory).

No, I am not a lobbyist as the other quoted above are not either. I am glad to accept invitations as a consultant, but not in a way that I am supposed to say what others want me to. I say exclusively what follows from my professional persuasion; if somebody likes it is OK, if not, he or she should not accept it. I am glad also to accept when the IIPA invites me – of which I am not an employee or in any other way depending regarding my opinions – to act as a consultant on an issue where I am considered to be an expert. I accept equally, when other organizations or governments invite me to do the same. In fact, so far I have received the greatest recognitions and distinctions not from the cultural industries for what I have done, but from the organizations of the French authors and the Spanish and Hungarian performing artists.

Yes, I am a devoted advocate of a duly balanced protection of copyright. Those who know what I have done in the last cca. 35 years in this field also know this of course. I am in favor of a reasonable special treatment for LDCs and I am glad to act as a consultant also for those who are supposed to be beneficiaries of justified exceptions to copyright. Let me suggest to those who do want to believe the opposite why was it last week that the key representatives of the World Blind Union, Electronic Frontier Foundation, and Knowledge Ecology International (if you may not know them, neither of them are lobbyist of the “big industries”) jointly thanked me for what they characterized as an important contribution I had done for the cause of the visually impaired.  (Otherwise, I have also found a report on Professor Geist’s  website about the last week meeting criticizing the Canadian government. It seems to me sufficient to mention that the discussion did not take place on the way the report characterized it. The Canadian delegation was among those which expressed full support for the cause of the visually impaired and for working out the best possible international arrangement for them; just as many other delegations, it wanted to thoroughly discuss what that arrangement might be now and in the future.)

Yes, the EU, which, is also negotiating a bilateral agreement with Canada, with the deposit of the still missing instruments of ratification truly has sent what I referred to as a “kind invitation” to Canada to also ratify the treaties. Our values are the same, our legal systems are not alien to each other, and our basic values are also the same (I became fully aware of that when I acted as one of the two co-chairmen – and far from the less active one – of the Working Group that prepared the first draft of the later successfully adopted UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.) Our experience also shows that certain doomsday prophesies about the two Treaties, and in particular about the TPM protection, have not turned out to be justified. Due to our many similarities, it would be difficult to believe that in Canada, even if not necessarily in the same way, the same result could not be achieved. Thus, that invitation is address by friends to other friends; truly as a kind invitation.

Yes, I do not want to call names. Just when others do so against others in a style which reminds me of some old unpleasant experiences, my sense of truth does not allow me not to oppose it. I am not an enemy of anybody. I am against certain views and styles and in favor of maintaining certain values. I keep continuing to do so, which is not an obstacle to me to wish to Professor Michael Geist and his seemingly devoted followers Marry Christmas and a Happy – and preferably more peaceful – New Year.  If I cannot make him to adopt my views (it would be a difficult task I can see), at least I would like to persuade him that neither me not the others who share my position are not enemies; nether of Canada nor of him and his followers.

Dr. Mihály Ficsor

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.


[1] Sam Ricketson – Jane C, Ginsburg: “International Copyright and Neighboring Rights,” Oxford University Press, 2006, p.  977.

[2] WIPO publication No. 891 (E), 2003, pp 217-218.

[3] For a detailed description of the preparatory work in the WIPO committees and at the Diplomatic Conference (with the text of the proposals and references to comments) see my book; Mihály Ficsor: “The Law of Copyright and the Internet,” Oxford University Press, 2002 (hereinafter: Ficsor), pp. 386 to 406. (I do excuse those who consider me as an enemy that I quote myself, but this is the most detailed description of what has happened which, however, I do not want to reproduce here. I also recommend to those who imply that I lie since I am an alleged “lobbyist,” to read those pages; they will see that everything is based on WIPO documents prepared or adopted by the Member States.)

[4] See WIPO document  BCP/CE/VI/12, p. 38; in Ficsor, p. 389.

[5] See WIPO document BCP/CE/VI/14, para. 28;  in Ficsor p. 391.

[6] See WIPO document BCP/CE/VII/1-INR/CE/VI/1 pp. 3 and 5; in Ficsor p. 394.

[7] See WIPO document BCP/CE/IV/2, Annex pp. 4-5; in Ficsor p. 386.

[8] See  WIPO document BCP/CE/V/12, p 36; in Ficsor p. 390. The text of the Argentine proposal read as follows:

…The Contracting Parties shall enforce the same sanctions as are provided for in the event of copyright infringement of any person who:

(a) alters, removes, modifies, or in any way disables the technical devices incorporated in the copies of protected works or productions for the prevention or restriction of copying;

(b) alters, removes, modifies, or in any way disables coded signals designed to restrict the communication of protected works, productions or broadcasts to the public or to prevent the copying thereof;

(c) imports or markets apparatus, programs or technical devices that permit or facilitate the disablement of technical devices or signals incorporated to prevent or restrict the copying or communications of works and productions.” [Emphasis added.]

[9] See WIPO document BCP/CE/VI/15, p. 3; in Ficsor p. 391.

[10] See WIPO document BCP/CE/V/12, p 36; in Ficsor pp. 390-391. The text of the Brazilian proposal read as follows:

…1. Contracting Parties shall decide that the following acts must be considered illicit, as they are infringement to copyrights:

(a) to modify, eliminate or mutilate, by any means, the technical devices introduced in copies of protected works in order to avoid or to restraintheir reproduction, or the encrypted signals intended to limit the communication to the public of protected work or to avoid its copying;

(b)  to make, import or commercialize any apparatus, programs or technical devices aimed primarily at allowing or facilitating the mutilation of the technical devices or signals introduced in order to avoid or limit copying or communication of protected works.”[Emphasis added.]

[11] See WIPO document BCP/CE/VI/12. p. 40; in  Ficsor p. 393.

[12] Records of the Diplomatic Conference, WIPO publication No. 348 (E) (hereinafter: Records) pp. 217 and 321; in Ficsor p. 396.

[13] Records, pp. 216 and 320. When the Chairman of Main Committee opened the debate on these draft provisions included in the Basic Proposals, he also clearly stated: …The provisions on obligations concerning technological measures were based on the proposals presented by certain Governments in the preparatory process.” (Records, p. 709).

[14] See Records, p. 710 (Republic of Korea), p. 523 (Canada).

[15] See Records, pp. 710-712 (Ghana, South Africa, Nigeria, Senegal, Singapore).

[16] See Records, pp. 757-758 and 626-627.

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