BRITISH COPYRIGHT COUNCIL
Copyright House, 29 - 33 Berners Street, London W1P 4AA, United Kingdom
Oral Response to the National Information Infrastructure Task Force on
Intellectual Property.


My name is Chris Barlas and I represent the British Copyright Council of
the United kingdom. The British Copyright Council is the official
organisation that represents the interests of United Kingdom copyright
holders to the British Government. It's a voluntary organisation whose
influence comes from its constituent members. These members between them
represent the interests of almost the entire United Kingdom copyright
community - writers, composers, performers, visual artists, computer
programmers, photographers and book publishers.

At least twice a year we have major meetings with representatives of the
British Government and their consultations with us are reflected in their
approach to copyright legislation. As you know, some years ago, our
copyright act was completely revised and resulted in the 1988 Copyright,
Designs and Patents act. This act was specifically framed to address the
new technologies then emerging. However, today, with the speed of
technological change increasing almost daily, there are already calls for
revision of the 1988 act. The British Copyright Council, through its new
technology committee of which I am a member, is keeping an eye on
developments, but we are not yet calling for a new act.


It is in this context, that we welcome the Green Paper from the Working
party on Intellectual Property rights. It's a thorough and well considered
report that contains much that is interesting. We applaud the sections on
technology, believing in the necessity of record and reward systems, though
the amounts of data likely to be generated may well be extremely difficult
to manage. We also applaud the call for better copyright education,
something we in Britain are also actively engaged in. So we congratulate
the committee and by implication the United States Government for its
foresight in producing such a report.


What I am going to present today is a European view of the situation. I
shall not go into much detail but it may be that some of the things I have
to say do not sit well with American sensibilities. I should also like to
mention that I am a writer, not a lawyer, so I shall avoid entering many
detailed legal comments. We have legal advisers at the British Copyright
Council and they will, I hope, be filing some written comments on a more
juridical nature.

As you know and the report points out, in Europe there are two rights
regimes - the anglo-american system, that we have in Britain and the droit
d'auteur system that is used in the rest of Europe. This was not
problematic until the advent of the single market and the European Union. A
harmonisation programme was therefore initiated to bring the two regimes
into some sort of alliance. The basic disparity between the two systems has
been becoming more and more clear with the issue of each European
Commission directive. One of the most recent, on term of protection,
bringing the standard period up to life plus seventy years for creators is
causing considerable confusion.

However, the principle is commendable, to bring European Copyright law into
line with the highest form of protection available within the European
Union. It means that no one has to sacrifice a right in the name of
harmonisation. It is, as I say, a commendable way of doing things and one
that I hope the United States will bear in mind when framing any changes to
their law in the light of the NII.

I say this because the speed of change in the new digital environment is
frightening. I have just been attending the CISAC conference where
rightsholders from all over the world were represented. There was a feeling
of stupefaction at the rate of change. One moment you have a physical
product, like a book or a record, the next moment it's dematerialised and
seems to have vanished. The rights, I'm afraid, often seem to have vanished
with the physical object.

The United States currently leads the world in the development of the
digital media. As the report says in section 7a, the NII will inevitably
become part of the GII. But from a European perspective, the NII threatens
not to become part of, but be the core of, the GII. And we have all
experienced, what happens in America today, has a tendency to happen
elsewhere tomorrow - what one might call Macdonaldisation. I would suggest
therefore that whatever changes are instituted in the American copyright
law, must take into account what happens in the rest of the world. In this
context the issues of territoriality and cross border trade are obviously
of the great concern. I shall make some specific remarks about that later.

At the CISAC conference, it was said by a senior official of the European
Commission that Europe is six months behind the US in terms of preparation
for the digital world. Yes, we have had the Bangeman report and the Corfu
announcement, but I know that we are not being as swift as the United
States. Six months, I would remind you, is a long time in contemporary
computer culture. It is the time in which computers gain a third in power
and lose a third in price. In the context of preparing for the NII, six
months could be crucial. I would ask you to remember that in your
deliberations.

As I said, I am a writer, not a lawyer, and along with my European
colleagues in the creative industry, I value a particular tradition. It is
the tradition of the free lance, the independent voice. In this tradition
the writer or composer or performer or visual artist produces a work that
is then licenced to a producer or publisher or whomever for exploitation.
We value, in fact, our rights and seek to protect them very strenuously.

As Charles Clark, the British copyright expert, has written, publishers and
authors of all disciplines are partners. This is true also of much of the
audio-visual industry in the United Kingdom, where writers ordinarily
retain their rights. The truth is, we creators are partners, not employees.
I mention this because of the tradition of writing for hire that exists
here in the United States. This tradition, by which the creator's work
automatically becomes the property of the employer - the producer or the
publisher - might be seen by many as an ideal system to simplify the
management of rights in the new digital environment. All the rights would
be in a few hands and could be traded and sold with ease. There would be no
problems with creators feelings or conditions. Rights would be just like
anything else.

But of course, rights to intellectual property are not like anything else.
Rights represent the creative mind at work, part of the inalienable rights
of men and women.

This leads naturally to the issue of moral rights. In the Green Paper we
read,  in the section on Recommendations, that "New thought must be given
to the scope, extent and waivability of moral rights in digitised
information." I hope that does not mean the weakening of moral rights.  If
it does, it is not a position we can embrace. We said so to the Japanese,
we say it here. Moral rights have been fought for for many years by
creators in Europe. We are not prepared to sacrifice them simply because
the new digital environment makes them difficult to protect. Moral rights
exist not because creators wish to be difficult, though of course some are,
but because they are and must be the original protectors of the musical,
literary and visual inheritance. If creators do not protect moral rights,
no one will.

Authenticity is also addressed by the Green paper and is clearly a subject
linked to the above. However, authenticity goes beyond a mere technical
problem. In fact, authenticity goes to the heart of the debate. Since the
development of printing, we have become used to trusting what appears
blocked out in ink on paper. While we may joke about not believing
everything we read in the papers, we do not expect to be able to change the
message at will. That is why I believe the issue of moral rights cannot be
so easily consigned to "more thought" with the expectation that they will
be jettisoned. Moral rights are what make the need for authentication so
self-evident.

While I said I would not venture far into juridical territory, I do want to
say something about national treatment. The fact that we have evolved a
system of national treatment is due to our collective ability to protect
works internationally. National treatment exists because we trust each
other. Reciprocity exists because we don't trust each other enough. In the
new digital environment, we must be able to assure all parties of
international protection. Therfore international agreement as to the
definition and recognition of intellectual property rights in the context
of digital usage is essential for the effective establishment and
maintenance of those rights.

As you may know, there has recently been a minor problem between the United
States and Britain in the domain of document delivery. Prices of documents
originating in England were undercutting the prices charged in America. If
we do not get our international agreements right and agree to protect each
others intellectual property on an equal basis, the recent fracas will seem
like a calm summer afternoon. There must be international collaboration in
formulating and implementing such definitions and recognition. We need, in
fact, a common juridical language for the new digitised environment.

I'd also like to say a word about the proposed transmission right. We
believe strongly that the rendition of protected material into digital form
constitutes reproduction within the meaning of article 9(1) of the  Berne
convention and therefore that electronic transmission of such digitised
renditions in any form whatsoever should be an exclusive right of the owner
of the rights in the material material which has been digitised. Further,
we think that such transmission should constitute an act that requires the
permission of the rights owner of the transmitted material not only in the
country of the initial transmission but also in every country of the
reception of that transmission.

Finally, I would like to make some remarks about how Europe and the United
States might proceed together down the electronic superhighway. I am here
today because a friend sent me a copy of this document some weeks ago. I
would not have known about it otherwise. I found out about the hearings by
logging onto the excellent USPTO server here in Washington. What I am
saying is that this process is not altogether as international as it might
be. I know and welcome the fact that at the highest level there has been
cooperation between the US Government and the European Commission. But
governments and commissions don't know everything. I believe this process
needs to take place in a wider international forum if it is to be
consensual in the context of the emerging GII.

Finally, Mr Lehman says he wants to issue the definitive report from this
working party early next year. I do wish there was time to take more
soundings in Europe and perhaps elsewhere to make sure the NII becomes part
of, not master of, the GII.

I thank you for your time.

Washington Thursday 22nd September 1994


Chris Barlas
25 Hartland Road
London NW1 8DB
UK



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