the specific waiver of the right of integrity or to limit its application in the digital world.450 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 450 See Exposure '94: A Proposal for the New Rule of Intellectual Property for Multimedia, Institute of Intellectual Property 18 (Feb. 1994). 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 worldwide 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 ondemand 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. 451 Provisions to prohibit decoders and anti-copy prevention devices and services also should be included in the Berne Protocol and the New Instrument." 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.452 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. See discussion infra pp. 191-94, 236-38. 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 20.453 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 The Governments of the countries of the Union reserve the right |