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on copyright protection would be contrary to Article 20 because it would be a derogation of rights existing under Berne and 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. To protect new works or to grant new rights in respect of new or presently protected works on the basis of reciprocity, would be contrary to the letter and the spirit of the Convention.

As the GII continues to develop through the international interconnection of NIIs, rules must be formulated to protect the economic rights of providers of entertainment and information products. Such rules should be based on principles of national treatment along the lines of the following:

1. Each country participating in the GII must accord

to nationals of another country participating in the GII no less favorable treatment than it accords to its own nationals with regard to all rights and benefits now, or hereafter, granted under its domestic laws in respect of literary and artistic

works or fixations454 embodying such works. 2. Benefits must include the same possibility to

exploit and enjoy rights in the national territory of a country participating in the GII as the respective

country grants to its own nationals. 3. No country participating in the GII may, as a

condition of according national treatment, require rights holders to comply with any formalities in order to acquire rights in respect of literary and artistic works or fixations embodying such works.

454

This reference to fixations includes the subject matter of neighboring rights related to works and their performance.

In addition to these issues of general concern, there are issues that are applicable specifically to the Berne Protocol and to the New Instrument.

Following the Supreme Court decision in the Feist case, 455 there is increasing concern that many valuable, factually-oriented databases may be denied copyright protection, or that courts may determine infringement in ways that severely limit the scope of copyright protection for data bases. Providing for a sui generis unfair extraction right to supplement copyright protection may prove to be useful in view of legal developments in various national laws and should be given serious consideration. How a right, such as the unfair extraction right proposed in the EU database directive, could protect such databases should be carefully evaluated.

Additionally, the issue of multimedia works will take on an important international dimension. If these are regarded at the international level as works in a new, separate category, the issue of their coverage under the existing conventions and the rule of national treatment will be open to debate. If, however, as current discussions seem to indicate, they are subsumed into the existing categories of works, establishing meaningful rules internationally will be simplified.

Further study to determine what existing rights should be clarified or what other rights may need to be adapted to the emerging digital environment are underway both in domestic and international fora. However, some issues merit identification here, and one of those is the level of protection to be accorded to sound recordings.

Many believe that the time has come to bring protection for the performers and producers of sound

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recordings into line with the protection afforded to the creators of other works protected under the Berne Convention. This includes providing high-level standards for rights and benefits granted on the basis of national treatment. This is necessary for a number of reasons. First, there is no just reason to accord a lower level of protection to one special class of creative artists. Second, the extent of international trade in sound recordings makes it imperative that standards of protection be harmonized at a high level. Third, and perhaps most importantly, the digital communications revolution the creation of advanced information infrastructures is erasing the distinctions among different categories of protected works and sound recordings and the uses made of them.

Concerns also have been raised over the extent and scope of moral rights in the world of digital communications. Some believe that the ability to modify and restructure existing works and to create new multimedia works makes strengthening international norms for moral rights more important than ever before. Others take the view that any changes to international norms for the protection of moral rights must be carefully considered in the digital world. The United States agrees with this view. Careful thought must be given to the scope, extent and especially the waivability of moral rights in respect of digitally fixed works, sound recordings and other information products.

There are issues such as digital fixation, storage and delivery that will need to be taken into account in the New Instrument. There are also questions concerning the scope of rights and the right owners that might be covered by the New Instrument. To the extent possible, definitions in the New Instrument should be identical to those in the Berne Protocol. Otherwise, differences in phrasing could lead to differences in interpretation, and jeopardize the "bridging" of the New Instrument with the Berne Convention and the Protocol. Many of these issues are critical to the United States and other countries.

To attain the needed level of protection internationally, ways to span the differences between the continental droit d'auteur and neighboring rights systems and the Anglo-American copyright systems must be developed. An essential element of this effort will be to harmonize levels of protection by establishing standards that can be implemented through either system.

B. PATENT

Development of the NII will depend upon, and stimulate innovation in, many fields of technology, especially computer software, computer hardware and telecommunications. An effectively functioning patent system that encourages and protects innovations in these fields of technology is, therefore, important for the overall success of the NII.

The primary goal of the patent system is to encourage innovation and commercialization of technological advances. To this end, the patent system offers an incentive to inventors to publicly disclose their inventions in exchange for the exclusive right to prevent others from making, using, offering for sale or selling the inventions throughout the United States or importing the inventions into the United States. The patent system serves as an important complement to the copyright system for computer and software innovations by providing protection for functional aspects of these innovations.

Unlike copyright protection which attaches automatically at the moment of fixation, an inventor must specifically request protection by filing a patent application and establish that the invention meets all of the statutory requirements of patentability. Rights are obtained by filing a patent application with the Patent and Trademark Office (PTO), and proceeding through an examination process. To be patentable, an invention must be new,

456 useful457 and nonobvious.458 In addition, the inventor must fully describe and disclose the invention for which patent protection is sought in a patent application.459 If the PTO determines that all the patentability requirements have been met for the invention for which patent protection is requested, a patent will be granted to the applicant.

Patent protection is available in the United States for inventions without differentiation as to the field of technology: "any new and useful process, machine, manufacture, or composition of matter" can be patented. Despite this breadth, certain limits do exist on what can be patented. For example, a person cannot patent a process that consists exclusively of the steps one would follow to apply a mathematical principle to solve a mathematical

This restriction is not statutory; instead, it

problem.461

456

See discussion of 35 U.S.C. 102 infra notes 463-64 and accompanying

text.

457

To be eligible for patent protection, an invention must be either a process, an article of manufacture, a composition or a machine. Discoveries, laws of nature, mathematical algorithms, methods of doing business and the like are not eligible for patent protection. See 35 U.S.C. S 101 (1988).

458

See discussion of 35 U.S.C.S 103 infra note 465 and accompanying text.

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460

See 35 U.S.C. S 101 (1988). This language has been interpreted broadly by the Supreme Court in Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980), wherein the Court held:

The subject matter provisions of the patent law have been cast in
broad terms to fulfill the constitutional and statutory goal of
promoting "the Progress of Science and the useful Arts" ....
Congress employed broad general language in drafting (Section)

101 precisely because such inventions are often unforeseeable. Judicial precedent does exist denying patentability under Section 101 for claims directed to laws of nature and methods of doing business. See Parker v. Flook, 437 U.S. 584, 589 (1978).

461

See Diamond v. Diehr, 450 U.S. 175, 185 (1981) ("[e]xcluded from such patent protection are laws of nature, natural phenomena, and abstract ideas");

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