[Air-l] A clarification on the law.

[Ken Friedman]

Dear Ulf,

It's true that my explanation was written from an
Anglo-American view. One of the problems with
this kind of discussion is that those of us with some
direct knowledge generally have our knowledge
linked to specific frames of reference.

If anyone has factual information on issues as they
are -- in contrast with issues that propose a new
kind of law -- I'd welcome hearing about it.

Copyright law is remarkably similar around the
world. This arises from the fact of the Berne
Convention, one of the world's oldest bodies of
treaty law. The 121 nations that now subscribe
to the convention all incorporate this treaty law
into their own law. This is not Anglo-American
case law, but black-letter law or code law.

Courts interpret the law, but the law is written,
and given the fact that much of what we circulate
in cyberspace involves text and images that are
subject to copyright under the Berne convention,
these laws apply to any material circulated from
servers or addresses within the signatory nations.

As of 1997, the 121 signatories were:

Albania, Argentina, Australia, Austria, Bahamas, Bahrain, Barbados, 
Belgium, Benin, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, 
Burkina Faso, Cameroon, Canada, Central African Republic, Chad, 
Chile, China, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, 
Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, 
Estonia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, 
Ghana, Greece, Guinea, Guinea-Bissau, Guyana, Haiti, Holy See, 
Honduras, Hungary, Iceland, India, Ireland, Israel, Italy, Jamaica, 
Japan, Kenya, Latvia, Lebanon, Lesotho, Liberia, Libya, 
Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, 
Mali, Malta, Mauritania, Mauritius, Mexico, Monaco, Morocco, Namibia, 
Netherlands, New Zealand, Niger, Nigeria, Norway, Pakistan, Panama, 
Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, 
Republic of Moldova, Romania, Russian Federation, Rwanda, Saint Kitts 
and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, 
Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, 
Switzerland, Thailand, The former Yugoslav Republic of Macedonia, 
Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, 
United Republic of Tanzania, United States of America, Uruguay, 
Venezuela, Yugoslavia, Zaire, Zambia, Zimbabwe.

If you want to know more about the Berne
convention, you might visit the Web site:

http://www.wipo.org/eng/general/copyrght/bern.htm

One central fact -- taken from the Web site --
will clarify my view that "the law is the law."

--snip--

The Convention rests on three basic principles and contains a series 
of provisions determining the minimum protection to be granted, as 
well as special provisions available to developing countries which 
want to make use of them.

(1) The three basic principles are the following:

(a) Works originating in one of the contracting States (that is, 
works the author of which is a national of such a State or works 
which were first published in such a State) must be given the same 
protection in each of the other contracting States as the latter 
grants to the works of its own nationals (principle of "national 
treatment") [3].

(b) Such protection must not be conditional upon compliance with any 
formality (principle of "automatic" protection)[3].

(c) Such protection is independent of the existence of protection in 
the country of origin of the work (principle of the "independence" of 
protection). If, however, a contracting State provides for a longer 
term than the minimum prescribed by the Convention and the work 
ceases to be protected in the country of origin, protection may be 
denied once protection in the country of origin ceases[3].

--snip--

In other words, all these nations agree to honor
the copyright laws of the nation in which a
copyrighted work originates or in which a
copyrighted work is also copyrighted.

The Cornell University Legal Information
Institute offers the full text of the Berne
Convention:

http://www.law.cornell.edu/treaties/berne/overview.html

It is important to reiterate that this is not the
law in the Anglo-American world. This is the
law in 121 nations, stated in the form of codes
that cover most of the work made available in
cyberspace and covering issues such as broadcast
or media formats that apply to digital media.

One of the issues that makes cyberspace so
important is that it is connected to the physical
world. Some issues change in cyberspace.
Others do not.

While many people view cyberspace as a kind
of sci-fi world inhabited by sophonts, avatars
and cyborgs, this is not the part of cyberspace
where most of us live.

Most of us live in a segment of cyberspace
that is connected to the worlds of work and
play, sometimes to shopping, definitely to the
world that generates news and information.
In that sense, it's rather like a huge library or
a vast computer. Despite the fact that the
stacks run miles high over the earth, the
building has a footprint, and jurisdiction on
many issues are established where that foot
sets down.

Where it comes to copyright law, you can read
for yourself just where the law applies.

It is my view that the challenges we need
involve issues such as the Internet Public
Library or the current protest against control
of scientific literature by a handful of publishers
who use the opportunities afforded by the
old conventions of scholarly publishing to
secure vast new territories in cyberspace.

This can all be done by challenges within
the law.

In stating that the law is the law, I do not
assert that I agree entirely with what
the law is. I assert that a code of law exists,
that it is essentially worldwide, that it is
enforceable and that it is to some degree
greater or lesser enforced in 121 nations.

Best regards,

Ken






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Ken Friedman, Ph.D.
Associate Professor of Leadership and Strategic Design
Department of Knowledge Management
Norwegian School of Management

Visiting Professor
Advanced Research Institute
School of Art and Design
Staffordshire University

Norway

+47 22.98.50.00 Telephone
+47 22.98.51.11 Telefax

Home office

Byvaegen 13
S-24012 Torna Haellestad
Sweden

+46 (46) 53.245 Telephone
+46 (46) 53.345 Telefax

email: ken.friedman at bi.no

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