Re: WIPO Copyright Treaty Article 11 & Grammar

On Tue, 21 Apr 1998, Ari Kahan <akahan[_at_]netcom.com> wrote:
>
> On 4/20/98, Bob Stock <bstock[_at_]ucla.edu> wrote:
> >
> > Article 11 of the WIPO Copyright Treaty of 1996 states:
> >
> > "Contracting Parties shall provide adequate legal protection and
> > effective legal remedies against the circumvention of effective
> > technological measures that are used by authors in connection with
> > the exercise of their rights under this Treaty or the Berne
> > Convention and that restrict acts, in respect of their works,
> > which are not authorized by the authors concerned or permitted
> > by law."
> >
> > I am interested in parsing grammatically the last clause "not
> > authorized by the authors concerned or permitted by law." For the
> > purpose of this message I am *not* interested in any substantive
> > arguments as to what it means, just grammatical and logic arguments.
> >
> > Here are my questions:
> >
> > 1. Does the "not" in the last clause modify both authorized and
> > permitted?
>
> Yes. Definitely. I think the clause could have been written more
> clearly as "...which are either (1) not authorized by the authors
> concerned or (2) not permitted by law."
>
> > 2. Is there only one possible answer to #1, or could the "not" modify
> > authorized but not modify permitted?
>
> Grammatically, there's a hopeless number of interpretations. Some others:
>
> 1. It is the works themselves which are not authorized by the authors
> and which are not permitted by law. Perhaps they're subversive?
>
> 2. It is the authors who are concerned or who are permitted by law to give
> authorization.
>
> > a. Is the meaning of that construction "neither authorized nor
> > permitted"?
> >
> > b. Is the meaning of that construction "either not authorized or not
> > permitted"?
>
> I think it's b. But I would have to resort to external considerations
> (like what would make sense, which you expressly don't want to know
> about) to prove it. Without reference to the semantics, the clause is
> hopelessly ambiguous.
>
> > 4. For whatever your answers are, do you have any source (either
> > grammar or logic) to support your answers?
>
> Only this:
>
> Clauses which are grammatically identical to the one at issue can easily
> be constructed, some of which MUST be interpreted one way and some of
> which must be interpreted another to be sensible. Simplifying the
> structure of the paragraph for ease of illustration, I offer the
> following examples:
>
> (a): "Contracting Parties shall provide directions to
> cities, near rivers, which are not listed on maps or
> shown in Microsoft TravelWeb."
>
> (b): "Contracting Parties shall provide directions to
> cities, near rivers, which are not listed on maps
> or located only with great difficulty."
>
> (a) and (b) above are grammatically identical.
> Yet in (a), the only reasonable interpretation gives
> the "not" scope over both "listed" and
> "shown" and in (b) the only reasonable interpretation
> gives the "not" scope over "listed" but not "located".
>
> I therefore submit that it is provable that the grammatical
> structure of clauses like these, considered alone, yields
> ambiguous results and that a satisfactory interpretation
> can only be derived by considering the very thing Bob doesn't
> want to see considered: the meaning.

You think the Treaty is difficult. I am still waiting for any understanding of section 1201(b)(2)(B) as contained in the implementing legislation, H.R. 2281, which has been approved by the House Judiciary Committee:

   "(B) a technological protection measure 'effectively protects a right    of a copyright owner' under this title if the measure, in the ordinary    course of its operation, prevents, restricts, or otherwise limits the    exercise of a right of a copyright owner under this title."

Any takers?

Bob Schwartz
<shebam[_at_]access.digex.net>

(HRRC) Received on Wed Apr 22 1998 - 19:54:00 GMT