Re: WIPO Copyright Treaty Article 11 & Grammar

On 4/23/98, JQ Johnson <jqj[_at_]darkwing.uoregon.edu> wrote:
>
> Ari Kahan <akahan[_at_]netcom.com> argues:
> >
> > 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.
>
> In other words, such legal remedies might restrict acts that are (1) even
> if they not (2) -- i.e. even if they were permitted by law?

Yep. I stand by my interpretation, too.

If the author restricts a particular act BY CONTRACT, then performing that act is still "permitted by law". But not permitted by the contract. It's not generally illegal to breach a contract; it's just a breach of the contract. This clause, as I read it, requires people to refrain from violating certain authors' rights both under the law and under contracts.

For example:

If an author provides his manuscript to a publisher under the condition that the publisher refrain from selling a copy of the work to anyone wearing a purple suit, and the author places a videocamera (an "effective technological measure") at the publisher's sales counter to monitor the publisher's sales, and the publisher covers the videocamera's lens with shaving cream so that the author won't know that the publisher is selling copies to people in purple suits, that would be circumvention of the author's "technical measures to restrict acts, in respect of [his] works, which are not authorized by the author concerned," but would not restrict acts which are not permitted by law (since the law doesn't restrict selling books to people in purple suits.)

-Ari

Ari Kahan
<akahan[_at_]netcom.com>

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