CSC, IPJ, UPD Statements on WIPO Webcasting Debate

From: James Love <[email protected]>

Civil Society Coalition Statement to the WIPO SCCR on opposition
to the Inclusion of Webcasting/Simulcasting in proposed treaty
for the protection of Broadcasting Organizations
WIPO SCCR
Geneva, Switzerland
November 23, 2005

-- short version delivered orally at WIPO SCCR----

The Civil Society Coalition opposes the creation a new
intellectual property right to protect investment, rather than
creative activity, for webcasting organizations.

We ask the Chair for the right to submit a longer statement for
the record, but to summarize the main points in our oral
presentation.

As noted by Brazil in yesterday’s discussion, the webcasting
proposal is essential a new system of Internet regulation.

The Webcasting proposal is not about the protection of copyright,
which has a robust and strong legal framework, but rather an
effort to radically change the ownership of information and
knowledge goods, based upon who transmits information, rather
than who creates the work.

If we extended this logic further, should we consider granting an
intellectual property right to Amazon Books, because they made
books available to the public?

We note that the United States has not considered such a legal
regime in its own Congress.   Why is WIPO being asked to create a
treaty for this new form of Internet regulation, when none of the
WIPO members think it is important enough to enact in their
national legislatures?

     What is webcasting?

The definitions of webcasting activities in the treaty are not
meaningfully restrictive.    The protected content is any
combination or representations of images or sounds that are made
"accessible to the public . . . at substantially the same
time."   This is basically the definition of a web page.

Proponents of the inclusion of webcasting argue that they are
simply seeking technological neutrality, by extending a legal
regime that some countries have adapted for broadcasting to the
Internet.  But this begs the question that is most important. 
Why is the Internet so much different from television or radio? 
It is because nearly every user of the Internet is a also a
publisher.  People exchange, share and remix information on the
Internet in ways that are not done for traditional TV or radio.  
The Internet is different from traditional television and radio
and that is a good thing, and something worth protecting.

The WIPO Standing Committee on Copyright and Related Rights
should reject this attempt to create a new legal regime that
would introduce a new and unwanted form of regulation of the
distribution of information on the Internet.


---The following is the longer version for the record---

The Civil Society Coalition opposes the creation a new
intellectual property right to protect investment, rather than
creative activity, for webcasting organizations.

(We ask the Chair for the right to submit a longer statement for
the record, but to summarize the main points in our oral
presentation).

As noted by Brazil in yesterday’s discussion, the webcasting
proposal is essential a new system of Internet regulation.  This
proposal has been often presented to the news media as something
that is associated with piracy of copyrighted information, which
of course is deliberately misleading.

Copyrighted material is already protected by a plethora of
copyright laws, treaties and trade agreements, including the WTO
TRIPS Accord, the Berne Convention, the two 1996 WIPO Internet
treaties (the WCT and the WPPT), and a growing web of bilateral
trade agreements. Virtually all of the major copyright holder
organizations have opposed the webcasting treaty proposal.

The Webcasting proposal is not about the protection of copyright,
which has a robust and strong legal framework, but rather an
effort to radically change the ownership of information and
knowledge goods, based upon who transmits information, rather
than who creates the work.

If we extended this logic further, should we consider granting an
intellectual property right to Amazon Books, because they made
books available to the public?

The Webcasting regulation will have a negative impact on the
rights of the general public and the rights of copyright holders.

We note that the United States has not considered such a legal
regime in its own Congress.  If there is truly a compelling need
to regulate the Internet in this way, and to completely change
the intellectual property system, then why are not countries in
North America or Europe rushing to enact such proposals in their
own countries?

Why is WIPO being asked to create a treaty for this new form of
Internet regulation, when none of the WIPO members think it is
important enough to enact in their national legislatures?

     What is webcasting?

The definitions of webcasting activities in the treaty are not
meaningfully restrictive.    The protected content is any
combination or representations of images or sounds that are made
"accessible to the public . . . at substantially the same
time."   This is basically the definition of a web page.

(a)  "webcasting" means the making accessible to the public of
transmissions of sounds or of images or of images and sounds or
of the representations thereof, by wire or wireless means over a
computer network at substantially the same time.  Such
transmissions, when encrypted, shall be considered as
"webcasting" where the means for decrypting are provided to the
public by the webcasting organization or with its consent.

(b)  "webcasting organization" means the legal entity that takes
the initiative and has the responsibility for the transmission to
the public of sounds or of images or of images and sounds or of
the representations thereof, and the assembly and scheduling of
the content of the transmission;

By making any work available to the public, the web page owner
will suddenly accrue a layer of rights, with no creative input
whatsoever, even if the work itself is in the public domain or
copyrighted someone else.  If the work were already under
copyright, those who obtain it from the web page and want to use
the work would be forced to clear rights from both the copyright
owner and the owner of the web page that distributed the work. 
These new rights are cumulative, involving the entire chain of
intermediaries who have played a role in the dissemination of the
work.   Given the way information is currently disseminated on
the Internet, this is will lead to an enormous increase in
transaction costs for clearing rights.

This new right would allow webcasters to effectively lock up
works in the public domain, and place restrictions on the
distribution of works that were freely licensed under creative
commons type licenses.   It would also create an economic claim
to remuneration in cases involving unauthorized or collective
management of intellectual property rights, that would compete
with the rights of the copyright owners.

The new layer of rights and the creation of new regulation of the
distribution of content would be harmful for innovation, reduce
access to works, and it will change the nature of the Internet in
ways that have not been acknowledged by the proponents of this
regime.

Only a small number of webcasters are asking that they be given
the same exclusive rights that the treaty would give to
broadcasters and cablecasters.  Many other Internet companies,
including some webcasters, "reject the idea that the Internet
needs or will benefit from the extension of these
pseudo-copyrights to so-called 'Webcasters.'  For these
companies, adding a new layer of intermediaries with rights over
and above copyright holders will benefit no one but those
intermediaries.  "If an Internet company has the rights to a
work, or need not secure the rights to a work due to a limitation
in copyright, or because the work is in the public domain, there
is no rational reason to require that the company also seek the
permission of a further intermediary whose sole creative
contribution to the work is in making it available."

We are concerned by the "Working Paper on Alternative and Non-
Mandatory Solutions for the protection in relation to Webcasting"
prepared by the Chair of the WIPO Standing Committee on Copyright
and Related Rights.

Despite the concerted opposition to the inclusion of webcasting,
the paper sets out a series of options on how to include
webcasting. This paper contains a number of fundamental flaws
including:

1) As noted by the delegate from Nigeria, we are presented with
three doors that all lead to the same room -- the creation of a
new treaty on webcasting.   It does not include the one option
that has received the most support, namely, "no inclusion of
webcasting in the Treaty."

2) It contains no analysis of the potential effects of any of the
options. For example, how will the thicket of new rights affect
access and use of works available on the internet? How would
legal certainty be improved if some jurisdictions opt in and
others opt out?

Proponents of the inclusion of webcasting argue that they are
simply seeking technological neutrality, by extending a legal
regime that some countries have adapted for broadcasting to the
Internet.  But this begs the question that is most important. 
Why is the Internet so much different from television or radio? 
It is because nearly every user of the Internet is a also a
publisher.  The Internet is a two-way communications medium.  
The cost of transmitting information on the Internet is low and
falling.  People exchange, share and remix information on the
Internet in ways that are not done for traditional TV or radio.  
The Internet is different from traditional television and radio
and that is a good thing, and something worth protecting.

The proposed webcasting treaty would:

*  create a new set of intermediaries with rights in data they
did not create,
*  create additional rights that are not necessary for creating
incentives to disseminate digital works on the Internet,
* undermine the role of copyright owners and performers in
determining the appropriate uses of their works,
*  create a precedent justifying rewarding investment with a
grant of exclusive rights to mere transmitters instead of
encouraging creativity.
*  lock up works that are in the public domain or licensed under
a creative commons license.

It is important that the WIPO Standing Committee on Copyright and
Related Rights absolutely reject this attempt to create a new
legal regime that would introduce a new and unwanted form of
regulation of the distribution of information on the Internet.

---------------------------------
James Love, CPTech / www.cptech.org /
mailto:[email protected] /
tel. +1.202.332.2670 / mobile +1.202.361.3040

---

-------- Original Message --------
Subject: [A2k] IPJ Stmt on Broadcasting Treaty on WIPO
Date: Tue, 22 Nov 2005 13:11:15 -0800
From: Robin Gross <[email protected]>
Organization: IP Justice
To: [email protected]

STATEMENT BY IP JUSTICE

REGARDING A PROPOSAL FOR A BROADCASTING TREATY AT THE 13TH
SESSION OF THE WIPO STANDING COMMITTEE ON COPYRIGHTS AND RELATED
RIGHTS

23 November 2005

Thank you, Mr. Chairman.  I speak on behalf IP Justice, an
international civil liberties organization that promotes balanced
intellectual property law.  Based in San Francisco, IP Justice
also maintains representatives in Switzerland and Italy.

Firstly, we would like to express support for Brazil’s recent
proposal to reformulate the existing proposal for a Broadcasting
Treaty to more adequately balance the public’s interest with the
new rights created for broadcasting companies.

Mr. Chairman, IP Justice is particularly concerned with any
proposal to include the regulation of Internet transmissions
within the scope of this treaty, whether mandatory or optional.

It is worth noting, that such webcasting provisions currently
exist no where in any national law.  It would be dangerously
inappropriate to “experiment” in an international treaty by first
creating those rights in this forum -- without any opportunity to
see how such regulation actually works in the real world.

IP Justice is concerned that broadening the scope of this treaty
to include Internet transmissions of media would harm the growth
and development of the Internet.  As it would apply to thousands,
if not millions, of individual websites around the world, such
regulation of Internet transmissions threatens to chill freedom
of expression and harm innovation.

The proposal to regulate only simulcasting is a “red herring”,
and is in fact, a back-door means of including webcasting within
the scope of the treaty.  All a webcaster would need to do is
schedule a time for the original Internet transmission, and all
subsequent retransmissions of that webcast, would be regulated
under the treaty’s retransmission right.  So webcasting would, in
fact, remain within the scope of regulation in this treaty
despite attempts to narrow it to simulcasting.

Including a provision on webcasting in an international treaty as
an optional feature makes absolutely no sense.  Member States are
always free to enact webcasting transmissions in their national
law, so an “optional” provision in a treaty adds no value, and
will only create dis-harmony among Member States.  If such
measures are truly needed, I ask: why hasn’t any country,
including the United States, the lone supporter regulating
webcasting, enacted such measures in their home countries?

Mr. Chairman, IP Justice is also concerned about the proposals to
include a ban on circumventing technological protection measures
placed on broadcasts.  These provisions have already been shown
to be harmful and overly-broad in the areas where they already
exist for copyrighted works, for example the controversial US
Digital Millennium Copyright Act.

Creating an additional layer of rights for broadcasting companies
on top of existing rights will make it difficult for artists to
use their own performances without obtaining the permission of
broadcast companies. And consumers would be preventing form
accessing works in the public domain that are broadcasted by
media companies.

Greater exceptions and limitations would need to be included in
this treaty in order to protect the general public interest. 
Considering the global trend to create new rights for
rightsholders, due consideration must be afforded to the
exceptions and limitations to those rights in order to ensure the
public is able to access and use broadcasted information.

The treaty proposal must be further clarified to ensure that any
new rights created apply only to the broadcast signals, and not
the content that is transmitted.  It is impossible to separate a
broadcast signal from the underlying content transmitted, so
intentions to regulate only signals, will inherently regulate
access to the content as well.

Finally, Mr. Chair, IP Justice supports the views expressed by
several Member States at this meeting and in regional
consultations to undertake comprehensive studies of the impact of
this treaty on local economies before rushing into a Diplomatic
Conference.  Without weighing the costs to society and local
economies against the possible benefits of this treaty, we are
unfortunately “putting the cart before the horse” so to speak.

IP Justice welcomes the opportunity to further discuss these
views as well as those of Member States at any time.  Thank you,
Mr. Chairman.

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---


-------- Original Message --------
Subject: [A2k] UPD at WIPO: opposes the inclusion of Webcasting
in any treaty
Date: Wed, 23 Nov 2005 09:47:34 -0500
From: James Love <[email protected]>
To: a2k discuss list <[email protected]>

The Union for the Public Domain (UPD) opposes the inclusion of
Webcasting in any treaty

The Internet is popular with the public because it is delivering
things they value, in terms of content, as well as the methods of
delivery and making content accessible.

In 1996, WIPO created the two new Internet treaties -- the WCT
and the WPPT.  The 1996 treaties were matters of first
impression.  There were motivated by concerns about infringements
of copyrighted works. The treaties were enacted, and now
countries are struggling to implement them.  Today, they remain
controversial.

The webcasting treaty is something much different.  It is not
protecting copyright, it is creating something brand new,
untested, and we believe, unwanted, for the Internet.

We would take the position of the US or other supporters of
webcasting more seriously, if they would adopt laws on webcasting
in their own countries, and report on their experience.   It is
telling and somewhat off-putting that we are being asked to rush
toward a new treaty on webcasting, when the countries that are
pushing for this have never attempted such regulation in their
own communities.

The Union for the Public Domain asks that WIPO not engage in
piracy of the public domain, by stealing the public’s knowledge,
and allowing webcasters to claim an ownership right.   The UPD
also asks WIPO not to create barriers to works that are licensed
for free public use under creative commons licenses.

Thank you Mr. Chairman.

---------------------------------
James Love, CPTech / www.cptech.org /
mailto:[email protected] /
tel. +1.202.332.2670 / mobile +1.202.361.3040

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