asking to have public debate on webcasting treaty

[David Farber <dave () farber net>]

Begin forwarded message:

From: Manon Ress <manon.ress () cptech org>
Date: September 19, 2005 9:58:41 AM EDT
To: David Farber <dave () farber net>
Cc: James Love <james.love () cptech org>
Subject: asking to have public debate on webcasting treaty


Dave,

Maybe of interest to you? This is a letter we sent today to the US  
government to state our opposition to the efforts of the US  
delegation at the World Intellectual Property Organization to push  
for a treaty that will create new webcasting rights for material  
transmitted over the internet.

Manon Ress


To:  Senators Ted Stevens, John McCain, Mark Pryor, Ron Wyden, John  
Kerry, Orrin G. Hatch, Patrick Leahy; Representatives Lamar S. Smith,  
Howard L. Berman, Bob Goodlatte, John Conyers, Jr., and Rick Boucher

From: James Love (james.love () cptech org), Manon Ress  
(manon.ress () cptech org), Consumer Project on Technology (http:// 
www.cptech.org, 1.202.332.2670)

Date:  September 19, 2005

Re:  WIPO Treaty Proposal on Webcasting

We are writing to state our objections to the efforts of the US  
Patent and Trademark Office and the US Office of Copyright to push  
for a global treaty that would create a new intellectual property  
regime for material transmitted over the Internet.  This new  
"webcasting" treaty language would impose a radical change on the  
free movement of information on the Internet, harm copyright owners,  
and restrict access to knowledge.

The treaty discussions are taking place at the World Intellectual  
Property Organization (WIPO).  The United States trade negotiators  
are seeking to tack-on the webcasting proposal to a different treaty  
involving broadcasting organizations.   The treaty proposals  
involving broadcasting are basically a vastly expanded version of the  
broadcasters protections from the Rome Convention -- a treaty the  
United States has never signed, and are problematic in their own  
right.   The current version of the WIPO proposal would give  
broadcasters an expanded set of commercial rights, lasting at least  
50 years, for broadcasting materials.  These rights are in addition  
to the copyright owners rights.  They are automatic rights that do  
not depend upon formalities, and will exist in parallel to copyright,  
and also extend to materials that are in the public domain.  These  
expanded commercial rights will harm copyright owners and the public,  
by imposing a new layer of rights that must be cleared before works  
can be used, and by forcing the copyright owners to share revenues  
with broadcasters.  This has nothing to do with piracy, since the  
copyright laws and treaties, including the 1996 WIPO Copyright Treaty  
(WCT) and WIPO Performers and Phonographs Treaty (WPPT), already  
provide extensive protections for those who make creative  
contributions to works.  The new Broadcasting treaty is designed to  
give these quasi-copyright rights to broadcasters solely for  
transmitting the works, without any creative contribution.

As bad as the broadcasting treaty is, it will be far worse to extend  
this restrictive regime to the Internet.  Largely due to the lobbying  
efforts of one firm -- Yahoo, the US delegation at WIPO is pushing  
for "parity" between broadcasters and an ill-defined group of  
"webcasters."  The current definition of a webcast is the making  
available to the public any combinations or representations of images  
or sounds.  According to the WIPO delegates, this will include not  
only audio-visual works, but also text and data.

The only rationale for creating this new right is to provide "parity"  
between the broadcasters who benefit from Rome Convention type  
protections (a treaty never signed by the United States) and parties  
who transmit information over the Internet.  This issue is sometimes  
presented in the context of a policy objective of providing a  
technology neutral IP regime.  While neutrality may have some  
intrinsic appeal as a policy goal, it should not excuse policy makers  
from considering the consequences of extending a regime designed for  
one platform -- the Rome Convention type protections for broadcasting  
organizations, to something that is completely different in character  
and tradition -- the Internet.  The Internet is much more than a  
platform for passive listening to content sent out by licensed and  
regulated broadcast organizations.   As noted by Mark Cooper at a  
recent meeting with USPTO and Copyright Office negotiators, the  
Internet is a system of two-way communication that is far more  
democratic and decentralized, and which provides extensive  
opportunities to publish, and to create innovative services.

We see the webcasting treaty proposal as poorly conceived and harmful  
to the Internet.  But even without making a decision on the merits of  
the proposal, you can certainly agree that is it is completely  
inappropriate and dangerous to create this radical new form of  
Internet regulation without any public debate.   The agencies in the  
US delegation to WIPO have so far refused to publish a federal  
register notice asking the public for their views on whether or not a  
new layer of intellectual property rights for webcasting is a good  
idea.  There have been no Congressional hearings on this topic.  The  
US Congress has never debated a webcasting IPR regime, and neither  
have any other national parliaments.  This is an example of a US  
trade policy that is completely captured by a handful of corporate  
lobbyists.

We know that sometime in the future, if the Copyright Office and the  
USPTO are successful in coercing other countries to accept this  
proposal, the Congress and the American public will then be told it  
has no choice but to accept an "international consensus" on the need  
for the webcasting right.

At a September 16, 2005 meeting in Washington, DC, the US Copyright  
Office explained a few of things they have not considered.   The  
Copyright Office agreed that there was:

1. No analysis of how US law would have to change in the treaty passed.
2. No analysis of the unintended consequence of creating a new right  
of transmission for the Internet.
3. No analysis of the impact of the new right on copyright owners.
4. No analysis or concern about how the new IPR right would affect  
the orphan works problem.
5. No analysis of the impact of the webcasting treaty on podcasting.
6. No analysis of whether the treaty language would unwittingly  
create a property right to persons operating peer-to-peer networks or  
search engines.

As soon as September 28, 2005, the WIPO General Assembly will debate  
whether or not to schedule a diplomatic conference on this ill  
conceived treaty, and if so, whether or not to include proposals for  
a new and completely untested global IP regime for webcasting.   The  
new diplomatic conference could be scheduled as soon as the 2nd  
quarter of 2006.  We urge you to call upon the US negotiators to slow  
this process down, and to ask the American public if a webcasting  
treaty would help or hurt copyright owners or the public.

For addition information, see:

http://www.cptech.org/ip/wipo/wipo-casting.html









************************************************
Manon Ress
manon.ress () cptech org
www.cptech.org

Consumer Project on Technology in Washington, DC USA
Tel.:  +1.202.332.2670, Ext 16 Fax: +1.202.332.2673

Consumer Project on Technology in Geneva, 1 Route des  Morillons, CP  
2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727

Consumer Project on Technology in London, 24 Highbury Crescent,  
London, N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386  
4642. Fax: +44(0)207 354 0607





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