Re: Note on the Proposed WIPO Treaty for Broadcasters, Cablecasters and Webcasters

This proposal seems abslolutely insane. Are we replacing Inquisition by big business ?. How could broadcasters using many different carriers route pretend any kind of ownership because they "broadcast" Does an airlines acquire owenrship of his passengers ? Where is the added value of broadcasters aside getting paid for their services by their clients ?
Patenting "business process" was not enough. I am starting to understand why the anti-americanism in business practice, (not to mention others)
is spreading and will continue to spread enven faster. I can (hardly but!) understand a broadcast "tax" but OWNERSHIP ! It is "expropriation" at his best and think that it could be challenged in court (national and international) to have a treaty stealng property of contents in such a way. What about a law which will give ownershipto BT, FT, Microsoft of my song on a my telephone if my name is Sinatra!  

Alain Minodier

James Love wrote:

> Note on the Proposed WIPO Treaty for Broadcasters, Cablecasters and
> Webcasters
> James Love, CPTech*
> October 29, 2003
>
> From November 3 to 5, the World Intellectual Property Organization
> (WIPO) Standing Committee on Copyright and Related Rights (SCCR) will
> meet in Geneva to decide how to proceed on proposals for a new global
> intellectual property treaty. The proposed treaty concerns a system of
> ownership for material transmitted over wireless means such as
> television, radio and satellite, as well as wired communications over
> cable networks, and also over Internet computer networks.
>
> This proposal expands or gives new rights to transmitters of
> information, even if they are not the creators of that information.
> Rights that are normally reserved to creators and performers would be
> afforded to organizations that merely transmit creations and
> performances -- even if those works are in the public domain, even if
> those works' authors wish to have the works distributed without
> restriction.
>
> There are proposals to extend coverage to broadcast, cablecast, and
> webcasting technologies, and the treaty will be referred to here as the
> "casting" treaty.
>
> RELATIONSHIP TO OTHER TREATIES
>
> The proponents of the treaty claim it is needed to update protections
> for broadcasters in the WTO TRIPS accord and in the Rome convention.
> However, in this case "updating" means extending terms from the 20 years
> of the TRIPS and the Rome Convention, to 50 years, extending the
> protection to many new technologies, and creating new rights. The
> proponents claim the extension to 50 years is a matter of "fairness,"
> since in 1996, a WIPO performers and phonograms treaty (the WPPT)
> provided a 50 year term.
>
> Most countries are subject to the TRIPS, but the TRIPS does not require
> members to provide these "related rights" to broadcast organizations if
> they provide copyright owners the right to protect materials when
> broadcast. The US for example does not provide a "related right" to
> broadcast organization, but does protect content under copyright laws,
> or theft of cable satellite signals under regulatory regimes.
>
> The United States is not a signatory to the Rome Convention, and no
> European country is a signatory to the WPPT. Indeed, the members of
> the WPPT are mostly developing countries that signed the treaty in
> response to US trade pressures.
>
> EXTENSION TO NEW TECHNOLOGIES
>
> The development of new information technologies makes the proposed
> casting treaty important. The changes are in two primary areas. First,
> the nature of what is considered a broadcast is changing, particularly
> with digital technologies. Even analogue broadcasts are now including
> more and more text, including machine-readable subtitles, and the future
> of digital broadcasts are increasingly embracing broader scope of
> content, including text, data, still pictures, and other elements not
> traditionally associated with television or radio. Firms are developing
> and expanding the scope of content distributed as music, films, news,
> sporting events, etc, to take advantage of the ability of the public to
> receive and manipulate a variety of types of information.
>
> Second, there is an explosion of new technologies that "broadcast" by
> wireless means, and that transmit via the Internet and Internet-like
> networks.
>
> The lines between these technologies are constantly being blurred.
> Cable and satellite television networks offer Internet services, and new
> wireless networks for television, mobile phones, audio broadcasts,
> Internet connections and other services are increasingly offering the
> products and services of the others.
>
> The current proposals for the treaty often approach the issue as if the
> content is static (what was broadcast in the 1950's or 60's), while
> there is a need to accommodate the new platforms to deliver content.
> However, it is increasingly difficult to maintain that expanding both
> the scope for content and the covered platforms will not have
> far-reaching consequences.
>
> WHAT CONTENT IS COVERED?
>
> In a recent discussion of the treaty at the Consumers International/TACD
> Lisbon workshop on WIPO, some national negotiators said the treaty would
> cover text and data, while others said it would not. In a recent
> USPTO/LOC briefing on the treaty, the same issues were debated, and some
> content/casting entities claimed the treaty would and should cover any
> information transmitted, while others said this was not intended.
>
> A typical proposed definition of covered content would be "sounds,
> images or sounds and images, or of the representations thereof," with
> additional terms that address the issue of how the material is
> disseminated. For Broadcasting and Cablecasting, the US has suggested
> an exclusion of "transmissions over computer networks or any
> transmissions where the time and place of reception my be individually
> chosen by members of the public." However, this limitation does not
> appear in the US definition for webcasting. Instead there is only a
> requirement that the webcaster make the material accessible to the
> public "at substantially the same time." CPTech understands this to be
> only a condition of when the data is first made available, and not when
> it is downloaded. Some webcasters have said the want protection for the
> files that can be accessed on demand. CPTech has asked WIPO members to
> clarify this point.
>
> If the threshold is simply and only "making accessible" the materials
> "at substantially the same time," then plausibly the entire world wide
> web is covered, including every image and sound on the Internet. If
> text is included under images or sounds (or representations thereof) ,
> as some delegates claim, then nearly the entire world wide web would be
> included. Certain peer-to-peer networks, such as emule, would appear
> also be included in the definition of webcasting. If this is not
> intended, it can and should be clarified.
>
>
> THE CONSEQUENCES OF GRANTING OWNERSHIP, CONTROL
> AND PROTECTION BASED SOLELY ON TRANSMISSION
> (Particularly when applied to the Internet).
>
> The casting entities fundamentally want a layer of ownership over
> materials that they did not create or previously own. They want the
> treaty to declare they "own" what they transmit, even when the materials
> are in the public domain (government works, older works, materials
> donated to the public domain, etc), when they cannot be copyrighted
> (facts, data, other non-copyrightable materials), or when owned by third
> parties, including those who have no interest in suppressing
> distribution of works (speeches by government officials, Al Qaeda tapes,
> listserves, newsgroups, etc).
>
> If the treaty covers all new wireless methods of "broadcasting" content,
> and if it covers cable networks, and if it covers "webcasting," it is
> difficult to imagine what will not fall under its scope. Some critics
> of the treaty have shifted from asking what will be covered, to asking
> what will *not* be covered.
>
> CPTech has asked WIPO officials, the US, the EU and other WIPO members
> and stakeholders to provide assurances that text, data, literary works,
> still photos, and other works be explicitly excluded from the treaty
> scope. We are waiting to see if any such limitations are forthcoming.
> The US delegation is pushing the hardest to include a new category for
> "webcasting" in the treaty, and they claim there is no intention to use
> the treaty to cover the entire Web with a new layer of ownership based
> solely on transmission, but even if the treaty could actually be limited
> to traditional analogue type television and radio content, it would
> still have a significant effect in reducing the public domain, by
> granting a 50 year term of exclusive rights on all "images, sounds and
> sounds and images, and representation thereof," which would actually be
> included.
>
>
> PROTECTION SCHEME SIMILAR TO SUI GENERIS PROTECTION
> OF DATABASES
>
> The rationale and basis for protection is very similar to the various
> proposals to provide protections to elements of databases, including the
> EU directive on the protection databases, the failed 1996 WIPO treaty on
> databases, and the current proposals in the US Congress on databases.
> In each case, there is no claim of authorship, but an appeal to protect
> investments needed to gather, organize and disseminate the work. If the
> casting treaty is approved, WIPO will be under tremendous pressure to
> move forward on a new treaty on databases, since the rationale for
> protection is essentially the same. Indeed, in the recent CI/TACD
> Lisbon meeting on WIPO, the question was asked, is there anything the
> webcasters do that would not already be protected in Europe under the
> European laws on databases? The answer was not clear, but it may be
> that the webcasting treaty would go even further and reduce the public's
> rights to use Internet accessible materials even more.
>
> THE APPROPRIATE TERM FOR PROTECTION OF INVESTMENT.
>
> Wholly apart from the issue of whether or not any new intellectual
> property protection should be extended to casting entities, there is an
> important issue concerning the appropriate term for the protection of
> investments.
>
> In the WTO TRIPS accord, minimum protections of patented inventions and
> broadcast signals are 20 years of protection, while the term of
> copyright is a minimum of 50 years. In US and EU laws a number of
> different terms are used to protect investments.
>
> There are also a number of other models for the protection of
> investments. The TRIPS requires protections against unfair commercial
> use for undisclosed data used to support the registration of certain
> pharmaceutical and agricultural products. Companies spent millions of
> dollars on clinical trials to support the registration of pharmaceutical
> drugs, sometimes when there is no patent on the product. In the United
> States, data for new chemical entities receive exclusive rights for 5
> years, and data used to support broader uses of a product receive 3
> years of exclusive rights. In Europe, data for drug registration may
> receive 6 to 10 years of exclusive rights. The US provides for 10 years
> of rights for data used to support the registration of pesticides (7
> USC Chapter 6, Subchapter II, Sec 136a. Registration of pesticides),
> subject to compulsory licensing of data to competitors (based upon
> equitable sharing of costs). The US and the EU are pushing developing
> countries to adopt similar measures to protect investments in
> registration data, and these efforts are controversial. In the CAFTA
> negotiations agricultural and pharmaceutical producers are resisting US
> and EU style protections. Earlier, Argentina successfully resisted US
> pressure to adopt such measures, as being beyond the WTO TRIPS
> requirements.
>
> Other types of protection for investment are the terms for exclusivity
> of orphan drugs in the US (seven years) and Europe (10 years), or to
> protect investments in pharmaceutical paediatric tests (6 months of
> exclusivity).
>
> The European Directive for the protection of databases provides for a
> 15-year term of protection.
>
> The "casting" entities seek a 50-year term, which is entirely based upon
> an appeal to protect investment. This is 45 years longer than the
> United States protects investments in pharmaceutical clinical trials, 35
> years longer than the EU database directive and 30 years longer than
> TRIPS currently protects broadcast signals. There is ZERO economic or
> moral rationale to provide a 50-year term to protect investments in the
> transmission of the works not created by the casting entities, and it
> sets a bad precedent for investment based types of protection. By the
> very nature of protections based upon investments, the term should be no
> longer than what is needed.
>
> Excessive terms of protection harm the public by increasing prices and
> reducing access to information.
>
> When there is no economic justification for the protection, only a
> demonstration of the political power of the casting entities, the unjust
> extension of protection will breed cynicism and contempt and erode
> efforts to build more respect for intellectual property regimes.
>
>
> RELATIONSHIP TO GPL
>
> We have asked the US government to look at the possible impact of the
> treaty on the GNU General Public License (GPL), and in particular, we
> asked if a person who received material licensed under the GPL could
> undermine its openness requirements by making modified code available
> over a network with a new layer of treaty rights. This depends in part
> upon the scope of content that is covered under the treaty.
>
> TECHNOLOGICAL MEASURES
>
> The proposed treaty also would mandate the prohibition of circumvention
> of technical measures intended to restrict "unauthorized" use of
> materials. This echoes the US movement to create a "broadcast flag"
> regime through the FCC, which would require the permission of copyright
> giants before new technologies could be brought to market, and which
> bans "open source/free" software for use in digital television contexts.
> If the scope of this proposal indeed extends to all information
> transmitted online, over the air, and so forth, then this requirement
> would stifle all innovation in tools that send and receive information
> -- at every turn, a rights-holder would be waiting to assert the ability
> to control the way that browsers, email clients, phones, file-sharing
> applications and so on are designed and deployed. Indeed, the US is
> thought to be waiting until the FCC announces a position on this
> controversial issue, and then to push for inclusion of similar
> obligations in the WIPO treaty.
>
> In June, the North American Broadcasting Association said WIPO must move
> further into technological measures to protect content and
> transmissions. The presentation included two officials from News
> Corporation (Fox, Murdoch).
>
>
> NEW RIGHTS
>
> There are numerous proposals for various rights to be associated with
> the casting treaty, including the right to prohibit or authorize
> fixations, or the rentals of fixations. Some content owners see the
> casting entities as seeking to use the treaty framework to expand their
> control over the retail exploitation of their works. Creators of works
> who do are not in a strong bargaining position relative to "casting"
> entities are concerned that the treaty will erode their control over
> works.
>
> There is considerable controversy over the proposal to extend the treaty
> to webcasting, and to include new rights to exploit works. A June 2003
> statement by 15 organizations representing authors, publishers,
> performers and producers opposed the extension of the treaty to
> webcasting, pointing out it would extend even to private individuals
> transmitting content from their homes. These groups also object to the
> expansion of the scope of the treaty from "signal" piracy, to measures
> "not required to fight privacy but to exploit the context used by the
> broadcasting organizations (e.g. sweeping transmission and communication
> to the public)." (Joint Recommendation of Right Holders on the
> Protection of Broadcasting Organisations, June 2003).
>
>
> NEXT STEPS
>
> The Civil Society Coalition (CSC) is accredited in the WIPO SCCR, and
> will have as many as 10 persons in Geneva for the November 3-5 meeting.
> Manon Ress <manon.ress[_at_]cptech.org> is coordinating CPTech's work on
> the casting treaty, and a number of NGOs and experts from the US,
> Europe, Africa and "Asia will be attending the meeting.
>
> One possible outcome of the November meeting will be an agreement to
> create a chairman's draft treaty, with different possible strategies in
> terms of how ambitious the draft is in terms of inclusion of
> controversial issues. The Webcasters (Time-Warner, Yahoo, Microsoft,
> DiMA, etc) would like to be included in this treaty, while some WIPO
> members, including Japan, want a separate instrument for webcasting.
>
> For more information, see:
> http://www.cptech.org/ip/wipo/wipo-casting.html
>
> * Cory Doctorow from EFF made helpful comments and suggestions on an
> earlier draft.
>
>
Received on Thu Oct 30 2003 - 21:46:06 GMT