Notes from Sept 16 meeting at the Library of Congress on the proposed
treaty provisions regarding webcasting
James Love, CPTech / 16 Sept 05
Several NGOs had asked for a meeting with the Library of Congress
(LOC) and the USPTO to discuss the status of negotiations at WIPO on
a new treaty on Broadcasting, that includes a proposal for treaty
provisions covering webcasting -- something that is not part of law
in the US, Europe or elsewhere (except possibility in a limited way
in Finland).
The United States is the primary advocate of creating a new global IP obligation for webcasting, even though there is no US law for this. In essence, the proposal creates an intellectual property right in information that is transmitted. This right is often described as a "layer" that co-exists in parallel with copyright. It also applies even when the information is in the public domain, or if the copyright owner has licensed the work for broad public use, such as under a creative commons license. The new right is automatic, without any formalities, and would apply to anything that meets the treaty definitions. In the most recent version, the definitions of "webcasting" and "webcasting organizations" are as follows:
(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;
Negotiations over the WIPO treaty have taken place over several
years, but are now at a critical moment. The US has been pulling out
all of the stops to force the webcasting provisions into the treaty,
against the views of most other countries. The European Union has
privately and publicly promised to move toward the US position on
this. On Tuesday, Sept 13, WIPO held an invitation only consultation
on the proposed Broadcast/Webcast treaty in Brussels. EFF and CPTech
(through the Civil Society Coalition) presented views critical of the
treaty, while the broadcasting and webcasting entities supported the
treaty. At the end of this month, maybe on September 28, the issue
will be debated at the WIPO General Assembly. The US will push for a
decision to schedule a diplomatic conference on the treaty as soon as
possible.
CPTech and other NGOs have been asking the US government to publish a federal register notice and solicit public views on the issue of creating this new intellectual property right for webcasting. Our most recent letter on this is here: http://www.cptech.org/wipo/ 15sep05letter2usptoloc.html.
The meeting today was held at the US copyright office, and was attended by Michael Keplinger from USPTO, and Jule Sigall and Marla Poor from the US Copyright office. CPTech, Public Knowledge, Consumer Federation of America, and Multicast Technologies, a small webcaster, and a person who would not identify herself.
The first topic concerned our request for formal public comment on the proposal to create a new intellectual property right for webcasting in a global treaty at WIPO.
The United States negotiators said they were not sure about when the timing would be right for a notice asking for public comment. They said that as a result of this week’s Brussels meeting, they expected significant changes in the EU positions on webcasting. There was "not much sense to go through the process until we are ready for diplomatic conference," we were told. But how fast might that happen? They said it was possible there would be a diplomatic conference to create the final treaty as early as the 2nd quarter of 2006. And, they would argue in Geneva on the 28th of September that the US favored a diplomatic conference, with the webcasting provisions included, as soon as possible. (note: the US and is making this a huge priority in WIPO, and the former USTR official and current WIPO Deputy Director Rita Hayes is pushing hard also for the treaty, although she has been less supportive of the webcasting treaty language, which has very little global support). The US negotiators said, only after most of the negotiations were over on the webcasting treaty provisions, would it make sense to ask the public if they wanted a new intellectual property right for webcasting, or more accurately, to comment on the most recent version of the Chairman’s treaty text.
The NGOs clearly want the public notice sooner rather than later, and they want the option of no treaty, or no treaty language for webcasting, to be among the options.
There was a lot of talk about the definitions of webcasting and
webcasting organizations, which appear to be incredibly broad to us
(all combinations or representations of images and sounds, by any
legal entity that makes it available to the public), a result "not
intended" by the negotiators, but unfortunately, the current version
of the treaty.
It was astonishing to some NGOs that the treaty could not usefully put any limits on the material or activities covered under the webcasting definitions, but it was also surprising to hear all of the other issues that had not received analysis.
LOC agreed that there was:
Also surprising were some of the objectives of the treaty. One was to make it unnecessary for webcasters to get agreements from copyright owners before they sued people for using context. Another was to make illegal to use devices that make it possible to skip commercials from radio play lists.
More info on the treaty negotiations, including the controversies over the treaty provisions for television and radio, is available here:
http://www.cptech.org/ip/wipo/wipo-casting.html
Note that the treaty provisions on broadcasting are being pushed in
the US by Ben Ivins, who represents the National Association of
Broadcasters (NAB), and John Potter and Seth Greenstein of DIMA and
Yahoo. Few people or firms the broadcast industry in the US are
actually following this (outside of Fox, who has been active), and
almost no webcasters or tech firms have even heard of this. Yahoo/
DIMA’s whole lobbying campaign for the webcasting right is based upon
their desire for "parity" of rights with broadcasters -- even if the
broadcaster rights are completely inappropriate for the Internet, or
if the broadcaster rights exist only because the political influence
of Murdoch and other broadcasters translates into successful rent
seeking lobbying activities. The proposed treaty text for the
broadcast provisions of the treaty are basically the Rome Convention
(which the US has not signed) on steroids, and of course present
problems of their own for television and radio, but are nowhere as
harmful as the proposal to impose this new regulatory scheme on the
Internet.
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