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[_at_]cptech.org), Manon Ress
(manon.ress[_at_]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:
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
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