RE: WIPO carves up the Internet (and the broadcast spectrum)

Hello
I do not have time at his moment to comment these very very valuable posts (one of the most pertinent I have seen on the CNI-Copyright list. In short: Rome treaty may need some updates, but the whole idea of a webcaster right or even worst a "carrier right" is INSANE, unfair and should be immediately dispatched to create pressure on lawmakers (US, European, world wide). This should also include the press to show that a free Internet goes with a free economy (I do not discuss the legitimate copyrihgt, patents as well as "fair use" ) . Enough is enough from the US and European lobbies. Thanks again for such a good, clear analysis of a rampant disaster. Alain

> -----Message d'origine-----
> De : CNI-COPYRIGHT -- Copyright & Intellectual Property
> [mailto:CNI-COPYRIGHT[_at_]cni.org]De la part de James Love
> Envoye : jeudi 4 mai 2006 19:55
> A : CNI-COPYRIGHT -- Copyright & Intellectual Property
> Objet : [CNI-(C)] WIPO carves up the Internet (and the broadcast
> spectrum)
>
>
> http://www.huffingtonpost.com/james-love/wipo-carves-up-the-
> intern_b_20336.html
>
> WIPO carves up the Internet (and the broadcast spectrum)
> May 4, 2006 James Love
>
> Don't bother reading this unless the words "new intellectual property
> right" and "the Internet" seem important when put together, because
> it is a twisted and complicated story. Even the key players are
> struggling to figure out what is going on. But like a lot of twisted
> and complicated things, it is important.
>
> The World Intellectual Property Organization (WIPO) is a specialized
> UN agency, headquartered in Geneva, Switzerland. This week it is
> holding a contentious five-day negotiation on a new Treaty, the
> purpose of which is to provide a new "protection" for "broadcasting
> and webcasting organizations."
>
> What does this mean? WIPO is debating whether or not to create a new
> intellectual property right in information that is distributed over
> television, radio, cable television, or through any wired or wireless
> computer network, including the Internet. This is something different
> from copyright. Indeed, it is designed to benefit people who cannot
> get a copyright, because a work belongs to someone else (the person
> or group that created it), or because the information is in the
> public domain. The new right is not a "copyright," but a
> "broadcaster" or "webcaster" right. It is a bad idea when applied to
> television or radio, but a disaster if applied to the Internet.
>
> In different ways, the US and the EU both think they can use this
> right to extract money for simply distributing information over the
> Internet into foreign markets.
>
> The right comes at the expense of consumers and copyright owners --
> benefiting the distributors of information. It might be called the
> "middleman right." This has attracted a large group of corporate
> lobbyists who want to see their clients named as beneficiaries of the
> treaty.
>
> It works like this. If the owner of a broadcasters or webcaster
> publishes anything, they get an ownership right in the information,
> equal to the rights of copyright owner, so before you could make a
> copy, share or reuse the information in any way, you would have to
> get permissions from both the copyright owner and distributor of the
> work. This is supposed to "protect" the "caster" for its investments
> in broadcasting or webcasting.
>
> The meetings at WIPO are chaired by a very strong advocate of high
> levels of intellectual property rights, Jukka Liedes, from Finland.
>
> The European Union, the United States Government and several other
> governments want this new right to last 50 years, beginning each time
> information is republished.
>
> This new right only applies to copies of the works distributed by the
> "casting" organization, so if you can get a copy from another source,
> it would not apply, something that would not be a problem if the work
> was a Hollywood film or music recording widely available elsewhere in
> DVD or CD formats. But for a number of other works, there just won't
> be any practical or cost effective way of getting a copy from another
> source. (Which makes the "casting" right so valuable).
>
> Why is this such a big deal, and particularly for the Internet?
> First, there are lots of important works that are not protected by
> copyright, including events of high public interest such as
> presidential speeches, recordings of US Supreme Court debates,
> recordings of meetings and telephone calls by several US presidents,
> and some Congressional hearings. And, there are far more works that
> are technically protected by copyright, but which are in practice
> freely available, because the owners of the work want to share it
> widely, or do not choose to enforce restrictions on how a work is
> reused.
>
> Web pages are full of documents, sound recordings and video that are
> licensed under Creative Commons licenses, or simply passed around
> informally. Information on the Internet often is republished on many
> different web sites, each reaching its own communities. This is
> exploding at an astonishing rate as the costs of making and hosting
> works falls. Within a short time, anyone will be able to create a
> webcast from a mobile phone, and create records of meetings of all
> types, news events, performances, interviews, or any number of other
> events.
>
> Increasingly, people are using these works to create newer works, in
> documentaries, news reports and commentary, or cultural or technical
> works that remix or mashup content. Grid Computing and other emerging
> technologies are creating astonishingly creative and important ways
> of collaborating.
>
> Copyright alone presents huge problems for the distribution of and
> creation of these new Internet based works. But a new intellectual
> property right for webcasting will make things even more difficult,
> at least doubling the permissions one needs. At a minimum it will
> increase transaction costs. At worst, it will change the culture of
> sharing information on the Internet, with some exercising as many
> rent seeking rights as they can acquire.
>
> Who is pushing for this new "webcasting" middleman right? It is not
> the vast majority of bloggers, web page owners and others who are
> creating and distributing content. It is a tiny handful of big
> corporate players, including most notably US companies like Yahoo,
> News Corp (owner of MySpace), Microsoft, Time-Warner/AOL, AT&T, and a
> handful of large European media companies, including it seems, the BBC.
>
> Yahoo and others see themselves as aggregators and distributors of a
> wide varieties of audio visual works created by others, including
> music performances and films from all over the world. Under the most
> aggressive proposals debated this week, the Webcasting right will
> make Yahoo a part owner in everything they "webcast," and potentially
> give them the right to claim things like fees from cyber-cafes,
> community Wifi networks, schools and educational institutions, even
> when works are in the public domain or are freely licensed under
> creative commons type licenses, as well as a number of other
> situations. This comes at the expense of both the copyright owners
> and consumers.
>
> The Broadcast/webcast right, if defined too broadly, as some here
> want, also allows the broadcaster/webcasters to compete against the
> copyright owners in downstream commercialization of works, which is
> another reason why it makes copyright owners unhappy.
>
> The US and the EU are split on who should be the beneficiaries of
> this new right. The EU, lead by copyright chief Tilman Lueder, who
> formerly worked on competition issues, wants to restrict this new
> webcasting right to the incumbent broadcasting organizations, like
> BBC, so that only they would be able to claim the layer of rights,
> and not new competitors, even though they are both operating on the
> Internet.
>
> The US, led by Library of Congress lawyer Jule Sigall, wants to
> extend this new right to companies like Yahoo, News Corporation,
> Microsoft, Time-Warner or AT&T, but not to "bloggers or people who
> just maintain web pages." Right now the treaty definitions extend to
> pretty much any legal entity that creates a web page. During
> discussions with the US delegation, I actually created a webcasting
> site webcastingexample.blogspot.com, to show how trivial it was to
> get the 50 years of exclusive rights over copies of Congressional
> testimonies involving Avian Flu.
>
> About eighty-percent of the push for this is coming from the United
> States, about 19 percent from the European Union, and about 1 percent
> from other countries. No one who is pushing these treaties can
> explain why anyone who would get the right actually needs it in the
> first place, and there is no assessment of how this will impact
> copyright owners, consumers or creative communities and innovative
> businesses.
>
> WHERE DID THIS COME FROM?
>
> The original basis for this right is a 45 year-old treaty called the
> Rome Convention on the protection of performers, producers of
> phonograms and broadcasting organizations. The Rome Convention is now
> signed by 83 countries, but not by more than 100 other countries,
> including the United States. Every country, including the United
> States, gives some types of rights to performers (actors, singers,
> musicians, dancers, and other persons who act, sing, deliver,
> declaim, play in, or otherwise perform literary or artistic works) or
> producers of sound recordings, but the US and many other countries
> did not create a special right for broadcasters.
>
> The Rome Broadcasting Right is considered the weakest and most
> controversial component of the Rome Convention. Broadcasters
> typically rely upon free public spectrum, are hugely profitable, and
> do not need any additional incentives to broadcast. As Jamie Boyle
> has pointed out, the US never accepted this right, and we have a huge
> and highly profitable broadcast sector. (Dito for the cable TV
> industry). Basically, the Rome Broadcaster right is a 45 year old
> mistake. But like many other intellectual property treaties, it is
> extremely difficult to roll back unnecessary or restrictive IP rights.
>
> The US based National Association of Broadcasters (NAB) lead by
> lobbyist Ben Ivins, had pushed for years for WIPO to "update" the
> 1961 Rome Convention to expand the Broadcaster rights, extend the
> term (from 20 to 50 years), and add a number of other things. Even
> though NAB is pushing a European style approach, the USPTO and US
> Library of Congress has strongly backed a new treaty, extending
> European legal norms.
>
> Because broadcasters worldwide play an important role in shaping
> public views on politicians, they have extraordinary political power.
> Yahoo, now led by Terry Stemel, a former Hollywood executive, pushed
> to include Webcasters in the treaty, with full parity rights of the
> Broadcasters through the trade association DiMA and a number of
> private lobbyists. Seth Greenstein, a DC-based lobbyist, said he
> wrote the key sections of the current treaty that extended the Rome
> rights to webcasting organizations. Lobbyist Jonathan Band has been
> downplaying the importance of the treaty to the technology and
> library communities, despite its close parallels to a new
> intellectual property right for databases, which he opposes on behalf
> of other clients.
>
> DEBATE OVER SCOPE OF RIGHTS
>
> There is a deeply divided debate at WIPO over the scope of rights
> associated with the Broadcaster or Webcasting organizations. The
> European Union and some other countries are pushing very strong ROME+
> rights in the treaty. A growing fraction on the other side, are
> pushing for a very thin layer of protection that is really only
> useful in protecting against piracy of a broadcast/webcast, but does
> not create an ownership right in the work. At this meeting Jule Sigal
> of the US Library of Congress has moved toward the signal protection
> only approach, supported by most NGOs, copyright owners and many
> developing countries. This was a long overdue and welcome development
> that has enraged the NAB. It is uncertain how this debate will play
> out, given the strong position of the European Union to promote its
> much different approach, and the very difficult problem of lower
> global treaty norms for intellectual property protection. (See memo
> below).
>
> LITTLE VIABILITY IN US
>
> If you don't know about the Treaty, it is because there has not been
> a single story about it in the New York Times or Wall Street Journal,
> and I think only two stories in the Washington Post, the most recent
> of which ran last year, and one in the International Herald Tribune,
> which few people in the United States read. The computer trade
> journals have written very little about it either.
>
> The USPTO and Library of Congress have rejected numerous requests to
> issue formal requests for comment the treaty, and have scheduled no
> public meetings on the treaty. The US Congress has not held any
> hearings on the treaty. When the National Academies held a recent 5-
> hour public event about the meeting, not a single member of the US
> negotiating team attended.
>
> Ironically, it was a webcast of the National Academies event that has
> created more resistance. Key Intel officials listened to the National
> Academies event, and decided to oppose it. This has been a wake-up
> call for many in the technology community. Some big firms are siding
> with Intel, that the whole treaty poses a number of problems and
> should be opposed. Others, like AT&T, are trying to ensure they get
> the new webcasting rights.
>
> We have told technology companies, including Yahoo, Myspace, AT&T,
> Google, and others, that it is short sighted to see this new right as
> something that will only benefit them as publishers. There is
> enormous value in sites like Yahoo, Google, Myspace, Blogspot and
> millions of other large and small web pages, blogs etc, which
> flourishes because of the relative freedom that exists on the
> Internet. New regulations, restrictions and costs of sharing of
> information will shrink this value.
>
> In the developing countries, there is strong opposition to the
> expansion of the Rome broadcaster right to the Internet. They
> correctly see this as something that will increase transaction costs
> and prices, harm access to knowledge, and undermine the rights of
> their own copyright owners in the works distributed over the Internet.
>
> A larger and growing number of non-profit groups like CPTech, EFF,
> Public Knowledge, Consumers International, Consumers Union, (non-US)
> library groups (like IFLA, eIFL), IP-Justice, TWN, the Open Knowledge
> Foundation, Union the for Public Domain, and other "A2K" groups are
> playing a very important role in opposing the treaty. With the
> exceptions of James Boyle at Duke and Jennifer Urban at USC, US
> academics have not expressed interest in the treaty so far.... we are
> hoping that will change.
>
>
> -----Original Message-----
> From: James Love To: Lee Knife (DIMA), Bradley Silver (TimeWarner),
> Sarah Deutsch (Verizon), Fritz Attaway (MPAA); Ben Ivins (NAB),
> Biddle, Brad (Intel); David Fares (NewsCorp), Gwen Hinze (EFF), Jason
> Pielemeier (Yale ISP), J Mago (NAB), Kevin Rupy (USTelecom), Marily
> Cade (AT&T), Manon Ress (CPTech), Matt Schruers (CCIA), Peha (IP
> Justice), Thiru (CPTech), Winston Tabb (IFLA),
> Sent: Tue May 02, 2006
> Subject: Inclusion of webcasting or other services in Treaty
>
> I think should offer some comments on the CPTech position on the
> inclusion of webcasting or other Internet services in the Treaty.
>
> 1. If the treaty was only about some theft of service, and did not
> involve an intellectual property right for transmitting/disseminating/
> publishing information, then we would not care much what services are
> included. But of course, the treaty does contain IP rights, and so we
> do care, a lot. So do a lot of others, including copyright owners and
> developing country delegates.
>
> 2. There is very little chance that this treaty will be adopted
> without Rome type rights, or even Rome+ rights, for the following
> reasons. First, 83 countries have signed the Rome, and many already
> have in domestic law Rome+ rights, including most countries in
> Europe, and it would be hard for many of these countries to support
> something that lowers the global norms on rights substantially.
> Second, the TRIPS already has some IP protection for broadcasters,
> particularly for those who use the related rights approach, and you
> won't change this. Third, NAB and other broadcasters organizations
> would oppose a treaty that does not have Rome+ rights, since it would
> make them worse off than the Rome, which they already have.
>
> 3. NAB wants Rome+. DIMA want parity with whatever broadcasters get.
> That leads to an import of Rome type rights into the Internet. If you
> say you like parity for the Internet, what you are saying in
> practical terms is that the Internet should have Rome type rights. We
> are very opposed to this, and for that reason, we are willing to say
> that parity is a bad idea, and will harm the Internet, and harm
> copyright owners. I really don't think it is even good for DIMA
> members, but that's a different issue.
>
> 4. In terms of efforts by some to actually expand the definitions of
> webcating to include more and more services on the Internet, it just
> makes the whole treaty even worse for those who hate the Rome
> approach, and it isn't just me you have to consider. Anyone listening
> to the debate should appreciate how much resistance there is to ANY
> inclusion of webcasting, let along the even broader definitions that
> pick up other services.
>
> 5. Our position is that the US delegate should defend US norms, which
> include no protection for webcasting, and no ROME or ROME+ rights.
> (why not address webcasting issue in USA before demanding a global
> treaty). One way to do this is to kill this treaty, which the US
> could easily do, since it is the main demander for it. The SCCR could
> work on other issues..... like a global norm for minimum limitations
> and exceptions for persons living with disabilities, libraries,
> distance education etc, which has already been proposed by Chile, and
> which would be welcomed by developing countries, and would be
> consistent with US copyright traditions. It could revisit the
> webcasting issue later after US law is more mature on this issue, and
> more is known about the technology.
>
> 6. Another possible thing to consider is something that would solve
> the very real problems facing non-USA sports broadcasters. This we
> could support, as we have indicated many times.
>
> 7. All the talk about piracy in relationship to broadcasting has been
> mostly for public relations. Piracy is already illegal under lots of
> different laws, including copyright law. WIPO could work on some best
> practices models for countries to plug in some of the small gaps in
> some broadcasting regimes, without even worrying about a treaty on
> this. And if piracy was a big problem, then NAB and other
> broadcasters could have a signal theft only treaty in 5 minutes, but
> they don't really want one.
>
> 8. A final note about the Internet. The Internet probably never would
> have existed had it been regulated like broadcasters, because
> lobbyists would have fought to control every new idea and technology.
> I don't think the lack of regulatory parity for the Internet was a
> bad thing.
>
> Jamie
>
>
>
> ---------------------------------
> James Love, CPTech / www.cptech.org / mailto:james.love[_at_]cptech.org /
> tel. +1.202.332.2670 / mobile +1.202.361.3040
>
> "If everyone thinks the same: No one thinks." Bill Walton
>
>
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Received on Sat May 06 2006 - 00:15:00 GMT