[A2k] Wash Internet Daily on WIPO SCCR webcasting meeting

[James Love]

*  Important technical quibble about this story.   The WIPO proposal
is *NOT* to provide "copyright" to webcasting.  Webcasts, like other
types of publishing platforms, already are protected by copyright.
It is instead about creating a non-copyright IP right for webcasters,
that would apply to public domain works, and be on top of (an
additional layer to) the rights of the copyright owner (if any).  The
critics of the webcasting proposal simply say that webcasting should
of course continue to be protected under copyright, like other
publishing platforms, but not under this new and untested sui generis
IP right granted soley for transmitting someone else's work.  The US
delegation sought to extend this confusion by making a last minute
speech about how the US provides copyright protection to webcasts,
which of course exactly the point the critics are tyring to make.
Why create this new layer of non-copyright IP rights for people who
merely make works available to the public?   Why import the "Rome
Convention" related rights concept for TV and radio broadcasters,
which the US and more than 100 countries do not even use,  and extend
this to the entire Internet?  Jamie


FRIDAY, NOVEMBER 25, 2005 WASHINGTON INTERNET DAILY

Today's News
WIPO BROADCAST TREATY meeting ends with little decided on including
webcasting. (P. 1)

Momentum Seen Growing Against Webcasting Copyrights

Opponents of extending broadcasting copyright protections to
webcasting complained of being presented "three doors that all lead
to the same room" by the World Intellectual Property Organization
(WIPO), they said Wed. WIPO's Standing Committee on Copyright &
Related Rights (SCCR) met this week to discuss the latest draft of an
updated broadcasting treaty and alternative proposals for voluntary
responses to piracy of webcasts. Civil liberties groups questioned
why countries are being denied the "one option that has received the
most support" -- excluding webcasting from the treaty. In the end,
however, both they and a WIPO official said, the meeting had been
productive.

The 3 options were laid out in a working paper last spring. Under the
first, the treaty would cover simulcasting and webcasting, but no
contracting party would be bound to apply the treaty's protections.
If a signatory ratified the treaty without a notification on
simulcasting or webcasting, it would have to extend protection to
traditional broadcasting and cablecasting only.

Alternative 2 would permit signatories to exclude webcasting and
simulcasting from the protections of the treaty by making a specific
reservation to its provisions. The 3rd option would be to attach a
protocol to the treaty that would be subject to separate ratification
by the parties.

It's "surprising" that webcasting is still an option because no one
wants it except the U.S., and, apparently, WIPO, IP Justice Exec.
Dir. Robin Gross told us. It's "particularly shocking" that despite
broad opposition to extending broadcasting protections to webcasting,
delegates aren't being given the option of "no such provision." The
SCCR is supposed to work by consensus, she said, but in this case has
been "captured by the U.S. agenda."

Treaties generally aim to harmonize national laws, not create new
rights, Gross said. Extending antipiracy protections to webcasting is
problematic because "no one knows how it will play out in practice,"
she said. Including Internet transmissions of media "would harm the
growth

and development of the Internet" by threatening to chill free
expression and harm innovation, IP Justice told the SCCR. Including
webcasting as an optional feature "makes no sense," because countries
are always free to enact their own laws on webcasting transmissions.

The Civil Society Coalition argued that the webcasting proposal isn't
about protecting copyright, which has a strong legal framework, "but
rather an effort to radically change the ownership of information and
knowledge goods, based upon who transmits information, rather than
who creates the work. If we extend this logic further, should we
consider granting an intellectual property right to Amazon Books,
because they made books available to the public?"

The coalition complained that the proposed definitions of webcasting
are too broad. Content to be protected from piracy is "any
combination of representation of images or sounds that are made
'accessible to the public... at substantially the same time," it said
-- which would encompass all web pages. The treaty would: (1) Create
a new set of intermediaries with rights in data they didn't create.
(2) Create additional rights not needed to spur dissemination of
digital works online. (3) Undermine the role of copyright owners and
performers in determining appropriate uses of their works. (4) Create
a precedent that allows "mere transmitters" to be rewarded instead of
fostering creativity. (5) Lock up works in the public domain or
licensed under a Creative Commons license.

Consumers International (CI) agreed that piracy of sports broadcasts
is a serious matter, but suggested that WIPO "consider a separate
protocol for sports broadcasting that would address the special
problems facing this sec-tor. Why design a huge treaty and apply it
to the entire contents of the Internet if you are really concerned
about a handful of football, cricket and other sports matches?"

The SCCR working paper acknowledged "broad opposition" to including
webcasting in the treaty, but cited a "degree of support" for
protecting simulcasts -- webcasts by broadcasters. But CI wondered
what precedent WIPO may be setting. As Nigeria noted, "if you start
with simulcasting, you find a logic in webcasting. But if you include
webcasting, you find a logic in giving the new economic rights to all
web pages. And if you find logic in protecting web pages, you find a
logic in protecting printing presses and booksellers." That "crazy
logic" clearly paves the way for protection of unoriginal databases,
another item on the SCCR's agenda, CI said.

"It was a good meeting for us," said Consumer Project on Technology
Dir. James Love. Although the "European Union basically moved 90%
toward the U.S. position on webcasting... the rest of the world is
tearing up the treaty, article by article." If there's a majority
view right now, it's that webcasting should be dropped and the
document stripped down to a narrow signal piracy treaty for
traditional broadcasters, he said. There are important new proposals
on the table as well, and new issues have arisen. These will all be
taken up later, however, because "very little" was decided, Love said.

"We're making headway," WIPO Deputy Dir. Rita Hayes said in an
interview. Many differences of opinion remain but there are also
areas of agreement, she said. Delegates asked the SCCR chairman to
"clean up" the con-solidated text that was discussed by, for example,
clarifying why webcasting needs copyright protection.

Broadcasting and webcasting issues are "still out there," Hayes said.
But this meeting was notable for the level of technical discussion
that occurred and for strong showings from many delegations. "There
was a lot of good will in trying to move ahead," she said. The SCCR
will likely meet again in the spring, ahead of the WIPO general
assembly next Sept. At that point delegates could decide whether to
send the treaty to diplomatic conference. -- Dugie Standeford