[A2k] Howard Knopf on the WIPO xcasting Treaty

[James Love]

*  A convincing case has not been made that broadcasters or
webcasters need to be able to assert rights in underlying works that
are either in the PD or are orphaned. Simply making them available,
by broadcasting, communicating, distribution or whatever term you
like without more shouldn't create obstacles to access and entry into
the PD.

*  The treaty proposals appear to go much farther than necessary to
combat misappropriation or theft of signals, which is a valid concern.

*  The concerns of the user community are also heightened by the
increasing incidence of convergence of broadcasters' and webcasters'
interests with copyright ownership interests, so that control of the
"master" or readily accessible copies may be in the hands of the
broadcaster/webcaster - who will be tempted to use the new found
rights to strategically and effectively elongate and perhaps even
perpetuate expired underlying rights.

*  And by the way, Canada has potentially much to contribute on this
issue at WIPO - even if only to help explain the issues to many
countries that clearly don't understand them. Why are we sending
undoubtedly well informed, well prepared and relatively large
delegations who are virtually silent on the official record when
there is so much that needs to be asked and said?  There is a lot at
stake and Canada has a lot of responsibility - not only to its
corporate stakeholders but to its citizens - and to other countries
who have looked to Canada for leadership in the past and in other
fora. Silence, in this instance, amounts to acquiescence to a
troubled treaty proposal with profound potential effect concerning
which there is little understanding.


http://excesscopyright.blogspot.com/2006/02/excess-in-proposed-wipo-
xcasting.html

EXCESS COPYRIGHT

Copyright is good. Excess in copyright is not. There are many parties
in the copyright construct. All of them must avoid excess in order
for copyright to be sustainable. This blog will explore when success
is excess. I practice IP law with Macera & Jarzyna, LLP in Ottawa,
Canada. I've also been in government and academe. My views are purely
personal and don't necessarily reflect those of my firm or any of its
clients. Nothing on this blog should be taken as legal advice.
About Me
Name:Howard Knopf
Location:Ottawa, Canada


Sunday, February 26, 2006
Excess in Proposed WIPO "xcasting" treaties

Sceptics about the proposed broadcasting and webcasting rights treaty
being pushed at WIPO have much to worry about in terms of hopefully
unintended but clearly foreseeable negative consequences for users'
rights involving insubstantial copying, fair use and fair dealing,
access to orphan works, of course the public domain.

The proposed treaties might make more sense to those who have
concerns for these issues if those advocating for the treaties would
come out and expressly disclaim any interest in preventing any acts
in relation to the underlying works taken alone (i.e. without
commentary or other copyrightable added value) if the broadcaster or
webcaster doesn't own copyright in those works.

A museum does not own any copyright in a 500 year old painting.
Publishing a reproduction of it, no matter how "accurate", should not
give it any rights - as the American Bridgeman v. Corel decision
states. There are lots of ways to "monetize" the publication of
catalogues, post cards, etc. without effectively asserting copyright
in the underlying PD works.

A convincing case has not been made that broadcasters or webcasters
need to be able to assert rights in underlying works that are either
in the PD or are orphaned. Simply making them available, by
broadcasting, communicating, distribution or whatever term you like
without more shouldn't create obstacles to access and entry into the PD.

The treaty proposals appear to go much farther than necessary to
combat misappropriation or theft of signals, which is a valid concern.

The concerns of the user community are also heightened by the
increasing incidence of convergence of broadcasters' and webcasters'
interests with copyright ownership interests, so that control of the
"master" or readily accessible copies may be in the hands of the
broadcaster/webcaster - who will be tempted to use the new found
rights to strategically and effectively elongate and perhaps even
perpetuate expired underlying rights.

Actually, the issues may be even more serious from a practical
standpoint in respect of possible over layering or over restriction
of rights by webcasters as compared to broadcasters, if only because
it's easier to imagine how webcasters could deploy DRM or TPM or
otherwise enforce their proposed rights. That=92s because webcasting is
digital. Traditional broadcasting, however, is still analog.

It's going to be a while before analog broadcasting disappears and
the analog hole will hopefully be around for some time - so that the
public can continue to benefit from the PD, fair use and their other
rights.

And by the way, Canada has potentially much to contribute on this
issue at WIPO - even if only to help explain the issues to many
countries that clearly don't understand them. Why are we sending
undoubtedly well informed, well prepared and relatively large
delegations who are virtually silent on the official record when
there is so much that needs to be asked and said?

There is a lot at stake and Canada has a lot of responsibility - not
only to its corporate stakeholders but to its citizens - and to other
countries who have looked to Canada for leadership in the past and in
other fora. Silence, in this instance, amounts to acquiescence to a
troubled treaty proposal with profound potential effect concerning
which there is little understanding.

HPK


---------------------------------
James Love, CPTech / www.cptech.org / mailto:james.love@cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040

"If everyone thinks the same: No one thinks."  Bill Walton