[A2k] Definition of Webcasting

[Jason Pielemeier]

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Here is an analysis by Civil Society Coalition, Electronic Frontier
Foundation, IP Justice and the Open Knowledge Foundation of the
definition of webcasting as contained in the Appendix to the current
Draft Basic Proposal on the Broadcasters' Treaty:

The Implications of =91Webcasting=92 for the Broadcast Treaty

I.  What/Who is Covered by =91Webcasting=92?

Article 2 is meant to define =91webcasting.=92  Here we seek to dissect and
understand this definition:

=95=09=93(a) =91webcasting=92 means the transmission by wire or wireless me=
ans
over a computer network=85=94
o=09This could include a WiFi network or a mesh network.
=95=09 =93=85for the reception by the public=85=94
o=09This could mean anything posted for the whole world to see, or
something sent from one person to another that is =91visible=92 to (not
restricted from) others, whether knowingly or not.
=95=09=93=85of sounds or of images or of images and sounds or of the
representations thereof=85=94
o=09This sweeps in audio transmissions including music, speech or even
static noise for that matter, as well as video, photos, picture and
perhaps even text/data.
=95=09=93=85by means of a program-carrying signal which is accessible for
members of the public at substantially the same time.=94
o=09This is quite confusing since transmissions over the web are not
carried by =91signal=92, as the term is traditionally understood.  While
signals are Hertzian waves, transmissions over the web are carried by
packets. Almost anything on a non-restricted computer network is
accessible to =91the public=92 at =91substantially the same time.=92
=95=09=93Such transmissions, when encrypted, shall be considered as
=91webcasting=92 where the means for decrypting are provided to the public
by the =91webcasting=92 organization or with its consent.=94
o=09This meaning of this second sentence is not clear.  It seems to imply
that all non-encrypted transmissions (which meet the criteria of the
first sentence) are considered =91webcasting.=92  It also appears that
encrypted content that is transmitted by non-encrypted =91signal=92 would
qualify.
=95=09=93(b) =91webcasting organization=92 means the legal entity=85=94
o=09As several delegations have pointed out it is unclear who fits under
this umbrella.  Does an individual (persona juridica)? An informal
group of collaborators? A computer?
o=09This creates significant issues regarding jurisdiction if not all
countries subscribe to the Annex.  As the delegate from Brazil pointed
out yesterday, a simple .br domain name might qualify a non-Brazilian
=95=09=93=85that 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.=94
o=09It seems that =91assembly and scheduling=92 are meant to capture and
reward the =93sweat of the brow=94 effort made by these entities.  Yet, in
the digital networked world a computer can easily compile, sort,
schedule and disseminate content without any real =91effort=92.  Scheduling
only has to happen once for all future =91transmissions=92 to then qualify
for protections. Also, the word =91responsibility=92 immediately suggests
liability but is not further clarified.

=91Webcasting=92 is different in many crucial respects to broadcasting.
Broadcasting is point to multipoint transmission by Hertzian waves,
whereas webcasting as currently defined could cover point-to-point
transmission. =91Webcasting=92 is also different from cablecasting, which
is transmissions over a fixed wired network.  By comparison, content
distributed over the Internet is most often delivered by packets and do
not have to follow a single route. That is they can travel various
paths, which go across national boundaries, to be reassembled by the
end user.

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