[A2k] Implications of extending broadcast protection to the web

[Jason Pielemeier]

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[ Picked text/plain from multipart/alternative ]
another analysis by the same folks...

Position of Civil Society Groups on the
Inclusion of Webcasting in the Current Broadcast Treaty

For the reasons stated below, it is the position of the above noted
groups that:  (1) Separate Instrument: 'webcasting' and 'simulcasting'
should be considered under a separate instrument and not as part of the
current Broadcasting Treaty; and  (2) No Parity with Broadcasters:=A0 Any
rights granted to webcasting and simulcasting organizations should be
limited to reflect the very different nature of Internet transmissions.


  I.=A0=A0 =A0The Appendix extends substantive rights of the Treaty over th=
e
Internet

Article 3 states that Contracting Parties shall apply the provisions of
the Treaty mutatis mutandis to the protection of webcasting
organizations in respect of their webcasts." This is supported by the
Preambe to the Appendix, which states that the parties bound by the
Appendix, "Desir[e] to extend to webcasting organizations the
protection provided for in the Treaty on the Protection of Broadcasting
Organizations in an analogous and adequate manner."
  =A0
II.=A0=A0 =A0The application of the Treaty's substantive rights over the
Internet would have revolutionary implications

i.=09 =09Article 6 =96 Right of Retransmission

  "['Webcasters'] shall enjoy the exclusive right of authorizing the
retransmission of their ['webcasts'] by any means=85"
  Unresolved Questions:
=95=09=A0=A0 =A0Does this mean that servers which "retransmit" these 'webca=
sts'
(whether simultaneously or not) are unauthorized?=A0 If so, what exactly
does "unauthorized" mean?
=95=09    If a work is produced and made available under a Creative Commons
license (a license that allows free downstream non-commercial use) so
that any downstream user can use it, then transmission of that work by
any middle-man or aggregator would seem to confer a separate right on
those middle-men.=A0 That means that despite the CC license, the
downstream user would have to clear their use with the middle-man. =A0
=95=09 =A0 =A0This rights is likely to restrict access to works that are ma=
de
available under a Creative-Commons license, are not copyrightable or
are in the public domain. Even though national copyright law exceptions
and limitations may provide access, and Article 12 makes provision for
countries to pass "mirror" exceptions for webcasting rights, there is
no guarantee that exceptions will be created or even if they are, that
they will apply in the same way in this very different medium.

ii.=09  =09Article 7 =96 Right of Fixation

  "['Webcasting organizations'] shall enjoy the exclusive right of
authorizing the fixation of their ['webcasts']."
=95=09     In order to understand the consequences of this right, the
definition of fixation must be clarified.=A0 The data comprising a
webcast can be fixed on a hard drive, but it can also be fixed
temporarily or ephemerally, for instance in computer memory. As
currently defined, "fixation" would cover not only the conscious
'recording' of any 'webcast' but potentially also unintended and
transitory or ephemeral copying by receivers, retransmitters and
Internet intermediaries such as Internet Service Provider.=A0 This could
include otherwise lawful uses such as personal in-home 'time shifting'.

iii.=09  =09Article 8 =96 Right of Reproduction

  "['Webcasting organizations'] shall enjoy the exclusive right of
authorizing the direct or indirect reproduction in any manner or form
of fixations of their broadcasts."
=95=09    This may create potential liability for Internet Service
Providers and other Internet intermediaries who pass data across the
Internet and private computer networks. The process of transmitting
data across the Internet involves serial (temporary and transitory)
reproduction and transmission. Internet intermediaries may face
liability for making unauthorized reproductions of webcast data or for
passing unauthorized copies of webcasts across their networks in the
process of transmission of webcasts or their retransmission.
=95=09    This would seem to prohibit copying of=A0 'downloads' of 'webcast=
s'
that would be lawful under copyright law.=A0 This would not only prevent
the common practice of forwarding items of interest on to a group of
friends, but also the posting of such items on 'public' spaces such as
MySpace, YouTube or even a personal webpage.
  =A0
iv.=09Article 9 =96 Right of Transmission Following Fixation

  "['Webcasting organizations'] shall enjoy the exclusive right of
authorizing the transmission by any means for the reception by the
public of their ['webcasts'] following fixation=85"
=95=09=A0=A0 =A0If one were to create a video, post it to a site like MySpa=
ce,
which then 'assembled and scheduled' it to be 'webcast', MySpace would
obtain the right to authorize future transmission of your video and
could potentially, restrict access to it, even if you had made it
available under a permissive license such as a Creative Commons
license. The original creator would also have difficulty broadcasting
the video by traditional means unless she could prove that her
broadcast was not a copy of the webcast.=A0 This would be especially
difficult where her original work was created through live web-based
video.
=95=09=A0=A0 =A0Similarly, post-fixation rights and obligations related to =
works
made 'collaboratively' over the web with multiple actors using cameras
in remote locations in order to participate in a common production are
unclear.=A0 This will be particularly confusing if collaborators are
operating in different countries where not all are parties to the
Appendix. =A0

v.=09Article 10 =96 Right of Making Available of Fixed Broadcasts

  "['Webcasting organizations'] shall enjoy the exclusive right of
authorizing the making available to the public of their broadcasts from
fixations, by wire or wireless means, in such a way that members of the
public may access them from a place and at a time individually chosen
by them."
=95=09=A0=A0 =A0This definition would seem to prohibit the collection or
archiving of 'webcasts'.=A0 Though traditional libraries and archives
might be exempted in national law under Article 12, a veterinarian who
collects and posts recordings of permissively licensed videos of cats
on a personal website, or an environmental organization that collects
and posts videos of public speeches by business executives might not.

III.=09Technological Protection Measures (TPMs) for =91webcasting=92 may
restrict access to information that is in the public domain or not
copyrightable and stifle innovation on the Internet.

=95=09Article 14 of the Treaty requires Member States to create laws that
protect against circumvention of technological measures used by
broadcasters, and cablecasters and potentially webcasters. This will
require "technology mandate" laws over the devices (such as computers)
that can receive TPM-protected webcasts. To provide effective
protection for webcasters' TPMs, governments need to create laws that
(1) require receiving devices to look for and respond to the measure,
and (2) ban any device that doesn't do so. In practice, this is likely
to ban free and open source software.


The web is a totally new and distinct operating environment.  Whereas
the implications of the Treaty for broadcast and cablecast are to some
degree confined by the large start-up costs of becoming a broadcast or
cablecast organization, anyone with an Internet connection can be a
=91webcasting organization=92.  Also, the production and transmission of
content over the Internet involves a much higher degree of
interactivity than traditional broadcasting and cablecasting.
Furthermore, while broadcasts and cablecasts =91disappear=92 from the
public after their original transmission, =91webcasts=92 are often
maintained on the Internet for long periods of time.  Given that
content is increasingly being moved onto or created on the Internet,
the principles of democracy, development and justice require that any
rights established not restrict the ability of users to participate and
benefit from this powerful new medium.

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