[A2k] EFF Intervention at SCCR S2

[Gwen Hinze]

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[ Picked text/plain from multipart/alternative ]
ELECTRONIC FRONTIER FOUNDATION STATEMENT ON THE
PROPOSED WIPO BROADCASTING TREATY
SECOND SPECIAL SESSION OF THE SCCR, JUNE 18-22, 2007

Madam Vice-Chair, congratulations on your election and thank you for
the opportunity to present my organization's views to Member States.
I speak on behalf of the Electronic Frontier Foundation and its
13,000 members worldwide. Today I would like to make three points.

First, in light of the General Assembly's clear mandate to the SCCR,
EFF remains concerned that the Chair's non-paper is not signal-based
but is instead premised on creation of rights that apply after
fixation of signals, rather than the provision of measures against
signal theft. We continue to believe that the public interest and
innovation concerns as well as the protection of broadcasters'
legitimate interests could be addressed by a treaty specifically
focused on intentional signal theft, rather than creating broad
retransmission and post-fixation rights. So long as the treaty is not
limited to real signal protection, it threatens to restrict the
public's access to knowledge and consumers' existing rights under
national copyright law.

Giving traditional broadcasters and cablecasters exclusive rights
over deferred Internet retransmissions that apply in addition to
copyright is also likely to harm emerging citizen broadcasting on the
Internet, such as podcasting, at a time when it is still unclear
whether incumbent broadcasters will be displaced by these new modes
of Internet media. EFF has been asked to deliver an open letter to
WIPO expressing these concerns signed by over 1500 podcasters from
around the world, which we will make available outside shortly.

Second, the inclusion of legally enforced technological protection
measures in Article 9 to enforce such broad retransmission rights
also raises serious concerns for the public interest and innovation
policy.  It is likely to override national exceptions and limitations
that would otherwise permit consumers, libraries and students to
access public domain material and make non-infringing uses of
transmitted works. This is particularly true of Article 9 which
requires no linkage between decryption or circumvention, and
infringement of broadcaster and cablecaster rights.

Implementing Article 9 is likely to require technology mandate laws
that harm consumers and innovation.  In its current form it also
contains an overbroad decryption device ban that will ban personal
computers and other common devices capable of decryption but which
have many lawful uses. The combination of TPMs with the proposed
retransmission rights will also harm competition by allowing
broadcasters and cablecasters to use TPMs to control the market for
transmission receiving devices such as digital video recorders and
networked in-home entertainment device. Contrary to the explanatory
notes in the Chair's non-paper, the inclusion of the words "to the
public" in Article 7 would not stop the treaty from encroaching upon
consumers private uses in their homes, nor innovation in the personal
networking device market. This can only be done by removing Article 9
or any equivalent provision from the treaty.

Finally, the broad scope of the proposed retransmission rights
underlines the need for commensurate exceptions and limitations to
protect the public interest. At a minimum, any treaty should include
mandatory exceptions that are at least equivalent in scope to those
in the Rome Convention and TRIPs, including a non-exhaustive
enumerated list of exceptions necessary to facilitate freedom of
expression, and the ability to create appropriate new exceptions. We
note that while TRIPs permits signatories to recognize certain
non-exclusive broadcasting rights, it does not condition creation of
exceptions to those rights on satisfaction of the three-step text,
and we see no reason to constrain Member States' ability to do so in
the present treaty.

These are fundamental issues that must be resolved before Member
States consider moving to a Diplomatic Conference. We respectfully
urge Member States to carefully consider the impact of an exclusive
rights-based treaty on consumers, citizen broadcasting on the
Internet, competition and innovation, and not just protection of
broadcasters' and cablecasters' investments, in your discussions this
week.

Thank you for your consideration.





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Gwen Hinze
International Affairs Director
Electronic Frontier Foundation
Email:gwen@eff.org
Tel.: + 1 415 436 9333 x110

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