[A2k] Public Knowledge's intervention at SCCR S2

[Sherwin Siy]

On behalf of Public Knowledge, I would like to thank you, Madam Chair,
and offer our congratulations on your election. Public Knowledge is a
Washington-based non-profit organization dedicated to protecting
consumers' rights in the emerging digital culture, and ensuring a
vibrant information commons.Despite the continued efforts of the Chair
and this committee, we continue to have reservations about the current
non-paper of April 20, 2007.

First and foremost, Public Knowledge does not believe that IP rights are
a necessary minimum for protecting broadcasts. A true signal theft
treaty can protect broadcasters from intentional misappropriation
without creating the attendant problems of an overlapping IP right. The
mandate from the General Assembly requires that the Committee take a
signal-based approach, and we believe that this requires neither every
member state granting IP rights in broadcasts, nor the repeal of any
existing conventions. Requiring a rights-based treaty would create
serious liability risks for individual users, intermediaries, and other
rightsholders, and if faced with the stark choice between such a treaty
and abandonment of the process, we would choose the latter. Existing
copyright laws and international agreements already prohibit the
infringement of copyrights on video-sharing sites, and a signal theft
treaty will complement this regime without interfering with it.

Secondly, Public Knowledge remains concerned about the non-paper's
effects on the public domain. The public domain is a rich source of
accessible knowledge precisely because its works can be disseminated
without legal restriction. Granting broadcasting organizations a right
to prohibit distribution of public domain content=97based solely upon the
route taken by that content=97would create barriers to access to knowledge
and information that would frustrate the objective of broad
dissemination inherent to the concept of the public domain. Therefore,
the treaty should not apply to signals containing content in which no
underlying copyright or related right exists.

Thirdly, Public Knowledge retains grave concerns about the scope of the
non-paper's provisions on technological protection measures. The
provisions on encryption, as currently phrased, prohibit not just those
devices used to misappropriate broadcast signals, nor even those devices
that are used to circumvent encryption, but all devices capable of
decrypting an encrypted broadcast. This provision is overbroad as
currently phrased, and risks prohibiting devices and systems with
substantial noninfringing uses, simply because of a speculative
capability to cause harm. The provision should be designed only to
prohibit decryption or removal of rights management information where
the intent is to misappropriate a signal.  This could be done by
requiring a standard of intent or by building in exceptions and
limitations to Article 9.

Unless these crucial issues are addressed as negotiations progress, we
believe that the treaty will not properly reflect the balance between
various rightsholders and the public interest. Thank you for your attention=
.


--
Sherwin Siy
Staff Attorney
Director, Global Knowledge Initiative
Public Knowledge
202.518.0020