[A2k] Webcasting

[Pranesh Prakash]

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[ Picked text/plain from multipart/alternative ]
Dear All,
The Centre for Internet and Society <http://cis-india.org> will be
addressing the Ministry of Information and Broadcasting in India on
Webcasting.  I've copied the proposed presentation in text format below.
Could people on this list please give some quick feedback on mistakes,
suggestions (and any other comments you may have)?

Regards,
Pranesh

>----<
Background
Indian Copyright Act: ss. 2(dd), 2(ff), 37, 39A
Rome Convention, 1960: India=E2=80=99s signed, hasn=E2=80=99t ratified
TRIPS Agreement: Art. 14
   But TRIPS does not mandate.
WPPT: Arts. 2(f), 15
WIPO Broadcast Treaty
  May 2006 =E2=80=93 Agreement to excise webcasting and simulcasting
  September 2006 - Current draft (SCCR/15/2 rev)
  August 2007 =E2=80=93 WIPO non-paper (SCCR/S2/Paper1)
    WIPO drops Dipcon plans
  November 2008 =E2=80=93 WIPO informal paper (SCCR/17/INF/1)
    Advocates technological-neutrality

>----<
Broadcasting
Definition
Generally taken to be point to multipoint transmission of audio-visual
content.  Hence, cable transmissions and Internet/Web transmissions usually
not included.  No common definition, though.
5(a): =E2=80=9Cbroadcasting=E2=80=9D means the transmission by wireless mea=
ns for the
reception by the public of sounds or of images or of images and sounds or o=
f
the representations thereof; such transmission by satellite is also
=E2=80=9Cbroadcasting=E2=80=9D. Wireless transmission of encrypted signals =
is =E2=80=9Cbroadcasting=E2=80=9D
where the means for decrypting are provided to the public by the
broadcasting organization or with its consent. =E2=80=9CBroadcasting=E2=80=
=9D shall not be
understood as including transmissions over computer networks. (SCCR/15/2
rev)
Cablecasting defined separately.

>----<
Rights being discussed:
Right of Retransmission
Communication to the Public
Fixation
Reproduction
Distribution
Transmission Following Fixation
Making Available of Fixed Broadcasts
Protection in Relation to Signals Prior to Broadcasting
Also: TPMs, DRMs.

>----<
Netcasting
Latest proposal by the U.S.
(a) =E2=80=9Cnetcasting=E2=80=9D means the transmission by wire or wireless=
 means over a
computer network, such as through Internet protocol or any successor
protocol, for simultaneous or near-simultaneous reception by members of the
public, at a time determined solely by the netcasting organization, of
sounds or of images or of images and sounds or of the representation
thereof,
(1) that are of a program or programs consisting of pre-recorded, scheduled
audio, visual or audiovisual content of the type that can be carried by the
program-carrying signal of a broadcast or cablecast;  or
(2) that are of an organized live event transmitted concurrently where the
organizer of such event has granted permission to transmit the event;  or
(3) that are also being cablecast or broadcast at the same time.
If encrypted, such transmissions shall be considered netcasting where the
means for decrypting are provided to the public by the netcasting
organization or with its consent
(b) =E2=80=9Cnetcasting organization=E2=80=9D means the legal entity that t=
akes the
initiative and has the responsibility for the assembly and scheduling of th=
e
content of netcasts.
Agreed statement concerning these definitions:  The scope of the definition
of =E2=80=9Cnetcasting=E2=80=9D is intended to be limited to transmissions =
over computer
networks carrying programs consisting of audio, visual or audio-visual
content or representations thereof which are of the type that can be, but
are not necessarily, carried by the program carrying signal of a broadcast
or cablecast, and which are delivered to the public in a format similar to
broadcasting or cablecasting.  By its terms, =E2=80=9Cnetcasting=E2=80=9D d=
oes not include
merely providing access to audio or video content that is not pre-recorded
for purposes of transmission via broadcast, cablecast or netcast.

>----<
Merging Webcasting and Broadcasting
Webcasting is sought to be included within the Broadcasting Treaty for a
number of reasons:
=E2=80=9CTechnology-neutral=E2=80=9D
    To ensure that the treaty is relevant into the future as well.
=E2=80=9CConvergence=E2=80=9D
    Now the same content (which is usually digital) can be delivered throug=
h
various communication networks
=E2=80=9CSame function =3D Same rights=E2=80=9D
    Since Webcasters perform roughly the same functions as broadcasters,
they should also be included when broadcasters are given rights/protection.
There are severe flaws in those arguments.
    Neutrality does not mean wilful blindness to technological
advancements.  Webcasters work in a very different environment from
broadcasters.  Little scarcities, no programming, etc.

>----<
Why Some in the Idustry Want Broadcasting Treaty
Innovation and competition.  But:
    Intense innovation and competition already exists.  Webcasting is
booming.  U.S.A., with the largest broadcasting networks, does not have
specific broadcasters=E2=80=99 rights.
    Less investment is required due to technological advancements.  Anyone
can become =E2=80=98broadcasting organisation=E2=80=99.
    IP addresses (in IPv6) not limited, like terrestrial broadcasting space=
.
Piracy.  But:
    Signal appropriation does not happen for sake of the signal, but for th=
e
content.  Protection, thus has to be given to the content (and already is).
    Copyright owners have proven more than willing to pursue those who
appropriate their works =E2=80=93 broadcasters aren=E2=80=99t in a better p=
osition to do
so.  Especially so with webcasting.  Indeed, on the Web, signal
appropriation is encouraged: embedding is prevalent.

>----<
Problems
Transaction costs increase vastly
    Leading to tragedy of the anticommons where no one ends up using the
content because clearing all the surrounding rights is too difficult.
Public domain / Openly licensed content / Fair dealings
    Since rights over signal are independent of rights over content, it wil=
l
become more difficult to access the public domain and open-licensed content=
,
and usage for fair dealings will also become more difficult.
    L&E are difficult to work out; end up being narrow.
Public benefit and access harmed
    Will hamper statutes like Sports Broadcasting Signals (Mandatory Sharin=
g
with Prasar Bharati) Act, 2007

>----<
Differences
Infrastructure
Competition
Broadcasting vs. Uni- and Multicasting
Temporal limitations
    Content on demand is possible.
Geographic limitations
Marginal costs of subscribers

>----<
Conclusion
=E2=80=9CFinally, if after consideration of the options above (A/B) and pos=
sible
other options, it will not in the present situation be possible to decide o=
n
the establishment of a new treaty, the SCCR should end these discussions
through an express decision in order to avoid further spending of time,
energy and resources to no avail. Such a decision could include a timetable
for later revisiting and reconsidering the matter.=E2=80=9D (SCCR/15/2 rev)

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Pranesh Prakash
Programme Manager
Centre for Internet and Society
W: http://cis-india.org | T: +91 80 40926283