[Ecommerce] Note on the Proposed WIPO Treaty for Broadcasters, Cablecasters and Webcasters

[James Love]

Note on the Proposed WIPO Treaty for Broadcasters, Cablecasters and
Webcasters
James Love, CPTech*
October 29, 2003

 From November 3 to 5, the World Intellectual Property Organization
(WIPO) Standing Committee on Copyright and Related Rights (SCCR) will
meet in Geneva to decide how to proceed on proposals for a new global
intellectual property treaty.   The proposed treaty concerns a system of
ownership for material transmitted over wireless means such as
television, radio and satellite, as well as wired communications over
cable networks, and also over Internet computer networks.

This proposal expands or gives new rights to transmitters of
information, even if they are not the creators of that information.
Rights that are normally reserved to creators and performers would be
afforded to organizations that merely transmit creations and
performances -- even if those works are in the public domain, even if
those works' authors wish to have the works distributed without restriction.

There are proposals to extend coverage to broadcast, cablecast, and
webcasting technologies, and the treaty will be referred to here as the
"casting" treaty.

RELATIONSHIP TO OTHER TREATIES

The proponents of the treaty claim it is needed to update protections
for broadcasters in the WTO TRIPS accord and in the Rome convention.
However, in this case "updating" means extending terms from the 20 years
of the TRIPS and the Rome Convention, to 50 years, extending the
protection to many new technologies, and creating new rights.   The
proponents claim the extension to 50 years is a matter of "fairness,"
since in 1996, a WIPO performers and phonograms treaty (the WPPT)
provided a 50 year term.

Most countries are subject to the TRIPS, but the TRIPS does not require
members to provide these "related rights" to broadcast organizations if
they provide copyright owners the right to protect materials when
broadcast.   The US for example does not provide a "related right" to
broadcast organization, but does protect content under copyright laws,
or theft of cable satellite signals under regulatory regimes.

The United States is not a signatory to the Rome Convention, and no
European country is a signatory to the WPPT.   Indeed, the members of
the WPPT are mostly developing countries that signed the treaty in
response to US trade pressures.

	EXTENSION TO NEW TECHNOLOGIES

The development of new information technologies makes the proposed
casting treaty important.  The changes are in two primary areas.  First,
the nature of what is considered a broadcast is changing, particularly
with digital technologies.  Even analogue broadcasts are now including
more and more text, including machine-readable subtitles, and the future
of digital broadcasts are increasingly embracing broader scope of
content, including text, data, still pictures, and other elements not
traditionally associated with television or radio.  Firms are developing
and expanding the scope of content distributed as music, films, news,
sporting events, etc, to take advantage of the ability of the public to
receive and manipulate a variety of types of information.

Second, there is an explosion of new technologies that "broadcast" by
wireless means, and that transmit via the Internet and Internet-like
networks.

The lines between these technologies are constantly being blurred.
Cable and satellite television networks offer Internet services, and new
wireless networks for television, mobile phones, audio broadcasts,
Internet connections and other services are increasingly offering the
products and services of the others.

The current proposals for the treaty often approach the issue as if the
content is static (what was broadcast in the 1950's or 60's), while
there is a need to accommodate the new platforms to deliver content.
However, it is increasingly difficult to maintain that expanding both
the scope for content and the covered platforms will not have
far-reaching consequences.

	WHAT CONTENT IS COVERED?

In a recent discussion of the treaty at the Consumers International/TACD
Lisbon workshop on WIPO, some national negotiators said the treaty would
cover text and data, while others said it would not.   In a recent
USPTO/LOC briefing on the treaty, the same issues were debated, and some
content/casting entities claimed the treaty would and should cover any
information transmitted, while others said this was not intended.

A typical proposed definition of covered content would be "sounds,
images or sounds and images, or of the representations thereof," with
additional terms that address the issue of how the material is
disseminated.  For Broadcasting and Cablecasting, the US has suggested
an exclusion of "transmissions over computer networks or any
transmissions where the time and place of reception my be individually
chosen by members of the public."  However, this limitation does not
appear in the US definition for webcasting.  Instead there is only a
requirement that the webcaster make the material accessible to the
public "at substantially the same time."  CPTech understands this to be
only a condition of when the data is first made available, and not when
it is downloaded.  Some webcasters have said the want protection for the
files that can be accessed on demand.   CPTech has asked WIPO members to
clarify this point.

If the threshold is simply and only "making accessible" the materials
"at substantially the same time," then plausibly the entire world wide
web is covered, including every image and sound on the Internet.  If
text is included under images or sounds (or representations thereof) ,
as some delegates claim, then nearly the entire world wide web would be
included.  Certain peer-to-peer networks, such as emule, would appear
also be included in the definition of webcasting.  If this is not
intended, it can and should be clarified.


THE CONSEQUENCES OF GRANTING OWNERSHIP, CONTROL
AND PROTECTION BASED SOLELY ON TRANSMISSION
(Particularly when applied to the Internet).

The casting entities fundamentally want a layer of ownership over
materials that they did not create or previously own.  They want the
treaty to declare they "own" what they transmit, even when the materials
are in the public domain (government works, older works, materials
donated to the public domain, etc), when they cannot be copyrighted
(facts, data, other non-copyrightable materials), or when owned by third
parties, including those who have no interest in suppressing
distribution of works (speeches by government officials, Al Qaeda tapes,
listserves, newsgroups, etc).

If the treaty covers all new wireless methods of "broadcasting" content,
and if it covers cable networks, and if it covers "webcasting," it is
difficult to imagine what will not fall under its scope.  Some critics
of the treaty have shifted from asking what will be covered, to asking
what will *not* be covered.

CPTech has asked WIPO officials, the US, the EU and other WIPO members
and stakeholders to provide assurances that text, data, literary works,
still photos, and other works be explicitly excluded from the treaty
scope.   We are waiting to see if any such limitations are forthcoming.
  The US delegation is pushing the hardest to include a new category for
"webcasting" in the treaty, and they claim there is no intention to use
the treaty to cover the entire Web with a new layer of ownership based
solely on transmission, but even if the treaty could actually be limited
to traditional analogue type television and radio content, it would
still have a significant effect in reducing the public domain, by
granting a 50 year term of exclusive rights on all "images, sounds and
sounds and images, and representation thereof," which would actually be
included.


	PROTECTION SCHEME SIMILAR TO SUI GENERIS PROTECTION
OF DATABASES

The rationale and basis for protection is very similar to the various
proposals to provide protections to elements of databases, including the
EU directive on the protection databases, the failed 1996 WIPO treaty on
databases, and the current proposals in the US Congress on databases.
In each case, there is no claim of authorship, but an appeal to protect
investments needed to gather, organize and disseminate the work.  If the
casting treaty is approved, WIPO will be under tremendous pressure to
move forward on a new treaty on databases, since the rationale for
protection is essentially the same.   Indeed, in the recent CI/TACD
Lisbon meeting on WIPO, the question was asked, is there anything the
webcasters do that would not already be protected in Europe under the
European laws on databases?   The answer was not clear, but it may be
that the webcasting treaty would go even further and reduce the public's
rights to use Internet accessible materials even more.

	THE APPROPRIATE TERM FOR PROTECTION OF INVESTMENT.

Wholly apart from the issue of whether or not any new intellectual
property protection should be extended to casting entities, there is an
important issue concerning the appropriate term for the protection of
investments.

In the WTO TRIPS accord, minimum protections of patented inventions and
broadcast signals are 20 years of protection, while the term of
copyright is a minimum of 50 years.  In US and EU laws a number of
different terms are used to protect investments.

There are also a number of other models for the protection of
investments.   The TRIPS requires protections against unfair commercial
use for undisclosed data used to support the registration of certain
pharmaceutical and agricultural products.  Companies spent millions of
dollars on clinical trials to support the registration of pharmaceutical
drugs, sometimes when there is no patent on the product.  In the United
States, data for new chemical entities receive exclusive rights for 5
years, and data used to support broader uses of a product receive 3
years of exclusive rights.  In Europe, data for drug registration may
receive 6 to 10 years of exclusive rights.  The US provides for 10 years
of rights for data used to support the registration of pesticides  (7
USC Chapter 6, Subchapter II, Sec 136a. Registration of pesticides),
subject to compulsory licensing of data to competitors (based upon
equitable sharing of costs).   The US and the EU are pushing developing
countries to adopt similar measures to protect investments in
registration data, and these efforts are controversial.  In the CAFTA
negotiations agricultural and pharmaceutical producers are resisting US
and EU style protections.  Earlier, Argentina successfully resisted US
pressure to adopt such measures, as being beyond the WTO TRIPS
requirements.

Other types of protection for investment are the terms for exclusivity
of orphan drugs in the US (seven years) and Europe (10 years), or to
protect investments in pharmaceutical paediatric tests (6 months of
exclusivity).

The European Directive for the protection of databases provides for a
15-year term of protection.

The "casting" entities seek a 50-year term, which is entirely based upon
an appeal to protect investment.  This is 45 years longer than the
United States protects investments in pharmaceutical clinical trials, 35
years longer than the EU database directive and 30 years longer than
TRIPS currently protects broadcast signals.  There is ZERO economic or
moral rationale to provide a 50-year term to protect investments in the
transmission of the works not created by the casting entities, and it
sets a bad precedent for investment based types of protection.  By the
very nature of protections based upon investments, the term should be no
longer than what is needed.

Excessive terms of protection harm the public by increasing prices and
reducing access to information.

When there is no economic justification for the protection, only a
demonstration of the political power of the casting entities, the unjust
extension of protection will breed cynicism and contempt and erode
efforts to build more respect for intellectual property regimes.


	RELATIONSHIP TO GPL

We have asked the US government to look at the possible impact of the
treaty on the GNU General Public License (GPL), and in particular, we
asked if a person who received material licensed under the GPL could
undermine its openness requirements by making modified code available
over a network with a new layer of treaty rights.  This depends in part
upon the scope of content that is covered under the treaty.

	TECHNOLOGICAL MEASURES

The proposed treaty also would mandate the prohibition of circumvention
of technical measures intended to restrict "unauthorized" use of
materials.  This echoes the US movement to create a "broadcast flag"
regime through the FCC, which would require the permission of copyright
giants before new technologies could be brought to market, and which
bans "open source/free" software for use in digital television contexts.
  If the scope of this proposal indeed extends to all information
transmitted online, over the air, and so forth, then this requirement
would stifle all innovation in tools that send and receive information
-- at every turn, a rights-holder would be waiting to assert the ability
to control the way that browsers, email clients, phones, file-sharing
applications and so on are designed and deployed.  Indeed, the US is
thought to be waiting until the FCC announces a position on this
controversial issue, and then to push for inclusion of similar
obligations in the WIPO treaty.

In June, the North American Broadcasting Association said WIPO must move
further into technological measures to protect content and
transmissions.  The presentation included two officials from News
Corporation (Fox, Murdoch).


	NEW RIGHTS

There are numerous proposals for various rights to be associated with
the casting treaty, including the right to prohibit or authorize
fixations, or the rentals of fixations.  Some content owners see the
casting entities as seeking to use the treaty framework to expand their
control over the retail exploitation of their works.  Creators of works
who do are not in a strong bargaining position relative to "casting"
entities are concerned that the treaty will erode their control over works.

There is considerable controversy over the proposal to extend the treaty
to webcasting, and to include new rights to exploit works.  A June 2003
statement by 15 organizations representing authors, publishers,
performers and producers opposed the extension of the treaty to
webcasting, pointing out it would extend even to private individuals
transmitting content from their homes.  These groups also object to the
expansion of the scope of the treaty from "signal" piracy, to measures
"not required to fight privacy but to exploit the context used by the
broadcasting organizations (e.g. sweeping transmission and communication
to the public)."  (Joint Recommendation of Right Holders on the
Protection of Broadcasting Organisations, June 2003).


	NEXT STEPS

The Civil Society Coalition (CSC) is accredited in the WIPO SCCR, and
will have as many as 10 persons in Geneva for the November 3-5 meeting.
  Manon Ress <manon.ress@cptech.org> is coordinating CPTech's work on
the casting treaty, and a number of NGOs and experts from the US,
Europe, Africa and "Asia will be attending the meeting.

One possible outcome of the November meeting will be an agreement to
create a chairman's draft treaty, with different possible strategies in
terms of how ambitious the draft is in terms of inclusion of
controversial issues.  The Webcasters (Time-Warner, Yahoo, Microsoft,
DiMA, etc) would like to be included in this treaty, while some WIPO
members, including Japan, want a separate instrument for webcasting.

For more information, see: http://www.cptech.org/ip/wipo/wipo-casting.html

* Cory Doctorow from EFF made helpful comments and suggestions on an
earlier draft.


--
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040