[Ecommerce] Declan McCullagh: Treaty casts shadow on public domain

[James Love]

http://news.zdnet.co.uk/internet/webservices/0,39020378,39117718,00.htm

Treaty casts shadow on public domain
Declan McCullagh
CNET News.com
November 07, 2003, 15:50 GMT

Tell us your opinion
Concerns have been raised over the world's first Webcasting treaty
before its ink is even dry

A United Nations committee on Wednesday approved the world's first
Webcasting treaty, which has drawn criticism that it limits the use of
works that are in the public domain.

At a meeting in Geneva, the World Intellectual Property Organisation's
Standing Committee on Copyright and Related Rights agreed to prepare a
draft of the treaty by 1 April, 2004. A second meeting is scheduled for
June, followed by an expected diplomatic conference during which nations
that are members of WIPO -- a UN agency -- could sign the final treaty.

The treaty -- which was proposed by the Bush administration and is
backed by Yahoo, the Digital Media Association and other US Webcasters
-- generally seeks to extend to Webcasters the same level of
international intellectual property protection that TV and radio
broadcasters currently enjoy. The Webcasting sections are part of a
broader proposal titled "Protection of the rights of broadcasting
organisations."

Jamie Love, who works for the Ralph Nader-affiliated Consumer Project on
Technology, says the treaty is worrying because it creates an additional
legal protection for works in the public domain that are Webcast.

"Say there's a film that's out of copyright and in the public domain,
but it's in the vault of some movie studio," Love said. "If you got it
from the broadcast, you're not allowed to make a copy. You have to go to
the original source."

In other words, anyone viewing a Webcast of material that falls outside
of copyright -- such as a government-created documentary or a very old
movie or audio recording -- may not be able to freely store and
redistribute that content.

Love added that some nations consider sports events to be in the public
domain, but the treaty would give both Webcasters and TV broadcasters
the right to block retransmission. "Broadcasters see this as a way to
extend rights to noncopyrighted information," said Love, who attended
the WIPO meeting in Geneva.

Seth Greenstein, a partner at law firm McDermott Will & Emery who
represents the Digital Media Association, said the treaty is necessary
to protect the rights of Webcasters in WIPO nations that do not have
copyright laws as extensive as those in the United States.

"Because Webcasting is already delivered by digital networks, it's
particularly susceptible to retransmission via the Internet," Greenstein
said. "So far, a number of Internet companies have successfully used
technological fixes to thwart piracy of their signal, but it would be
more effective if those technological fixes were supported by legal
prohibitions and remedies as well."

Greenstein is legal counsel to the Digital Media Association, whose
members include AOL, FullAudio, Listen.com, RealNetworks and Yahoo. He
acknowledged Love's concern about the sweep of the treaty, but said such
restrictions were necessary to protect the economic investment of
Webcasters. "What we're saying is that if you take a look at what
Webcasters do, it's the same acts that you've been trying to protect for
all these years with broadcasting," Greenstein said. "Don't focus on the
differences in technology."

The US Patent and Trademark Office, which sent a delegation to Geneva on
behalf of the Bush administration, did not immediately return phone
calls on Thursday.

According to the treaty language proposed by the US delegation,
Webcasting means "the making accessible of transmissions of the same
sounds, images, or sounds and images or the representations thereof, by
wire or wireless means over a computer network at substantially the same
time."

Love warned that definition is broad enough to include Web pages, which
would create a new intellectual property right for virtually all
Internet publishers -- perhaps even peer-to-peer networks -- and further
curb consumers' access to works in the public domain. Supporters of the
proposal say that interpretation is incorrect, and the definition could
be tweaked for clarification if necessary.