[Ecommerce] WIPO Webcast Treaty Proposal - CPTech letter to LOC and USPTO

[James Love]

http://www.cptech.org/wipo/15sep05letter2usptoloc.html


To:   Jule L. Sigall, US Copyright Office
       Michael S. Keplinger, US Patent & Trademark Office
       Marla Poor, US Copyright Office

From:  James Love, CPTech

Subject:  Request for Formal Public Comment on Proposal for Treaty on
Webcasting

Date: 15 September 2005

CPTech renews its request that the USPTO or the Library of Congress
(LOC) invite formal public comment on the proposal to create a new
International Treaty obligation establishing a novel intellectual
property regime for webcasting, through the World Intellectual
Property Organization (WIPO).

The treaty language proposed for a "webcasting"right would create a
new layer of property rights, lasting at least 50 years, for
materials that are transmitted by web servers over the Internet and
other networks. Unlike copyright, the new webcaster right is not
based upon a creative contribution. Any material, including material
in the public domain, or licensed for public dissemination under a
creative commons type license, would be burdened with this new layer
of rights, which accompany any "public transmission" of any
combination or representations of sounds and or images.[ft 1]

There are no formalities for the new rights. They will automatic
increase the transaction costs associating with redistributing or
reusing information distributed from web pages.

The proposed treaty will harm the public, by imposing a costly and
time-consuming thicket of rights, and will make it illegal to
redistribute or copy works that are in the public domain, or which
have been licensed for public distribution under a creative commons
type voluntary license.

Copyright owners will be harmed by the webcaster right in three ways.
First, the existence of the right will make it more difficult for
copyright works to be cleared for republication or use, even when the
owner of the copyright gives permission. Second, copyright owners
will have to share revenues from collection societies that receive
remuneration for the use of works that were distributed on the web.
Third, the predictable reduction in access to knowledge resources is
itself harmful to those whose creative efforts require access to the
work of others.

There is no evidence that such a new property right is needed. The
webcasting treaty proposal is often cynically defended on the grounds
that the right is needed to protect authors, performers and other
creative persons. But as we know, creative persons are already
protected under copyright laws. The webcasting right is sought
precisely because Yahoo and others want something that is not based
upon their own creative contributions.

Secondly, Yahoo, DIMA, and other lobbyists for the webcasting right
claim that the new intellectual property right is needed in order to
provide parity with broadcasting organizations who are seeking
similar rights. In fact, the Internet has prospered under very
different traditions than exist today in commercial television and
radio, and it will be changed in a way that will reduce its
usefulness and appeal if it reaches policy parity with broadcast
organizations. In simple language, "parity" with television and radio
for webcasters will be less freedom for the Internet. We think this
is a profound mistake. We are not alone. Consider for example the
letter from Mark Cuban, Tim O'Reilly, Scott Rosenberg, and 17 other
Internet technology leaders,[fn 2] who said: "We, the undersigned
representatives of technology businesses large and small, reject the
idea that the Internet needs or will benefit from the extension of
these pseudo-copyrights to so-called 'Webcasters'. . . . Adding a new
layer of intermediaries, over and above copyright holders, for the re-
use of information on the Internet benefits no one -- save those
intermediaries. If an Internet company has the rights to a work, or
need not secure the rights to a work due to a limitation in
copyright, or because the work is in the public domain, there is no
rational reason to require that the company also seek the permission
of a further intermediary whose sole creative contribution to the
work is in making it available. . . We do not desire the 'protection'
you offer us, nor do we believe it will benefit us."

Also, virtually all of the consumer, library, free software, civil
liberties and development groups particpating in the WIPO Standing
Committee on Copyright committee have opposed this proposal.

The broadcast organizations that are seeking new intellectual
property rights in WIPO are politically powerful because they provide
airtime to elected officials. This allows them to engage in rent
seeking lobbying activities that would be unsuccessful if attempted
by others.

One has to ask, how can Yahoo and a handful of companies succeed in
pushing a global treaty on webcasting when almost no countries have
even enacted such laws? As far as we know, only Finland has attempted
to create something like the webcasting right. The United States has
certainly not enacted such a law, and it is highly unlikely the US
Congress would ever do so. This is because many in the US Congress
actually understand the benefits of freedom, and the dangers of
excessive government regulation of the Internet.

We object to efforts to push for a global treaty on webcasting when
the US Congress has resisted lobbying by these same companies to
enact similar legislation in the United States Congress. We object
also to the fact that the US government is pushing WIPO toward a
diplomatic conference on this topic before it has even a single
public notice on the question of whether or not the Internet needs
such a restrictive regulatory regime.

Sincerely

James Love
Director, Consumer Project on Technology
http://www.cptech.org
james.love@cptech.org

[1] The April 13, 2005 Working Paper on Alternative And Non-Mandatory
Solutions on The Protection In Relation To Webcasting (SCCR/12/5
Prov.) defines webcasting as follows: =D2webcasting=D3 means the making
accessible to the public of transmissions of sounds or of images or
of images and sounds or of the representations thereof, by wire or
wireless means over a computer network at substantially the same
time. Such transmissions, when encrypted, shall be considered as
=D2webcasting=D3 where the means for decrypting are provided to the
public by the webcasting organization or with its consent.

[2] http://www.eff.org/IP/WIPO/?f=3D20041117_open_letter.html

For futher information:

http://www.cptech.org/ip/wipo/wipo-casting.html
http://www.eff.org/IP/WIPO/20041113_TPM_SCCR.pdf
http://www.public-domain.org/?q=3Dnode/47
http://www.ipjustice.org/WIPO/november04stmt.shtml

---------------------------------
James Love, CPTech / www.cptech.org / mailto:james.love@cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040