[Ecommerce] Webcasting Treaty: Notes from Sept 16 meeting at the Library of Congress on the proposed treaty provisions regarding webcasting

[James Love]

Notes from Sept 16 meeting at the Library of Congress on the proposed
treaty provisions regarding webcasting

    James Love, CPTech / 16 Sept 05

Several NGOs had asked for a meeting with the Library of Congress
(LOC) and the USPTO to discuss the status of negotiations at WIPO on
a new treaty on Broadcasting, that includes a proposal for treaty
provisions covering webcasting -- something that is not part of law
in the US, Europe or elsewhere (except possibility in a limited way
in Finland).

The United States is the primary advocate of creating a new global IP
obligation for webcasting, even though there is no US law for this.
In essence, the proposal creates an intellectual property right in
information that is transmitted.   This right is often described as a
"layer" that co-exists in parallel with copyright.  It also applies
even when the information is in the public domain, or if the
copyright owner has licensed the work for broad public use, such as
under a creative commons license.   The new right is automatic,
without any formalities, and would apply to anything that meets the
treaty definitions.  In the most recent version, the definitions of
"webcasting" and "webcasting organizations" are as follows:

--------
(a)  "webcasting" 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 "webcasting" where the means
for decrypting are provided to the public by the webcasting
organization or with its consent.

(b)  "webcasting organization" means the legal entity that takes the
initiative and has the responsibility for the transmission to the
public of sounds or of images or of images and sounds or of the
representations thereof, and the assembly and scheduling of the
content of the transmission;
--------

Negotiations over the WIPO treaty have taken place over several
years, but are now at a critical moment.  The US has been pulling out
all of the stops to force the webcasting provisions into the treaty,
against the views of most other countries.   The European Union has
privately and publicly promised to move toward the US position on
this.  On Tuesday, Sept 13, WIPO held an invitation only consultation
on the proposed Broadcast/Webcast treaty in Brussels.  EFF and CPTech
(through the Civil Society Coalition) presented views critical of the
treaty, while the broadcasting and webcasting entities supported the
treaty.  At the end of this month, maybe on September 28, the issue
will be debated at the WIPO General Assembly.  The US will push for a
decision to schedule a diplomatic conference on the treaty as soon as
possible.

CPTech and other NGOs have been asking the US government to publish a
federal register notice and solicit public views on the issue of
creating this new intellectual property right for webcasting.  Our
most recent letter on this is here: http://www.cptech.org/wipo/
15sep05letter2usptoloc.html.

The meeting today was held at the US copyright office, and was
attended by Michael Keplinger from USPTO, and Jule Sigall and Marla
Poor from the US Copyright office.  CPTech, Public Knowledge,
Consumer Federation of America, and Multicast Technologies, a small
webcaster, and a person who would not identify herself.

The first topic concerned our request for formal public comment on
the proposal to create a new intellectual property right for
webcasting in a global treaty at WIPO.

The United States negotiators said they were not sure about when the
timing would be right for a notice asking for public comment.   They
said that as a result of this week=92s Brussels meeting, they expected
significant changes in the EU positions on webcasting.   There was
"not much sense to go through the process until we are ready for
diplomatic conference," we were told.   But how fast might that
happen?   They said it was possible there would be a diplomatic
conference to create the final treaty as early as the 2nd quarter of
2006.  And, they would argue in Geneva on the 28th of September that
the US favored a diplomatic conference, with the webcasting
provisions included, as soon as possible.   (note: the US and is
making this a huge priority in WIPO, and the former USTR official and
current WIPO Deputy Director Rita Hayes is pushing hard also for the
treaty, although she has been less supportive of the webcasting
treaty language, which has very little global support).  The US
negotiators said, only after most of the negotiations were over on
the webcasting treaty provisions, would it make sense to ask the
public if they wanted a new intellectual property right for
webcasting, or more accurately, to comment on the most recent version
of the Chairman=92s treaty text.

The NGOs clearly want the public notice sooner rather than later, and
they want the option of no treaty, or no treaty language for
webcasting, to be among the options.

There was a lot of talk about the definitions of webcasting and
webcasting organizations, which appear to be incredibly broad to us
(all combinations or representations of images and sounds, by any
legal entity that makes it available to the public), a result "not
intended" by the negotiators, but unfortunately, the current version
of the treaty.

It was astonishing to some NGOs that the treaty could not usefully
put any limits on the material or activities covered under the
webcasting definitions, but it was also surprising to hear all of the
other issues that had not received analysis.

LOC agreed that there was:

1.    No analysis or concern about how the new IPR right would affect
the orphan works problem.
2.    No analysis of the unintended consequence of creating a new
right of transmission for the Internet.
3.    No analysis of the impact of the new right on the copyright
owners.
4.    No analysis of the impact of the webcasting treaty on podcasting.
5.    No analysis of the impact of the webcasting right on peer to
peer networks.
6.    No analysis of how US law would have to change in the treaty
passed.

Also surprising were some of the objectives of the treaty.  One was
to make it unnecessary for webcasters to get agreements from
copyright owners before they sued people for using context.  Another
was to make illegal to use devices that make it possible to skip
commercials from radio play lists.

More info on the treaty negotiations, including the controversies
over the treaty provisions for television and radio, is available here:

http://www.cptech.org/ip/wipo/wipo-casting.html

Note that the treaty provisions on broadcasting are being pushed in
the US by Ben Ivins, who represents the National Association of
Broadcasters (NAB), and John Potter and Seth Greenstein of DIMA and
Yahoo.   Few people or firms the broadcast industry in the US are
actually following this (outside of Fox, who has been active), and
almost no webcasters or tech firms have even heard of this.   Yahoo/
DIMA=92s whole lobbying campaign for the webcasting right is based upon
their desire for "parity" of rights with broadcasters -- even if the
broadcaster rights are completely inappropriate for the Internet, or
if the broadcaster rights exist only because the political influence
of Murdoch and other broadcasters translates into successful rent
seeking lobbying activities.   The proposed treaty text for the
broadcast provisions of the treaty are basically the Rome Convention
(which the US has not signed) on steroids, and of course present
problems of their own for television and radio, but are nowhere as
harmful as the proposal to impose this new regulatory scheme on the
Internet.

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