[Ecommerce] James Boyle in FT on Webcast Treaty: More rights are wrong for webcasters

[James Love]

http://news.ft.com/cms/s/441306be-2eb6-11da-9aed-00000e2511c8.html

Comment & analysis / Columnists

James Boyle: More rights are wrong for webcasters
By James Boyle
Published: September 26 2005 18:58 | Last updated: September 26 2005
18:58

James BoyleI teach intellectual property law, a subject that is
attracting attention from economists, political scientists and people
who simply want to make money. These, after all, are the rules that
define the high technology marketplace. Are we doing a good job of
writing those rules? The answer is no. Three tendencies stand out.

First and most lamentably, intellectual property laws are created
without any empirical evidence that they are necessary or that they
will help rather than hurt. Second, the policymaking process has
failed to keep track of the increasing importance of intellectual
property rights to everything from freedom of expression and
communications policy to economic development or access to
educational materials. We still make law as though it were just a
deal brokered between industry groups =E2=80=93 balancing the interests of
content companies with those of broadcasters, for example. The public
interest in competition, access, free speech and vigorous
technological markets takes a back seat. What matters is making the
big boys happy. Finally, communications networks are increasingly
built around intellectual property rules, as law regulates technology
more and more directly; not always to good effect.

The World Intellectual Property Organisation has now managed to
combine all three lamentable tendencies at once. The Broadcasting and
Webcasting Treaty, currently being debated in Geneva, is an IP hat
trick.

Much of what is broadcast over the airwaves is copyrighted =E2=80=93 the
broadcaster licenses the film or song from a copyright holder and
then plays it to you at home. What you probably do not know is that
nearly 50 years ago broadcasters in some countries got an additional
right, layered on top of the copyright. Even if the material being
broadcast was in the public domain, or the copyright holder had no
objection to redistribution, the broadcaster was given a legal right
to prevent it =E2=80=93 a 20-year period of exclusivity. The ostensible
reason was to encourage broadcasters to invest in new networks. The
US did not sign this treaty. Has the US broadcast industry stagnated,
crippled by the possibility that their signals will be pirated?
Hardly. Copyright works well and no additional right has proved
necessary. Has WIPO commissioned empirical studies to see if the
right was necessary, comparing those nations that adopted it with
those that did not? Of course not. This is intellectual property
policy: we do not need facts. We can create monopolies on faith.

But now a new diplomatic conference is being convened to reopen the
issue. Doubtless the goal is to abolish this right? There was never
any empirical evidence behind it. Broadcasters in countries that did
not adopt it have flourished, albeit casting envious eyes to the
legal monopolies possessed by their counterparts in more credulous
nations whose politicians are more deeply in the pockets of
broadcasting interests. The right imposes considerable costs. It adds
yet another layer of clearances that must be gained before material
can be digitised or redistributed =E2=80=93 compounding the existing
problems of =E2=80=9Corphan works=E2=80=9D, those whose owners cannot be
identified. So is the broadcast right on the way out? No.

In the funhouse world that is intellectual property policy, WIPO is
considering a proposal to expand the length of the right by 30 years
and a US-backed initiative to apply it to webcasts as well. After
all, we know that the internet is growing so slowly. Clearly what is
needed is an entirely new legal monopoly, on top of copyright, so
that there are even more middlemen, even deeper thickets of rights.

What is the rationale for this proposal? Parity: =E2=80=9CIf the
broadcasters have the right, we should too.=E2=80=9D But wait. There was
never any evidence that even broadcasters needed the right. And the
capital requirements and business models of the two industries are
entirely different. And the reach of the webcasts would in effect be
global. And there is no evidence at all that webcasters need any kind
of protection. And, and=E2=80=89.=E2=80=89.=E2=80=89.=E2=80=89

But to make these arguments is to be naive. WIPO is in the grip of
the belief that more rights are better. Yahoo and a few other
webcasting entities have very slick lobbying operations. The US
representatives have, shamefully, caved in to them. To their credit,
not many countries have yet accepted the need for a webcaster=E2=80=99s
right, but it is unclear if their resistance will last. The
=E2=80=9Caffected industries=E2=80=9D have loud voices.

Eventually, a new treaty will be produced. A new round of
=E2=80=9Charmonisation=E2=80=9D will begin =E2=80=93 upwards, always upward=
s. An
unnecessary set of rights will have been created and created without
evidence, perhaps reaching the heart of our new communications
technology. And the lobbyists will return to their desks to plan
again. Perhaps the growing furore about the webcast right will drive
it off the agenda eventually. Yet the larger pattern of making
decisions without evidence, as a contract among the affected
industries, will continue. This is a scandal. But at WIPO, it is
business as usual.

The writer is professor of law at Duke Law School, a board member of
Creative Commons and the co-founder of the Center for the Study of
the Public Domain

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