[Ecommerce] Washington Post: Weighing Webcasters' Rights to Content

[Thiru Balasubramaniam]

http://www.washingtonpost.com/wp-dyn/content/article/2005/11/02/AR2005110203187_pf.html


*Weighing Webcasters' Rights to Content*

By Jonathan Krim
Thursday, November 3, 2005; D01

Battles over illegal sharing of music online are so last summer. The hot
fight now is over copying of video from television or the Internet that
generally has been considered freely available to the public.

If television broadcasters and webcasters have their way in
international treaty talks, they would gain new, 50-year rights to
virtually any video they beam out, even if no one owns the rights to the
content.

So, for example, say ABC or Yahoo offers a broadcast or webcast of a
movie no longer under copyright protection, historical footage of a news
event or a live feed of a breaking story -- no one could make a copy of
that program and rebroadcast it to others.

The result, according to digital rights advocates, is that the viral
power of the Internet to expose millions (or billions) of people to news
or unprotected creative works will be in jeopardy. The seemingly
instant, online cycle of people posting information, seeing it, linking
to it or retransmitting it -- as happened with the amateur tsunami
videos -- could be dragged into a morass of new ownership questions.

"This new layer turns every distributor into yet another owner," argues
James Love, head of the Consumer Project on Technology, which is
fighting the treaty. When it comes to content in the public domain, Love
contends, there should be no restrictions on who can use the work.

That's a bunch of alarmist hooey, responds Benjamin F.P. Ivins, senior
associate general counsel of the National Association of Broadcasters.

Ivins argues that users could still make copies of such broadcasts for
private use; they simply could not turn around and redistribute them
commercially. When a broadcaster spends money to prepare and distribute
footage of an event or a historical work, it should be assured that
somebody else can't benefit from that investment by copying the program
and retransmitting it, he says.

Ivins and his allies, including the federal government, see the treaty
as a simple effort to standardize international laws on what they call
"signal theft." In certain Caribbean countries, for example, cable
programming has been effectively intercepted and pirated by rival
broadcasters.

Internet companies such as Yahoo Inc. and America Online Inc., which are
pushing into webcasting of video content, say they are entitled to the
same rights as TV broadcasters.

Seth Greenstein, an attorney for the Digital Media Association, which
represents many webcasters, argues that protecting the transmissions of
webcasters will encourage them to show obscure works that the public
might otherwise never see.

The minutiae and complexity of rights and treaties in those matters are
enough to cure a small nation of insomnia.

But the battle demonstrates yet again the high stakes and tensions of an
era in which information is king, yet products and services are being
produced at lightning speed to make information ever more copyable,
malleable and portable.

"We do have an economy that operates on market principles," says Michael
Keplinger, a senior counsel at the U.S. Patent and Trademark Office.
"And intellectual property rights have served very well to help that
market function."

At a fundamental level, digital-rights advocates agree. But that does
not mean, they argue, that /everything/ should be owned. They see social
value in some works and information being freely accessible, especially
in an interconnected world.

For example, say an independent filmmaker releases a movie on a cable TV
station. If someone copies it and gets permission from the creator to
post some or all of it on a Web site, should that person also need
rights from the first broadcaster?

Increasingly, some artists are making their works available under
nonrestrictive copyright terms. Would they need to retool those
agreements to trump the distribution rights set forth in the proposed
treaty?

And then there is the public event, which might be as local as a school
board meeting or as international as a war. If Yahoo has the feed,
either from its own employee or someone else, what rights does it have
as the conduit for millions of viewers?

Broadcasters and webcasters insist that the balance of fair use and
public domain works will not be upset by the treaty. Even if the treaty
passes and the United States signs it, Congress then must pass
implementing rules, and the broadcasters and webcasters say they have no
desire to change U.S. laws.

Opponents fear the balance will be upset, noting the support Congress
has consistently given to intellectual property holders.

It all might come to a head over the next several months at the World
Intellectual Property Organization. At this point, there appears to be
sufficient support for proposed rules governing broadcasters, though
that could change. U.S. negotiators are in a distinct minority in
seeking parity for webcasters.

/Jonathan Krim can be reached atkrimj@washpost.com
<mailto:krimj@washpost.com>./