[Ecommerce] in HuffPo: A UN/WIPO plan to regulate distribution of information on the Internet -- every transmitter to become an owner

[James Love]

http://www.huffingtonpost.com/james-love/a-unwipo-plan-to-
regulat_b_11480.html

November 30, 2005
A UN/WIPO plan to regulate distribution of information on the
Internet -- every transmitter to become an owner
James Love

A UN Agency is debating a sweeping new form of regulation for the
Internet. The call for this new regulation is being led by the United
States government and the European Commission, pushed by highly paid
lobbyists for a trade association that includes Yahoo, Microsoft,
AOL, Real Networks and a handful of other companies.

The United States government negotiators represent the two agencies.
The United States Copyright Office, headed by Mary Beth Peters. The
United Patent and Trademark Office is run by former Republican hill
staffer John Dudas.

The US negotiators are not trying to impose US law on the rest of the
world. They are instead seeking a new global law that is completely
outside of US legal traditions, and according to legal experts, of
dubious constitutional legality in the United States.

The European Commission represents with a single voice the position
of some 455 million persons in 25 member countries of the European
Union. The new copyright chief for the EC is Tilman Lueder.

The European Commission is also not trying to impose current European
legal traditions on the rest of the world. Both the US and the EC
negotiators are trying to create a brand new and untested regime of
Internet regulation that they have never even attempted to adopt in
their own Congress or parliaments.

The fora for this international law-making exercise is the World
Intellectual Property Organization, known in English speaking
countries as WIPO. What is proposed has nothing to do with copyrights
or patents, but rather something new, that no country has yet tried,
and which is granted to protect =93investments=94 in the distribution of
works, rather than to reward creative activity. The treaty is being
pushed by WIPO's top official charge of copyright policy, former US
Trade Representative and noted textile negotiators, Deputy Director
of WIPO, Rita Hayes.

What is proposed is as follows. Any web page operator who makes any
combination or representations of =93images or sounds . . . accessible
to the public . . . at substantially the same time,=94 would be granted
a new right, to authorize or prohibit anyone from copying the data,
or republishing or re-using the information in any form.

This may sound like copyright, but it=92s not. This new =93webcaster=94
right is something that would apply to public domain material, and it
would apply to works that are copyrighted, even if the webcaster is
not the copyright owner, and does not even have a license to use or
to restrict access to the copyrighted work.

What this means is this. If you download a file from the Internet,
you would have to get the permission of the web page operator before
you could republish the data elsewhere. This permission would be in
addition to any permissions you would need from the actual copyright
owner, and it would even be required if you are seeking to publish
something that was either in the public domain under copyright law,
or that had been licensed for distribution under something like a
creative commons license.

This new =93webcaster right=94 would be automatic, and come also with a
whole set of new requirements to enforce technological protection
measures (TPM) and digital rights management (DRM) schemes on
Internet transmissions. The webcaster would have an ownership right
in the information for 50 years, and the 50 year term would start new
with every transmission of information.

The rationale for the new =93webcasting=94 right concerns a related
effort to update sections of a 1962 treaty called the Rome
Convention, which provides for a more limited but still controversial
=93broadcasters=92 right=94 for information broadcast on traditional
television or radio. In some countries, broadcasters are given a 20
to 50 year right in the information they broadcast, which like the
proposed webcaster right, is separate from and in addition to the
rights (if any) of copyright owners.

The United States and more than 100 other countries have never signed
the Rome Convention, and do not recognize such a right. Most European
countries have signed the Rome Convention and have the =93broadcasters
right=94 as part of a scheme of =93related rights=94 that co-exist with
copyright.

Academics like Jamie Boyle from Duke note that the co-existence of
different legal regimes in different countries provides for a natural
experiment. Is the Rome "broadcasters' right" needed to stimulate
investment in broadcasting? Obviously not, he notes, given the health
of broadcasters in countries like the US, which never signed the Rome
Convention.

But in any case, the Rome "broadcasters right" has never been applied
to the Internet, where it is expected to have a much different
impact. On the Internet, people are more than just passive viewers of
network content -- they create, remix, and share information in a
constantly evolving and creative way.

Broadcasters, including the US broadcasters who have never had such a
right, want an =93updated=94 and expanded =93Rome+=94 treaty, with greater
rights to commercialize other people=92s works, longer minimum (50
year) terms, and other extras, like new TPM/DRM obligations. Because
broadcasters put politicians on the air, they have a lot of political
power, and it is possible they will get a new treaty. The most active
company in the US pushing for this appears to be News Corporation,
the well-connected owner of Fox news.

The webcasters recognize the broadcasters have political influence
they could only dream of, and also that they will be competing with
the broadcasters for more and more context. They have demanded
=93parity=94 with the broadcasters in any new treaty, effectively
importing the new Rome+ regulatory regime to the Internet, in order
to be =93technologically neutral.=94 Thus a controversial regime that was
designed for TV and radio would be dumped on the Internet, in order
to harmonize the two systems.

The actual proposals for new treaty provisions on this =93webcaster=94
right were written by lobbyists for a trade association called DiMA,
that includes some 25 firms, including such heavy hitters as America
Online, Apple, Microsoft, RealNetworks and Yahoo!

Yahoo, now run by former Hollywood exec Terry Semel, is the most
visible promoter of the webcasting treaty proposal.

DiMA=92s pricey lobbying team includes DiMA Chief Jonathan Potter and
lobbyists-for-hire Seth Greenstein in Washington, DC and Lucy Cronin
in Brussels.

WIPO will convene meetings in April and June to debate this issue,
and then decide by September 2006 if a diplomatic conference on the
new Rome+ broadcaster treaty will be scheduled, and if they will
consider treaty provisions for =93webcasting.=94

Right now the US and the WIPO Secretariat are pushing a proposal to
extend all of the TV and Radio Rome+ provisions to the Internet,
under three difference mechanisms, which all pretty much do the same
thing. Last week the EC=92s copyright chief Tilman Lueder surprised a
lot of people when he endorsed the proposal to keep webcasting in the
terms of reference for the new treaty -- reversing earlier EC
positions on the webcasting proposal, which they had earlier opposed.
Lueder said the new treaty had to be =93technology neutral,=94 which
means the new rights have to apply to all of the new technologies --
even if they undermine the very traditions that have made the
Internet so valuable. (In this case, the illogical logic of
harmonization).

Meanwhile, a number of civil society NGOs, academic scholars and some
businesses have been pressing the US and the EU to consult formally
with the technology community on the new proposals. So far the US and
the EU negotiators refuse to do so, out of a fear that the more
people find out about this little known treaty, the less they will
like it.

One final note about the use of langauge and symbols to sell this
treaty. Both the broadcasters and the webcasters claim that they are
just trying to curb piracy. Well, if the works they broadcast or
webcast are copyrighted, we already have lots of laws and treaties
for that, including for the example the two 1996 WIPO Copyright
treaties (the WCT and the WPPT). Indeed, the copyright owners are
actually hostile to both the broadcast and the webcast treaties
precisely because they prefer that copyright owners call the shots,
and control access to the works. And, all parties, including cyber-
rights, consumer and copyright owners, have agreed to support a
narrow treaty that protects traditional broadcasters from someone
hacking a signal illegally. But what the broadcasters and the
webcasters really want has nothing to do with protecting copyrighted
works. They want to "own" the content of what they transmit, even
when they are not the creative party, and even if they can't acquire
such rights from the copyright owner (if any).

In the words of the treaty critics, the treaty proponents are guilty
of piracy of the knowledge commons. They are seeking to claim
ownership rights in works they did not create, and which today they
do not own. They want something different from copyright, and
different from the legal regime that exists in any country. They want
to own what they simply transmit. And this will be quite harmful to
the Internet.

For more information on the treaty, and what various NGOS, academics,
and others are saying, see: http://www.cptech.org/ip/wipo/bt/index.html.

To see some cool works that will be restricted by this treaty, see:
http://video.google.com/


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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