[Ecommerce] PK's Blog on today PTO/Copyright roundtable on WIPO casting treaty

[Manon Ress]

WIPO Roundtable Roundup

http://www.publicknowledge.org/node/619

Submitted by Gigi Sohn on September 5, 2006 - 4:20pm.
Very little new ground was broken at today=92s USPTO=92s WIPO Broadcast
Treaty roundtable at the agency=92s beautiful headquarters in
Alexandria, Virginia. A full list of attendees can be found here. Of
course I am biased, but I would say that the opponents of the current
treaty got the better of the proponents. The proponents, led by NAB
Senior Associate General Counsel Ben Ivins essentially justified the
need for a 50 year IP right in broadcast signals on the basis that
broadcasters =93invest=94 in their signals and that because 83 countries
(but not the US and 99 other countries) have signed on to the Rome
Convention that gives broadcasters a 20 year intellectual property-
like right in their signals, the US should have it too. Other than
the iCrave TV example wherein a Canadian webcaster retransmitted
signals from US broadcast stations (it was sued out of existence by
copyright holders), the proponents could come up with not one example
of why they need a 50 year IP right, as opposed to protection against
signal theft. Most of the arguments on the proponent=92s side came down
to =93we need the treaty to be competitive=94 (with whom?) and that it is
=93important=94 to the industry.

The motion picture studios, which had heretofore remained neutral,
came out as a proponent of the treaty. Fritz Attaway, MPAA=92s general
counsel, incorrectly said that the treaty would have no effect on
copyright holders (it would layer another set of rights on top of
theirs). The Digital Media Association (DiMA), which represents
webcasters like Yahoo and Real Networks, again made their pitch for
regulatory parity, regardless of the scope of the treaty.

Weighing in on the treaty proponents=92 side but not really a proponent
was Neil Turkewitz of the Recording Industry Association of America.
RIAA, like many of the opponents of the treaty, supports only one
that would address signal theft (or as he put it,
=93misappropriation=94). He also noted the irony of broadcasters seeking
exclusive rights for content that they do not license. He was
referring, of course, to the fact that broadcasters are exempt from
paying the recording labels a public performance royalty. RIAA is
hoping that any implementing legislation for this treaty will repeal
this exemption.

Then it was the opponents=92 time to speak. Speaker after speaker,
starting with Jeff Lawrence from Intel, and including representatives
of technology, telecom and consumer electronics companies and public
interest groups, hit hard on the core points included in the
statement we released today =96 broadcasters have not shown that there
is a need for this treaty, this treaty would change US law, which is
Congress=92 job, not the US delegation=92s job, any limitations and
exceptions should be mandatory, and not permissive, online service
providers would be subject to liability, etc. Jamie Love of CPTech
and Gwen Hinze of EFF also talked about the possible inclusion of
webcasting in the treaty (it is not included in the latest draft).
Jamie was eloquent as usual, suggesting that perhaps the treaty
should only protect sports broadcasts, since that is one of the
recurring rationales for the treaty, but he made two points I really
liked: 1) Do webcasters really want parity with broadcasters, given
the myriad of regulations (including content regulations) that
broadcasters are subject to; and 2) that the Internet has become
hothouse of democracy because it has not been regulated in this way =96
and that broadcasting and cablecasting in particular have been
forever changed because of the commentary and criticism of such that
one sees on You Tube and the like.

Given a chance to rebut, Ben Ivins said that rather than the burden
being on those seeking the treaty to justify it, the burden was on
the opponents to show how the 20 year exclusive rights in the 83
countries that have them have hurt others. He then said that the
=93retransmission consent=94 law which gives broadcasters the right to
demand compensation from cablecasters is the US precedent that
justifies this treaty. Of course, retransmission consent is nothing
of the sort, as it simply mandates a contractual relationship between
broadcasters and cablecasters, and (as he conveniently did not
mention), is integrally interconnected to the =93must carry=94 law, which
forces cablecasters to carry local broadcast signals. Ben then
accused those of us who think that the US delegation should not be
making US laws overseas of essentially being xenophobes who are
pushing the US view of broadcasting and copyright on the rest of the
world. Funny, I thought the US delegation usually pushing the US view
of the world in trade and WIPO negotiations.

The proponents of the treaty utterly failed to address the two points
that I (and others) raised: 1) what is the problem that this treaty
address and 2) Why shouldn=92t they be seeking relief from Congress
rather than WIPO?

The big question now is where the US delegation will go from here.
When asked that question, delegation head Jule Sigall essentially
demurred. But time is running out - the WIPO Standing Committee on
Copyrights and Related Rights meets again next week.


Issues: Intellectual Property | WIPO Broadcasters Treaty
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Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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