[Ecommerce] arstechnica: Tech community split over WIPO broadcast treaty

[Thiru Balasubramaniam]

http://arstechnica.com/news.ars/post/20060905-7667.html


    *Tech community split over WIPO broadcast treaty*

9/5/2006 2:34:59 PM, by Nate Anderson <mailto:nate@arstechnica.com>


The USPTO is today holding a roundtable
<http://www.cptech.org/blogs/wipocastingtreaty/2006/08/uspto-public-forum-o=
n-wipo.html>
on the proposed broadcasting treaty
<http://arstechnica.com/news.ars/post/20060222-6237.html> being hammered
out by the World Intellectual Property Organization (WIPO), and a
collection of industry and public interest groups will get the chance to
air their concerns to the US government.

These groups have issued a joint statement
<http://www.cptech.org/ip/wipo/bt/jointletter5sep06usptoforum.pdf>
outlining six areas of concern with the current draft of the treaty. The
first and most important of these calls the very justification for such
a treaty into question. "We remain unconvinced that a treaty is
necessary at all," says the statement. "We know with concern that treaty
proponents have not clearly identify the particular problems that the
treaty would ostensibly solve, and we question whether there are in fact
significant problems that are not addressed adequately under existing law."

The statement also raises questions about the scope of the treaty, the
possible exceptions and limitations that would be allowed by
signatories, the effect on home and personal networking (including the
transmission of content across a home network), and the liability that
might be faced by intermediaries. It's signed by an impressive and
eclectic group that includes the American Library Association, AT&T, the
Center for Democracy & Technology, the Consumer Electronics Association,
Dell, the EFF, Hewlett-Packard, Intel, Sony, TiVo, and Verizon.

While the document represents the areas of agreement between the groups,
many of them have more things to say. The EFF, for instance, has issued
its own, more detailed statement
<http://www.eff.org/IP/WIPO/broadcasting_treaty/EFF_uspto_090506.pdf>
that calls for Congressional hearings on the treaty because of its
potentially enormous impact on US society. The EFF worries that the
entire process has taken place without adequate consultation of all
those involved.

"While we appreciate the opportunity to comment today," they say in
their statement, "we note that roundtable participation was limited to
40 persons and allocated nearly two hours. We remain troubled by the
fact that no analysis appears to have been undertaken of the significant
changes that the proposed Treaty would entail for US law, the public
domain, consumers' rights and the technology sector. Given the
significant policy issues raised by the treaty, we strongly support the
holding of Congressional hearings to hear from the full range of
constituencies that will be impacted by this treaty."

The broadcast treaty
<http://www.wipo.int/edocs/mdocs/sccr/en/sccr_15/sccr_15_2.pdf> (draft
text), if ratified by the US, would give broadcasters a new set of legal
rights over material that they transmit. The worry is that broadcasters
could use these rights to curtail access to public domain material and
to limit fair use. While the initial impetus for the treaty discussions
was signal theft, it has expanded into discussions of webcasting rights
and DRM measures (called "Technological Protection Measures" in the
draft) with the potential to limit consumer use even after broadcast
(think broadcast flags).

Because the US already has a robust copyright regime and has laws
against theft of service, many question the need for any additional
broadcasting rights. It's not as though the US broadcasting industry has
suffered without these rights for the last century=97indeed, they have
done so well that US media now dominates the world. The treaty would
provide these broadcasters with an additional right to control the
retransmission of material that they originally aired, even if such
material is in the public domain, or even if the retransmission
constitutes fair use.


      On the other side

But not all tech companies are lined up on the same side of the ball.
Amazon, Apple, AOL, and Microsoft, for instance, are all members of the
Digital Media Alliance
<http://www.digmedia.org/content/joinDima.cfm?content=3Dmembers>, a group
that argues for the ratification of the WIPO treaty, along with its
expansion to explicitly include webcasting.

In support of its position, the group's fact sheet
<http://www.digmedia.org/content.cfm?id=3D7223> includes the story of
iCraveTV <http://news.com.com/2100-1033-236255.html>, a Canadian service
that re-broadcasted US television channels over the Internet=97without
permission. As DiMA's own writeup indicates, iCraveTV was put out of
commission by the US courts soon after, apparently undermining the
entire point of the story, which is to argue that new rights are
necessary to prevent this sort of thing.

The group's main point is that any new rights should be
technology-neutral; that is, they should not apply to traditional
broadcasters but not to webcasters. This makes obvious and intuitive
sense, but only if you grant the premise that traditional broadcasters
should be granted a new type of "broadcast right."