[Random-bits] WIPO webcast/broadcast/cablecast treaty
James Love
james.love@cptech.org
Fri Jun 20 09:03:00 2003
19 June 2003
Keith Kupferschmid
Jennifer Ness
U.S. Patent and Trademark Office
Marla Poor
US Copyright Office
Dear WIPO delegates
I am writing to discuss the proposal that WIPO negotiate a
new treaty on the protection of the rights of broadcasting
organizations, and to ask that you clarify both the US
government objectives in the treaty negotiations, and
explain how key features of the proposed treaty would work.
We note that the WTO TRIPS agreement requires members to
provide broadcasters with 20 years of exclusive rights on
"the fixation, the reproduction of fixations, and the
rebroadcasting by wireless means of broadcasts, as well as
communication to the public of television broadcasts of the
same," and that as a WTO member, our national laws must at
least meet this standard. Further, that the proposed WIPO
treaty would extend this required term from 20 to 50 years,
and also, there would be an apparent expansion of the
definition of what is considered broadcasting, with various
WIPO members proposing for example to include Internet
activities, including a new definition for "webcasting."
Our comments and questions are as follows:
1. The Term of Protection.
Does the US Patent and Trademark Office or the US copyright
office have a view that it is in the public interest to
shrink the public domain by extending broadcasters rights
from 20 years required by the TRIPS and the 1961 Rome
Convention, to a new 50 years term? What exactly is the
rationale for this? As we understand the proposed treaty,
the broadcasters are seeking an expanded right to works that
they do not create, but merely broadcast, including works
that are in the public domain. What is the basis for
claiming a broadcaster needs more than 20 years of
protection for this type of right? Certainly broadcasters
do not have business plans that exceed 20 years for such
projects. What exactly do they believe the extra 30 years
will do for them, and conversely, what will it take away
from the public?
2. The relationship of the treaty to the Internet.
Clearly the United States is seeking to fashion this new
instrument to cover the Internet, proposing for example a
new treaty category of webcasting. Some of the relevant
definitions proposed by the US follow:
(b) “Cablecasting” means the transmission by wire for
public reception of sounds, images, or sounds and images or
of the representations thereof. Transmission by wire of
encrypted signals is “cablecasting” where the means for
decrypting are provided to the public by the cablecasting
organization or with its consent. “Cablecasting” shall not
be understood as including transmissions over computer
networks or any transmission where the time and place of
reception may be individually chosen by members of the
public;
(c) “Webcasting” means the making accessible of
transmissions of the same sounds, images, or sounds and
images or the representations thereof, by wire or wireless
means over a computer network at substantially the same
time. Such transmissions, when encrypted, shall be
considered as “webcasting” where the means for decrypting
are provided to the public by the webcasting organization or
with its consent. Webcasting and other computer network
transmissions, whether by wire or wireless means, shall not
be understood as “broadcasting” or “cablecasting”;
(d) A “broadcasting organization” a “cablecasting
organization” or a “webcasting organization” means the legal
entity that takes the initiative and has the responsibility
for: (i) the first transmission to the public of sounds,
images or sounds and images or the representations thereof;
and (ii) the assembly and scheduling of the content of the
transmission; for purposes of Article 7, a “broadcasting
organization” shall include a legal entity that takes the
initiative and has the responsibility for the assembly and
scheduling of the content of a signal transmitted to another
broadcasting organization prior to broadcasting.
(e) “Rebroadcasting” means the simultaneous broadcasting by
one broadcasting organization of the broadcast, cablecast or
webcast of another broadcasting, cablecasting or webcasting
organization;
.......
(g) “Computer network retransmission” means the
simultaneous transmission by wire or wireless means over
computer networks of the broadcast, cablecast or webcast of
another broadcasting, cablecasting or webcasting
organization;
(h) “Public rendition” of a broadcast, cablecast or webcast
means making the transmission or a fixation of a broadcast,
cablecast or webcast audible or visible or audible and
visible in places accessible to the public;
(i) “Fixation” means the embodiment of sounds, images, or
sounds and images, or of the representations thereof, from
which they can be perceived, reproduced or communicated
through a device.
Our first concern here is with the definitions. Is it a
simple matter to limit this instrument to a subset of
special TV or radio like activities that take place on the
Internet, or will this new right be used to extend to more
general operations of listserves, downloadable web pages,
and other Internet activities? The US proposed definitions
for both broadcasting and cablecasting include the phrase: "
shall not be understood as including transmissions over
computer networks or any transmission where the time and
place of reception may be individually chosen by members of
the public." But this limitation does not appear in the US
proposal to define "webcasting." The phrase, "the making
accessible of transmissions ... over a computer network at
substantially the same time" is different.
1. When we ftp a document to our web site, and provide a
hypertext link, we are "making accessible" the documents
"at substantially the same time to anyone who wants to
download them. Is this "webcasting," or is there some
threshold that must be met before it becomes webcasting?
2. Are peer to peer networks "webcasting" services?
3. Is text something you can "webcast?" Are our
ecommerce or ip-health listserves "webcasting"
services?
If the proposed treaty embraces a broad definition of
Internet activities, it would effectively create a new
mechanism to assign exclusive rights to materials now in the
public domain. This would be a bad outcome.
As a matter of policy, one might ask, what is so special
about "webcasts" of materials, that a "download on demand"
of the same material would be treated differently? And
indeed, we would like to have an answer to this question,
because it cuts both ways. If materials downloaded on
demand do not receive this extra layer of protection, why
should materials that are "webcast" need the extra layer?
Sincerely
James Love
Director, CPTech
http://www.cptech.org
mailto:james.love@cptech.org
---------
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040