[Random-bits] Jonathan Krim in WP: Weighing Webcasters' Rights to Content

[James Love]

This is Jonathan Krim's story about the WIPO Broadcast/Webcast treaty
in today's Washington Post.

*  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?

* 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.

* 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.

*"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.

* [note the dishonesty in this statement] 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.   [CPTech comment:  The whole point of the treaty is to change
US law, and law everywhere else.  There is no "webcasting right" in
US law.  There is no "webcasting right" anywhere. It would be created
by the treaty, and require changes in US law.  Likewise, the US does
not have a "broadcaster right," like some European countries.   It
relies upon copyright and regulatory measures to protect creative
content.  The treaty would definitely require changes in US law,
particularly if the super ROME+ rights that the NAB is pushing are
included in the treaty.]

Here is the Krim story:

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

Weighing Webcasters' Rights to Content
By Jonathan Krim

Washington Post
Thursday, November 3, 2005; Page 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.


For more on this treaty proposal, see:  http://www.cptech.org/ip/wipo/
bt/index.html

---------------------------------
James Love, CPTech / www.cptech.org / mailto:james.love@cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040