[Upd-discuss] Request for Comments on UPD Casting Resolution

[David Tannenbaum]

The board of Union for the Public Domain is currently considering the 
following resolution on the WIPO "Treaty on the Protection of 
Broadcasting Organisations." This resolution will guide our actions in 
opposing the treaty, and we would appreciate any comments on this draft. 
You can send comments directly to me, or post them on our site, at 
http://www.public-domain.org/?q=node/view/35. We would like to finalise 
this by June 2nd.

Thanks,
David Tannenbaum
Coordinator, UPD

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1) The proposed WIPO "Treaty on the Protection of Broadcasting 
Organisations" threatens to encroach on the public domain for the 
following reasons:

a) This treaty would give broadcasters the power to control all 
recording and use of broadcasts. Other international agreements, such as 
TRIPS, give countries the option of granting these powers only to 
copyright holders. With this treaty each program or piece that is 
broadcast could be controlled by both copyright holders and broadcasters 
at the same time. Users of broadcast material would then have to get 
“clearance” from both groups, creating harmful burdens for the public.

b) Currently, if countries decide to give special powers to 
broadcasters, they only have to grant these powers for twenty years. 
This treaty would require countries that sign the treaty to extend the 
length of broadcasters’ powers to fifty years. The twenty years is 
already longer than the effective life of a patent, and four times as 
long as the US government restricts the use of data on clinical trials 
for pharmaceutical drugs. With the proposed extension, WIPO would set a 
precedent that governments should give investors the long periods of 
control over works that have only been granted to authors and other 
creative works.

c) The treaty would give broadcasters exceptional powers over materials 
that are in the public domain, cannot be copyrighted, or were created by 
third parties who have no interest in suppressing distribution. 
Broadcasters would receive these powers simply by transmitting 
materials. This is a much lower bar than copyright, which does not grant 
authors and artists control unless there is originality and creativity 
involved. Even controversial powers granted to database compilers 
require substantial investment. Giving broadcasters 50 years of control 
every time something is broadcast is in effect equivalent to granting an 
endlessly renewable copyright, with no standards for originality, 
creativity or substantial investment.

d) Since many public domain works are available only when transmitted by 
broadcasters, requiring countries to grant fifty years of power and 
control to broadcasters would dramatically shrink the public domain. 
There is no economic or moral rationale for this extension.

e) The definition of "webcasting" in Article 2(g), Alternative C, is so 
broadly drawn that it could be interpreted as granting control over 
nearly all transmissions of images and sounds over the internet and 
internet-like networks.

f) The WIPO treaty requires signatories to outlaw the circumvention of 
technology locks that prevent fair use. One version of the treaty would 
even outlaw the sale or provision of any device capable of decrypting a 
program signal. Broadcasters can use these locks to prevent uses of 
broadcasts that are clearly for the public good, such as the ability to 
archive public domain works for preservation and historical interest.

g) A prohibition against "formalities," means that broadcasters won't 
have to indicate their control over any particular broadcast, which will 
make it difficult to know who "owns" the rights to a broadcast. This 
would make it nearly impossible for the public to discern the boundaries 
of the public domain.

2) The public is not served by imposing these restrictions. A 
"compromise" version imposing part of these restrictions could be less 
bad, but no one has made the case that the treaty will benefit the 
public, or that it is needed. The risks to the public of potentially bad 
outcomes in a diplomatic conference outweigh the possible benefits, if 
any, of proceeding.
-- 
David Tannenbaum
Coordinator
Union for the Public Domain
davidt at public-domain dot org
http://www.public-domain.org