This article discusses a new law or 'right' regarding intellectual property proposed by' a tiny handful of big corporate players'. The new right seeks to push beyond copyright law and copyright holders 'rights' to further the existing concentration of publishing and broadcast media in the hands of a few large companies and corporate networks. As is traditional in this field the measures proposed appear to be grossly unfair and hopefully unworkable. Re-posted from [Commons-Law] mailing list.
Don't bother reading this unless the words "new intellectual
property right" and "the Internet" seem important when put
together, because it is a twisted and complicated story. Even the
key players are struggling to figure out what is going on. But
like a lot of twisted and complicated things, it is important.
The World Intellectual Property Organization (WIPO) is a
specialized UN agency, headquartered in Geneva, Switzerland. This
week it is holding a contentious five-day negotiation on a new
Treaty, the purpose of which is to provide a new "protection" for
"broadcasting and webcasting organizations."
What does this mean? WIPO is debating whether or not to create a
new intellectual property right in information that is
distributed over television, radio, cable television, or through
any wired or wireless computer network, including the Internet.
This is something different from copyright. Indeed, it is
designed to benefit people who cannot get a copyright, because a
work belongs to someone else (the person or group that created
it), or because the information is in the public domain. The new
right is not a "copyright," but a "broadcaster" or "webcaster"
right. It is a bad idea when applied to television or radio, but
a disaster if applied to the Internet.
In different ways, the US and the EU both think they can use this
right to extract money for simply distributing information over
the Internet into foreign markets.
The right comes at the expense of consumers and copyright owners
-- benefiting the distributors of information. It might be called
the "middleman right." This has attracted a large group of
corporate lobbyists who want to see their clients named as
beneficiaries of the treaty.
It works like this. If the owner of a broadcasters or webcaster
publishes anything, they get an ownership right in the
information, equal to the rights of copyright owner, so before
you could make a copy, share or reuse the information in any way,
you would have to get permissions from both the copyright owner
and distributor of the work. This is supposed to "protect" the
"caster" for its investments in broadcasting or webcasting.
The meetings at WIPO are chaired by a very strong advocate of
high levels of intellectual property rights, Jukka Liedes, from
Finland.
The European Union, the United States Government and several
other governments want this new right to last 50 years, beginning
each time information is republished.
This new right only applies to copies of the works distributed by
the "casting" organization, so if you can get a copy from another
source, it would not apply, something that would not be a problem
if the work was a Hollywood film or music recording widely
available elsewhere in DVD or CD formats. But for a number of
other works, there just won't be any practical or cost effective
way of getting a copy from another source. (Which makes the
"casting" right so valuable).
Why is this such a big deal, and particularly for the Internet?
First, there are lots of important works that are not protected
by copyright, including events of high public interest such as
presidential speeches, recordings of US Supreme Court debates,
recordings of meetings and telephone calls by several US
presidents, and some Congressional hearings. And, there are far
more works that are technically protected by copyright, but which
are in practice freely available, because the owners of the work
want to share it widely, or do not choose to enforce restrictions
on how a work is reused.
Web pages are full of documents, sound recordings and video that
are licensed under Creative Commons licenses, or simply passed
around informally. Information on the Internet often is
republished on many different web sites, each reaching its own
communities. This is exploding at an astonishing rate as the
costs of making and hosting works falls. Within a short time,
anyone will be able to create a webcast from a mobile phone, and
create records of meetings of all types, news events,
performances, interviews, or any number of other events.
Increasingly, people are using these works to create newer works,
in documentaries, news reports and commentary, or cultural or
technical works that remix or mashup content. Grid Computing and
other emerging technologies are creating astonishingly creative
and important ways of collaborating.
Copyright alone presents huge problems for the distribution of
and creation of these new Internet based works. But a new
intellectual property right for webcasting will make things even
more difficult, at least doubling the permissions one needs. At a
minimum it will increase transaction costs. At worst, it will
change the culture of sharing information on the Internet, with
some exercising as many rent seeking rights as they can acquire.
Who is pushing for this new "webcasting" middleman right? It is
not the vast majority of bloggers, web page owners and others who
are creating and distributing content. It is a tiny handful of
big corporate players, including most notably US companies like
Yahoo, News Corp (owner of MySpace), Microsoft, Time-Warner/AOL,
AT&T, and a handful of large European media companies, including
it seems, the BBC.
Yahoo and others see themselves as aggregators and distributors
of a wide varieties of audio visual works created by others,
including music performances and films from all over the world.
Under the most aggressive proposals debated this week, the
Webcasting right will make Yahoo a part owner in everything they
"webcast," and potentially give them the right to claim things
like fees from cyber-cafes, community Wifi networks, schools and
educational institutions, even when works are in the public
domain or are freely licensed under creative commons type
licenses, as well as a number of other situations. This comes at
the expense of both the copyright owners and consumers.
The Broadcast/webcast right, if defined too broadly, as some here
want, also allows the broadcaster/webcasters to compete against
the copyright owners in downstream commercialization of works,
which is another reason why it makes copyright owners unhappy.
The US and the EU are split on who should be the beneficiaries of
this new right. The EU, lead by copyright chief Tilman Lueder,
who formerly worked on competition issues, wants to restrict this
new webcasting right to the incumbent broadcasting organizations,
like BBC, so that only they would be able to claim the layer of
rights, and not new competitors, even though they are both
operating on the Internet.
The US, led by Library of Congress lawyer Jule Sigall, wants to
extend this new right to companies like Yahoo, News Corporation,
Microsoft, Time-Warner or AT&T, but not to "bloggers or people
who just maintain web pages." Right now the treaty definitions
extend to pretty much any legal entity that creates a web page.
During discussions with the US delegation, I actually created a
webcasting site webcastingexample.blogspot.com, to show how
trivial it was to get the 50 years of exclusive rights over
copies of Congressional testimonies involving Avian Flu.
About eighty-percent of the push for this is coming from the
United States, about 19 percent from the European Union, and
about 1 percent from other countries. No one who is pushing these
treaties can explain why anyone who would get the right actually
needs it in the first place, and there is no assessment of how
this will impact copyright owners, consumers or creative
communities and innovative businesses.
WHERE DID THIS COME FROM?
The original basis for this right is a 45 year-old treaty called
the Rome Convention on the protection of performers, producers of
phonograms and broadcasting organizations. The Rome Convention is
now signed by 83 countries, but not by more than 100 other
countries, including the United States. Every country, including
the United States, gives some types of rights to performers
(actors, singers, musicians, dancers, and other persons who act,
sing, deliver, declaim, play in, or otherwise perform literary or
artistic works) or producers of sound recordings, but the US and
many other countries did not create a special right for
broadcasters.
The Rome Broadcasting Right is considered the weakest and most
controversial component of the Rome Convention. Broadcasters
typically rely upon free public spectrum, are hugely profitable,
and do not need any additional incentives to broadcast. As Jamie
Boyle has pointed out, the US never accepted this right, and we
have a huge and highly profitable broadcast sector. (Dito for the
cable TV industry). Basically, the Rome Broadcaster right is a 45
year old mistake. But like many other intellectual property
treaties, it is extremely difficult to roll back unnecessary or
restrictive IP rights.
The US based National Association of Broadcasters (NAB) lead by
lobbyist Ben Ivins, had pushed for years for WIPO to "update" the
1961 Rome Convention to expand the Broadcaster rights, extend the
term (from 20 to 50 years), and add a number of other things.
Even though NAB is pushing a European style approach, the USPTO
and US Library of Congress has strongly backed a new treaty,
extending European legal norms.
Because broadcasters worldwide play an important role in shaping
public views on politicians, they have extraordinary political
power. Yahoo, now led by Terry Stempel, a former Hollywood
executive, pushed to include Webcasters in the treaty, with full
parity rights of the Broadcasters through the trade association
DiMA and a number of private lobbyists. Seth Greenstein, a
DC-based lobbyist, said he wrote the key sections of the current
treaty that extended the Rome rights to webcasting organizations.
Lobbyist Jonathan Band has been downplaying the importance of the
treaty to the technology and library communities, despite its
close parallels to a new intellectual property right for
databases, which he opposes on behalf of other clients.
DEBATE OVER SCOPE OF RIGHTS
There is a deeply divided debate at WIPO over the scope of rights
associated with the Broadcaster or Webcasting organizations. The
European Union and some other countries are pushing very strong
ROME+ rights in the treaty. A growing fraction on the other side,
are pushing for a very thin layer of protection that is really
only useful in protecting against piracy of a broadcast/webcast,
but does not create an ownership right in the work. At this
meeting Jule Sigal of the US Library of Congress has moved toward
the signal protection only approach, supported by most NGOs,
copyright owners and many developing countries. This was a long
overdue and welcome development that has enraged the NAB. It is
uncertain how this debate will play out, given the strong
position of the European Union to promote its much different
approach, and the very difficult problem of lower global treaty
norms for intellectual property protection. (See memo below).
LITTLE VIABILITY IN US
If you don't know about the Treaty, it is because there has not
been a single story about it in the New York Times or Wall Street
Journal, and I think only two stories in the Washington Post, the
most recent of which ran last year, and one in the New York
Herald Tribune, which few people in the United States read. The
computer trade journals have written very little about it either.
The USPTO and Library of Congress have rejected numerous requests
to issue formal requests for comment the treaty, and have
scheduled no public meetings on the treaty. The US Congress has
not held any hearings on the treaty. When the National Academies
held a recent 5- hour public event about the meeting, not a
single member of the US negotiating team attended.
Ironically, it was a webcast of the National Academies event that
has created more resistance. Key Intel officials listened to the
National Academies event, and decided to oppose it. This has been
a wake-up call for many in the technology community. Some big
firms are siding with Intel, that the whole treaty poses a number
of problems and should be opposed. Others, like AT&T, are trying
to ensure they get the new webcasting rights.
We have told technology companies, including Yahoo, Myspace,
AT&T, Google, and others, that it is short sighted to see this
new right as something that will only benefit them as publishers.
There is enormous value in sites like Yahoo, Google, Myspace,
Blogspot and millions of other large and small web pages, blogs
etc, which flourishes because of the relative freedom that exists
on the Internet. New regulations, restrictions and costs of
sharing of information will shrink this value.
In the developing countries, there is strong opposition to the
expansion of the Rome broadcaster right to the Internet. They
correctly see this as something that will increase transaction
costs and prices, harm access to knowledge, and undermine the
rights of their own copyright owners in the works distributed
over the Internet.
A larger and growing number of non-profit groups like CPTech,
EFF, Public Knowledge, Consumers International, Consumers Union,
(non-US) library groups (like IFLA, eIFL), IP-Justice, TWN, the
Open Knowledge Foundation, Union the for Public Domain, and other
"A2K" groups are playing a very important role in opposing the
treaty. With the exceptions of James Boyle at Duke and Jennifer
Urban at USC, US academics have not expressed interest in the
treaty so far.... we are hoping that will change.
