[DMCA-Activists] On the Proposed WIPO XCasting Treaty

[Seth Johnson]

(From James Love's Random Bits list.)

-------- Original Message --------
Subject: [Random-bits] Note on the Proposed WIPO Treaty for Broadcasters,
Cablecasters andWebcasters
Date: Wed, 29 Oct 2003 08:45:00 -0500
From: James Love <address@hidden>
To: address@hidden,ecommerce
<address@hidden>

Note on the Proposed WIPO Treaty for Broadcasters, Cablecasters and 
Webcasters
James Love, CPTech*
October 29, 2003

>From November 3 to 5, the World Intellectual Property Organization  (WIPO)
Standing Committee on Copyright and Related Rights (SCCR) will  meet in
Geneva to decide how to proceed on proposals for a new global  intellectual
property treaty.   The proposed treaty concerns a system of  ownership for
material transmitted over wireless means such as  television, radio and
satellite, as well as wired communications over  cable networks, and also
over Internet computer networks.

This proposal expands or gives new rights to transmitters of  information,
even if they are not the creators of that information.  Rights that are
normally reserved to creators and performers would be  afforded to
organizations that merely transmit creations and  performances -- even if
those works are in the public domain, even if  those works' authors wish to
have the works distributed without restriction.

There are proposals to extend coverage to broadcast, cablecast, and 
webcasting technologies, and the treaty will be referred to here as the 
"casting" treaty.

RELATIONSHIP TO OTHER TREATIES

The proponents of the treaty claim it is needed to update protections  for
broadcasters in the WTO TRIPS accord and in the Rome convention.  However,
in this case "updating" means extending terms from the 20 years  of the
TRIPS and the Rome Convention, to 50 years, extending the  protection to
many new technologies, and creating new rights.   The  proponents claim the
extension to 50 years is a matter of "fairness,"  since in 1996, a WIPO
performers and phonograms treaty (the WPPT)  provided a 50 year term.

Most countries are subject to the TRIPS, but the TRIPS does not require 
members to provide these "related rights" to broadcast organizations if 
they provide copyright owners the right to protect materials when 
broadcast.   The US for example does not provide a "related right" to 
broadcast organization, but does protect content under copyright laws,  or
theft of cable satellite signals under regulatory regimes.

The United States is not a signatory to the Rome Convention, and no 
European country is a signatory to the WPPT.   Indeed, the members of  the
WPPT are mostly developing countries that signed the treaty in  response to
US trade pressures.

        EXTENSION TO NEW TECHNOLOGIES

The development of new information technologies makes the proposed  casting
treaty important.  The changes are in two primary areas.  First,  the nature
of what is considered a broadcast is changing, particularly  with digital
technologies.  Even analogue broadcasts are now including  more and more
text, including machine-readable subtitles, and the future  of digital
broadcasts are increasingly embracing broader scope of  content, including
text, data, still pictures, and other elements not  traditionally associated
with television or radio.  Firms are developing  and expanding the scope of
content distributed as music, films, news,  sporting events, etc, to take
advantage of the ability of the public to  receive and manipulate a variety
of types of information.

Second, there is an explosion of new technologies that "broadcast" by 
wireless means, and that transmit via the Internet and Internet-like 
networks.

The lines between these technologies are constantly being blurred.  Cable
and satellite television networks offer Internet services, and new  wireless
networks for television, mobile phones, audio broadcasts,  Internet
connections and other services are increasingly offering the  products and
services of the others.

The current proposals for the treaty often approach the issue as if the 
content is static (what was broadcast in the 1950's or 60's), while  there
is a need to accommodate the new platforms to deliver content.  However, it
is increasingly difficult to maintain that expanding both  the scope for
content and the covered platforms will not have  far-reaching consequences.

        WHAT CONTENT IS COVERED?

In a recent discussion of the treaty at the Consumers International/TACD 
Lisbon workshop on WIPO, some national negotiators said the treaty would 
cover text and data, while others said it would not.   In a recent 
USPTO/LOC briefing on the treaty, the same issues were debated, and some 
content/casting entities claimed the treaty would and should cover any 
information transmitted, while others said this was not intended.

A typical proposed definition of covered content would be "sounds,  images
or sounds and images, or of the representations thereof," with  additional
terms that address the issue of how the material is  disseminated.  For
Broadcasting and Cablecasting, the US has suggested  an exclusion of
"transmissions over computer networks or any  transmissions where the time
and place of reception my be individually  chosen by members of the
public."  However, this limitation does not  appear in the US definition for
webcasting.  Instead there is only a  requirement that the webcaster make
the material accessible to the  public "at substantially the same time." 
CPTech understands this to be  only a condition of when the data is first
made available, and not when  it is downloaded.  Some webcasters have said
the want protection for the  files that can be accessed on demand.   CPTech
has asked WIPO members to  clarify this point.

If the threshold is simply and only "making accessible" the materials  "at
substantially the same time," then plausibly the entire world wide  web is
covered, including every image and sound on the Internet.  If  text is
included under images or sounds (or representations thereof) ,  as some
delegates claim, then nearly the entire world wide web would be  included. 
Certain peer-to-peer networks, such as emule, would appear  also be included
in the definition of webcasting.  If this is not  intended, it can and
should be clarified.


THE CONSEQUENCES OF GRANTING OWNERSHIP, CONTROL AND PROTECTION BASED SOLELY
ON TRANSMISSION
(Particularly when applied to the Internet).

The casting entities fundamentally want a layer of ownership over  materials
that they did not create or previously own.  They want the  treaty to
declare they "own" what they transmit, even when the materials  are in the
public domain (government works, older works, materials  donated to the
public domain, etc), when they cannot be copyrighted  (facts, data, other
non-copyrightable materials), or when owned by third  parties, including
those who have no interest in suppressing  distribution of works (speeches
by government officials, Al Qaeda tapes,  listserves, newsgroups, etc).

If the treaty covers all new wireless methods of "broadcasting" content, 
and if it covers cable networks, and if it covers "webcasting," it is 
difficult to imagine what will not fall under its scope.  Some critics  of
the treaty have shifted from asking what will be covered, to asking  what
will *not* be covered.

CPTech has asked WIPO officials, the US, the EU and other WIPO members  and
stakeholders to provide assurances that text, data, literary works,  still
photos, and other works be explicitly excluded from the treaty  scope.   We
are waiting to see if any such limitations are forthcoming.    The US
delegation is pushing the hardest to include a new category for 
"webcasting" in the treaty, and they claim there is no intention to use  the
treaty to cover the entire Web with a new layer of ownership based  solely
on transmission, but even if the treaty could actually be limited  to
traditional analogue type television and radio content, it would  still have
a significant effect in reducing the public domain, by  granting a 50 year
term of exclusive rights on all "images, sounds and  sounds and images, and
representation thereof," which would actually be  included.


        PROTECTION SCHEME SIMILAR TO SUI GENERIS PROTECTION OF DATABASES

The rationale and basis for protection is very similar to the various 
proposals to provide protections to elements of databases, including the  EU
directive on the protection databases, the failed 1996 WIPO treaty on 
databases, and the current proposals in the US Congress on databases.  In
each case, there is no claim of authorship, but an appeal to protect 
investments needed to gather, organize and disseminate the work.  If the 
casting treaty is approved, WIPO will be under tremendous pressure to  move
forward on a new treaty on databases, since the rationale for  protection is
essentially the same.   Indeed, in the recent CI/TACD  Lisbon meeting on
WIPO, the question was asked, is there anything the  webcasters do that
would not already be protected in Europe under the  European laws on
databases?   The answer was not clear, but it may be  that the webcasting
treaty would go even further and reduce the public's  rights to use Internet
accessible materials even more.

        THE APPROPRIATE TERM FOR PROTECTION OF INVESTMENT.

Wholly apart from the issue of whether or not any new intellectual  property
protection should be extended to casting entities, there is an  important
issue concerning the appropriate term for the protection of  investments.

In the WTO TRIPS accord, minimum protections of patented inventions and 
broadcast signals are 20 years of protection, while the term of  copyright
is a minimum of 50 years.  In US and EU laws a number of  different terms
are used to protect investments.

There are also a number of other models for the protection of 
investments.   The TRIPS requires protections against unfair commercial  use
for undisclosed data used to support the registration of certain 
pharmaceutical and agricultural products.  Companies spent millions of 
dollars on clinical trials to support the registration of pharmaceutical 
drugs, sometimes when there is no patent on the product.  In the United 
States, data for new chemical entities receive exclusive rights for 5 
years, and data used to support broader uses of a product receive 3  years
of exclusive rights.  In Europe, data for drug registration may  receive 6
to 10 years of exclusive rights.  The US provides for 10 years  of rights
for data used to support the registration of pesticides  (7  USC Chapter 6,
Subchapter II, Sec 136a. Registration of pesticides),  subject to compulsory
licensing of data to competitors (based upon  equitable sharing of costs).  
The US and the EU are pushing developing  countries to adopt similar
measures to protect investments in  registration data, and these efforts are
controversial.  In the CAFTA  negotiations agricultural and pharmaceutical
producers are resisting US  and EU style protections.  Earlier, Argentina
successfully resisted US  pressure to adopt such measures, as being beyond
the WTO TRIPS  requirements.

Other types of protection for investment are the terms for exclusivity  of
orphan drugs in the US (seven years) and Europe (10 years), or to  protect
investments in pharmaceutical paediatric tests (6 months of  exclusivity).

The European Directive for the protection of databases provides for a 
15-year term of protection.

The "casting" entities seek a 50-year term, which is entirely based upon  an
appeal to protect investment.  This is 45 years longer than the  United
States protects investments in pharmaceutical clinical trials, 35  years
longer than the EU database directive and 30 years longer than  TRIPS
currently protects broadcast signals.  There is ZERO economic or  moral
rationale to provide a 50-year term to protect investments in the 
transmission of the works not created by the casting entities, and it  sets
a bad precedent for investment based types of protection.  By the  very
nature of protections based upon investments, the term should be no  longer
than what is needed.

Excessive terms of protection harm the public by increasing prices and 
reducing access to information.

When there is no economic justification for the protection, only a 
demonstration of the political power of the casting entities, the unjust 
extension of protection will breed cynicism and contempt and erode  efforts
to build more respect for intellectual property regimes.


        RELATIONSHIP TO GPL

We have asked the US government to look at the possible impact of the 
treaty on the GNU General Public License (GPL), and in particular, we  asked
if a person who received material licensed under the GPL could  undermine
its openness requirements by making modified code available  over a network
with a new layer of treaty rights.  This depends in part  upon the scope of
content that is covered under the treaty.

        TECHNOLOGICAL MEASURES

The proposed treaty also would mandate the prohibition of circumvention  of
technical measures intended to restrict "unauthorized" use of  materials. 
This echoes the US movement to create a "broadcast flag"  regime through the
FCC, which would require the permission of copyright  giants before new
technologies could be brought to market, and which  bans "open source/free"
software for use in digital television contexts.    If the scope of this
proposal indeed extends to all information  transmitted online, over the
air, and so forth, then this requirement  would stifle all innovation in
tools that send and receive information  -- at every turn, a rights-holder
would be waiting to assert the ability  to control the way that browsers,
email clients, phones, file-sharing  applications and so on are designed and
deployed.  Indeed, the US is  thought to be waiting until the FCC announces
a position on this  controversial issue, and then to push for inclusion of
similar  obligations in the WIPO treaty.

In June, the North American Broadcasting Association said WIPO must move 
further into technological measures to protect content and  transmissions. 
The presentation included two officials from News  Corporation (Fox,
Murdoch).


        NEW RIGHTS

There are numerous proposals for various rights to be associated with  the
casting treaty, including the right to prohibit or authorize  fixations, or
the rentals of fixations.  Some content owners see the  casting entities as
seeking to use the treaty framework to expand their  control over the retail
exploitation of their works.  Creators of works  who do are not in a strong
bargaining position relative to "casting"  entities are concerned that the
treaty will erode their control over works.

There is considerable controversy over the proposal to extend the treaty  to
webcasting, and to include new rights to exploit works.  A June 2003 
statement by 15 organizations representing authors, publishers,  performers
and producers opposed the extension of the treaty to  webcasting, pointing
out it would extend even to private individuals  transmitting content from
their homes.  These groups also object to the  expansion of the scope of the
treaty from "signal" piracy, to measures  "not required to fight privacy but
to exploit the context used by the  broadcasting organizations (e.g.
sweeping transmission and communication  to the public)."  (Joint
Recommendation of Right Holders on the  Protection of Broadcasting
Organisations, June 2003).


        NEXT STEPS

The Civil Society Coalition (CSC) is accredited in the WIPO SCCR, and  will
have as many as 10 persons in Geneva for the November 3-5 meeting.    Manon
Ress <address@hidden> is coordinating CPTech's work on  the casting
treaty, and a number of NGOs and experts from the US,  Europe, Africa and
"Asia will be attending the meeting.

One possible outcome of the November meeting will be an agreement to  create
a chairman's draft treaty, with different possible strategies in  terms of
how ambitious the draft is in terms of inclusion of  controversial issues. 
The Webcasters (Time-Warner, Yahoo, Microsoft,  DiMA, etc) would like to be
included in this treaty, while some WIPO  members, including Japan, want a
separate instrument for webcasting.

For more information, see: http://www.cptech.org/ip/wipo/wipo-casting.html

* Cory Doctorow from EFF made helpful comments and suggestions on an 
earlier draft.


-- 
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:address@hidden
tel. +1.202.387.8030, mobile +1.202.361.3040

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