[DMCA-Activists] US Congress asked to intervene in webcasting treaty proposal

[Seth Johnson]

To:  Senators Ted Stevens, John McCain, Mark Pryor, Ron Wyden,
John Kerry, Orrin G. Hatch, Patrick Leahy; Representatives Lamar
S. Smith, Howard L. Berman, Bob Goodlatte, John Conyers, Jr., and
Rick Boucher

From: James Love (address@hidden), Manon Ress
(address@hidden), Consumer Project on Technology
(http://www.cptech.org, 1.202.332.2670)

Date:  September 19, 2005

Re:  WIPO Treaty Proposal on Webcasting

We are writing to state our objections to the efforts of the US  
Patent and Trademark Office and the US Office of Copyright to
push for a global treaty that would create a new intellectual
property regime for material transmitted over the Internet. 
This new "webcasting" treaty language would impose a radical
change on the free movement of information on the Internet,
harm copyright owners, and restrict access to knowledge.

The treaty discussions are taking place at the World
Intellectual Property Organization (WIPO).  The United States
trade negotiators are seeking to tack-on the webcasting
proposal to a different treaty involving broadcasting
organizations. The treaty proposals involving broadcasting
are basically a vastly expanded version of the broadcasters
protections from the Rome Convention -- a treaty the United
States has never signed, and are problematic in their own  
right. The current version of the WIPO proposal would give  
broadcasters an expanded set of commercial rights, lasting at
least 50 years, for broadcasting materials.  These rights are
in addition to the copyright owners rights.  They are automatic
rights that do not depend upon formalities, and will exist in
parallel to copyright, and also extend to materials that are in
the public domain.  These expanded commercial rights will harm
copyright owners and the public, by imposing a new layer of
rights that must be cleared before works can be used, and by
forcing the copyright owners to share revenues with
broadcasters.  This has nothing to do with piracy, since the  
copyright laws and treaties, including the 1996 WIPO Copyright
Treaty (WCT) and WIPO Performers and Phonographs Treaty (WPPT),
already provide extensive protections for those who make
creative contributions to works.  The new Broadcasting treaty
is designed to give these quasi-copyright rights to
broadcasters solely for transmitting the works, without any
creative contribution.

As bad as the broadcasting treaty is, it will be far worse to
extend this restrictive regime to the Internet.  Largely due to
the lobbying efforts of one firm -- Yahoo, the US delegation at
WIPO is pushing for "parity" between broadcasters and an
ill-defined group of "webcasters."  The current definition of a
webcast is the making available to the public any combinations
or representations of images or sounds.  According to the WIPO
delegates, this will include not only audio-visual works, but
also text and data.

The only rationale for creating this new right is to provide
"parity" between the broadcasters who benefit from Rome
Convention type protections (a treaty never signed by the
United States) and parties who transmit information over the
Internet.  This issue is sometimes presented in the context of
a policy objective of providing a technology neutral IP
regime.  While neutrality may have some intrinsic appeal as a
policy goal, it should not excuse policy makers from
considering the consequences of extending a regime designed for  
one platform -- the Rome Convention type protections for
broadcasting organizations, to something that is completely
different in character and tradition -- the Internet.  The
Internet is much more than a platform for passive listening to
content sent out by licensed and regulated broadcast
organizations. As noted by Mark Cooper at a recent meeting
with USPTO and Copyright Office negotiators, the Internet is a
system of two-way communication that is far more democratic and
decentralized, and which provides extensive opportunities to
publish, and to create innovative services.

We see the webcasting treaty proposal as poorly conceived and
harmful to the Internet.  But even without making a decision on
the merits of the proposal, you can certainly agree that is it
is completely inappropriate and dangerous to create this
radical new form of Internet regulation without any public
debate. The agencies in the US delegation to WIPO have so far
refused to publish a federal register notice asking the public
for their views on whether or not a new layer of intellectual
property rights for webcasting is a good idea.  There have been
no Congressional hearings on this topic.  The US Congress has
never debated a webcasting IPR regime, and neither have any
other national parliaments.  This is an example of a US trade
policy that is completely captured by a handful of corporate  
lobbyists.

We know that sometime in the future, if the Copyright Office and
the USPTO are successful in coercing other countries to accept
this proposal, the Congress and the American public will then
be told it has no choice but to accept an "international
consensus" on the need for the webcasting right.

At a September 16, 2005 meeting in Washington, DC, the US
Copyright Office explained a few of things they have not
considered. The Copyright Office agreed that there was:

1. No analysis of how US law would have to change in the treaty
passed.
2. No analysis of the unintended consequence of creating a new
right of transmission for the Internet.
3. No analysis of the impact of the new right on copyright
owners.
4. No analysis or concern about how the new IPR right would
affect the orphan works problem.
5. No analysis of the impact of the webcasting treaty on
podcasting.
6. No analysis of whether the treaty language would unwittingly
create a property right to persons operating peer-to-peer
networks or search engines.

As soon as September 28, 2005, the WIPO General Assembly will
debate whether or not to schedule a diplomatic conference on
this ill conceived treaty, and if so, whether or not to include
proposals for a new and completely untested global IP regime
for webcasting. The new diplomatic conference could be
scheduled as soon as the 2nd quarter of 2006.  We urge you to
call upon the US negotiators to slow this process down, and to
ask the American public if a webcasting treaty would help or
hurt copyright owners or the public.

For addition information, see:

http://www.cptech.org/ip/wipo/wipo-casting.html





************************************************
Manon Ress
address@hidden
www.cptech.org

Consumer Project on Technology in Washington, DC USA
Tel.:  +1.202.332.2670, Ext 16
 Fax:  +1.202.332.2673

Consumer Project on Technology in Geneva, 1 Route des  Morillons,
CP 2100, 1211 Geneva 2, Switzerland.
Tel: +41 22 791 6727

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London, N5 1RX, UK.
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