[DMCA-Activists] Love: What Rights do the Webcasters Want?

[Seth Johnson]

-------- Original Message --------
Subject: [Random-bits] Webcasting -- what rights do the
webcasters want?
Date: Tue, 20 Sep 2005 12:48:50 -0400
From: James Love <address@hidden>
To: address@hidden


Today's (September 20, 2005) Washington Internet Daily has a
story on the WIPO webcasting treaty proposal (attached at end of
this note). It begins with a summary of the CPTech letter to
Congress, and ends with a rebuttal from John Potter, the
Executive Director of the Digital Media Assn.  Mr. Potter says
"there's nothing radical about a treaty to stop pirates from
stealing and repackaging webcast signals without paying companies
that spent money to create, license and transmit the
programming."

What he does not note is that all of these things can be
addressed under existing copyright laws, if the material being
webcast is copyrighted material, and if the webcaster has
obtained sufficient rights from the copyright owner.  While
Potter and the Broadcasters love to talk about pirates, as though
copyright law did not prohibit such unauthorized uses of
copyrighted materials, the major debates at WIPO are not about
protection against signal piracy.

Indeed, all the consumer/civil society NGOs and most copyright
owners who attend the WIPO negotiations asked for a treaty
dealing with signal protection only.  But the broadcasters don't
need or want a treaty on signal piracy, since there are plenty of
existing ways to address it (under regulatory regimes, like the
FCC, or through copyright law, assuming they have the appropriate
rights from the copyright holder), and what they really want are
expanded economic rights in the content they transmit (for which
they do not have a copyright).

There are eight separate rights. You cannot read the rights and
still maintain this is about piracy of a signal.  It is about the
rights to control the commercial distribution of someone else's
content.  (If the broadcasters did have the copyright, they would
not need these rights).

The US and the webcasters are seeking parity between the
broadcasters and the webcasters.  Everything that says
"Broadcasting organizations" would be extended to webcasters,
under the US proposals.  How much of the web that would be
covered is unclear, but the current definition includes all
combinations or representations of images and sounds, which
covers just about everything.  Because the text is still a
negotiating document, there are many inconsistencies, and
different options are still being considered. Politically, it is
possible to knock the webcasting provisions entirely out of the
treaty, and to narrow the rights for the broadcasters somewhat.

In the current draft, the treaty provides for the following
rights (reporting the strongest proposals for each of the draft
articles), for 50 years.  (Yahoo and DIMA want these rights
extended to webcasting).

    James Love, CPTech <address@hidden>

Article 6: Right of Retransmission
Broadcasting organizations shall enjoy the exclusive right of
authorizing the retransmission of their broadcasts by any means,
including rebroadcasting, retransmission by wire, and
retransmission over computer networks.

Article 7: Right of Communication to the Public
Alternative L
Broadcasting organizations shall enjoy the exclusive right of
authorizing the communication to the public of their broadcasts,
if such communication is made in places accessible to the public
against payment of an entrance fee.
[weaker alternatives omitted]

Article 8: Right of Fixation
Broadcasting organizations shall enjoy the exclusive right of
authorizing the fixation of their broadcasts.

Article 9: Right of Reproduction
Alternative N
Broadcasting organizations shall enjoy the exclusive right of
authorizing the direct or indirect reproduction, in any manner or
form, of fixations of their broadcasts.
[weaker alternative omitted]

Article 10: Right of Distribution
Alternative P
(1) Broadcasting organizations shall enjoy the exclusive right of
authorizing the making available to the public of the original
and copies of fixations of their broadcasts, through sale or
other transfer of ownership.
(2) Nothing in this Treaty shall affect the freedom of
Contracting Parties to determine the conditions, if any, under
which the exhaustion of the right in paragraph (1) applies after
the first sale or other transfer of ownership of the original or
a copy of the fixation of the broadcast with the authorization of
the broadcasting organization.
[weaker alternative omitted]

Article 11: Right of Transmission Following Fixation
Alternative JJ
Broadcasting organizations shall have the exclusive right of
authorizing the transmission of their broadcasts following
fixation of such broadcasts.
[weaker alternative omitted]

Article 12: Right of Making Available of Fixed Broadcasts
Alternative R
Broadcasting organizations shall enjoy the exclusive right of
authorizing the making available to the public of their
broadcasts from fixations, by wire or wireless means, in such a
way that members of the public may access them from a place and
at a time individually chosen by them.
[weaker alternative omitted]

Article 13: Protection in Relation to Signals Prior to
Broadcasting
Broadcasting organizations shall enjoy adequate and effective
legal protection against any acts referred to in Article 6 to 12
of this Treaty in relation to their signals prior to
broadcasting.

Article 15: Term of Protection
Alternative DD
The term of protection to be granted to broadcasting
organizations under this Treaty shall last, at least, until the
end of a period of 50 years computed from the end of the year in
which the broadcast took place.

Article 16: Obligations Concerning Technological Measures
Alternative MM
(1)  Contracting Parties shall provide adequate legal protection
and effective legal remedies against the circumvention of
effective technological measures that are used by broadcasting
organizations in connection with the exercise of their rights
under this Treaty and that restrict acts, in respect of their
broadcasts, that are not authorized or are prohibited by the
broadcasting organizations concerned or permitted by law.

Article 17: Obligations Concerning Rights Management Information
(1)  Contracting Parties shall provide adequate and effective
legal remedies against any person knowingly performing any of the
following acts knowing, or with respect to civil remedies having
reasonable grounds to know, that it will induce, enable,
facilitate or conceal an infringement of any right covered by
this Treaty:
(i)    to remove or alter any electronic rights management
information without authority;
(ii) to distribute or import for distribution fixations of
broadcasts, to retransmit or communicate to the public
broadcasts, or to transmit or make available to the public fixed
broadcasts, without authority, knowing that electronic rights
management information has been without authority removed from or
altered in the broadcast or the signal prior to broadcast.
(2)    As used in this Article, "rights management information"
means information which identifies the broadcasting organization,
the broadcast, the owner of any right in the broadcast, or
information about the terms and conditions of use of the
broadcast, and any numbers or codes that represent such
information, when any of these items of information is attached
to or associated with 1) the broadcast or the signal prior to
broadcast, 2) the retransmission, 3) transmission following
fixation of the broadcast, 4) the making available of a fixed
broadcast, or 5) a copy of a fixed broadcast being distributed to
the public.

---------------------------
TUESDAY, SEPTEMBER 20, 2005 WASHINGTON INTERNET DAILY P5
Capitol Hill
Congress should force U.S. negotiators to stop pushing to include 
webcasting in a new World Intellectual Property Organization 
(WIPO) broadcast treaty, the Consumer Project on Technology (CPT) 
said Mon. The WIPO General Assembly is scheduled this month to 
debate whether to update the treaty to give copyright protection 
to broadcast signals and extend that protection to webcasting. 
The U.S. govt. has been pressing for both -- unsettling consumer, 
library and tech groups as well as developing countries (WID Nov 
19/04 p2). CPT said in a letter it objects to efforts by the U.S. 
Copyright Office and the U.S. Patent & Trademark Office (PTO) for 
a global treaty creating a new intellectual property regime for 
Internet content. The letter went to Sens. Stevens (R-Alaska), 
McCain (R-Ariz.), Pryor (D-Ark.), Wyden (D-Ore.), Kerry (D-
Mass.), Hatch (R-Utah) and Leahy (D-Vt.); and Reps. Smith (R-
Tex.), Berman (D-Cal.), Conyers (D-Mich.), Goodlatte (R-Va.), and 
Boucher (D-Va.). The broadcasting proposals "are basically a 
vastly expanded version of the broadcasters protections from the 
Rome Convention -- a treaty the U.S. has never signed, and are 
problematic in their own right," said CPT. As now written, the 
treaty would give broadcasters more commercial rights, lasting at 
least 50 years, for broadcasting materials -- in addition to 
copyright owners' rights. The treaty aims to give "quasi-
copyright rights" to broadcasters solely for transmitting works, 
not for creative work, CPT wrote: "As bad as the broadcasting 
treaty is, it will be far worse to extend this restrictive regime 
to the Internet." CPT said Yahoo is behind the effort to include 
webcasting in the treaty because it wants parity between 
broadcasters and "an ill- defined group of 'webcasters.'" The 
issue of parity is sometimes expressed as a policy objective of 
creating a technology-neutral IP scheme, it said. But neutrality 
"should not excuse policy-makers from considering the 
consequences of extending a regime designed for one platform --
the Rome Convention-type protection for broadcasting 
organizations -- to something that is completely different in 
character and tradition -- the Internet." CPT criticized the 
Copyright Office and the PTO for refusing to solicit public views 
on new rights for webcasting. In the WIPO treaty talks, 
webcasters have argued points that have found favor with the U.S. 
govt., Digital Media Assn. (DiMA) Exec. Dir. Jon Potter said. 
They include: (1) Webcasting is an essential tool in the fight 
against online piracy of copyrighted works because it gives 
consumers legal alternatives. (2) Large Internet firms spend 
heavily to create and compile compelling programming, as 
broadcasters do, and there's no reason to protect even small 
broadcasters but leave webcasters open to piracy. (3) 
Broadcasting and webcasting are essentially identical. (4) 
Convergence makes the mode of transmission irrelevant. Moreover, 
Potter said, webcasts are easier to pirate than terrestrial 
broadcasts because they originate over the same digital networks 
used to resend stolen streams. Webcasting is starting to compete 
with broadcast, he said -- but if broadcasters alone can protect 
their signals, webcasters will have a tougher time licensing 
high-value content. Contrary to CPT's comments, there's nothing 
radical about a treaty to stop pirates from stealing and 
repackaging webcast signals without paying companies that spent 
money to create, license and transmit the programming, Potter 
added. -- DS

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

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