[IP] The WIPO casting treaty -- why decisions about the new technologies are important
Begin forwarded message:
From: James Love <james.love@xxxxxxxxxx>
Date: September 7, 2006 11:07:56 AM EDT
To: Dave Farber <dave@xxxxxxxxxx>
Subject: The WIPO casting treaty -- why decisions about the new
technologies are important
Dave, WIPO starts a critical negotiation on the "Broadcaster/
Netcaster" treaty next week. This is my most recent blog on the
critical question of the extension of the treaty to the Internet
(which has been being pushed by the USTPO and Library of Congress).
Jamie
http://www.cptech.org/blogs/wipocastingtreaty/2006/09/wipo-casting-
treaty-why-decisions.html
Thursday, September 07, 2006
The WIPO casting treaty -- why decisions about the new technologies
are important.
by James Packard Love
As the World Intellectual Property Organization (WIPO) Standing
Committee on Copyright and Related Rights (SCCR) meets next week in
Geneva, it will discuss a possible treaty on the protection of
"traditional" broadcasting. This was defined in May 2006 as
television and radio broadcasting, the two technologies covered by
the 1961 Rome Convention, as well as any combination or
representation of "images and sounds" delivered by cable television
and satellite (technology platforms not covered by the Rome
Convention). It is not supposed to deal with the Internet, although
the WIPO SCCR Chairman Jukka Liedes (from Finland) has included in
the Chairman's draft treaty a proposal by the European Commission to
extend the treaty rights to broadcaster simulcasting on the Internet,
something that clearly lies outside of the May agreement (a point
discussed dramatically at the close of the May meeting).
If the SCCR reverses the position taken in May and permits
simulcasting to be discussed next week, and if the EU pushes to
include simulcasting in the treaty, the US government is expected to
insist that the treaty be expanded also to "netcasting."
If simulcasting is excluded from the "traditional" broadcasting
treaty, the demand for "webcasting" or "netcasting" rights will
likely dissipate.
Why is the debate over the "new" technologies important? Here are
some reasons:
1. There is a shift of viewing to new technology platforms. Today
most people in the US use cable to satellite networks rather than
older broadcast spectrum to receive television programming. The
Internet appears to be the new platform for delivering all sorts of
content, and over time, the "traditional" broadcasting technologies
are expected to be less important.
2. The legal traditions are different. It is difficult to reduce
protection levels once they are created. The 1961 Rome Convention has
been signed by 83 countries. They are unlikely to repeal the
broadcaster rights created by this treaty. But the Internet has never
be subject to a Rome Convention type "casting" right. It is possible
to avoid the mistake of the 1961 Rome Convention's broadcasting
right, because we are starting from a clean slate.
3. The Internet is a global publishing platform. Historically, most
countries had protected domestic broadcasting industries from foreign
ownership. Whatever economic rights were given to broadcasters, they
were effectively given to domestic broadcasters. To the extent that
the broadcasters rights took economic benefits from copyright owners
or consumers, they at least benefited domestic shareholders. Content
delivered over the Internet will be quite different. A "webcasting"
or "netcasting" right will often create an economic right for a
foreign entity. Certainly some countries, including European
broadcasters seeking Internet "simulcasting" rights, or US companies
like Yahoo or News Corp (Myspace.Com) that aggregate access to works
they don't own, think the right will create global economic rights in
anything they "netcast," including works under copyright by others,
in the public domain or freely distributed by authors (such as
through creative commons type licenses).
4. The methods of use are very different. Traditional television or
radio services distribute fewer works, under a highly centralized and
more legally formal process than is the case for the Internet.
Television broadcasters are better equipped to obtain permissions for
broadcasts, are more likely to be able to pay for rights, and they
are more likely to know where to obtain rights or copies of works.
There is little tradition of listeners recording traditional
broadcasts for purposes of rebroadcast the same works. Publishing on
the Internet is far more prolific and heterogeneous. There are
countless cases on the Internet where the publishing operates with
very little or even zero expectations of revenues, and where it is
difficult to establish the owners or origins of works. Works on the
Internet are much more likely to be published in multiple web pages,
reaching different communities. Works on the Internet are also more
likely to be used in new ways, as content is remixed, mashed-up, and
transformed in other ways. The less formal and more creative way of
using and repurposing information on the Internet is critical for
expanding the amount of and access to knowledge goods, as well as the
character and nature of creative works.
The introduction of a new layer of transmission rights and
obligations for new permissions and remuneration will have much
harsher impacts on the Internet than it has on television or radio,
in the countries where the Rome broadcaster right now applies.
Indeed, this is such an important issue than many webcasting or
netcasting entities and technology companies reject entirely the
application of a Rome type webcasting or netcasting right, even in
areas where they would benefit from it, because overall, the costs
outweight the benefits. They recognize, like many US database
companies recognize, the value in preserving the current freedoms to
use and repurpose information is an important element in creating the
value added services that creative communities and dynamic technology
companies commercialize.
It is also the case the development of low cost digital television
recording devices, and the explosion of new free image and video
publishing services on the Internet, such as video.google.com,
youtube.com, myspace.com, flicker, etc, have given rise to much
greater use of video clips on blogs and other web pages. Many of
these blogs take clips from television news or commentary (from
broadcast or cable television) and add commentary and criticisms.
This is changing the way that television news and commentary
operates, and what political leaders now say on television, as the
news organizations, comentartors or political figures now face much
more powerful feedback mechanims. Such activities demonstrate why
even the "traditional" broadcaster rights are problematic. They
create rights that can be exercised by companies that merely transmit
information, and allow restrictions on uses of content even when
material is in the public domain or when the copyright owner (the
Colbert Report, CNN, etc) are clearly not going to seek to restrict
the use of the clips, either because they believe the use of clips on
blogs stimulates interest in their programs, or they don't want to
alienate their fans.
Given the evidence that Rome type transmission rights are not needed
for traditional television (the US is one of more than 80 countries
that never signed the Rome Convention, but still has a highly
profitable broadcasting industry), and they are likely to be quite
harmful for the Internet, policy makers should think differently
about "parity." The rules for TV should be more like the rules on the
Internet (or lack of rules), rather than making rules for the
Internet more like rules for TV. If this isn't possible for countries
that have already given broadcasters an IP "right" in their
transmissions, it should not be repeated for the Internet. As the
Internet has shown, freedom can be quite be quite valuable, because
it permits people to act without permissions or remuneration in areas
that are critical for creative communities.
---------------------------------
James Love, CPTech / www.cptech.org / mailto:james.love@xxxxxxxxxx /
tel. +1.202.332.2670 / mobile +1.202.361.3040
"If everyone thinks the same: No one thinks." Bill Walton
---------------------------------
James Love, CPTech / www.cptech.org / mailto:james.love@xxxxxxxxxx /
tel. +1.202.332.2670 / mobile +1.202.361.3040
"If everyone thinks the same: No one thinks." Bill Walton
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