[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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