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James Love

James Love

Posted: May 4, 2006 07:42 AM

WIPO Carves Up the Internet (and the Broadcast Spectrum)


Don't bother reading this unless the words "new intellectual property right" and "the Internet" seem important when put together, because it is a twisted and complicated story. Even the key players are struggling to figure out what is going on. But like a lot of twisted and complicated things, it is important.

The World Intellectual Property Organization (WIPO) is a specialized UN agency, headquartered in Geneva, Switzerland. This week it is holding a contentious five-day negotiation on a new Treaty, the purpose of which is to provide a new "protection" for "broadcasting and webcasting organizations."

What does this mean? WIPO is debating whether or not to create a new intellectual property right in information that is distributed over television, radio, cable television, or through any wired or wireless computer network, including the Internet. This is something different from copyright. Indeed, it is designed to benefit people who cannot get a copyright, because a work belongs to someone else (the person or group that created it), or because the information is in the public domain. The new right is not a "copyright," but a "broadcaster" or "webcaster" right. It is a bad idea when applied to television or radio, but a disaster if applied to the Internet.

In different ways, the US and the EU both think they can use this right to extract money for simply distributing information over the Internet into foreign markets.

The right comes at the expense of consumers and copyright owners -- benefiting the distributors of information. It might be called the "middleman right." This has attracted a large group of corporate lobbyists who want to see their clients named as beneficiaries of the treaty.

It works like this. If the owner of a broadcasters or webcaster publishes anything, they get an ownership right in the information, equal to the rights of copyright owner, so before you could make a copy, share or reuse the information in any way, you would have to get permissions from both the copyright owner and distributor of the work. This is supposed to "protect" the "caster" for its investments in broadcasting or webcasting.

The meetings at WIPO are chaired by a very strong advocate of high levels of intellectual property rights, Jukka Liedes, from Finland.

The European Union, the United States Government and several other governments want this new right to last 50 years, beginning each time information is republished.

This new right only applies to copies of the works distributed by the "casting" organization, so if you can get a copy from another source, it would not apply, something that would not be a problem if the work was a Hollywood film or music recording widely available elsewhere in DVD or CD formats. But for a number of other works, there just won't be any practical or cost effective way of getting a copy from another source. (Which makes the "casting" right so valuable).

Why is this such a big deal, and particularly for the Internet? First, there are lots of important works that are not protected by copyright, including events of high public interest such as presidential speeches, recordings of US Supreme Court debates, recordings of meetings and telephone calls by several US presidents, and some Congressional hearings. And, there are far more works that are technically protected by copyright, but which are in practice freely available, because the owners of the work want to share it widely, or do not choose to enforce restrictions on how a work is reused.

Web pages are full of documents, sound recordings and video that are licensed under Creative Commons licenses, or simply passed around informally. Information on the Internet often is republished on many different web sites, each reaching its own communities. This is exploding at an astonishing rate as the costs of making and hosting works falls. Within a short time, anyone will be able to create a webcast from a mobile phone, and create records of meetings of all types, news events, performances, interviews, or any number of other events.

Increasingly, people are using these works to create newer works, in documentaries, news reports and commentary, or cultural or technical works that remix or mashup content. Grid Computing and other emerging technologies are creating astonishingly creative and important ways of collaborating.

Copyright alone presents huge problems for the distribution of and creation of these new Internet based works. But a new intellectual property right for webcasting will make things even more difficult, at least doubling the permissions one needs. At a minimum it will increase transaction costs. At worst, it will change the culture of sharing information on the Internet, with some exercising as many rent seeking rights as they can acquire.

Who is pushing for this new "webcasting" middleman right? It is not the vast majority of bloggers, web page owners and others who are creating and distributing content. It is a tiny handful of big corporate players, including most notably US companies like Yahoo, News Corp (owner of MySpace), Microsoft, Time-Warner/AOL, AT&T, and a handful of large European media companies, including it seems, the BBC.

Yahoo and others see themselves as aggregators and distributors of a wide varieties of audio visual works created by others, including music performances and films from all over the world. Under the most aggressive proposals debated this week, the Webcasting right will make Yahoo a part owner in everything they "webcast," and potentially give them the right to claim things like fees from cyber-cafes, community Wifi networks, schools and educational institutions, even when works are in the public domain or are freely licensed under creative commons type licenses, as well as a number of other situations. This comes at the expense of both the copyright owners and consumers.

The Broadcast/webcast right, if defined too broadly, as some here want, also allows the broadcaster/webcasters to compete against the copyright owners in downstream commercialization of works, which is another reason why it makes copyright owners unhappy.

The US and the EU are split on who should be the beneficiaries of this new right. The EU, led by copyright chief Tilman Lueder, who formerly worked on competition issues, wants to restrict this new webcasting right to the incumbent broadcasting organizations, like BBC, so that only they would be able to claim the layer of rights, and not new competitors, even though they are both operating on the Internet.

The US, led by Library of Congress lawyer Jule Sigall, wants to extend this new right to companies like Yahoo, News Corporation, Microsoft, Time-Warner or AT&T, but not to "bloggers or people who just maintain web pages." Right now the treaty definitions extend to pretty much any legal entity that creates a web page. During discussions with the US delegation, I actually created a webcasting site webcastingexample.blogspot.com, to show how trivial it was to get the 50 years of exclusive rights over copies of Congressional testimonies involving Avian Flu.

About eighty-percent of the push for this is coming from the United States, about 19 percent from the European Union, and about 1 percent from other countries. No one who is pushing these treaties can explain why anyone who would get the right actually needs it in the first place, and there is no assessment of how this will impact copyright owners, consumers or creative communities and innovative businesses.

WHERE DID THIS COME FROM?

The original basis for this right is a 45 year-old treaty called the Rome Convention on the protection of performers, producers of phonograms and broadcasting organizations. The Rome Convention is now signed by 83 countries, but not by more than 100 other countries, including the United States. Every country, including the United States, gives some types of rights to performers (actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works) or producers of sound recordings, but the US and many other countries did not create a special right for broadcasters.

The Rome Broadcasting Right is considered the weakest and most controversial component of the Rome Convention. Broadcasters typically rely upon free public spectrum, are hugely profitable, and do not need any additional incentives to broadcast. As Jamie Boyle has pointed out, the US never accepted this right, and we have a huge and highly profitable broadcast sector. (Dito for the cable TV industry). Basically, the Rome Broadcaster right is a 45 year old mistake. But like many other intellectual property treaties, it is extremely difficult to roll back unnecessary or restrictive IP rights.

The US based National Association of Broadcasters (NAB) lead by lobbyist Ben Ivins, had pushed for years for WIPO to "update" the 1961 Rome Convention to expand the Broadcaster rights, extend the term (from 20 to 50 years), and add a number of other things. Even though NAB is pushing a European style approach, the USPTO and US Library of Congress has strongly backed a new treaty, extending European legal norms.

Because broadcasters worldwide play an important role in shaping public views on politicians, they have extraordinary political power. Yahoo, now led by Terry Stemel, a former Hollywood executive, pushed to include Webcasters in the treaty, with full parity rights of the Broadcasters through the trade association DiMA and a number of private lobbyists. Seth Greenstein, a DC-based lobbyist, said he wrote the key sections of the current treaty that extended the Rome rights to webcasting organizations. Lobbyist Jonathan Band has been downplaying the importance of the treaty to the technology and library communities, despite its close parallels to a new intellectual property right for databases, which he opposes on behalf of other clients.

DEBATE OVER SCOPE OF RIGHTS

There is a deeply divided debate at WIPO over the scope of rights associated with the Broadcaster or Webcasting organizations. The European Union and some other countries are pushing very strong ROME+ rights in the treaty. A growing fraction on the other side, are pushing for a very thin layer of protection that is really only useful in protecting against piracy of a broadcast/webcast, but does not create an ownership right in the work. At this meeting Jule Sigall of the US Library of Congress has moved toward the signal protection only approach, supported by most NGOs, copyright owners and many developing countries. This was a long overdue and welcome development that has enraged the NAB. It is uncertain how this debate will play out, given the strong position of the European Union to promote its much different approach, and the very difficult problem of lower global treaty norms for intellectual property protection. (See memo below).

LITTLE VIABILITY IN US

If you don't know about the Treaty, it is because there has not been a single story about it in the New York Times or Wall Street Journal, and I think only two stories in the Washington Post, the most recent of which ran last year, and one in the International Herald Tribune, which few people in the United States read. The computer trade journals have written very little about it either.

The USPTO and Library of Congress have rejected numerous requests to issue formal requests for comment the treaty, and have scheduled no public meetings on the treaty. The US Congress has not held any hearings on the treaty. When the National Academies held a recent 5-hour public event about the meeting, not a single member of the US negotiating team attended.

Ironically, it was a webcast of the National Academies event that has created more resistance. Key Intel officials listened to the National Academies event, and decided to oppose it. This has been a wake-up call for many in the technology community. Some big firms are siding with Intel, that the whole treaty poses a number of problems and should be opposed. Others, like AT&T, are trying to ensure they get the new webcasting rights.

We have told technology companies, including Yahoo, Myspace, AT&T, Google, and others, that it is short sighted to see this new right as something that will only benefit them as publishers. There is enormous value in sites like Yahoo, Google, Myspace, Blogspot and millions of other large and small web pages, blogs etc, which flourishes because of the relative freedom that exists on the Internet. New regulations, restrictions and costs of sharing of information will shrink this value.

In the developing countries, there is strong opposition to the expansion of the Rome broadcaster right to the Internet. They correctly see this as something that will increase transaction costs and prices, harm access to knowledge, and undermine the rights of their own copyright owners in the works distributed over the Internet.

A larger and growing number of non-profit groups like CPTech, EFF, Public Knowledge, Consumers International, Consumers Union, (non-US) library groups (like IFLA, eIFL), IP-Justice, TWN, the Open Knowledge Foundation, Union the for Public Domain, and other "A2K" groups are playing a very important role in opposing the treaty. With the exceptions of James Boyle at Duke and Jennifer Urban at USC, US academics have not expressed interest in the treaty so far.... we are hoping that will change.

-----Original Message----- From: James Love To: Lee Knife (DIMA), Bradley Silver (TimeWarner), Sarah Deutsch (Verizon), Fritz Attaway (MPAA); Ben Ivins (NAB), Biddle, Brad (Intel); David Fares (NewsCorp), Gwen Hinze (EFF), Jason Pielemeier (Yale ISP), J Mago (NAB), Kevin Rupy (USTelecom), Marily Cade (AT&T), Manon Ress (CPTech), Matt Schruers (CCIA), Peha (IP Justice), Thiru (CPTech), Winston Tabb (IFLA),

Sent: Tue May 02, 2006
Subject: Inclusion of webcasting or other services in Treaty

I think should offer some comments on the CPTech position on the inclusion of webcasting or other Internet services in the Treaty.

1. If the treaty was only about some theft of service, and did not involve an intellectual property right for transmitting/disseminating/publishing information, then we would not care much what services are included. But of course, the treaty does contain IP rights, and so we do care, a lot. So do a lot of others, including copyright owners and developing country delegates.

2. There is very little chance that this treaty will be adopted without Rome type rights, or even Rome+ rights, for the following reasons. First, 83 countries have signed the Rome, and many already have in domestic law Rome+ rights, including most countries in Europe, and it would be hard for many of these countries to support something that lowers the global norms on rights substantially. Second, the TRIPS already has some IP protection for broadcasters, particularly for those who use the related rights approach, and you won't change this. Third, NAB and other broadcasters organizations would oppose a treaty that does not have Rome+ rights, since it would make them worse off than the Rome, which they already have.

3. NAB wants Rome+. DIMA want parity with whatever broadcasters get. That leads to an import of Rome type rights into the Internet. If you say you like parity for the Internet, what you are saying in practical terms is that the Internet should have Rome type rights. We are very opposed to this, and for that reason, we are willing to say that parity is a bad idea, and will harm the Internet, and harm copyright owners. I really don't think it is even good for DIMA members, but that's a different issue.

4. In terms of efforts by some to actually expand the definitions of webcating to include more and more services on the Internet, it just makes the whole treaty even worse for those who hate the Rome approach, and it isn't just me you have to consider. Anyone listening to the debate should appreciate how much resistance there is to ANY inclusion of webcasting, let along the even broader definitions that pick up other services.

5. Our position is that the US delegate should defend US norms, which include no protection for webcasting, and no ROME or ROME+ rights. (why not address webcasting issue in USA before demanding a global treaty). One way to do this is to kill this treaty, which the US could easily do, since it is the main demander for it. The SCCR could work on other issues..... like a global norm for minimum limitations and exceptions for persons living with disabilities, libraries, distance education etc, which has already been proposed by Chile, and which would be welcomed by developing countries, and would be consistent with US copyright traditions. It could revisit the webcasting issue later after US law is more mature on this issue, and more is known about the technology.

6. Another possible thing to consider is something that would solve the very real problems facing non-USA sports broadcasters. This we could support, as we have indicated many times.

7. All the talk about piracy in relationship to broadcasting has been mostly for public relations. Piracy is already illegal under lots of different laws, including copyright law. WIPO could work on some best practices models for countries to plug in some of the small gaps in some broadcasting regimes, without even worrying about a treaty on this. And if piracy was a big problem, then NAB and other broadcasters could have a signal theft only treaty in 5 minutes, but they don't really want one.

8. A final note about the Internet. The Internet probably never would have existed had it been regulated like broadcasters, because lobbyists would have fought to control every new idea and technology. I don't think the lack of regulatory parity for the Internet was a bad thing.

Jamie

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