<nettime> [Random-bits] Webcasting -- what rights do the webcasters want?

[James Love <james.love@cptech.org>]

[originally to random-bits@lists.essential.org]


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 <james.love@cptech.org>

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:james.love@cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040

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