WIPO newest "internet treaty" for webcasters

Next week, the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and related Rights (SCCR) will meet in Geneva from Monday to Wednesday Nov 21-23, 2005 to discuss a new instrument that will provide intellectual property rights to broadcasting, cablecasting and webcasting organizations.

Background:

What is at stake? The proposed treaty for the protection of broadcasting organizations being negotiated at WIPO will create a new intellectual property right. Broadcasters, cablecasters and webcasters or organizations that make broadcast or “beam” audio visual works and make them available to the public will be granted a 50 year exclusive right to authorize or prohibit the copying, fixation or redistribution of such works, among other rights. These new rights, called “related rights” in Europe, will be an additional layer of rights on top of copyright owners’ existing rights. When the broadcast, cablecast or webcast includes non-copyrighted works (either in the public domain or not copyrightable like facts), the transmitter, i.e. the broadcasting, cablecasting or webcasting organizations will be granted exclusive rights to control the works they transmit. Although, this is presented as a simple update of the Rome Convention (which the US never signed), it goes beyond what is
required in the TRIPS[i]. Furthermore, by adding webcasting organizations to the list of beneficiaries, the treaty drafters are
creating a new intellectual property rights regime for the Internet.

Presented as an anti-piracy treaty to protect a signal[ii], the treaty will in fact give intermediaries more power and control over creators (copyright owners and performers) and the public. Furthermore, by adding webcasting organizations as a new beneficiary of intellectual property rights, the treaty will change how the Internet functions and its use. It will add to the already existing thicket of rights for audiovisual work and multimedia works that create obstacles for creators, distributors and the public. Like new tollbooths on the Internet, the new rights will slow down traffic and prevent the dissemination of information and various works.

The discussions on this controversial treaty have been going on since 1998 but the WIPO secretariat, with the help of the US delegation, is now putting pressure on members states to agree to a diplomatic conference by 2006. We have been asking the US delegation to answer the following questions:

Has there been any analysis of how US law would have to change if the treaty is passed?

Has there been any analysis or concern about how this new intellectual property right would impact copyright owners?

Has there been any analysis of the unintended consequences of creating a new right of transmission that does not exist in any country for the Internet?

Has there been any analysis on how the new intellectual property right would affect the orphan works problems?

Has there been any analysis of the impact of the webcasting provisions on podcasting and on peer-to-peer networks?

The US delegation headed by Mike Keplinger of the USPTO and Jule Sigall of the Copyright Office have confirmed that there has been no analysis or attempt to answer these questions. There has been no public consultation on this controversial treaty and we are now asking for a federal register notice before a final draft is negotiated at WIPO in Geneva. By that time, it will be difficult to change the broad scope and the language of the treaty. We believe that the public, copyright owners and performers, small webcasters and others would have much to say about this proposed treaty if given the opportunity to comment.

More information at: http://www.cptech.org/ip/wipo/bt/index.html

November 2, 2005. Jonathan Krim for the Washington Post. Weighing Webcasters' Rights to Content.
http://www.washingtonpost.com/wp-dyn/content/article/2005/11/02/
AR2005110203187.html

October 13, 2005. Letter from 17 NGOs, 7 law professors and 31 music and technology experts, asking the leadership of the the U.S. House and Senate for a period of public comment on the treaty proposals. http://www.cptech.org/ip/wipo/bt/2cong4frnotice.html

September 26, 2005. Column by James Boyle in the Financial Times. More Rights Are Wrong for Webcasters.
http://www.cptech.org/ip/wipo/bt/index.html

[i] In Article 14 of the TRIPS Agreement: broadcasters "shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971)."

[ii] broadcasting organizations are already protected all over the world if not under a related rights regime under other regulatory regimes. In the US broadcasting organizations protection is under the communications law which provides a direct right for broadcasters \to control the use and dissemination of their signals (Section 325 of the Comm. Act from 1934, as amended, 47 USC Section 325). The provision was originally enacted as part of the Radio Act of 1927, prohibiting the rebroadcasting of a station's signal without the originating station's consent. It has since been expanded to cover
the new cable and satellite retransmission technologies developed later in the 20th century. There are also separate civil and criminal provisions prohibiting the unauthorized interception and disclosure of certain wire, radio, and electronic communications (see section 605 and 18 USC sections 2510-2512). Beyond these direct statutory rights important additional sources of legal protection under IP law can be used by broadcasters against unauthorized use of a broadcaster's signal such as trademark laws, the Lanham Act, and state competition laws, as well as the Copyright law.