[drn-discuss] Fwd: Update from Jamie Love on the 'casting treaty

Tue Sep 20 06:41:29 CDT 2005

Hello

I am Cptech's Head of European Affairs based in London. I am working on a
letter to the EU Commission official dealing with this ( Tilman Lueder)
objecting to the proposal. (copying to MEPs and to the UK as President.)
We want to get the letter out quickly  i.e tomorrow as things are moving
so fast at the Commission level, but I will post a copy to this list and
we would be grateful if you could forward to any of your contacts .  Any
pressure that you collectively or individually could bring on this issue 
would be really helpful and is needed now.
Best Wishes
Michelle Childs

> This looks like something that needs urgent action, if things are not to
> go seriously off the rails -- it looks like there is very heavy pressure
> from the U.S. for heavy new rights for broadcasting and internet-casting
> intermediaries.
>
> It's being argued that these are necessary to allow broadcast (and
> internet-casting) organisations to go after people descrambling and
> selling on the descrambled signals to non-subscribers without
> authorisation; in particular, so that the 'casting organisations can
> prosecute for infringement of the content, regardless of the desires or
> interests of the underlying copyright owners.
>
> This goes beyond measures on direct signal piracy, apparently allowing
> broadcasters e.g.:
> -- to prevent adverts being filtered from their broadcasts by personal
> PVRs; and e.g.:
> -- giving them new content rights on public-domain or copyright-expired
> materials
>
> Taken to its most extreme, the latter may even cover eg right-clicking
> to save an image in a web-browser (or working round some javascript that
> stops you doing so), if the page provider doesn't want you to, even if
> the underlying material is out-of-copyright ((less likely, even for old
> historic documents, because there are probably rights in the
> digitisation)); so perhaps more significantly, even if material has been
> made available by the original content-owner for free open public use.
>
>
> The treaty is going through via a classic "negotiate at a high level,
> don't tell anyone what's going on, then tell parliaments what they have
> already signed up to" process.
>
> It would be worth finding out whether the UKPO (as the responsible bit
> of the civil service) has any briefing (and also, whether it has carried
> out any public consultation), whether any of the political parties have
> it on their radar, and whether any organisations with a belief in the
> public domain could be interested -- the BBC open archive project would
> seem to be a particularly interesting potential stakeholder; but
> libraries, and other organisations publishing into the public domain for
> public use could also have strong interests.
>
> Also, there's the question of whether users should be allowed to use
> their own permanently downloaded signals however they want for their own
> personal use, without broadcasters or internet casters (as well as
> content owners) being able to limit their options.
>
>
> The EU (presumably Commission + Presidency (UK) + Working Group of civil
> servants from member states) is expeced by the US to change its public
> position very soon.
>
> Time to get out a heads-up briefing for the UK ?
>
>
>
> Here's the briefing from Jamie Love on what CPTech's been doing, and
> what it's learnt, from the US:
>
>
> -------- Original Message --------
> Subject: [Random-bits] Webcasting Treaty: Notes from Sept 16 meeting at
> the Library of Congress on the proposed treaty provisions regarding
> webcasting
> Date: Fri, 16 Sep 2005 15:19:03 -0400
> From: James Love <james.love at cptech.org>
> To: random-bits at lists.essential.org
>
> Notes from Sept 16 meeting at the Library of Congress on the proposed
> treaty provisions regarding webcasting
>
>     James Love, CPTech / 16 Sept 05
>
> Several NGOs had asked for a meeting with the Library of Congress
> (LOC) and the USPTO to discuss the status of negotiations at WIPO on
> a new treaty on Broadcasting, that includes a proposal for treaty
> provisions covering webcasting -- something that is not part of law
> in the US, Europe or elsewhere (except possibility in a limited way
> in Finland).
>
> The United States is the primary advocate of creating a new global IP
> obligation for webcasting, even though there is no US law for this.
> In essence, the proposal creates an intellectual property right in
> information that is transmitted.   This right is often described as a
> "layer" that co-exists in parallel with copyright.  It also applies
> even when the information is in the public domain, or if the
> copyright owner has licensed the work for broad public use, such as
> under a creative commons license.   The new right is automatic,
> without any formalities, and would apply to anything that meets the
> treaty definitions.  In the most recent version, the definitions of
> "webcasting" and "webcasting organizations" are as follows:
>
> --------
> (a)  "webcasting" means the making accessible to the public of
> transmissions of sounds or of images or of images and sounds or of
> the representations thereof, by wire or wireless means over a
> computer network at substantially the same time.  Such transmissions,
> when encrypted, shall be considered as "webcasting" where the means
> for decrypting are provided to the public by the webcasting
> organization or with its consent.
>
> (b)  "webcasting organization" means the legal entity that takes the
> initiative and has the responsibility for the transmission to the
> public of sounds or of images or of images and sounds or of the
> representations thereof, and the assembly and scheduling of the
> content of the transmission;
> --------
>
> Negotiations over the WIPO treaty have taken place over several
> years, but are now at a critical moment.  The US has been pulling out
> all of the stops to force the webcasting provisions into the treaty,
> against the views of most other countries.   The European Union has
> privately and publicly promised to move toward the US position on
> this.  On Tuesday, Sept 13, WIPO held an invitation only consultation
> on the proposed Broadcast/Webcast treaty in Brussels.  EFF and CPTech
> (through the Civil Society Coalition) presented views critical of the
> treaty, while the broadcasting and webcasting entities supported the
> treaty.  At the end of this month, maybe on September 28, the issue
> will be debated at the WIPO General Assembly.  The US will push for a
> decision to schedule a diplomatic conference on the treaty as soon as
> possible.
>
> CPTech and other NGOs have been asking the US government to publish a
> federal register notice and solicit public views on the issue of
> creating this new intellectual property right for webcasting.  Our
> most recent letter on this is here: http://www.cptech.org/wipo/
> 15sep05letter2usptoloc.html.
>
> The meeting today was held at the US copyright office, and was
> attended by Michael Keplinger from USPTO, and Jule Sigall and Marla
> Poor from the US Copyright office.  CPTech, Public Knowledge,
> Consumer Federation of America, and Multicast Technologies, a small
> webcaster, and a person who would not identify herself.
>
> The first topic concerned our request for formal public comment on
> the proposal to create a new intellectual property right for
> webcasting in a global treaty at WIPO.
>
> The United States negotiators said they were not sure about when the
> timing would be right for a notice asking for public comment.   They
> said that as a result of this week’s Brussels meeting, they expected
> significant changes in the EU positions on webcasting.   There was
> "not much sense to go through the process until we are ready for
> diplomatic conference," we were told.   But how fast might that
> happen?   They said it was possible there would be a diplomatic
> conference to create the final treaty as early as the 2nd quarter of
> 2006.  And, they would argue in Geneva on the 28th of September that
> the US favored a diplomatic conference, with the webcasting
> provisions included, as soon as possible.   (note: the US and is
> making this a huge priority in WIPO, and the former USTR official and
> current WIPO Deputy Director Rita Hayes is pushing hard also for the
> treaty, although she has been less supportive of the webcasting
> treaty language, which has very little global support).  The US
> negotiators said, only after most of the negotiations were over on
> the webcasting treaty provisions, would it make sense to ask the
> public if they wanted a new intellectual property right for
> webcasting, or more accurately, to comment on the most recent version
> of the Chairman’s treaty text.
>
> The NGOs clearly want the public notice sooner rather than later, and
> they want the option of no treaty, or no treaty language for
> webcasting, to be among the options.
>
> There was a lot of talk about the definitions of webcasting and
> webcasting organizations, which appear to be incredibly broad to us
> (all combinations or representations of images and sounds, by any
> legal entity that makes it available to the public), a result "not
> intended" by the negotiators, but unfortunately, the current version
> of the treaty.
>
> It was astonishing to some NGOs that the treaty could not usefully
> put any limits on the material or activities covered under the
> webcasting definitions, but it was also surprising to hear all of the
> other issues that had not received analysis.
>
> LOC agreed that there was:
>
> 1.    No analysis or concern about how the new IPR right would affect
> the orphan works problem.
> 2.    No analysis of the unintended consequence of creating a new
> right of transmission for the Internet.
> 3.    No analysis of the impact of the new right on the copyright
> owners.
> 4.    No analysis of the impact of the webcasting treaty on podcasting.
> 5.    No analysis of the impact of the webcasting right on peer to
> peer networks.
> 6.    No analysis of how US law would have to change in the treaty
> passed.
>
> Also surprising were some of the objectives of the treaty.  One was
> to make it unnecessary for webcasters to get agreements from
> copyright owners before they sued people for using context.  Another
> was to make illegal to use devices that make it possible to skip
> commercials from radio play lists.
>
> More info on the treaty negotiations, including the controversies
> over the treaty provisions for television and radio, is available here:
>
> http://www.cptech.org/ip/wipo/wipo-casting.html
>
> Note that the treaty provisions on broadcasting are being pushed in
> the US by Ben Ivins, who represents the National Association of
> Broadcasters (NAB), and John Potter and Seth Greenstein of DIMA and
> Yahoo.   Few people or firms the broadcast industry in the US are
> actually following this (outside of Fox, who has been active), and
> almost no webcasters or tech firms have even heard of this.   Yahoo/
> DIMA’s whole lobbying campaign for the webcasting right is based upon
> their desire for "parity" of rights with broadcasters -- even if the
> broadcaster rights are completely inappropriate for the Internet, or
> if the broadcaster rights exist only because the political influence
> of Murdoch and other broadcasters translates into successful rent
> seeking lobbying activities.   The proposed treaty text for the
> broadcast provisions of the treaty are basically the Rome Convention
> (which the US has not signed) on steroids, and of course present
> problems of their own for television and radio, but are nowhere as
> harmful as the proposal to impose this new regulatory scheme on the
> Internet.
>
> ---------------------------------
> James Love, CPTech / www.cptech.org / mailto:james.love at cptech.org /
> tel. +1.202.332.2670 / mobile +1.202.361.3040
>
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-- 
Michelle Childs -Head of European Affairs
Consumer Project on Technology in London
24, Highbury Crescent, London, N5 1RX,UK.
Tel:+44(0)207 226 6663 ex 252.
Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607
http://www.cptech.org

Consumer Project on Technology in Washington, DC
PO Box 19367, Washington, DC 20036, USA
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Consumer Project on Technology in Geneva
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