[drn-discuss] webcasting treaty - EU

Tue Sep 27 08:17:29 CDT 2005

Dear All
For anyone interested in the debate about the Broadcast and Webcasting
Treaty, Cptech has created a web page where you can see a copy of the
draft treaty,related documents, plus lobbying letters etc.
http://www.cptech.org/ip/wipo/bt/index.html

This is link to a letter which I sent last week to the EU Commission.
http://www.cptech.org/ip/wipo/bt/cptech09222005.html

Here's a link to a great piece in the FT by Jamie Boyle on whats wrong
with the Treaty
http://news.ft.com/cms/s/441306be-2eb6-11da-9aed-00000e2511c8.html.

Finally other NGO's who are currently at the WIPO General Assembly
opposing the Treaty are putting up some of their comments or links to
their websites on the a2k list serve ( a2k at lists.essential.org)

Regards
Michelle
Michelle Childs
Head of European Affairs
Cptech- london

> 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
>
> _______________________________________________
> Random-bits mailing list
> Random-bits at lists.essential.org
> http://lists.essential.org/mailman/listinfo/random-bits
>
>
>
>
> _______________________________________________
> drn-discuss mailing list
> drn-discuss at lists.okfn.org
> http://lists.okfn.org/mailman/listinfo/drn-discuss
>

-- 
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
Tel.:  1.202.387.8030, fax: 1.202.234.5176

Consumer Project on Technology in Geneva
1 Route des  Morillons, CP 2100, 1211 Geneva 2, Switzerland
Tel: +41 22 791 6727