Momentum Seen Growing Against Webcasting Copyrights

The 3 options were laid out in a working paper last spring. Under the first, the treaty would cover simulcasting and webcasting, but no contracting party would be bound to apply the treaty’s protections. If a signatory ratified the treaty without a notification on simulcasting or webcasting, it would have to extend protection to traditional broadcasting and cablecasting only.

Alternative 2 would permit signatories to exclude webcasting and simulcasting from the protections of the treaty by making a specific reservation to its provisions. The 3rd option would be to attach a protocol to the treaty that would be subject to separate ratification by the parties.

It’s “surprising” that webcasting is still an option because no one wants it except the U.S., and, apparently, WIPO, IP Justice Exec. Dir. Robin Gross told us. It’s “particularly shocking” that despite broad opposition to extending broadcasting protections to webcasting, delegates aren’t being given the option of “no such provision.” The SCCR is supposed to work by consensus, she said, but in this case has been “captured by the U.S. agenda.”

Treaties generally aim to harmonize national laws, not create new rights, Gross said. Extending antipiracy protections to webcasting is problematic because “no one knows how it will play out in practice,” she said. Including Internet transmissions of media “would harm the growth and development of the Internet” by threatening to chill free expression and harm innovation, IP Justice told the SCCR. Including webcasting as an optional feature “makes no sense,” because countries are always free to enact their own laws on webcasting transmissions.

The Civil Society Coalition argued that the webcasting proposal isn’t about protecting copyright, which has a strong legal framework, “but rather an effort to radically change the ownership of information and knowledge goods, based upon who transmits information, rather than who creates the work. If we extend this logic further, should we consider granting an intellectual property right to Amazon Books, because they made books available to the public?”

The coalition complained that the proposed definitions of webcasting are too broad. Content to be protected from piracy is “any combination of representation of images or sounds that are made ‘accessible to the public… at substantially the same time,” it said -- which would encompass all web pages. The treaty would: (1) Create a new set of intermediaries with rights in data they didn’t create. (2) Create additional rights not needed to spur dissemination of digital works online. (3) Undermine the role of copyright owners and performers in determining appropriate uses of their works. (4) Create a precedent that allows “mere transmitters” to be rewarded instead of fostering creativity. (5) Lock up works in the public domain or licensed under a Creative Commons license.

Consumers International (CI) agreed that piracy of sports broadcasts is a serious matter, but suggested that WIPO “consider a separate protocol for sports broadcasting that would address the special problems facing this sector. Why design a huge treaty and apply it to the entire contents of the Internet if you are really concerned about a handful of football, cricket and other sports matches?”

The SCCR working paper acknowledged “broad opposition” to including webcasting in the treaty, but cited a “degree of support” for protecting simulcasts -- webcasts by broadcasters. But CI wondered what precedent WIPO may be setting. As Nigeria noted, “if you start with simulcasting, you find a logic in webcasting. But if you include webcasting, you find a logic in giving the new economic rights to all web pages. And if you find logic in protecting web pages, you find a logic in protecting printing presses and booksellers.” That “crazy logic” clearly paves the way for protection of unoriginal databases, another item on the SCCR’s agenda, CI said.

“It was a good meeting for us,” said Consumer Project on Technology Dir. James Love. Although the “European Union basically moved 90% toward the U.S. position on webcasting… the rest of the world is tearing up the treaty, article by article.” If there’s a majority view right now, it’s that webcasting should be dropped and the document stripped down to a narrow signal piracy treaty for traditional broadcasters, he said. There are important new proposals on the table as well, and new issues have arisen. These will all be taken up later, however, because “very little” was decided, Love said.

“We're making headway,” WIPO Deputy Dir. Rita Hayes said in an interview. Many differences of opinion remain but there are also areas of agreement, she said. Delegates asked the SCCR chairman to “clean up” the consolidated text that was discussed by, for example, clarifying why webcasting needs copyright protection.

Broadcasting and webcasting issues are “still out there,” Hayes said. But this meeting was notable for the level of technical discussion that occurred and for strong showings from many delegations. “There was a lot of good will in trying to move ahead,” she said. The SCCR will likely meet again in the spring, ahead of the WIPO general assembly next Sept. At that point delegates could decide whether to send the treaty to diplomatic conference.