Date: Wed, 23 Nov 2005 15:30:00 -0500
Civil Society Coalition Statement to the WIPO SCCR on opposition to
the Inclusion of Webcasting/Simulcasting in proposed treaty for the
protection of Broadcasting Organizations
WIPO SCCR
Geneva, Switzerland
November 23, 2005
-- short version delivered orally at WIPO SCCR----
The Civil Society Coalition opposes the creation a new intellectual
property right to protect investment, rather than creative activity,
for webcasting organizations.
We ask the Chair for the right to submit a longer statement for the
record, but to summarize the main points in our oral presentation.
As noted by Brazil in yesterday's discussion, the webcasting proposal
is essential a new system of Internet regulation.
The Webcasting proposal is not about the protection of copyright,
which has a robust and 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 extended this logic further, should we consider granting an
intellectual property right to Amazon Books, because they made books
available to the public?
We note that the United States has not considered such a legal regime
in its own Congress. Why is WIPO being asked to create a treaty for
this new form of Internet regulation, when none of the WIPO members
think it is important enough to enact in their national legislatures?
What is webcasting?
The definitions of webcasting activities in the treaty are not
meaningfully restrictive. The protected content is any combination
or representations of images or sounds that are made "accessible to
the public . . . at substantially the same time." This is basically
the definition of a web page.
Proponents of the inclusion of webcasting argue that they are simply
seeking technological neutrality, by extending a legal regime that
some countries have adapted for broadcasting to the Internet. But
this begs the question that is most important. Why is the Internet
so much different from television or radio? It is because nearly
every user of the Internet is a also a publisher. People exchange,
share and remix information on the Internet in ways that are not done
for traditional TV or radio. The Internet is different from
traditional television and radio and that is a good thing, and
something worth protecting.
The WIPO Standing Committee on Copyright and Related Rights should
reject this attempt to create a new legal regime that would introduce
a new and unwanted form of regulation of the distribution of
information on the Internet.
---The following is the longer version for the record---
The Civil Society Coalition opposes the creation a new intellectual
property right to protect investment, rather than creative activity,
for webcasting organizations.
(We ask the Chair for the right to submit a longer statement for the
record, but to summarize the main points in our oral presentation).
As noted by Brazil in yesterday's discussion, the webcasting proposal
is essential a new system of Internet regulation. This proposal has
been often presented to the news media as something that is
associated with piracy of copyrighted information, which of course is
deliberately misleading.
Copyrighted material is already protected by a plethora of copyright
laws, treaties and trade agreements, including the WTO TRIPS Accord,
the Berne Convention, the two 1996 WIPO Internet treaties (the WCT
and the WPPT), and a growing web of bilateral trade agreements.
Virtually all of the major copyright holder organizations have
opposed the webcasting treaty proposal.
The Webcasting proposal is not about the protection of copyright,
which has a robust and 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 extended this logic further, should we consider granting an
intellectual property right to Amazon Books, because they made books
available to the public?
The Webcasting regulation will have a negative impact on the rights
of the general public and the rights of copyright holders.
We note that the United States has not considered such a legal regime
in its own Congress. If there is truly a compelling need to regulate
the Internet in this way, and to completely change the intellectual
property system, then why are not countries in North America or
Europe rushing to enact such proposals in their own countries?
Why is WIPO being asked to create a treaty for this new form of
Internet regulation, when none of the WIPO members think it is
important enough to enact in their national legislatures?
What is webcasting?
The definitions of webcasting activities in the treaty are not
meaningfully restrictive. The protected content is any combination
or representations of images or sounds that are made "accessible to
the public . . . at substantially the same time." This is basically
the definition of a web page.
(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;
By making any work available to the public, the web page owner will
suddenly accrue a layer of rights, with no creative input whatsoever,
even if the work itself is in the public domain or copyrighted
someone else. If the work were already under copyright, those who
obtain it from the web page and want to use the work would be forced
to clear rights from both the copyright owner and the owner of the
web page that distributed the work. These new rights are cumulative,
involving the entire chain of intermediaries who have played a role
in the dissemination of the work. Given the way information is
currently disseminated on the Internet, this is will lead to an
enormous increase in transaction costs for clearing rights.
This new right would allow webcasters to effectively lock up works in
the public domain, and place restrictions on the distribution of
works that were freely licensed under creative commons type
licenses. It would also create an economic claim to remuneration in
cases involving unauthorized or collective management of intellectual
property rights, that would compete with the rights of the copyright
owners.
The new layer of rights and the creation of new regulation of the
distribution of content would be harmful for innovation, reduce
access to works, and it will change the nature of the Internet in
ways that have not been acknowledged by the proponents of this regime.
Only a small number of webcasters are asking that they be given the
same exclusive rights that the treaty would give to broadcasters and
cablecasters. Many other Internet companies, including some
webcasters, "reject the idea that the Internet needs or will benefit
from the extension of these pseudo-copyrights to so-called
'Webcasters.' For these companies, adding a new layer of
intermediaries with rights over and above copyright holders will
benefit no one but those intermediaries. "If an Internet company has
the rights to a work, or need not secure the rights to a work due to
a limitation in copyright, or because the work is in the public
domain, there is no rational reason to require that the company also
seek the permission of a further intermediary whose sole creative
contribution to the work is in making it available."
We are concerned by the "Working Paper on Alternative and Non-
Mandatory Solutions for the protection in relation to Webcasting"
prepared by the Chair of the WIPO Standing Committee on Copyright and
Related Rights.
Despite the concerted opposition to the inclusion of webcasting, the
paper sets out a series of options on how to include webcasting.
This paper contains a number of fundamental flaws including:
1) As noted by the delegate from Nigeria, we are presented with three
doors that all lead to the same room -- the creation of a new treaty
on webcasting. It does not include the one option that has received
the most support, namely, "no inclusion of webcasting in the Treaty."
2) It contains no analysis of the potential effects of any of the
options. For example, how will the thicket of new rights affect
access and use of works available on the internet? How would legal
certainty be improved if some jurisdictions opt in and others opt out?
Proponents of the inclusion of webcasting argue that they are simply
seeking technological neutrality, by extending a legal regime that
some countries have adapted for broadcasting to the Internet. But
this begs the question that is most important. Why is the Internet
so much different from television or radio? It is because nearly
every user of the Internet is a also a publisher. The Internet is a
two-way communications medium. The cost of transmitting information
on the Internet is low and falling. People exchange, share and remix
information on the Internet in ways that are not done for traditional
TV or radio. The Internet is different from traditional television
and radio and that is a good thing, and something worth protecting.
The proposed webcasting treaty would:
* create a new set of intermediaries with rights in data they did
not create,
* create additional rights that are not necessary for creating
incentives to disseminate digital works on the Internet,
* undermine the role of copyright owners and performers in
determining the appropriate uses of their works,
* create a precedent justifying rewarding investment with a grant of
exclusive rights to mere transmitters instead of encouraging creativity.
* lock up works that are in the public domain or licensed under a
creative commons license.
It is important that the WIPO Standing Committee on Copyright and
Related Rights absolutely reject this attempt to create a new legal
regime that would introduce a new and unwanted form of regulation of
the distribution of information on the Internet.
---------------------------------
James Love, CPTech / www.cptech.org / mailto:[email protected] /
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