Saturday, September 02, 2006

How restrictive is the USPTO/LOC proposed definition for "netcasting"?

by James Packard Love
This morning I created a web page called "Look, I'm a Netcaster,"

I created a schedule of "netcasts." I believe this site qualifies under the USPTO/LOC proposed definition of netcasting (a)(1):

(a) “netcasting” means the transmission by wire or wireless means over a computer network, such as through Internet protocol or any successor protocol, for simultaneous or near-simultaneous reception by members of the public, at a time determined solely by the netcasting organization, of sounds or of images or of images and sounds or of the representation thereof,

(1) that are of a program or programs consisting of pre-recorded, scheduled audio, visual or audiovisual content of the type that can be carried by the program-carrying signal of a broadcast or cablecast; or . . .

Agreed statement concerning these definitions: The scope of the definition of “netcasting” is intended to be limited to transmissions over computer networks carrying programs consisting of audio, visual or audio-visual content or representations thereof which are of the type that can be, but are not necessarily, carried by the program carrying signal of a broadcast or cablecast, and which are delivered to the public in a format similar to broadcasting or cablecasting. By its terms, “netcasting” does not include merely providing access to audio or video content that is not pre-recorded for purposes of transmission via broadcast, cablecast or netcast.

The netcasting definition is not particularly restritive. It would seem that sites like would also qualify, and more generally, anyone who wanted to create an automated "schedule" for content would also qualify to acquire rights under the proposed treaty.

Basically, producted content would include any "audio, visual or audiovisual content of the type that can be carried by the program-carrying signal of a broadcast or cablecast," that is somehow "scheduled," which is something less than "merely providing access." The distinction between scheduling and "merely providing access" will be fairly minor if the "netcasters" receive parity with broadcasters, and if the broadcaster's treaty provides for rights of fixation, retransmission, etc, as is the case in the current draft by Jukka Liedes. Consider, for example, the following rights in July 31, 2006 proposal SCCR/15/2.

Article 9 - Right of Retransmission
Article 10 - Right of Communication to the Public
Article 11 - Right of Fixation
Article 12 - Right of Reproduction
Article 13 - Right of Distribution
Article 14 - Right of Transmission Following Fixation
Article 15 - Right of Making Available of Fixed Broadcasts

Once a "netcast" is scheduled, and the netcaster makes a fixation, it can be re-distributed in the normal download on demand way that is the same as "merely providing access."

The US negotiators present their "netcasting" defintition in a document that also endorses a different approach to the treaty, one that focuses on "signal privacy" rather than economic rights (a position we applaud). But the US PTO/LOC also says "the protection for netcasting should be the same as that provided for traditional broadcasters and cablecasters." This is the problem. At least 83 countries have already signed the Rome Convention, so some type of Rome or Rome+ rights such as those proposed in the July 31, 2006 treaty draft are likely to be demanded by broadcasters. It is just not very realistic that a new broadcast treaty will provide for fewer economic rights than the Rome, and Rome+ rights are probably more realistic. Thus, the USPTO should either abandon its position in favor of parity between broadcasters and netcasters, or oppose any extension of the treaty to the Internet.

Of course, none of this is necessary. There is no big problem of signal theft for broadcasting, cable TV or the Internet that cannot be addressed under existing laws, including copyright. Countries like the US that never implemented Rome type "broadcaster rights" have very succcessful and profitable broadcasting industries.

And it is doubly absurd to think we are creating this new regime at the very same time the costs of publishing are falling and it is becoming so much easier to distribute audio visual content. This whole exercise is a treaty searching for a rationale.


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