Wednesday, September 06, 2006

USPTO/Copyright office Meeting: Summary of notes

by Manon Ress
Summary (sorry for bad typing and short cuts) of my notes from PTO meeting Sept 5, 2006.

Roundtable with 40 people (?) and many against the wall. See list in previous post.

Jule Sigal (Copyright Offce): let's set ground rules no recording but ok to report and we'll follow the 3 topics that were identified in email. The proponents, the opponents and comments on netcasting definition. First let's hear froms proponents or supporter of treaty. It is open to them first. To explain the reasons for the treaty and the positive and the negative. Ben Ivens leading representative of broadcasting organization will be first.

James Love (CPTech): Can we record the meeting?

Jule Sigal: No, it is not to be recorded but you can report on the meeting

Ben Ivins (NAB) : So, we have 3 objectives...
why a treaty? last time update of our rights was in 1961 so currently have no protection on satellite, cable internet no protection on retransmission, and no technology protection measures so suffise to say in last 30 years a lot happened like piracy.
Also we have example of IcraveTV in Canada, OK eventually there was law suit and remedies, but the broadcasters (in Buffalo) were powerless in respect to their signal/ piracy on tv program on internet. Various studies show loss of millions dollars in Canada, and there's a 130% increase of piracy.
what kind of harm? Broadcasters see loss of control and loss of revenue for expropriation of their signal. The signal is sent to other markets and then comes from different time zones. ultimately you have a threat of deterioration of quality within broadcast community, whcih will spend less for programmming so over the year less programming and that will hurt access to knowledge.

Jule Sigal: any downside?

Ben Ivins : in this current draft, everything is back, like proposition of distribution rights that are off but...a couple more comments on the need, the need if balance with owners, we have the WPPT and the WCT, so we need to restore balance, we need a treaty and we need affirmative rights to fight piracy. Universal just has announced they will let free downloading if you watch ads. Who would have thought record industry would go with that business monel?

Jule Sigal: other proponents?

Erica Redler (NABA): The North America Broadcasting Association has been a proponent since the beginning, piracy and need for tpm are key. Affirmative right also important key to enforcement
econ rights also we feel the investment is deserving to license etc like other owners. over the air the business model needs to maintain progr, so we're also looking for new sources of revenues. Also, Ben said fairness. We're left behind. these are the main reasons.
re the draft there's so many things it depends which alternatives you're reading. in the draft, what we do not like are L and E that would nullify re transmission. we prefer the full rights along the line of european union. that is briefly

Jule: other proponent? Seth and then Fritz?

Seth G: talking in interest of webcasters, I've been their representative since early, and what we noted about the drafts is that it will be technollogically obsolete by the time it is done, so we're interested in internet webcasting and we're creating a brand new industry. A WIPO treaty lasts a long time without revision so it was important to identify internet not only as piracy but also for creation. Internet casting is very susceptible to piracy. It occurs but it is not publicized because technology. It is a loss for webcaster and rights owners. So from the start we're have promoted the principle of parity, we want same rights for internet webcasting. What we intend is internet webbcasting that is like broadcasting. It is not individual website, it is programming that is scheduled in US and other part of the world.
On the downside: dima could accept something less than broadcasters. We want piracy protection but not overprotection
we could accept signal piracy treaty only but we would accept also rights treaty with economic rights.

Terry Bjorklund American Federation of Television and Radio Artists
We're proponent because of fairness, we continue to be concerned that artists do not have the same rights in the US. We keep this in mind and we support the treaty.

Friz Hattaway (MPAA)
we support the treaty because broadcasters have interest in their signal, it is also covered by copyright but not covered 100% for example live event are not covered everywhere. Also from historial perspective, the Rome has been around for 30 years, most western European countries have Rome, and some have Berne plus. Despite the claim of opponents, it is not new nor radical. These concepts have been around for a very long time. It is for for the opponent to show with our experience with all the countries, and we do not see any threat but only benefit.
For me the biggest downside: it will be technologically biased, it will exclude some technology like webcast and others and we want to protect other services. it cannot be a 20 century treaty, it has to be a 21 century treaty.

Neil Turkewitz (RIAA): We're not huge proponent of the treaty but we always view that broadcasters who invest could be protected from misappropriation. This treaty can close a gap, but we have great reservations because of the rights model instead of misappropriation model. We have general support for a treaty that address misappropriation. If in fact it is for signal piracy we think that not much has to be done to modified the draft as it is to make it. It does not mean we have to go to square one. We are agnostic about beneficiaries. So yes, list riaa as a proponent but a lot of work needs to be done.


Jule Sigal: Opponents of the treaty...Intel jeff, Gigi, David, James, Mike, Kevin..

Jeff Lawrence (Intel): As I listen to the need for a treaty, there was alot of focus on theft and that theft is bad, and we all agree that theft is bad, the question is do we need new intellectual property rights? We do not feel a case was made. There is a tremondous concerns for more IPR and if there is a treaty it should be limited to theft of service problems. we also have concerns about liability for the providers of the pipes and the makers of devices. We want innovation, we want home recording, and with the
draft, we have doubt. We have submitted a paper collectively and other signatories will want to present other points.

Jonathan Band for coalition of libraries
If there's need for more protection why not signed the Rome which has been there 45 years and why are we now looking 50 years terms while 20 in the Rome....Libraires need to look at the impact and have been looking at Limitations and exceptions. Ifwe have a signal protection treaty it is not a focus but if it is a right approach, limitations and exceptions become critical. Right now it is not clear not clear. It says parties "may provide" and it should be "shall provide"..
the burden will be on us to fight hard all over again as we did for limitations and exception to copyright, for limitations and exceptions to broadcasters' rights. We'll have to fight for fair use and libraries exception again. Secondly, we want to hear from proponents as whether NAB supports the full range of L&E. And when we have hearings in the future, will be on the record if they support full limitations and exceptions.

Jim Burger: In the US, we do not copyright compilation but there's a good case against signal theft, it makes sense. But the mpa members hold the copyright and why would they not want to sue? and why is it they cannot?
We never signed the Rome, and I agree with Neil T, we can do signal protection but not the right based.
If we go the rights direction then we have to be specific in L&E for intermediaries etc, ...there's a lot of fear with new technologies of my client is tivo, and they found that people actually watch more commercials now!
We have to fight hard for a signal theft approach.

Gigi: 3 main points
1) I still have not heard rational that cannot be solved by signal. It is not enough to need and want to get sweat of brow or sweat of the wallet in this case
2) you know that in the US we do not have technology protection measures settled yet, and this is not making us law overseas but the other way around.
3) we are concerned about traditional consumer rights and limitations and exceptions. We would prefer signal theft approach but we want mandatory limitation and exceptions.

Michael Petricone Panasonic and Sony
what is objective? misappropriation. Will this address it? Ben mentioned Icrave TV as an example but they went out of business!
The US congress and not WIPO should assess need for this treaty.
Our issue with broad rights and TPMs is that they do not stop at the wall of the home. That would nterfere with devices that allow consumers to use content in flexible ways.
We need more analysis.
We recomment a narrow signal protection approach.

Mike Godwyn Yale University Information Society Project abd law School. I've talking to techies and law professors and it does not make sense. The muddiness we see comes from the fact that it sometimes misappropriation and sometimes rights and these are different...
We're fan of copyirght, for creators and to promote cultural goods... then, when we look at the treaty. When you have removed the content, what are you protecting? the pulse, the electrons?.... if we favor one approach at all, we'd favor signal theft. Talking to the tech community, they say programs are already protected. So what is left and need protection?
if I were an evil broadcaster, but non of us are here, I would get one extra right, a transmission rights, that looks like IPR and that would not be good for the other owners.
The clarity of purpose for this new treaty or for the accession to the Rome, is not here for law professors and their students nor for the techies!

Kevin Rupy (US Telecom)
refers to the letter. Most important is home and personal networking. control would interfere. And liability needs to be addressed
A final point, the definitions should include Internet Protocol TV. It is a functional equivalent of cablecast

Sarah Deutsch (Verizon):
To protect against signal theft but has to consistent with US laws. Signal "piracy" makes it a right based approach. So we're talking about signal theft. It has to be consistent with a variety of us law even at State level... it would be easier to add clear "intentionality".
And there's what parties need and what they want...
So a fledging industry wants to be subsidize by new rights by new source of income?

Matt Schruers (CCIA):
if some want to rationalize a rights approach, how do we harmonize with us law that with feist makes it clear there's no sweat of the brow? To have a treaty, we would have to go with a WIPO mandate that is not anti-constitutional.
Regarding comments on harmony at the copyright level... if we have Limitations and Exceptions on copyright but not on signal then these limitations and exceptions would be useless. There's an inconsistency here. No protection for intermediaries, no parity here.

Gwen Hinze (EFF)
refers to the letter. Wewe remain unconvinced aboutthe need for new rights-based approach. The US has a thriving broadcasting industry and there's no necessity for new economic rights to stimulate it.
Regarding the scope of the treaty: it should be signal protection but the current draft goes far beyond that.
it is about creating a new layer on top of copyright, layer that will restrict access to public domain and other materials. There will be an impact on consumers and other entities that rely on limitations and exceptions. If extended on the internet, the use of technological protection measures would restrict access to work and other lawful use.
The internet and content is florishing and thriving without exclusive rights. reasons for threat: there's a difficult copyright regime, liability for isp and device makers and will stifle development of new technologies.
We oppose extension of treaty on the internet. Parity is not an argument but need strong analysis.
Thress points: technological protection measures will necessitare tech mandate.
(see joint statement)
And TPMs and post fixation rights would be totally new in US law. It would be control of program content and protection against signal theft. It would also be control of device.
We also urged the US delegation again to check possible anti competitive behaviour.
We support mandatory language for limitations and exceptions but there's a lot of uncertainty. the language should be mandatory.

James Love (CPTech): This is complexe because there is support for signal protection. But the proponents want economic rights. Except for broadcast of live sport event there is no piracy that cannot be dealt with copyright. Maybe we should focus on sport broadcast treaty where it is needed. regarding the discussion on tv and internet and parity. It is as if the internet has not enough respect because there are I remember comments by Ben regarding webcasters wanting to be included: watch out for what you wish for, that means regulations.
No one understand what will broadcasting will be. The chair's draft is based on old treaty that was never adopted in the US. And it is inapproriate for the US PTO and the Copyright office to regulate the internet. It should go first in the US Congress. This is about Europe, they like Rome and database protection and it hurt their database industry, and our industry is doing well and we're doing it without regulations.
The issue of public domain and creative commons have remained unnattended. What we have is based on UK law while with the risk of being coopted as supporters, we had submitted language for a narrow definition.

Jule: That will be for point 3 on the comments regarding the netcasting definition.

James Love: OK, so if you look at youtube and other, it is easy access to content, and flexibility on how it is used. It is important for commentaries on broadcast news, it is part of democracy...
We see problems with excessive permission and it will be worst on the internet.

Ann Wright (Consumer Union) CU represents....and publishes Consumer Reports... we work on telecom issues affecting consumers and
the rights based approach could have far reaching problems from consumers. There is cost and benefits to new IPR and its regulation.
We share the concerns of the opponents of the treaty and support the narrow signal approach and question the need for the treaty.


Ben Ivins: To the critics, please bring one example where companies or groups have been negatively affected by these rights. This is not new and it is not novel. Go back and read the cable act. regarding limitation and exceptions, I have to say there's arrogance here, which is why we're so loved arounf the world, these is this this is how we do this, it's the American way, it is the best. What about China or France? They would have interesting L&E on access to knowledge and information. And I disagree with Jim, for us compilation is protected.
This is a signal theft but why can't we get same rights as Canadians or Mexicans ...Regarding L&E, virtually almost all would apply, like to school, libraries, intermediaries, and also for content owners. But I cannot say they would all applied but 95% would. applied.

Erika Redler: We want for limitations and exceptions the same approach you have in the WPPT. The rights go beyond US law. Why would US broadcasters not want to get the flow of dollars from Canada?
I also have question regarding IP TV.
And what does performance rights have to do with this?

Seth Greenstein
Regarding L&E, we have great sympathy but there's a problem. What would it mean for the other treaty that have "parties may" if this treaty has "shall'? We want unity. The real issue is theft and retrasnmission without authorization across borders.
Regarding retransmission, it is not in our interest to have liablity.
And fixation for personal use is not an issue for us. It is in the law since 61.
And regarding TPMs, from our perspective, we want free retransmission within the home.

Neil [...]

Fritz: All rights proposed here are already in large portion of the globe, UK included, and despite all of this not, one example in the interest of people in this room.

David Ferris Us Corp. We're proponent. Kevin mentioned TPMs. There are the same as in WCT and WPPT. Gwen and Jamie refered YouTube. But that is not covered by the definition proposed by the us.

Jamie: Netcasting has to be narrowed. Put conditions on scheduling....and here are the 6 points that we proposed in July.
it is possible to have narrow definition.

You can 1) limit webcasting to only scheduled streaming of audio and video feeds, and specificially exclude text, images and data that could be viewed separately from the video feed.
2) exclude from protection any streaming of audio and video feeds of public domain materials, or for which the webcaster does not have evidence establishing the copyright owner wishes to restrict access.
3)exclude from the protection any streaming of meetings or events the primary purpose or effect of which is to promote transparency of government or non-government entitites.
4) put conditions on scheduling, to include evidence that (a) the scheduling is independently promoted, (b) that a signficant amount of the traffic is from the scheduled stream, (c) that the material would not otherwise be available from the site except for the scheduled streaming, and (d) the material is commerically valuable, costly to stream, and would not and or is not available to the public from other sources, without measures to commerically exploit the works.
5. the method of obtaining access to the streamed work is itself restrictive, in the sense that it requires remunerative subscriptions,
6. The technologies used to stream the works do not undermine any of the public's rights under copyright, such as fair use or other non-remunerative uses permited under copyright.

Not one of these limits are in the definition proposal.

[...] [Manon: We had to leave to catch a plane for an A2K Conference in Alexandria Egypt. These are summary of notes sent by a colleague.]

Distributionof hard copy of ATT's suggested definition for netcasting.

one industry rep (?) made a statement. he concluded by expressing confusion over the last statement of the recent PTO draft of definitions - which according to US delegation incorporated everyone's, including CPTECH comments.

Jule: the language was from Jim Burger.

Jim Burger: clarified that the last sentence referred to industry's position on netcasting - should the treaty include webcasting.

Marilyn Cade: suggested a meeting in Geneva.

Jule: suggested that you all organize a meeting - they would help arrange for a place - and they would try to be there.

Question about next steps

Jule: next step was to 'show up at the meeting and see what happens.' Now that is enlightened.


Post a Comment

<< Home