Thursday, September 07, 2006

The WIPO casting treaty -- why decisions about the new technologies are important.

by James Packard Love
As the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) meets next week in Geneva, it will discuss a possible treaty on the protection of "traditional" broadcasting. This was defined in May 2006 as television and radio broadcasting, the two technologies covered by the 1961 Rome Convention, as well as any combination or representation of "images and sounds" delivered by cable television and satellite (technology platforms not covered by the Rome Convention). It is not supposed to deal with the Internet, although the WIPO SCCR Chairman Jukka Liedes (from Finland) has included in the Chairman's draft treaty a proposal by the European Commission to extend the treaty rights to broadcaster simulcasting on the Internet, something that clearly lies outside of the May agreement (a point discussed dramatically at the close of the May meeting).

If the SCCR reverses the position taken in May and permits simulcasting to be discussed next week, and if the EU pushes to include simulcasting in the treaty, the US government is expected to insist that the treaty be expanded also to "netcasting."

If simulcasting is excluded from the "traditional" broadcasting treaty, the demand for "webcasting" or "netcasting" rights will likely dissipate.

Why is the debate over the "new" technologies important? Here are some reasons:

1. There is a shift of viewing to new technology platforms. Today most people in the US use cable to satellite networks rather than older broadcast spectrum to receive television programming. The Internet appears to be the new platform for delivering all sorts of content, and over time, the "traditional" broadcasting technologies are expected to be less important.

2. The legal traditions are different. It is difficult to reduce protection levels once they are created. The 1961 Rome Convention has been signed by 83 countries. They are unlikely to repeal the broadcaster rights created by this treaty. But the Internet has never be subject to a Rome Convention type "casting" right. It is possible to avoid the mistake of the 1961 Rome Convention's broadcasting right, because we are starting from a clean slate.

3. The Internet is a global publishing platform. Historically, most countries had protected domestic broadcasting industries from foreign ownership. Whatever economic rights were given to broadcasters, they were effectively given to domestic broadcasters. To the extent that the broadcasters rights took economic benefits from copyright owners or consumers, they at least benefited domestic shareholders. Content delivered over the Internet will be quite different. A "webcasting" or "netcasting" right will often create an economic right for a foreign entity. Certainly some countries, including European broadcasters seeking Internet "simulcasting" rights, or US companies like Yahoo or News Corp (Myspace.Com) that aggregate access to works they don't own, think the right will create global economic rights in anything they "netcast," including works under copyright by others, in the public domain or freely distributed by authors (such as through creative commons type licenses).

4. The methods of use are very different. Traditional television or radio services distribute fewer works, under a highly centralized and more legally formal process than is the case for the Internet. Television broadcasters are better equipped to obtain permissions for broadcasts, are more likely to be able to pay for rights, and they are more likely to know where to obtain rights or copies of works. There is little tradition of listeners recording traditional broadcasts for purposes of rebroadcast the same works. Publishing on the Internet is far more prolific and heterogeneous. There are countless cases on the Internet where the publishing operates with very little or even zero expectations of revenues, and where it is difficult to establish the owners or origins of works. Works on the Internet are much more likely to be published in multiple web pages, reaching different communities. Works on the Internet are also more likely to be used in new ways, as content is remixed, mashed-up, and transformed in other ways. The less formal and more creative way of using and repurposing information on the Internet is critical for expanding the amount of and access to knowledge goods, as well as the character and nature of creative works.

The introduction of a new layer of transmission rights and obligations for new permissions and remuneration will have much harsher impacts on the Internet than it has on television or radio, in the countries where the Rome broadcaster right now applies. Indeed, this is such an important issue than many webcasting or netcasting entities and technology companies reject entirely the application of a Rome type webcasting or netcasting right, even in areas where they would benefit from it, because overall, the costs outweight the benefits. They recognize, like many US database companies recognize, the value in preserving the current freedoms to use and repurpose information is an important element in creating the value added services that creative communities and dynamic technology companies commercialize.

It is also the case the development of low cost digital television recording devices, and the explosion of new free image and video publishing services on the Internet, such as,,, flicker, etc, have given rise to much greater use of video clips on blogs and other web pages. Many of these blogs take clips from television news or commentary (from broadcast or cable television) and add commentary and criticisms. This is changing the way that television news and commentary operates, and what political leaders now say on television, as the news organizations, commentators or political figures now face much more powerful feedback mechanisms. Such activities demonstrate why even the "traditional" broadcaster rights are problematic. They create rights that can be exercised by companies that merely transmit information, and allow restrictions on uses of content even when material is in the public domain or when the copyright owner (the Colbert Report, CNN, etc) are clearly not going to seek to restrict the use of the clips, either because they believe the use of clips on blogs stimulates interest in their programs, or they don't want to alienate their fans.

Given the evidence that Rome type transmission rights are not needed for traditional television (the US is one of more than 80 countries that never signed the Rome Convention, but still has a highly profitable broadcasting industry), and they are likely to be quite harmful for the Internet, policy makers should think differently about "parity." The rules for TV should be more like the rules on the Internet (or lack of rules), rather than making rules for the Internet more like rules for TV. If this isn't possible for countries that have already given broadcasters an IP "right" in their transmissions, it should not be repeated for the Internet. As the Internet has shown, freedom can be quite be quite valuable, because it permits people to act without permissions or remuneration in areas that are critical for creative communities.


michelle said...

The other danger is that the proposal on 'netcasting' would pre empt any decisions countries may wish to make about what, if anything, they want to regulate on the Internet and if so how. By benefitting only one group without having a full debate you are unable to fully weigh up the costs and benefits to the whole economy/society.

As the recent letter from the coalition of US companies and Civil society groups shows the costs could be substantial and at the very least worthy of a debate at national level before being pushed at the International level.

The EU experience is interesting in this regard, where some Member States have sought to include a simulcasting obligation( though this is still largely a paper right as broadcasting over the Internet has not taken off in the same way as in the States.)

Policy makes have found that a
a number of organisations who are supporting this Treaty, which gives them new international RIGHTS over broadcast digital content are opposing content
OBLIGATIONS in the context of the review of the Television without
Frontiers Directive.

Some of the reasons claimed for such opposition, is the difference between the Internet and the traditional broadcasting environment and the inappopriateness of apply existing rules to a new medium. Or they wish for further study into the effects.

Yet they are dismissive of such arguments when made in the context of this Treaty.

The same issues apply. Its is premature at best and damaging at worst to seek to extend rights that weren't neccessary for traditional broadcasting for many countries into the Internet, without at the very least countries working out what rules are in their national interest.


11:25 AM  

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