Wednesday, January 03, 2007

How to make an omelette without breaking an egg or a new approach to WIPO casters treaty?

by Manon Ress

At the end of an exciting 2 hour meeting at PTO today , Mike Keplinger (who worked for about 40 years for PTO and now works at WIPO) made the following statement:

Mike Keplinger: At the General Assembly, clearly it was decided that without consensus there would be no diplomatic conference. The goal is to re direct to signal protection. This is not an easy task. We have ground rules. We have art. 20 [he meant art. 22] of Rome. So, there has to be some components of Rome. It does not say it needs to go beyond Rome. But it opens ways. It's unfortunate that webcast has been taken out. We'll work on that probably in the near future. So now we have to have a narrow treaty with consideration for Rome and for signal protection.

END OF (my favorite) QUOTE

You can read all my notes --sorry, I'm no typist -it's a bad summary most of the time -- but maybe it can help understand where we are 2 weeks before the next WIPO committee meeting SCCR S1 Jan 17-19, 2007?

List of participants is at the end (if you were there and I did not catch your name and affiliation, let me know).


Wipo broadcasting treaty 03/01/07
summary of my notes. The participants (a list is at the end) were more eloquent (or insulting or funny) than my notes can express.

1pm-3pm USPTO Alexandria Virginia. Over 40 (?) people in the room and many on the phone.

Ann Chaitowitz (PTO) :
No recording allowed but free to take notes.
Introduction of new members of the US delegation: Paul Salmon (PTO) and David Carson (Copyright Office). Also present everyone knows Marla Poor (Copyright office) [ manon: and Lois Boland, PTO but not at the table).
[Reads summary/quote of decision in Sept 06 at the WIPO general Assembly]. It was decided to have two more Standing committees on Copyright and related Rights, one in January and one in June to work on oustanding isues. The GA also stated need to have a signal based approach. Today's meeting is to hear your views, what are provisions that you found problematic and what would you support. 2 minutes to make your first statement and then we'll go around again.

Ben Ivens:
We're opposed to art 2 to 4 [cultural diversity protection] that are inappropriate because they relate to content, they are not in the WPPT which is the model for this treaty. They are other reasons why 2 and 4 are major stumbling bloc. Maybe we could have them in preamble as maybe a compromise
art 5: definitions have gaps since theyre not covering program suppliers
art 7 re beneficiaries, no to variant H
art 8 no to alt J
art 9 no to possible reservation because that is the gut of the treaty
art. 15 we want exclusive rights and not just rights to prohibit but maybe we could have hybrid rights.
Re the Limitations and exceptions, we're opposed to have mandatory L&E because that would be against our national interest. The treaty should not create a precedent, it will be used against the national interest.
For the term: we support 50 years but we're flexible
Re TPMs, art 19 and 20 are important to us
You see last report to the government re importance for private party to protect against piracy.

Erica Radler
We endorse Ben Ivens's comments. And for us, re 2 to 4 there are other reasons why there not appropriate in an IP treaty. They would create a precedent of and odd clause. For retransmission "by any means" we believe that language should stay in. It must include the internet. Example of Icrave tv.
And TPM is a key provision. The current draft is not equivalent of WPPT. Re definitions and pre broadcastcast: it currently causes problem with affiliates and suppliers. One another point is the meaning of signal approach. it is not clear (giggles). Clearly we would not support that.

Jim Burger
we're opposed to exclusive rights approach. That was elimnated in Geneva. We would for 9 to 16 focus on theft. There's no need for a new treaty. TRIPS is enough. Many companies do not think it is needed, for others like in the Caribbean case, it can be dealt with signal theft. This treaty should not go into people's living room. More exclusive rights would not help and are not needed.

Sherwin Siy
I do not want to repeat what Jim Burger said but add that this is not a copyright treaty but a related right treaty. Adding a new intellectual property right will add a new layer wih a new ownership. It will block flow of information even when the copyright owners agree. Would be problematic for fair use and public domain works. The US law has an anti signal theft approach and has shown that it is an effective approach. Also mandatory limitations and exceptionsare part of US national interest. We have fair use , we have first sale. And these new rights would not account for that. Regarding the example of icrave tv, and other pirate station, they are brought down very quickly. So it is an effective regime.

James Love: Part of problem of the treaty, when it was firt proposed, it was like a Rome+ model. The idea was to take old treaty and put the internet and tpm etc in it, you get more extensive rights than in Rome. That was it until a few years ago. With where technology is going, and a lot of criticism regarding the new paradigm, the US tried to find exit strategy. And the conversation gravitated to signal protection. The rhetoric was all about piracy. and what are the piracy problems, but there's no text on the table. The complicated text of the chir, the text on the table is full of poison pills. Then, the US had a victory at the GA and managed to pull out of the fire. But what is the follow up of that? How do you get to signal protection. Some country has to put a proposal on the table. It has to be a streamlined. As in the development agenda, there are strong support for L&E but people could back off, if you get rid of exclusive rights. If not cultural diversity will be there at the diplomatic conference. My question: is the us prepared to work and table as a discussion draft a signal protection paradigm? if not, you're not serious. It has to be tabled by a government and by the US Gov. It has the support of several countries. But it requires leadership.

Kevin Rupy:
Representing the interest of telecom indust. from big to small. They all have in common that they offer internet services and program or able distribution. We have yet to hear anything from them about the need for this teaty. However, based on WIPO's decision to move with signal theft approach, we believe it is the best approach. Obvioulsy there are many issues, scope, and others, but we believe signal protection from any alledged harm is best.
At the previous roundtable, we all agreed, piracy is bad and there is a need to address that but in narrow way and without granting of exclusive rights.
We're also concern about TPMs, it would be a hurdle for consumers to use works in their home and we are also concerns re intermediary issues. We stand prepared to work with US delegation.

Fritz Hattaway
We support the treaty for broadcasters, cablecasters and netcasters. We support the US proposed text. The treaty should focus more on signal and less on exclusive rights but we recognize that most developed world already provide exclusive rights and there's been no harm, it's overblown. One thing that is essential: to protect against retransmission over the internet. Otherwise the treaty is meaningless. But first do no harm to existing treaty. mentions of access to knowlegde and diversity could have adverse effet on existing treaties and should be excised from the text before going to diplomatic conference. We're concerned about TPM. It should be just like the WPPT, thats' where we are.

Jonathan Band:
It makes sense to have a signal approach but the definition is important. Whatever the approach, it is important to focus on limitations and exceptions. All L& E should be carried forward if we're talking about copyright-like infringemnt (and not about signal).

Sarah Deutch
I'd like to expand on the "do no harm"to copyright owners and others. What about new devices and services. Now all is moving signals, to your phone or other devices etc. There are serious concerns to attached new licenses etc. And yes, the European countries haveRomebut they also have a lot of regulations, re anti trust etc. We have a different system. Finally, the liability issue is important: for retrasnmitting signal, we would need to go to each country to get a carve out in each country if it is not in the treaty.

Gwen Hinze
In light of the GA decision, the current draft is not focus on signal protection. Right now it is not consistent. Also I would like to make 2 points: on the scope of rights. The new layer especially without mandatory L and E would endangered consumers, also the broad scope would stiffle innovation.
My second point is in re of tpms: if we are talking about signal, it is already in US law. If it is a post transmission control then it is in consumer's living room, and like the broadcast flag it will be with a technical mandate. Finally, and I have been involved for some times, I have not heard about need for a new intellectual property right but only for signal protection. We need a more targeted treaty and implementation.

representing Internet coalition, our membership is concerned about liability issue. and interested mostly about what is the US strategy to protect against creation of liability. For internet service providers, their scope of responsibilities in this treaty is a concern. We need limitations on liability.

Patrice Lyon
I am concerned about definition. In internet environment, every thing can be seen as internet transmission, and it is in digital form by definition. Many device (handheld even) will be receiving signal, so will it be view as a computer environment? If it is excluded, the basis of the treaty would not be useful.

Doug with Intel
If we must have any treaty, it should be narrow and apply to signal. The industry is on the record: if it i not clearly signal, we're opposed. There are issue of liability, if new rights, it will be expensive. Also, there's need for consumers to have access to content protected and use of different devices, and the current treaty construct is antithecal.

Neil Jackson NPR
Our interest is narrow. But as boradcasters, we have thelargest audience within the US. We spend a lot of time and money all over the world to gather news from the air from casters etc. We are members NAB, NABA and EBU and we're oposed to this unless fair use is in. This this treaty must leave room for fair use rights. From our limited perspective as broadcasters, we think it is a Human rights issue to have access, you have to protect our narrow rights.

Gigi Sohn
I would add that the treaty is inconsistent with US law. We're not member of Rome. So, we would go from 0 year term to 50 years! Re L & E, it is chocking to hear the opposition. Re the TPMS. I have the scars, we do not have tpms. I was glad to hear Fritx it should be like in the US. Finally, people who do not support more exclusive rights do not have to prove why, the US has the most robust broadcasting industry.It is if you proposing new regulations that the burden is on you.

Lee Knife: the impetus of the treaty was to move to the future so it should include the internet but a lot of resistance to webcating or netcasting comes from the fact that the treaty it s too braod. So we would like a narrow theft approach that would include netcasting.

Marshall Eunbanks (free tv)
For small webcasters, what we do is precarious. And liability is a concern. If this is not copyright infringement it should be about signal theft. Thinking of the little guy transmitting public domain workss. And as a citizen, I am opposed to anything that infringes on fair use.

Eddan Katz
For us, it's like a database rights. We have been studying the treaty and the balance and robustness of coyright and L and E. Necessary for the system.

Matt S. (CCIA)
We share concerns re intermediary liability and want to add to definitional issues. The mandate from the GA is different. it is different from exclusive rights. And we do not solve anyhting if we just rename it.

Neil T. (RIAA)
We support a signal based approach. I also want to briefly respond. I hear the mantra: if it is not copyright infringement it should be signal. But if this is the case it is irrelevant. It has to have value added. Copyright infringement is not the end of this exercise.

Second Round at 2:05

James Love: Important question: who are the beneficiaries? Rome did not cover cable. Now with satellite and cable, there are new beneficiaries. Is it for the people like comcast who come to your house with cable? Or is it like New corps showing FX that would be the beneficiaries? It seems that the cablecasters are the big beneficiaries and we never heard of them in any meeting!? This new layer is anti consumer and anti innovation. The cost of broadcasting is falling every day and with so much new technology, it not a good time tor regulate with a 1996 approach. We should have a minimalist approach. To follow on Neil, if you get a bona fide copy by paying for cable and you get the colbert report it is permitted use, but not if you hack into cable then that should be addressed by the treaty. There is a difference between permitted use and hacking. Can the US delegation clarify who are the new beneficiaries? Are we talking about both comcast and FX (or TBS)? Both would be beneficiaries according to newscorp because both are cablecasters. We can see the creation of thickets of rights. Well, cable is not part of Rome and it is illegal in the US. Here we have time warner and vivendi and copyright owners will lose from aggregators. I'm surprised why the recording industry would support people who package their works. Conflicts.

Neil T
There's a little misunderstanding. This treaty should deal with signal. When content is fixed, the treaty should stop there. And our members do not own network. Our agenda is not that different from yours. We agree about distinction between content and signal. As a consequnce, we're first to say abandon economic rights and go for signal protection approach. And we also want to address public interest concerns. We could create a perfect world where broadcaster would have protection of their signal only.

Trish AFTRA (on the phone)
The performers (including) aftra all along supported signal protection and do not support more rights. We support the RIAA.

Jim Burger
I would like to thank NPR for statement. And then my next point is Europe. There's a shift now. Broadcasters have problems in Europe now. It should be irrelevant. Our own broadcasters are strong. But it's interesting that the EU which has so much problems (see the huge report) is a model.

Erika R
On content portection. All broadcasting content gets protection. But news and sports, do not get protection in other countries. The broadcaster do not oppose L and E that already exist. But it needs to be consistent with other treaties. As with content. What is the advantage of having different l&E.

Manon Ress: just a clarification on the new and sport are not protected. Where are they not protected? I checked with experts such a Bernt Hugenholz and he said that they are protected under copyright everywhere. Maybe Erika can tell me in what country it is not protected? or the US delegation.

Ben Ivens: Are you going to let them...can we we have some .....she sitting next to him, she should consult with Tom Rivers.
Regarding what Sarah said. Imagination runs wild, truly. She also says, signal are everywhere which is why we need protection. In US law we have communication law. It's bad that Gigi left. It is an economic right and it has no limitations and exceptions. it's part of us law since 92. What she said is flat out not true. And TRIPS is not adequate. icrave is not the only example there are manyother examples....I can provide a list...there are many many examples. Now the notion that terrible things will occur. Back in 98, in a WIPO report, we have 50 coutnrie with exclusive rights and nothing terrible happened in those countries. And if the notion is contrary to US laws then there will be changes, it is not against US laws, it is is different...and again Gigi re 0 term to 50, we said we can negotiate.
And to Neil (NPR): be careful to get what you ask for. Think of china, ways they treat journalist, they will ask for their own L&E if we want fair use.
Re multinationals, the US was late in the process and Jamie is talking about phenomenal powers....

Performing rights org?
I would like to ask a question. Exclusion of webcasting why?

Ann C: we would need 2 hours. But no, we stood alone out there. The lone country in favor of inclusion of webcasting. so we agreed to compromise.

Patrice Lyon
I am struggling with the concept of broadcast. And there's been idea of importing fair use. But what about if it is encrypted?
Leaving that aside, what does it mean to be a broadcaster. A broadcaster could also help other services, like medical record, or you do not want fair use of a bank account?

Jonathan Band:
Re "if not copyright infringment, it should be a signal theft" we do not need a mandatory list of exeptions. Right now in 17, instead of "may" should be "shall". There should be parity and mandatory is better than optional.

Erika: I need clarification. "shall" as same in the country re content?

Sarah D
My imagination did not run wild. There are competitions and difficulties getting access in some markets. It would be foolish to think that no one will use these new rights we create, they ll want to use them.

Neil T.: If we suggest "shall" same as for copyright would they be relevant? We should hold off until we know the scope?

Doug (Intel: We've been fighting tooth and nail in strident opposition to buidl home network. Listening to the comments, the consensus is signal. And we'd opposed anything going beyond that.

Sherwin: when you [talking to ben ivens] say propriety right for broadcasters exist, but it is a very limited exclusive rights. It is not exercisable againt copyright owners or users. It is an exageration to say on par with other ipr.

Bradley: Maybe we have consensus on signal and then it is the beginning only. Where does it start and end. Whether you call it a signal or right.

Eddan: Important historially that retransmission consent, if nay modification of the signal liability rules. the transmission consent shows need to comrpomise and narrow the scope

James Love
re L and E. the more rights, the more L&E, they are join at the hip. The more you exclude exclusive rights, less need for L&E...if it is only signal there can be zero L&E. For example, there's no fair use of cable service. If you push for more economic rights, you will have more L and E. if you do not want to see L and E you stopat signal.

Ann: The meeting is over (2:46). So, the us does not see 15.2 as a basis for diplomatic conference and we'll work proactively, and also I wan tto intoduce somone you all know from years at PTO Mike keplinger...

Mike Keplinger: At the General Assembly, clearly it was decided that without consensus there would be no diplomtic conference. The goal is to re direct to signal protection. This is not an easy task. We have ground rules. We have art 20 of Rome. So there has to be some components of Rome. It does not say it needs to go beyond Rome. But it opens way. It's unfortunate that webcast has been taken out. We'll work on that probably in near future. So now we have to have a narrow treaty with consideration for Rome and signal protection.


Proponents of exclusive rights approach and NO mandatory limitations and exceptions:

Ben Ivens NAB
Erica Redler Broadcasting organization (not sure which one?)
Fritz Attaway Motion Picture Association of America

and the others:

Jonathan Band Library Copyright Alliance
Sarah B. Deutsch Verizon Communications
Neil Turkewitz Recording Industry Association of America
Sherwin Siy Public Knowledge
Bradley Silver Time Warner
James Love Consumer Project on Technology
Manon Ress Consumer Project on Technology
Lee Knife Digital Media Association
Gigi Sohn Public Knowledge
Jim Burger Counsel to Intel, Hewett-Packard, TiVo and Dell
Matt Schruers Computer & Communications Industry Association
Doug Comer Intel Corporation
Marilyn Cade AT&T
David Nimmer David Nimmer (on the phone)
Ann Wright Consumers Union (on the phone)
Gwen Hinze The Electronic Frontier Foundation (on the phone)
James Cannings Our Own Performance Society
Neal Jackson National Public Radio
Eddan Katz Yale Information Society Project
Marshall Eubanks Eubanks Family LLC (AmericaFree TV)
Kevin Rupy US Telecom
Patrice Lyons Observer

Did not talk:
Thiru Balasubramaniam CPtech Geneva (on the phone)
Robin Gross, IP Justice (on the phone)
Nick Ashton-Hart (on the phone)
Marcia Hofmann EFF
Nancy Kremers Defense Advanced Research Projects Agency
Philip Hochberg Various programmers and packagers of delayed sports telecasts
Kevin Goldberg Fletcher, Heald &Hildreth, P.L.C.
Thomas Ostertag Various programmers and packagers of delayed sports telecasts
Michael Mellis Various programmers and packagers of delayed sports telecasts
Robert Garrett Various programmers and packagers of delayed sports telecasts
John Aquino Intellectual Property Watch
Tom Barger (on the phone)
Ryan Triplette Judiciary Committee


Anonymous said...

Great notes, thanks!

David Smith

9:22 PM  

Post a Comment

<< Home