To: Jule L. Sigall, US Copyright Office, Michael S. Keplinger, US Patent & Trademark Office, Marla Poor, US Copyright Office

From: James Love, CPTech

Subject: Request for Formal Public Comment on Proposal for Treaty on Webcasting

Date: 15 September 2005

CPTech renews its request that the USPTO or the Library of Congress (LOC) invite formal public comment on the proposal to create a new International Treaty obligation establishing a novel intellectual property regime for webcasting, through the World Intellectual Property Organization (WIPO).

The treaty language proposed for a "webcasting"right would create a new layer of property rights, lasting at least 50 years, for materials that are transmitted by web servers over the Internet and other networks. Unlike copyright, the new webcaster right is not based upon a creative contribution. Any material, including material in the public domain, or licensed for public dissemination under a creative commons type license, would be burdened with this new layer of rights, which accompany any "public transmission" of any combination or representations of sounds and or images.[ft 1]

There are no formalities for the new rights. They will automatic increase the transaction costs associating with redistributing or reusing information distributed from web pages.

The proposed treaty will harm the public, by imposing a costly and time-consuming thicket of rights, and will make it illegal to redistribute or copy works that are in the public domain, or which have been licensed for public distribution under a creative commons type voluntary license.

Copyright owners will be harmed by the webcaster right in three ways. First, the existence of the right will make it more difficult for copyright works to be cleared for republication or use, even when the owner of the copyright gives permission. Second, copyright owners will have to share revenues from collection societies that receive remuneration for the use of works that were distributed on the web. Third, the predictable reduction in access to knowledge resources is itself harmful to those whose creative efforts require access to the work of others.

There is no evidence that such a new property right is needed. The webcasting treaty proposal is often cynically defended on the grounds that the right is needed to protect authors, performers and other creative persons. But as we know, creative persons are already protected under copyright laws. The webcasting right is sought precisely because Yahoo and others want something that is not based upon their own creative contributions.

Secondly, Yahoo, DIMA, and other lobbyists for the webcasting right claim that the new intellectual property right is needed in order to provide parity with broadcasting organizations who are seeking similar rights. In fact, the Internet has prospered under very different traditions than exist today in commercial television and radio, and it will be changed in a way that will reduce its usefulness and appeal if it reaches policy parity with broadcast organizations. In simple language, "parity" with television and radio for webcasters will be less freedom for the Internet. We think this is a profound mistake. We are not alone. Consider for example the letter from Mark Cuban, Tim O'Reilly, Scott Rosenberg, and 17 other Internet technology leaders,[fn 2] who said: "We, the undersigned representatives of technology businesses large and small, reject the idea that the Internet needs or will benefit from the extension of these pseudo-copyrights to so-called 'Webcasters'. . . . Adding a new layer of intermediaries, over and above copyright holders, for the re-use of information on the Internet benefits no one -- save 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 do not desire the 'protection' you offer us, nor do we believe it will benefit us."

Also, virtually all of the consumer, library, free software, civil liberties and development groups particpating in the WIPO Standing Committee on Copyright committee have opposed this proposal.

The broadcast organizations that are seeking new intellectual property rights in WIPO are politically powerful because they provide airtime to elected officials. This allows them to engage in rent seeking lobbying activities that would be unsuccessful if attempted by others.

One has to ask, how can Yahoo and a handful of companies succeed in pushing a global treaty on webcasting when almost no countries have even enacted such laws? As far as we know, only Finland has attempted to create something like the webcasting right. The United States has certainly not enacted such a law, and it is highly unlikely the US Congress would ever do so. This is because many in the US Congress actually understand the benefits of freedom, and the dangers of excessive government regulation of the Internet.

We object to efforts to push for a global treaty on webcasting when the US Congress has resisted lobbying by these same companies to enact similar legislation in the United States Congress. We object also to the fact that the US government is pushing WIPO toward a diplomatic conference on this topic before it has even a single public notice on the question of whether or not the Internet needs such a restrictive regulatory regime.

Sincerely

James Love
Director, Consumer Project on Technology
http://www.cptech.org
james.love@cptech.org

[1] The April 13, 2005 Working Paper on Alternative And Non-Mandatory Solutions on The Protection In Relation To Webcasting (SCCR/12/5 Prov.) defines webcasting as follows: “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.

[2] http://www.eff.org/IP/WIPO/?f=20041117_open_letter.html

For futher information:

http://www.cptech.org/ip/wipo/wipo-casting.html
http://www.eff.org/IP/WIPO/20041113_TPM_SCCR.pdf
http://www.public-domain.org/?q=node/47
http://www.ipjustice.org/WIPO/november04stmt.shtml