[DMCA-Activists] HuffPo: UN/WIPO plan to regulate distribution of information on the Internet -- every transmitter to become an owner

[Seth Johnson]

-------- Original Message --------
Subject: [A2k] in HuffPo: A UN/WIPO plan to regulate distribution
of information on the Internet -- every transmitter to become an
owner
Date: Wed, 30 Nov 2005 19:24:42 -0500
From: James Love <address@hidden>
To: a2k discuss list <address@hidden>


> http://www.huffingtonpost.com/james-love/a-unwipo-plan-to-regulat_b_11480.html

November 30, 2005
A UN/WIPO plan to regulate distribution of information on the
Internet -- every transmitter to become an owner

James Love

A UN Agency is debating a sweeping new form of regulation for the
Internet. The call for this new regulation is being led by the
United States government and the European Commission, pushed by
highly paid lobbyists for a trade association that includes
Yahoo, Microsoft, AOL, Real Networks and a handful of other
companies.

The United States government negotiators represent the two
agencies. The United States Copyright Office, headed by Mary Beth
Peters. The United Patent and Trademark Office is run by former
Republican hill staffer John Dudas.

The US negotiators are not trying to impose US law on the rest of
the world. They are instead seeking a new global law that is
completely outside of US legal traditions, and according to legal
experts, of dubious constitutional legality in the United States.

The European Commission represents with a single voice the
position of some 455 million persons in 25 member countries of
the European Union. The new copyright chief for the EC is Tilman
Lueder.

The European Commission is also not trying to impose current
European legal traditions on the rest of the world. Both the US
and the EC negotiators are trying to create a brand new and
untested regime of Internet regulation that they have never even
attempted to adopt in their own Congress or parliaments.

The fora for this international law-making exercise is the World
Intellectual Property Organization, known in English speaking
countries as WIPO. What is proposed has nothing to do with
copyrights or patents, but rather something new, that no country
has yet tried, and which is granted to protect “investments” in
the distribution of works, rather than to reward creative
activity. The treaty is being pushed by WIPO's top official
charge of copyright policy, former US Trade Representative and
noted textile negotiators, Deputy Director of WIPO, Rita Hayes.

What is proposed is as follows. Any web page operator who makes
any combination or representations of “images or sounds . . .
accessible to the public . . . at substantially the same time,”
would be granted a new right, to authorize or prohibit anyone
from copying the data, or republishing or re-using the
information in any form.

This may sound like copyright, but it’s not. This new “webcaster”
right is something that would apply to public domain material,
and it would apply to works that are copyrighted, even if the
webcaster is not the copyright owner, and does not even have a
license to use or to restrict access to the copyrighted work.

What this means is this. If you download a file from the
Internet, you would have to get the permission of the web page
operator before you could republish the data elsewhere. This
permission would be in addition to any permissions you would need
from the actual copyright owner, and it would even be required if
you are seeking to publish something that was either in the
public domain under copyright law, or that had been licensed for
distribution under something like a creative commons license.

This new “webcaster right” would be automatic, and come also with
a whole set of new requirements to enforce technological
protection measures (TPM) and digital rights management (DRM)
schemes on Internet transmissions. The webcaster would have an
ownership right in the information for 50 years, and the 50 year
term would start new with every transmission of information.

The rationale for the new “webcasting” right concerns a related
effort to update sections of a 1962 treaty called the Rome
Convention, which provides for a more limited but still
controversial “broadcasters’ right” for information broadcast on
traditional television or radio. In some countries, broadcasters
are given a 20 to 50 year right in the information they
broadcast, which like the proposed webcaster right, is separate
from and in addition to the rights (if any) of copyright owners.

The United States and more than 100 other countries have never
signed the Rome Convention, and do not recognize such a right.
Most European countries have signed the Rome Convention and have
the “broadcasters right” as part of a scheme of “related rights”
that co-exist with copyright.

Academics like Jamie Boyle from Duke note that the co-existence
of different legal regimes in different countries provides for a
natural experiment. Is the Rome "broadcasters' right" needed to
stimulate investment in broadcasting? Obviously not, he notes,
given the health of broadcasters in countries like the US, which
never signed the Rome Convention.

But in any case, the Rome "broadcasters right" has never been
applied to the Internet, where it is expected to have a much
different impact. On the Internet, people are more than just
passive viewers of network content -- they create, remix, and
share information in a constantly evolving and creative way.

Broadcasters, including the US broadcasters who have never had
such a right, want an “updated” and expanded “Rome+” treaty, with
greater rights to commercialize other people’s works, longer
minimum (50 year) terms, and other extras, like new TPM/DRM
obligations. Because broadcasters put politicians on the air,
they have a lot of political power, and it is possible they will
get a new treaty. The most active company in the US pushing for
this appears to be News Corporation, the well-connected owner of
Fox news.

The webcasters recognize the broadcasters have political
influence they could only dream of, and also that they will be
competing with the broadcasters for more and more context. They
have demanded “parity” with the broadcasters in any new treaty,
effectively importing the new Rome+ regulatory regime to the
Internet, in order to be “technologically neutral.” Thus a
controversial regime that was designed for TV and radio would be
dumped on the Internet, in order to harmonize the two systems.

The actual proposals for new treaty provisions on this
“webcaster” right were written by lobbyists for a trade
association called DiMA, that includes some 25 firms, including
such heavy hitters as America Online, Apple, Microsoft,
RealNetworks and Yahoo!

Yahoo, now run by former Hollywood exec Terry Semel, is the most
visible promoter of the webcasting treaty proposal.

DiMA’s pricey lobbying team includes DiMA Chief Jonathan Potter
and lobbyists-for-hire Seth Greenstein in Washington, DC and Lucy
Cronin in Brussels.

WIPO will convene meetings in April and June to debate this
issue, and then decide by September 2006 if a diplomatic
conference on the new Rome+ broadcaster treaty will be scheduled,
and if they will consider treaty provisions for “webcasting.”

Right now the US and the WIPO Secretariat are pushing a proposal
to extend all of the TV and Radio Rome+ provisions to the
Internet, under three difference mechanisms, which all pretty
much do the same thing. Last week the EC’s copyright chief Tilman
Lueder surprised a lot of people when he endorsed the proposal to
keep webcasting in the terms of reference for the new treaty --
reversing earlier EC positions on the webcasting proposal, which
they had earlier opposed. Lueder said the new treaty had to be
“technology neutral,” which means the new rights have to apply to
all of the new technologies -- even if they undermine the very
traditions that have made the Internet so valuable. (In this
case, the illogical logic of harmonization).

Meanwhile, a number of civil society NGOs, academic scholars and
some businesses have been pressing the US and the EU to consult
formally with the technology community on the new proposals. So
far the US and the EU negotiators refuse to do so, out of a fear
that the more people find out about this little known treaty, the
less they will like it.

One final note about the use of langauge and symbols to sell this
treaty. Both the broadcasters and the webcasters claim that they
are just trying to curb piracy. Well, if the works they broadcast
or webcast are copyrighted, we already have lots of laws and
treaties for that, including for the example the two 1996 WIPO
Copyright treaties (the WCT and the WPPT). Indeed, the copyright
owners are actually hostile to both the broadcast and the webcast
treaties precisely because they prefer that copyright owners call
the shots, and control access to the works. And, all parties,
including cyber-rights, consumer and copyright owners, have
agreed to support a narrow treaty that protects traditional
broadcasters from someone hacking a signal illegally. But what
the broadcasters and the webcasters really want has nothing to do
with protecting copyrighted works. They want to "own" the content
of what they transmit, even when they are not the creative party,
and even if they can't acquire such rights from the copyright
owner (if any).

In the words of the treaty critics, the treaty proponents are
guilty of piracy of the knowledge commons. They are seeking to
claim ownership rights in works they did not create, and which
today they do not own. They want something different from
copyright, and different from the legal regime that exists in any
country. They want to own what they simply transmit. And this
will be quite harmful to the Internet.

For more information on the treaty, and what various NGOS,
academics, and others are saying, see:
http://www.cptech.org/ip/wipo/bt/index.html.

To see some cool works that will be restricted by this treaty,
see: http://video.google.com/


---------------------------------
James Love, CPTech / www.cptech.org /
mailto:address@hidden /
tel. +1.202.332.2670 / mobile +1.202.361.3040

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