WIPO Casting Treaty

New draft, Old exclusive rights

2007-05-01T13:19:00.000-07:00

Today, WIPO posted the non paper. My quick read:

interesting quote

5. The non-paper endeavors to lend full recognition to the “signal-based” approach, and to the focus determined by the General Assembly and the SCCR.
end of quote

However, you have para 6:

quote:

6. During the preparatory process of the non-paper, representatives of the broadcasting organizations have made a very serious point that cannot be omitted. If the Treaty is not based on some elementary and absolutely necessary rights, the process should be abandoned. Therefore the non-paper now includes, as the main operative part of protection, specific related-rights-type rights in two instances where the protection of a signal is most relevant, namely retransmission and deferred transmission.

end of quote

and this:

SNIP

7. This represents the narrowest meaningful functional protection for broadcasting organizations. If Member States so wish, provisions may be added allowing for optional wider protection, notably of post-fixation rights or protection, which would enable international protection, linked to a clause on national treatment and reciprocity regarding optional rights or protection.

Check out the definition:
Article 2
SNIP
(e) “retransmission” means the simultaneous transmission for the reception by the public by any means of a broadcast by any other person than the original broadcasting organization; simultaneous transmission of a retransmission shall be understood as well to be a retransmission;
end of quote

If they're serious about excluding the internet, they need to add something to keep the bad on TV and not on the Internet: "for the reception by the public by any means of a broadcast [ADD with the purpose of retransmitting on traditional broadcasting platform] by any other person than the original ..."

And finally, the rights (since no matter what the GA said, they are exclusive rights):

quote:

Article 7
Protection of Broadcasts

Broadcasting organizations shall enjoy the exclusive right of authorizing the retransmission of their broadcasts, and the deferred transmission by any means to the public of their fixed broadcasts.
end of quote

So, OK, no more fixation and reproduction but still exclusive rights. We're still beyond the mandate of the GA, the limitations and exceptions are still lame and the good provisions on cultural diversity and competition in the preamble are just "recognized"....

I'm wondering who is going to want this treaty? The Chair? WIPO?

Hopefully, the US delegation (and other non Rome members) will not agree to add exclusive rights to the broadcasters already strong protection.

Quick look at the comments on the new draft non paper

2007-04-10T11:42:00.000-07:00

If you’re looking for (Rabelais like) “substantific marrow” in the 15 member states comments submitted in response to the Chair’s new Draft non-paper, here is a quick look:

7 COUNTRIES SUPPORT A SIGNAL THEFT APPROACH:
Brazil, Egypt, India, Indonesia, Iran, China, and, well, the US, in “some ways” …

4 COUNTRIES ARE NOT SUPPORTING A SIGNAL THEFT APPROACH:
Korea (but not opposed to optional approach), EC (Not sure how options would work, rights are more appropriate), Japan (More rights is better), Colombia (would like a wider scope).

4 ARE NOT SAYING MUCH ABOUT THE 2 APPROACHES AT THIS TIME:
Chile: wants defense of competition back in the draft, additions to the limitations and exceptions and is concerned about TPMs
Canada: … but maintains position of allowing opt-out or reservation on retransmission as usual.
Australia: …nothing on policy issue but precise re wording regarding "public" (not “general”) or persons with disabilities instead of disabled etc.
Switzerland does not like the preamble and is confused by meaning of protection and promotion of cultural diversity and the apparent “mistrust” some might have toward broadcasters and cablecasters.

All submissions to WIPO are at here.

More details from my reading:

COUNTRIES SUPPORTING SIGNAL THEFT APPROACH

USA: Preamble: No to cultural diversity. Add for copyright owners rights
Art 3 Scope: fix "mere retransmission" (move to Art 6)
Art 4 Relation to Other treaties: Add non-derogation clause
Art 5 Definitions: Clarify exclusion of home network (twice). Add "initial" fixation to comply with Mandate
Art 6 Beneficiaries: Should not override contractual agreements (“Leagues’ clause”)
Art 7 National Treatment: Supports K the Berne Model. Delete 7(2) not needed and potential burdens
Art 8 Protection: Delete 8 (1) (ii) and (iii) to comply with signal only mandate and exclude home network (again “Intel clause”))
Art 10 Encryption: Need to mimic TPMs in WCT and WPPT
Art 11 Means of implementation: Add private right of action
Art 12 L &E: Delete 12 (3), the “list”.
Art 13 Term: Question re 20 years for signal (mandate?)
Art 14 Formalities: Delete, US has “formalities”.
Note: Nothing on ISPs’ liability issues

BRAZIL: Preamble unduly move of 3 articles (2,3 and 4) into preamble
Art 2 (2) Object of Protection: Not consistent with Brazil’s legislation that treat cablecasting and broadcasting differently.
Art 4 Relation to Other Treaties: Delete (2) and (3). Limit application so no encroachment on the public domain nor on copyrights incorporated.
Art 5 Definitions: reaffirm reservation
Art 7 National Treatment: Support K (the Berne Model). J not acceptable.
Art 8 Protection: exclusive right in 8(1) not consistent with GA decision. Delete.
“by any means” also not in agreement and would be detrimental to consensus.
Art 10 Encryption: Not consistent with signal-based approach. Abusive when no “unauthorized activity”.
Art 11 Means of Implementations: Overly broad and impinge on member countries legal system and practice. Propose TRIPS Art 1.1
Art 12 L & E: Replace may by shall to promote secure and predictable. Delete 12(2) the importation of the 3 step test designed for copyrights not signal.. Add to 12 (3) library and archives.
Art 13 Term: Delete. No term for signal.
Art 17 Enforcement: Delete, should be left to national jurisdictions.

CHINA Support for narrow and specific protection against signal theft.
Art 6 Beneficiaries: Prefer add alternative to set condition that organization be in same country
Art 8 Protection: Question on 8(i). Does “by any means” include over computer networks? Also does “deferred retransmission” cover “communication to the public” and “transmission following fixation” “making available to the public”?
Art 10 Encryption: Amend (i) add “for the purpose of retransmitting the broadcast
Art 11 Means of implementation: Delete

EGYPT Preamble: After rights, add “on their signals” (3 times)
Art 1 Objective: change to “broadcasted signals”
Art 2 Object: change to “broadcasted signals”
Art 3 Scope: at (iii) re netcasting add “any transmission which consists a violation to other copyrights [?]
Art 5 Definitions: delete “electronically generated”

INDONESIA
Art 1 Objective: the wording will lead to broader scope of use than the GA’s mandate to protect signal from theft or piracy
Art 2 Object of Protection: prefer narrow and traditional definition not including cablecasting organizations
Art 5 Definitions: Delete “by satellite” this clause will open to broader interpretation. Same for (d) “cablecast”.
Art 7 National treatment: Prefer alternative J (WPPT) or VV (TRIPS). Do not understand para (2)
Art 8 Protection: clauses are extension or broadening of the scope of the agreed objectives.
Art 11 Means of implementation: Leave this to national legislation
Art 13 Term: as we adopt signal based it is not relevant.
Art 14 Formalities: imitating copyright principle not a basis for signal based.
Art 16 Application in Time: “again, there is no point in returning to right-based approach”.

INDIA: Preamble: Treaty is for the “protection” of broadcasting organizations.
Art 1 Objective. Add “according to signal based approach”
Art 2 Object of Protection: protection is limited to the extent of rights acquired or owned by the broadcasting organizations.
Art 3 Scope: It is not clear whether this clause will also cover transmission simultaneous or deferred of broadcast over computer network.
Art 4 Relation to other treaties: again protection shall be afforded to the extent necessary to enjoy rights acquired or owned by the broadcasting organizations without impinging on the rights of the original rights holders.
Art 5 Definitions. Make definition consistent with signal-based approach mandated by GA. Also exclude “over computer network”. No need for “physical support” since communication to the public is not a prohibited activity.
Art 6 Beneficiaries: both conditions need to be satisfied to be treated as a national of anther contracting party.
Art 8 Protection. Covers 3 types of activities (retransmission, fixation and reproduction) that go beyond protecting signals
Art 10 Encryption. Same effects as TPMs. Potential to prevent dual use of technology. Remove clause.
Art 11 means of implementation: remove (i) since it is same as providing exclusive rights and this is already an option under 8(1)
Art 13 Term. Needed only if fixation and reproduction is agreed to be protected.

IRAN
Alternatives in Art on National treatment may neutralize the optional view of the chair on rights.
Scope: since SCCR 14 decision to limit to broadcasting and cablecasting in traditional sense. Webcasting and simulcasting to be dealt in a separate process. All references to computer network, or “by any means” should be removed.
Object of protection: see protection against signal piracy. Exclude prebroadcasting signal since they are not assembled or scheduled.

********************************************************************
COUNTRIES SUPPORTING EXCLUSIVE RIGHTS APPROACH:

EC: Preamble: Remove 4 (competition), 5 (Cultural Diversity) and 6 (abuse)
Art 1 Objectives: clearly include “grant of exclusive rights”
Art 3 Scope: Clarification on “mere retransmission”. Include DSL and IP TV (to limit exclusion of webcasting)
Art 4 Relation to Other Treaties: clarify relation with Rome, delete 4 (3)
Art 5 Definitions: Need to clarify definition of “program” and “broadcast”
Art 7 National Treatment: Oppose K and support J (WPPT model)
Art 8 Protection of broadcasts: reiterate exclusive rights more appropriate. Not convinced by “patchwork solutions”
Art 10 Encryption: Too narrow, need TPMs for future technological developments
Art 12 L &E: Delete 3 (the non-exhaustive list). Clarify add of “legal deposit requirements”
Art 16 Application in Time: how would that work for countries not providing exclusive rights (as in 8(2)?
Art 17 Provisions on Enforcement of Rights: Again, how would that work if no exclusive rights as in 8(2)?

JAPAN: Preamble: do not like para 4 (competition). Insert “easier access to knowledge”
Art 3 Scope: Is internet protocol considered like webcasting and thus excluded?
Art 7 National treatment: Supports J (WPPT model)
Art 8(1) Protection: Insert 3 more rights (making available original and copies, to members of the public and communication against fee). Delete 8(2) which is the alternative to rights!
Art 10 Encryption: reinforce
Art 11 Means of implementation: delete
Art 13 Term: Should be 50 years

KOREA General: Suggest WPPT model. Support rights but do not oppose optional approach.
Art 5 Definitions: “communications to the public” is not necessary
Art 7 National Treatment: Support J (WPPT model). 7(2) is contary to logic as is art 9 and 10
Art 8 Protection: suggest more logical language for “retransmission or deferred transmission”
Art 10 Encryption: WPPT language
Art 13 Term: Support 50 years for balance with related right holders.

EU Commission consultation 19th February 2007

2007-03-03T05:02:00.000-08:00

EU Commission meeting on the draft Broadcasting Treaty
by Michelle Childs

The European Commission's consultation meeting on the proposed WIPO Broadcasting Treaty- Brussels 19th February 2007.

I attended the above meeting which was the first time the Commission has held a public meeting to discuss the Treaty. The focus of the meeting was an attempt to define what a signals based approach should mean and what issues should be included/excluded. It was well attended with representatives from the EBU, IFPI,MPA and ISPs. Civil society was represented by BEUC, EFF and Cptech.

I took some quick notes at the meeting see here for further detail

The meeting was helpful as it gave all parties the opportunity to ask questions and test arguments. It also gave an insight into the Commissions thinking, although officials were keen to stress that their position was not yet finalised and they were simply seeking to test working hypothesis.

Four key points emerged:

1) The Commissions's working hypthesis is that interception and retransmission over the Internet is a key method of signal piracy. To prevent such piracy post fixation rights seem necessary. The lack of post fixation rights was seen as a weakness in the Consensus Coalition approach ( of which KEI/Cptech is a member). The Commission officials did acknowledge however, that broad post fixation rights raised issues about TPMS and exception and limitations. The Commission is open to receipt of further text from the Coalition on how this issue can be dealt with.

Copy of Consensus Coalition's statement at the meeting here:

2) ISP liability. The Commission's position was that this is not an issue as the protection granted is a limited communication right to the public. Inclusion of reference to ISP libility in the draft Treaty is in any event opposed by IFPI and MPA.

During the debate on this issue, there was at times heated exchanges on what the draft Treaty text meant when it referred to 'exclusive right to authorise or prevent'. The Commission's interpretation was challenged on the basis that the ordinary meaning of the wording appeared to give both active (right to authorise) and defensive ( right to prohbit) rights. The Commission held to its view that the right was purely defensive in nature with respect to the Internet. They based this view on their assertion that the wording in the Rome Convention ( on which the text was based) covering rebroadcasting was entirely defensive, and that as a consequence the provisions on retransmission protection for Internet retransmission was also entirely defensive.

3) The Commission appeared to agree with the view that Broadcasters needed their own'right' irrespective of whether another remedy existed i.e the copyright owner could sue. The basis for this view was that some copyright owners would not sue and the broadcasters needed to protect the exclusivity they had paid for ( see my notes for more on this).

4) Broadcasters are still pushing for inlusion of protection for simulcasting. Commision officials appeared to be persuaded that its an issue that needed further consideration- broacasters arguments made'conceptual sense' ( see Tom Rivers presentation here)

Generally it was interesting to note that during the discussions the Commission appeared to think that the main purpose of the Treaty was to protect free to air public service broadcasters,despite the fact that PayTV and channel owners are covered under the terms of the draft Treaty. When the issue of protection for channels was raised the Commission seemed to be unaware that they too might be protected and did not appear that keen on their inclusion. The Commission said that they had never been approached about this issue, and they were uncertain that channels would be protected under the laws of all EU Member States. It is an issue that they will have to review.

A further meeting prior to the June WIPO meeting was requested. Commission
officials appeared receptive but needed to check capacity.

Further reading:

The Commission provided a helpful powerpoint comparing the draft Treaty Text with the Community acquis. Only one right ( pre broadcast) is not contained in some form in the acquis. EU presentation
here

Statement by EFF here:

After the non-papers, here come the "non-conclusions" (to quote Jason Pielemeier)

2007-01-19T04:54:00.000-08:00

My quick notes from DAY 3 of SCCR Special Session 1 Geneva January 19, 2007

The plenary started right before lunch break. (I know, sounds funny) The Chair provided us with his "draft conclusions". He instructed the delegations to talk about his conclusions during lunch and to come back at 3pm with reactions. However, Columbia, Brazil, India, the EU wanted the floor. Brazil and India made excellent interventions.

Brazil stated that now they wanted to be on the record (since yesterday nothing is on record!) that they want a blanket reservation on their position on non-papers and informal sessions. They had additional comments on the draft conclusions: there should not be reference to a revised 15/2 since there was no agreement on what was revised. They asked that the conclusions reflect that by replacing "revised 15/2" by "revised non-papers".

Also somewhat inappropriate is the list of matters in paragraph 2 of the chair's draft conclusions. Since the previous meetings were informal and not on the record...there is no record of where each issue (objectives, relation to other treaties, definitions, beneficiaries, rights, L&E, term and TPM/DRM) stand and thus no way to see a trend. Finally, the last papragraph amended by the chair at the beginning of session looked like a re-writting of the carefully crafted mandate that came out of the GA. I found also very interesting Brazil's request that there be a "process", a "member driven process" by which member states could provide input (non-papers?).

So far, only the chair is contributing with non-papers and I heard yesterday a "non-slide" about the objective of the treaty.

The chair did not want "too many to speak" but had to let India make its statement. Asking for clarification, India describe how the list of matters did not reflect agreement and was just a list of matters that have been discussed for years. According to the mandate, only matters where agreement was reached should be listed.

The plenary ended on that note. People here are puzzled. If you only point to agreement (on or off the record it seems), the non-conclusions might end up very very short. Would that mean that this meeting did not really happen? Like a non-meeting?

However, some people seem to be happy and are sure that the tanker (that is one of the image used to describe the treaty here!) cannot be sunk.

More later.

Where's the "Signal Protection"? Read the "new draft" here

2007-01-18T11:17:00.000-08:00

January 18, 2007

Today, right after the NGOs were allowed take the floor for 2 minutes each, the secretariat distributed the "new treaty". It's called "Chair's non-paper Combination of the four non-papers on Articles". Check out the rights, the limitations and exceptions and the term... and let me know if you think this is really about signal? Or maybe signal is not what I think?

This is the new text the delegates discussed (without NGOs permitted in the room this afternoon and tonight)

Manon

************************************************************************
SCCR/15/2: Preamble

(no new or amended elements suggested for consideration)

New Article

Object of Protection

1) The provisions of this Treaty shall apply to the protection of broadcasting organizations in respect of their broadcasts.

2) The provisions of this Treaty do not give rise to any rights in the programme content that is transmitted by the broadcasting organizations.

SCCR/15/2: Article 1

[Manon: ALT CC of SCCR 15/2] (1) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under any international, regional or bilateral treaties addressing copyright or related rights

(2) Protection granted under this Treaty shall leave intact and shall in no way affect the protection of copyright or related rights in program material incorporated in broadcasts. Consequently, no provision of this Treaty may be interpreted as prejudicing such protection.

(3) This Treaty shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaties.

[Manon: NEW] 4) If this Treaty does not provide rights or protection for the same scope and on the same level as the Rome Convention or the TRIPS Agreement, Contracting Parties, who are Contracting States of the Rome Convention or members of the TRIPS Agreement, will apply the provision of these treaties between themselves.

SCCR/15/2: Article 2 - General Principles)

(No new or amended elements suggested for consideration)

SCCR/15/2: Article 3 - Protection and Promotion of Cultural Diversity

(No new or amended elements suggested for consideration)

SCCR/15/2" Article 4 - Defense of Competition

(No new or amended elements suggested for consideration)

SCCR/15/2: Article 5

Definitions

For the purposes of this Treaty:

a) "broadcast" means the programme-carrying signal used for transmission by the broadcasting organization;

b) "signal" mean an electronically-generated carrier cpable of transmitting programmes;

c) "broadcasting" means the transmission by wireless means of broadcast for the reception by the public;

-such transmission by satellite is also "broadcasting";
- wireless transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent;
- "broadcasting" shall not be understood as including transmissions over computer networks;

d) "cablecasting" means...;

e) "broadcasting organization" and "cablecasting organization" mean the legal entity that takes the initiative and has the responsibility for the transmission of a broadcast tot he public, and for the assembly and scheduling of the programme content;

f) "retransmission" means ...;

g) "communication to the public" means making the programme content of broadcasts perceptible to the public;

h) "fixation" means... .

SCCR/15/2: Article 6

Scope of Application

1) The provisions of this Treaty shall apply mutatis mutandis to the protection of cablecasting organizations in respect of their cablecasts.

2) The provisions of this Treaty shall not provide any protection in respect of
(i) mere retransmissions by any means of transmissions referred to in [Article ];
(ii) any transmissions where the time of the transmission and the place of its
reception may be individually chosen by members of the public.

[Manon: new] 3) The provisions of this treaty shall not provide any protection for netcasting organizations in respect of their netcasts transmitted over the computer networks.

(No new or amended elements suggested for consideration)

SCCR/15/2: Article 8

National Treatment

[in italics ][ (1) The choice between the broad Berne type and the Rome/WPPT (specifically granted") type obligation will be left to the Diplomatic Conference.]

(2) Each Contracting Party may choose to apply the obligation provided for in paragraph (1) only to the extent that the other Contracting party applies [Articles ] of this Treaty. If a Contracting Party avails itself of the possibility provided for in this paragragh, the Contracting Party shall notify this application to the Director General of WIPO.

SCCR/15/2: Article 9, 11 and 14

Rights in the Broadcast

Broadcasting organizations shall enjoy the exclusive right of authorizing:

i) the simultaneous or deferred retransmissio of their broadcasts by any means, including rebroadcasting, retransmission by wire, and retransmission over computer networks; and

ii) the fixation of their broadcasts.

SCCR/15/2: Articles 10, 12, 13 and 15

Protection of Uses Following Broadcasting

Broadcasting organizations shall enjoy adequate and effective legal protection in respect of
i) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts;
ii) the making available to the public of the original and copies of fixations of their broadcasts;
(iii) the making available to the public of their broadcasts from fixations, by wire or wireless means, in such a way that members of the public may access them from a place and a time individually chosen by them; and

iv) the communiation to the public of their broadcsts, if such communication is made in places accessible to the public against payment of an entrance fee, or using very large screens in places accessible to the public, or made in a profit making purpose.

SCCR/15/2: Article 16

Protection of the Pre-broadcast Signal

Broadcasting organizations shall enjoy adequate and effective legal protection against
any acts referred to in [Article on rights abd Article on encryption] of this Treaty in relation to their signals prior to
broadcasting.

SCCR/15/2: Article 17

(1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of broadcasting organizations as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works, and the protection of related rights.

(2) Contracting Parties shall confine any limitations of or exceptions to rights provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the broadcast and do not unreasonably prejudice the legitimate interests of the broadcasting organization.

(3) Subject to the provisions in paragraphe 2, and in accordance with paragraph 1, Contracting Parties may provide for limitations and exceptions to the exclusive rights provided in this Treaty for such purposes as private use, educational uses, scientific research, uses for the benefit of disabled persons, legal deposit requirements, reporting of current events, and use for public security and judicial purposes.

[in italics] [The notion of "limitation" / "exceptio" is relevant in the context of exclusive rights or corresponding protection (possibliy including right to prohibit).

In the case of a more flexible standards of protection, such as "adequate and effective legal protection", the need for "limitations and exceptions" is less. The reason for this is the fact that it would be a matter for the Contracting Parties to design the form of protection, the level of protection, the details of protection, and the areas where there is no protection concerning some uses. The guiding standard would be the adequacy of the protection.]

SCCR/15/2: Article 18

Term of Protection

The term of protection to be granted to broadcasting organizations under this Treaty shall last, at least, until the end of a period of 20 years computed from the end of the year in which the broadcasting took place.

Article/15/2: Article 19 and 20

Protection of Encryption and Relevant Information

Contracting Parties shall provide for adequate legal protection and effective legal protection against unauthorized

i) decryption of an encrypted broadcast;
ii) manufacture, importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast; and
iii) removal or alteration of any electronic inforamtion relevant for the protection of the broadcasting organizations.

SCCR/15/2:

Article 21 to 34

(No new or amended elements suggested for consideration)

[END of NON-PAPER]

Chair's non-paper on rights

2007-01-17T08:40:00.001-08:00

Afternoon session SCCR Special session 1
Chair's Non-paper 3#

4 articles of rights to "reformulate" 20 pages of July draft. it is supposed to reflect signal based approach.

********************************************
Rights in the broadcast
Broadcasting organizations shall enjoy the exclusive right of authorizing
i) the simultaneous or deferred retransmission of their broadcasts by any means, including rebroadcasting, retransmission over computer networks;and
ii) the fixation of their broadcasts.

Protection of Uses following broadcasting
Broadcasting organizations shall enjoy adequate and effective legal protection in respect of

i) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts;
ii) the making available to the public of the original and copies of fixations (distribution) of their broadcasts, through sale or other transfer of ownership;
iii) the making available tot he public of their broadcasts from fixations, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them; and
iv) the communication to the public of their broadcasts, if such communication is made in places accessible to the public against payment of an entrance fee, or using very large screens in places accessible to the public, or made in a profit making purpose.

Protection of encryption and relevant information
Contracting parties shall provide for adequate and effective legal protection against unauthorized
i) decryption of an encrypted broadcast
ii) manufacture, importation, sale or any other act that makes available a device or system capable or dcryting an encrypted broadcast; and
iii) removal or alteration of any electronic information relevant for the protection of the broadcasting organizations

Protection of the pre-broadcast signal
Broadcasting organizations shall enjoy adequate and effective legal protection against any acts referred to [Article on rights and Article on encryption] of this Treaty in relation to their signals prior to broadcasting

Chair's non-paper on rights

2007-01-17T08:40:00.000-08:00

New definitions in Chair's non-paper #2

2007-01-17T08:02:00.000-08:00

Object
1) the provisions of this treaty shall apply to the protection of broadcasting organizations in respect of their broadcasts
2) The provisions of this treaty do not give rise to any rights in the programme content transmitted by the broadcasting organizations.

Definitions
For the purpose of this treaty:

[NOTE a and b are new]

a) "broadcast" means the programme-carrying signal used for transmission by the broadcasting organization;
b) "signal" mean an electronically-generated carrier cpable of transmitting programmes;

for c) thru h) see SCCR 15/2
July 31, 2006. Revised Draft Basic Proposal (SCCR/15/2) for the WIPO Treaty on the Protection of Broadcasting Organizations (Treaty text released July 31, 2006.)
http://www.cptech.org/ip/wipo/bt/latest_docs.html

Chair's non-papers highlights

2007-01-17T04:08:00.000-08:00

January 17, 2007. SCCR Special Session 1.
Morning Session of Day 1

highlights of chair's Non-Paper discussion paper (to guide the discussions for this special session):

Decision of the GA
[...]
"to agree and finalize on a signal-based approach, he objectives, specific scopes and object of protection.."
Purpose and nature of this non-paper
[...]
"the goal is to make the treaty more acceptable for all. Delegations are invited to consider the next preparatory steps based on these elements"

Approach: 'on a signal-based approach"
[...]"focus should be set on the protection of the "live-signal"
[...]
it should be stressed that the signal-based approach by no means precludes granting some exclusive rights to broadasting organizations. The signal-based approach and question whether the protection is rights-based or based on other legal means, are actually different aspects or dimensions of the protection
[..]
"if the range of exclusive rights and that of protections would be reduced, and also the object made more precise, the Delegations could consider to reduce or narrow down also other provisions, surrounding these provisions on protection"

Task 1: "objectives"
[...] its fcus is on "anti-piracy" function but it provides also protection agaisnt competitors and against unfair exploitation and against free-riding"

[...]
"If the provisions on rights would be reformulated or reduced, the delegations could also consider qualifying some of the provisions on protection to be applicable only against acts that are committed fr commercial purposes, for competitive uses, or for outright misappropriation ("theft of signals")"

Task 2: 'specific scope"
The treaty would provide a form of protection, consistng of related rights, and/or other specific protections that are not defined as rights. They are independent and self standning rights or protections in relation to rights of authors and other right holders of the programme content. They do not interfere with, nor do they depend on, other rights."

[...]

The Delegations could consider what elements are absolutely necessary to meet the objective of the treaty, and the need for an adequate and effective protection."

Task 3 "object of protection"
[...]
The object of protection is the "broadcast"

[...]
The term "broadcast" has not been defined in any international instrument. If now defined, the term should ideally have the same scope as in these treaties [Rome Convention and TRIPS], and in any case should not be narrower.
It is suggested that a technologically neutral definition of the "broadcast" be added to the instrument, and possibly complemented by a definition of the "signal".

*****************************************************************************

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

2007-01-03T15:27:00.000-08:00

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).

Manon

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.

Halpern,
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.

Participants:

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 NJackson@npr.org
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

WIPO Casting treaty: Where are we and where are we going?

2006-12-07T13:37:00.000-08:00

At the WIPO General Assembly, on September 30, 2006, the outcome from informal consultations (Sept 27-30, 2006) resulted in a statement by the chair that outlined what the agreement was and what the next steps would be:

The GA approved 1) the convening of the Diplomatic Conference on the Protection of the Rights of Broadcasting Organizations under the conditions set out in paragraph 4 below from November 19 to December 7, 2007, in Geneva. The objective of this Conference is to negotiate and conclude a WIPO treaty on the protection of broadcasting organizations, including cablecasting organizations. The scope of the treaty will be confined to the protection of broadcasting and cablecasting organizations in the traditional sense.

2) The Revised Draft Basic Proposal (Document SCCR/15/2) will constitute the Basic Proposal with the understanding that all Member States may make proposals at the Diplomatic Conference.

A first meeting of the 3) preparatory committee will be convened for June 2007 to prepare the necessary modalities of the Diplomatic Conference. The preparatory committee will consider the draft rules of procedure to be presented for adoption to the Diplomatic Conference, the lists of States, as well as intergovernmental and non-governmental organizations to be invited to participate in the conference, as well as other necessary organizational matters.

and 4) two special sessions of the Standing Committee on Copyright and Related Rights to clarify the outstanding issues will be convened, the first one in January 2007, and the second one in June 2007 in conjunction with the meeting of the preparatory committee.

These two special sessions of the SCCR should aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal referred to in Paragraph 2. The Diplomatic Conference will be convened if such agreement is achieved. If no such agreement is achieved, all further discussions will be based on Document SCCR/15/2.

Finally, 5) the WIPO Secretariat will organize, in cooperation with the Member States concerned, and at the request of Member States, consultations and information meetings on the matters of the Diplomatic Conference. The meetings will be hosted by the inviting Member States.

If approved, there will be Diplomatic Conference on the Protection of the Rights of Broadcasting Organizations, from November 19 to December 7, 2007.

As the first special session is soon, ie January 17-19, 2007, the question of whether the final text will really be a signal-based approach is not that settled. We heard that during informal consultations in Geneva, some delegations were pushing again for including exclusive rights. A coalition of public interest groups sent a request for a public meeting with the US Delegation before the January special session hoping among other things to clarify the approach that will be discussed.

Nobody is really paying much attention to the truly new beneficiary of the proposal, the cablecasters, and the effect of the additional cost of creating yet another layer of required permission for cablecast program on the public, small broadcasters, librarians etc.

Who are the new beneficiaries of the proposed WIPO broadcasting treaty?

2006-10-16T14:13:00.000-07:00

The truly new players at WIPO are the cablecasting organizations. Until now they were no where in international treaties or agreements of any kind. Who are they? Can someone clarify?

Looking at Article 5 and 6 of SCCR/15/2 (the basic draft treaty for now), I still have questions:

Are the new beneficiaries of protection, the cablecasting organizations, like Comcast or rather more like MTV and HBO? Or both?

According to Wikipedia, Cable television : Adelphia | Bresnan | Bright House Networks | CableOne | Cable TV Hong Kong | Cablevision (US) | Cablevision (Canada) | Canal Digital | Charter | Cogeco | Columbus Communications | Comcast | Com Hem | Cox | Eastlink | Foxtel | GCI | Global Destiny | Globosat | Insight | Kabel Deutschland | Knology | MASTV | Mediacom | Midcontinent Communications | Millennium Digital Media | NTL | Neighbourhood Cable | Net Brasil | Ono | Optus | Persona | RCN | Rogers | Service Electric | SkyCable | SelecTV | Shaw | StarHub CableTV | Suddenlink | TDC | Tele2 | Telewest | Saturn | Time Warner | TransACT | Vidéotron | WOW! Internet Cable Phone | WightCable

In general, a cable television operator chooses the channels and services that are available on its cable system.....

Channels are for example in the US: Fox, HBO, A&E...in France, for example Canal +...

And here are the definitions and scope (with WIPO's explanation after each item):

Article 5

Definitions

For the purposes of this Treaty,

(a) “broadcasting” means the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof; such transmission by satellite is also “broadcasting”. Wireless transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasting organization or with its consent. “Broadcasting” shall not be understood as including transmissions over computer networks;

WIPO explanantion: The definition of “broadcasting” in item(a) contains the classical definition of broadcasting. It attaches itself to the tradition of copyright and related rights treaties in which the notion of “broadcasting” is confined exclusively to transmissions by wireless means, by radio waves propagating freely in space, i.e., radio waves or Herzian waves. Consequently, no transmissions by wire are included in “broadcasting”. Because this definition would be based on the traditional notion of broadcasting, no possibility of uncertainty or interference could emerge in the interpretations of existing treaties. The definition follows the definition found in Article2 of the WPPT. The first sentence of the definition is built on the prototype definition of broadcasting found in Article 3(f) of the Rome Convention. Article 11 bis of the Berne Convention operates with the same concept of broadcasting. For the sake of completeness, the expression “of sounds or of images and sounds” has been replaced by “of sounds or of images or of images and sounds”. It is proposed that “transmissions over computer networks” be excluded from “broadcasting” in order to make clear that computer network transmissions, even when transmitted by wireless means, are not intended to qualify as broadcasting.

Certain Delegations proposed a broader definition of “broadcasting” that would comprise not only wireless transmissions but also transmissions by wire, “including by cable or satellite”. A narrower definition of “broadcasting” has been proposed in the Draft Basic Proposal for consistency with existing treaties in the field of copyright and related rights. Transmissions by wire, including by cable, are defined as “cablecasting” in the Draft Basic Proposal. The end result concerning the scope of application of the Treaty (by providing separate definitions for “broadcasting” and “cablecasting”) is exactly the same as by using the broader definition of “broadcasting”.

(b) “cablecasting” means the transmission by wire for the reception by the public of sounds or of images or of images and sounds or of the representations thereof. Transmission by wire of encrypted signals is “cablecasting” where the means for decrypting are provided to the public by the cablecasting organization or with its consent. “Cablecasting” shall not be understood as including transmissions over computer networks;

WIPO: Item(b) defines the term “cablecasting”. The definition follows mutatis mutandis the definition of “broadcasting” in item(a), and also in the WPPT. The notion of “cablecasting” is confined to transmissions by wire. No wireless transmissions, including by satellite, are included in “cablecasting”. In the definition, the interpretative clause referring to encrypted signals is maintained. For the same reason as in the case of the definition of “broadcasting”, “transmissions over computer networks” are excluded from the notion of “cablecasting”. The definition of “cablecasting” is needed if the notion of traditional broadcasting is adopted in the Treaty as proposed, but would be superfluous if the Treaty were based on a broader notion.

(c) “broadcasting organization” and “cablecasting organization” mean the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representations thereof, and the assembly and scheduling of the content of the transmission;

WIPO: The definition proposed in item(c) consists of three main elements: (1) the person shall be a “legal entity”, (2) taking “the initiative” and having “the responsibility”, for “the transmission”, and (3) for “the assembly and scheduling of the content of the transmission”.

In the Treaty there is no definition of the term “broadcast” and no definition of "cablecast".

(d) “retransmission” means the simultaneous transmission for the reception by the public by any means of a transmission referred to in provisions (a) or (b) of this Article by any other person than the original broadcasting or cablecasting organization; simultaneous transmission of a retransmission shall be understood as well to be a retransmission;

WIPO: Item(d) contains a definition of “retransmission”. The notion of “retransmission”, in the defined form, embraces all forms of retransmission by any means, i.e. by wire or wireless means, including combined means. It covers rebroadcasting, retransmission by wire or cable, and retransmission over computer networks. Retransmission is relevant only when it is done by another person than the original transmitting organization, and done for the reception by the public. This is manifested in explicit terms in the proposed definition.

It follows the definition of “rebroadcasting” of the Rome Convention which is confined only to simultaneous broadcasting of the broadcast of another broadcasting organization. The Berne Convention also operates in a similar manner; Article11bis(1)(ii) sets forth the rights of authors in respect of their broadcast works, using the concept of simultaneous retransmission (using the expression “communication to the public by wire or by rebroadcasting”).

(e) “communication to the public” means making the transmissions referred to in provisions (a), (b) or (d) of this Article audible or visible, or audible and visible, in places accessible to the public;

WIPO: Item(e) contains, for purposes of the Treaty, a very specific, narrow definition of “communication to the public.” It refers to the special case of public performance to an audience present in the place where the performance (“rendition,” “display,” etc.) takes place. It draws upon the concept used for television broadcasts in Article13(d) of the Rome Convention but extends to the communication to the public of program content of transmissions, or retransmissions, conveying both sounds and images and sounds.

Communication of this type may include the reception of a signal and projection of the program content of the broadcast to the public in a café, hotel lobby, the premises of a fair, on the screen of a cinema, or in other premises open to the public. The definition is meant to include making program content audible and/or visible to the public through a radio or a television set located in the types of premises mentioned above. In one proposal “communication to the public” was limited to television as in the Rome Convention. In other proposals “communication to the public” was extended to “communication” or “rendition” to the public from a fixation of a transmission. Some Delegations limited the right to control the “communication to the public” to places accessible to the public only upon the payment of an entrance fee. The extent of the right in this respect shall be decided in the context of Article 10. Finally, it should be noted that the expression “(any) communication to the public” has been used for different purposes in the Rome Convention and the WPPT, and in the Berne Convention and the WCT, as compared to this new Instrument and each other.

(f) “fixation” means the embodiment of sounds or of images or of images and sounds or of e representations thereof, from which they can be perceived, reproduced or communicated
through a device.

WIPO: Item (f) defines the term “fixation”. It follows the definition of “fixation” in the WPPT. After the phrase “embodiment of sounds”, the phrase “or of images or of images and sounds” has been added. The term “embodiment” covers the result of incorporating or recording program material carried by a signal using whatever means and whatever medium. Furthermore, it should be pointed out that, as in the corresponding definition in the WPPT, the definition of fixation does not qualify or quantify the duration of the life of the embodiment necessary to result in fixation. There are no conditions regarding the requisite permanence or stability of the embodiment.

******************************************************
Article 6

Scope of Application

(1) The protection granted under this Treaty extends only to signals used for the
transmissions by the beneficiaries of the protection of this Treaty, and not to works and other protected subject matter carried by such signals.

(2) The provisions of this Treaty shall apply to the protection of broadcasting organizations in respect of their broadcasts.

(3) The provisions of this Treaty shall apply mutatis mutandis to the protection of
cablecasting organizations in respect of their cablecasts.

Paragraph(3) is the provision by which Contracting Parties will extend protection, by
mutatis mutandis (the necessary changes having been made) application, to cablecasting organizations.

Gwen Hinze: SCCR 15 final notes and recommendations

2006-09-17T04:09:00.000-07:00

Find the full notes of Day 3 (September 13, 2006) of the WIPO SCCR 15 meeting on the Broadcasting Treaty taken by EFF and CP Tech and the final recommendations.

WIPO Press release on SCCR recommendation for DipConf

2006-09-14T06:50:00.000-07:00

Here is the rather straightforward WIPO press release.
------
Press Release 454

Geneva, September 14, 2006

NEGOTIATIONS ON THE PROTECTION OF BROADCASTING ORGANIZATIONS ENTERS FINAL PHASE

A key committee of the World Intellectual Property Organization (WIPO) agreed today to convene a diplomatic conference from July 11 to August 1, 2007 to update the rights of broadcasting organizations. This recommendation is to be endorsed by the WIPO General Assembly when it meets later this month. The objective of this diplomatic conference, the last phase of treaty negotiations, is to conclude a treaty on the protection of broadcasting organizations, including cablecasting organizations.

A resolution adopted by the WIPO General Assembly in October 2005 scheduled two additional meetings of the Standing Committee on Copyright and Related Rights (SCCR) "to agree and finalize a Basic Proposal for a treaty on the protection of the rights of broadcasting organizations in order to enable the 2006 WIPO General Assembly to recommend the convening of a Diplomatic Conference in December 2006 or at an appropriate date in 2007."

The SCCR agreed that a draft basic proposal presented at this week’s meeting would constitute the basis for negotiations at the diplomatic conference with the understanding that member states may submit proposals at that conference.

WIPO Director General, Dr. Kamil Idris, welcomed the positive outcome of the meeting as well as the political will demonstrated by member states to conclude the negotiations. He said "The positive spirit that has characterized these discussions will further strengthen consensus on these issues in the months leading up to the diplomatic conference." Dr. Idris said "The success of this process hinges on the continued inclusiveness of the debate which seeks to reach an agreement that is balanced and serves the common interests of all stakeholders."

The Committee also agreed, following endorsement of their recommendation by the WIPO General Assembly, to convene a one day preparatory committee in January 2007 to prepare the necessary modalities of the diplomatic conference. The preparatory committee considers the draft rules of procedure to be presented for adoption to the diplomatic conference, the lists of states, as well as intergovernmental and non-governmental organizations to be invited to participate in the conference as well as other organizational matters. A special two-day meeting will be held in conjunction with the preparatory meeting to further clarify outstanding issues.

Delegates also agreed that WIPO would organize, at the request of member states, consultations and information meetings on matters relating to the diplomatic conference. Such meetings would be hosted by the inviting member state.

Discussions at this week’s session (15th session) of the SCCR were confined to the protection of traditional broadcasting organizations and cablecasting. This followed a decision by the 14th session of the SCCR from 1 to 5 May, 2006, to examine questions of webcasting and simulcasting on a separate track following the forthcoming session of the WIPO Assemblies meetings from 25 September to 3 October, 2006.

Updating the IP rights of broadcasters, currently provided by the 1961 Rome Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, began at WIPO in 1997. A growing signal piracy problem in many parts of the world, including piracy of digitized pre-broadcast signals, has made this need more acute.

For further information please contact the Media Relations and Public Affairs Section at:

Tel: (+41 22) - 338 81 61 or 338 95 47
Fax: (+41 22) - 338 88 10
Email: publicinf@wipo.int.

Arm twisting time

2006-09-13T07:21:00.000-07:00

We are now at 4pm on the last of a three day meeting. Jukka Liedes is insisting upon a three page document, "Draft conclusions of the SCCR," which was handed out before lunch. It calls for a May/July diplomatic conference in Geneva. He wants a preparatory committee to meet in December 2006, with uncertain duties, and the authority to prepare a new "basic proposal" by February 28, 2007, followed by regional consolations.

The treaty is supposed to "provide protection fro the signals of the broadcasting and cablecasting organizations without affecting or addressing the rights on content carried by the signal." But paradoxically, it calls for a minimum 20 year term of protection, and a set of exclusive rights, including fixation, retransmission and post-fixation "downstream" rights, as well as WCT type TPM language. Verbally, Jukkas has not given up on getting webcasting in the treaty, and many see it already in the current draft, in the various parts of Articles 5 and 9.

There will be new definitions, a new preamble, and a reordering of sections.

Lots of countries don't like his proposal. India is taking a hard line. But Jukka and the WIPO Secretariat staff is bound and determined to pound on delegates to go along.

It is not at all obvious how this meeting will end today.

Michelle Childs: Morning session final day WIPO 13th September 06

2006-09-13T06:36:00.000-07:00

Morning session final day WIPO 13th September 06

After the solo performance of the chair of the committee yesterday with his promise of hugs and kisses and life long friendships at a Diplomatic conference this morning we heard the reaction from some delegates notably India and Brazil. It was not good for the Chair. They made it clear that there are still serious concerns and questioned the advisability of going for a Diplomatic conference (DC) (the final stage of Treaty making and the outcome pushed by the Chair) at this stage.

The last two days have been dominated by speculations about the series of bilateral discussions that have been taking place between the US, India, Brazil and the EU. While they have all had discussions with other countries, these parties are seen by many as the keys to whether an agreement for a Diplomatic Conference will be reached.

India introduced some reality into the situation and a strong rebuff to the idea that any differences could simply be resolved at a the DC. In an eloquent and detailed speech they pointed out that they still had major concerns that went to the heart of the treaty namely the inclusion of the references to webcasting ‘in its widest sense’ in the text and going beyond a signals based approach . Any further push for a Diplomatic Conference (DC) with first addressing this issue would likely lead to more acrimony than acceptance. They ended in the starkest terms, that if these 2 issues were not addressed and bought under some common understanding the ‘going up the garden path’ to a DC would likely end in fiasco..

Russia , Mexico and the Philipines then spoke ion favour of going for a DC.

Brazil in a carefully worded intervention gave an insight into what has been discussed in private. Said that they would support to a certain extent a treaty which focused on a more narrower basis focusing on a right of transmission which was supported by ‘some delegates’. The reference to transmission by any means included over computer networks ( seen as the webcasting references) at least as a defensive measure was imperative to some members. The extent to which even this references would turn the Treaty into one which covered webcasting/simulcasting was the ‘million dollar question’ that required further discussion/research.

Then their main concern- which was on procedure. They were not prepared to agree to a DC based on the Chairs suggestion of delegates providing him with broad drafting instructions to prepare the text to be discussed at the DC. They would want to see the text.

Iran and Indonesia joined in criticism of the procedure . Iran wanted space before and DC to have a clean text . Indonesia wanted an impact study before a DC.

Chile with a great metaphor also criticized the rush to trying to establish a date for the DC without having a clear text. “ you need to swim before buying a swimming pool

The was then a break when the talk was that there would be no DC and that India ‘s views were key. During that break the chair's draft of next steps was circulated which includes the controversial drafting steps and seeks to set a date for the DC.

The proposal for the afternoon is to go through this document point by point. Though the EU reserved the right to make a global, statement as they don’t think a point by point approach is the best way, as the issues are linked.

Then lunch. The chair met with India . The outcome is not known.

This afternoon session promises to be lively!

WIPO Struggles with openness

2006-09-13T03:09:00.000-07:00

So far this week SCCR Chair Jukka Liedes has strongly opposed giving NGOs the opportunity to speak.

CPTech asked Jule Sigal from the US Library of Congress and Ann Chaitovitz to approach the chair to support the right of the public to speak.* The Library of Congress is opposed to having the public speak at this meeting. WIPO is not providing enough seats in the room, and unlike other meetings, there are no overflow rooms so some NGOs have not been allowed to follow the debate. One NGO was told to stop taking pictures of the proceedings.

Normally, NGOs can speak, and often their contributions address important substantive and strategic issues overlooked or not adequately explored during the interventions by governments, partly because governments are often constrained by diplomatic and political considerations. There is certainly plenty of time. The meetings have started late, and often adjourned early, and many countries are saying very little during the debates.

One interpretation of decision to stop the public from speaking is to control the perception that there is a consensus in favor of a new intellectual property right for broadcasting and cablecasting entities, in a model that will likely be extended to the Internet in different ways.

Given the poor track record of government negotiators in protecting the public interest in several recent negotiations on intellectual property rights, ** it is certainly rational to ask if government voices are sufficient in these debates.

----------------------
*The USPTO and the LOC recently held a consultation on the treaty in Washington, DC that was limited to 40 participants, and did not permit the meeting to be recorded for broadcasting on the Internet.

**The TRIPS Agreement, the 1996 WCT and WPPT, the highly problematic Appendix the Berne, the highly problematic 2005 amendments to the TRIPS regarding exports of medicines manufactured under a compulsory license, the plethora of recent regional and bilateral IPR chapters in FTA and other trade agreements, and the most recent UPOV plant varieties treaty.

Summary of notes Day 2 "Moving toward a dip conf"

2006-09-12T09:18:00.000-07:00

Summary of notes of Day 2 of the WIPO Broadcasting Treaty

The buzz is that it's moving fast toward a diplomatic conference.....

The morning session that was scheduled last night started at 10 and did not last long because the chair asked delegations to meet informally to resolve differences. The room was packed and for the first time WIPO did not provide extra chairs and there was no "room B" where one could at least listen to the proceedings.

The committee ended its discussion on rights and limitations and exceptions (and TPM). Korea, Singapore and other called for a diplomatic conference, South Africa made an excellent intervention asking questions about the broad scope and lack of clarity. Like Iran, the delegation stated that the proposed text be cleaned of ambiguous terms. South Africa supports the non exhaustive list of limitations and exceptions and want TPM provision deleted.

During lunchtime, the civil Society Coalition hosted a briefing in room B. Representatives from a coalition that signed a joint statement and representatives of organizations that signed onto a proposal for a signal protection only proposal expressed their concerns regarding the treaty.

Here is the list of presenters: Jeffrey Lawrence, Director, Global Content Policy Intel Corporation; Sarah B. Deutsch, Vice President & Associate General Counsel Verizon Communications; Matthew Schruers, Senior Counsel for Litigation & Legislative Affairs, Computer & Communications Industry Association (CCIA);Nick Ashton-Hart Adviser, NGO & Industry Coalition, Former Executive Director International Music Managers Forum (IMMF), James Love Director
Consumer Project on Technology, Respondent: Mr. Sisule Musungu, Acting Coordinator, Innovation, Access to Knowledge and Intellectual Property Programme (IAIPP) South Centre.

Main points were there's no justification for the treaty, no evidence was given by demandeurs, the current rights-based approach of the treaty must be abandoned, intermediary liability is not resolved, and impact on innovation.

Sisule Musungu, noted that while people say that the treaty has been under discussion for "9 long years", the committee has in fact only met (at most) for 66 days...and that may not be enough "substantial discussions" for a treaty of such importance and that will last for maybe a century!

And the following afternoon session was a case in point. There were very few substantial interventions. Switzerland supports the scheduling of a diplomatic conference and wants limitations and exceptions as suggested by the US corresponding to the WPPT. The Dominican Republic supports flexible limitations and exceptions as proposed by Chile, brazil and Perou. They are not really opposed to TPM but warned that they should not be detrimental to the public interest.

At 5pm, the committee had a break and will meet again. The plan is (maybe) to hear the African group position on rights and limitations and exceptions and then to start the "assessment".

Back from break
Nigeria on behalf of the African group expressed caution regarding access to knowledge and information and TPM. They support a study on the impact of such provisions. Morocco, Kenya, Benin and Egypt spoke briefly to support the convening of a diplomatic conference in 2007. They all emtnioned the long years of discussions.

Break at 6pm, we;ll be back at 7:45 to discuss how the process will move forward.

Dipconf seems likely at this point -- now for the US it's the cablecasting treaty

2006-09-12T09:01:00.000-07:00

The US and the EU are showing some flexibility. The Africa group has called for a diplomatic conference. Many delegates seem inclined to move ahead to get this issue behind them. Too early to tell what type of rights will be included. The TPM measures are likely to only be those relating to the protection of the signal, and not to the content. Webcasting, netcasting and simulcasting is supposed to be out, but that is not really certain, and no one really knows what Article 9 does.

For the US, Canada and many other countries -- the short term outcome will effectively be a new treaty for cablecasting -- something not covered by the Rome Convention. No one has really thought about what this will mean, because the cable companies have not been showing up, and everyone was focusing on broadcasting and webcasting. But most people in the US and many other countries get TV primarily through cable, rather than over-the-air broadcasting.

Who are the beneficiaries of a "cablecasting" right? According to many delegates here, it will be the cable "channels," not the local cable company. Thus, it turns out that News Corp and Time Warner -- two companies attending this meeting, will be defined as "cablecasters" for their various cable channel offerings. So too for many other big aggregators of content for cable platforms around the world.

How will this play out when the cable company provides Internet access? I think this is not well thought out either.

South Africa's comments on L&E, scope, and TPMs

2006-09-12T02:53:00.000-07:00

12 September 2006

At the 15th Session of the WIPO Standing Committe on Copyright and Related Rights (SCCR), the delegation of South Africa made perspicacious remarks on the scope of definition, simulcasting, limitations and exceptions and technological protection measures (TPMs).

South Africa concurred with the intervention of Indian delegate who articulated that the Committee clearly define the nature of the term "broadcast".

South Africa highlighted the intervention of the Islamic Republic of Iran which called for a cleansing of the terms "by any means" and "over computer networks" from the draft basic proposal.

With respect to limitations and exceptions, South Africa expressed support of Brazil's call for the "desirability of delineating exceptions and limitations". South Africa noted that the list of limitations and exceptions include a personal use exception and reminded the Committee of the need to preserve freedom of speech and enlightened values.

On the question of technological protection measures, South Africa called for a careful approach that did not curtail Member States' ability to regulate anti-competitive practices. Finally, South Africa called upon WIPO to conduct a study of best practices on the enforcement of TPMs.

*(Thanks to Gwen Hinze of the Electronic Frontier Foundation for input)

Quick notes from First Morning Session at SCCR 15

2006-09-11T05:16:00.000-07:00

Monday Sept 11 10:30 WIPO SCCR 15th

The meeting started at 10:30 with a detailed introduction by Jukka Lieddes who was re-elected chair. He re-stated the tasks of the committee as decided by the General Assembly of 2005 when it was decided that there would 2 additional meetings scheduled "to accelerate, to agree and finalize" in order that the 2006 general Assembly can convene a Diplomatic conference in 2006 or 2007 at appropriate time etc.

The chair summarized what happened in May 2006 (SCCR14) and how the "clean text" had to be modified to include again all the alternatives. But simulcasting and webcasting were put on a different track and will not be discussed for this meeting.

Recalling other treaty negotiations (1996 and 2000), the chair stated that this treaty dealing with traditional broadcasting [and cablecasting] did not have real "deal breaker" and that it was possible to have acceptable working document to be discussed at a diplomatic conference in 2007 since December 2006 was not realistic.

He noted that there was "2 elements that needed to be tackled": one was that there was discussions of the treaty on the internet and other places and that there was a need for clarification. He explained that there was no completely new rights to be discussed here. The other elements that needed to be clarified was the right of retransmission by any means "over computer networks". He maintained that no, that did not mean that webcasting was included.

He designed a tentative working plan for the committee:

Afternoon session today: Rights and if enough time Limitaations and Exceptions and TPMs.

Informal discussion tomorrow morning (he encouraged delegations to meet informally) and then 2 plenaries, one in the afternoon and one at night. Then, if enough consensus, the secretariat and himself woul draft a new treaty proposal and present it on Wednesday.

After the coffee break, he explained the afternoon session again. There will be 2 "packages" one was the rights and the other limitations and exceptions and TPMs.
The rights that will be discussed are:
Article 9 - Right of Retransmission ( see doc SCCR/15/2 p41)
Article 10 - Right of Communication to the Public p.43
Article 11 - Right of Fixation p. 45
moment when signal is in the air, the broacast in the air or in cable and someone has a device capturing and fixing the signal as well as the program. the life time of fixation can be short or long

Then we'll discuss the "then downstream rights":
Article 12 - Right of Reproduction p47
Article 13 - Right of Distribution p 51
this one disappeared for a while because opposition but is back now
Article 14 - Right of Transmission Following Fixation p.55
Article 15 - Right of Making Available of Fixed Broadcasts p.57

a fixation in a database or server so public can access. it is another way to exploit what was the output of the org
Article 16 - Protection in Relation to Signals Prior to Broadcasting p 61
some call it deferred but it is another original transmission. no need to exagerat problem in naming. there's a fixation and then a delay.
11bis of Berne retransmission is only for simultaneous and by other.

No delegation asked for the floor so the morning session ended. back at 3pm.

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

2006-09-07T06:30:00.000-07:00

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 video.google.com, youtube.com, myspace.com, 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.

USPTO/Copyright office Meeting: Summary of notes

2006-09-06T11:01:00.000-07:00

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.

1:00pm
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.

1:33

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 but...one 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.

Jule Sigal: Let's have reply comments by proponents [NOTE FROM MANON: WAS THIS EXTRA TIME FOR REPLY FROM THE PROPONENTS PLANNED? WHY DO THEY GET 2 TURNS?]

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.

Joint Industry/NGO statement on WIPO casting treaty

2006-09-05T07:29:00.000-07:00

Here is the text of the new joint industry/NGO letter.

SEPTEMBER 5, 2006

STATEMENT CONCERNING THE WIPO BROADCAST TREATY PROVIDED BY CERTAIN INFORMATION TECHNOLOGY, CONSUMER ELECTRONICS AND TELECOMMUNICATIONS INDUSTRY REPRESENTATIVES, PUBLIC INTEREST ORGANIZATIONS, AND PERFORMERS’ REPRESENTATIVES

The undersigned represent a broad and diverse group, united in a common belief that the WIPO Treaty on the Protection of Broadcasts and Broadcasting Organizations, as currently drafted, would harm important economic and public policy interests. This Statement offers comments on several key aspects of the treaty.

No justification for treaty. We remain unconvinced that a treaty is necessary at all. We note with concern that treaty proponents have not clearly identified the particular problems that the treaty would ostensibly solve, and we question whether there are in fact significant problems that are not addressed adequately under existing law. Further, we are concerned that the current treaty approach differs radically from U.S. legal traditions, and, if implemented, would require substantial and unnecessary changes to current U.S. law.

Scope. If the treaty moves forward in any form, we believe that the current rights-based approach of the treaty must be abandoned. Creating broad new intellectual property rights in order to protect broadcast signals is misguided and unnecessary, and risks serious unintended negative consequences. We recommend instead a signal protection-oriented approach, ideally focusing narrowly and specifically on protecting signals from intentional misappropriation or theft. We note that most of the concerns expressed in this Statement would be rendered moot by a treaty and associated implementing legislation that narrowly addressed signal theft.

Limitations and exceptions. To the degree that the treaty leaves room for implementing states to create broader rights or protections beyond protection against intentional signal theft, then we believe that a mandatory set of limitations and exceptions must be included in the treaty in order to ensure that uses of broadcast content that are lawful under copyright law are not inhibited by the treaty. At a minimum, limitations and exceptions under the treaty should be equivalent to those that an implementing state provides under its copyright laws, and should provide flexibility for additional limitations and exceptions that are appropriate in a digital network environment.

Home and personal networking. Under the current draft of the treaty, the broad scope of the proposed rights, combined with proposed additional rights regarding technological protection measures (TPMs) in connection with these rights, raises questions about whether “casters” would gain the ability to control signals in the home or personal network environment. Such control is without precedent and would interfere with the rollout of broadband and home and personal networking services and limit the development of innovative devices that provide home and personal networking functionality. Accordingly, the treaty should include a provision excluding coverage of fixations, transmissions or retransmissions across a home or personal network. Further, we should note that many of our group believe that TPM provisions are inappropriate in connection with this treaty and should be excluded from the treaty entirely.

Intermediary liability. We have serious concerns that network intermediaries would face the threat of direct or secondary liability for infringement of the broad rights granted under the current treaty draft. The exceptions from liability afforded under the current text of the treaty only apply to broadcasters, not to intermediaries. Further, the limitations of liability afforded to intermediaries today under existing national laws would only protect against copyright infringement, not against a violation of these broad new rights. We believe that the treaty should ensure that network intermediaries do not face liability for alleged infringement of rights or violations of prohibitions by virtue of actions they take in their normal course of business or by actions of their customers.

Computer networks. The current treaty draft includes protection for Internet simulcasts made by traditional broadcasters an cablecasters, but otherwise excludes computer networks from its scope. While members of our group do not share a common view about the best approach to addressing Internet-related issues, we are united in our belief that the current approach is unacceptable. Further, to the extent that the treaty continues to take a rights-based approach rather than a signal-theft-based approach, we oppose the treaty’s application to the Internet.

Please note that issues identified in this Statement do not represent a comprehensive list of the concerns of all members of our group. Individual group members intend to independently raise other issues of serious concern, and to further discuss the issues identified here.

SIGNED:
American Association of Law Libraries
American Library Association
Association of Research Libraries
AT&T
Broadband Service Providers Association
Center for Democracy & Technology
Computer and Communications Industry
Association
Consumer Electronics Association
Consumer Project on Technology
Creative Commons
CTIA - The Wireless Association
Dell Inc.
Electronic Frontier Foundation
FreePress
Hewlett Packard Company
Home Recording Rights Coalition
Intel Corporation
International Music Managers Forum
Internet Society
IP Justice
Media Access Project
Medical Library Association
National Association of State PIRGs
Panasonic Corporation of North America
Public Knowledge
RadioShack Corporation
Special Libraries Association
Sony Electronics Incorporated
TiVo Inc.
Union for the Public Domain
U.S. Internet Industry Association
U.S. Music Managers Forum
U.S. Public Interest Research Group
USTelecom
Verizon Communications Inc.
Verizon Wireless
Yale Information Society Project

How restrictive is the USPTO/LOC proposed definition for "netcasting"?

2006-09-02T10:10:00.000-07:00

This morning I created a web page called "Look, I'm a Netcaster," http://lookimanetcaster.blogspot.com/.

I created a schedule of "netcasts." I believe this site qualifies under the USPTO/LOC proposed definition of netcasting (a)(1):

(a) “netcasting” means the transmission by wire or wireless means over a computer network, such as through Internet protocol or any successor protocol, for simultaneous or near-simultaneous reception by members of the public, at a time determined solely by the netcasting organization, of sounds or of images or of images and sounds or of the representation thereof,

(1) that are of a program or programs consisting of pre-recorded, scheduled audio, visual or audiovisual content of the type that can be carried by the program-carrying signal of a broadcast or cablecast; or . . .

Agreed statement concerning these definitions: The scope of the definition of “netcasting” is intended to be limited to transmissions over computer networks carrying programs consisting of audio, visual or audio-visual content or representations thereof which are of the type that can be, but are not necessarily, carried by the program carrying signal of a broadcast or cablecast, and which are delivered to the public in a format similar to broadcasting or cablecasting. By its terms, “netcasting” does not include merely providing access to audio or video content that is not pre-recorded for purposes of transmission via broadcast, cablecast or netcast.

The netcasting definition is not particularly restritive. It would seem that sites like http://www.clipaday.com/ would also qualify, and more generally, anyone who wanted to create an automated "schedule" for content would also qualify to acquire rights under the proposed treaty.

Basically, producted content would include any "audio, visual or audiovisual content of the type that can be carried by the program-carrying signal of a broadcast or cablecast," that is somehow "scheduled," which is something less than "merely providing access." The distinction between scheduling and "merely providing access" will be fairly minor if the "netcasters" receive parity with broadcasters, and if the broadcaster's treaty provides for rights of fixation, retransmission, etc, as is the case in the current draft by Jukka Liedes. Consider, for example, the following rights in July 31, 2006 proposal SCCR/15/2.

Article 9 - Right of Retransmission
Article 10 - Right of Communication to the Public
Article 11 - Right of Fixation
Article 12 - Right of Reproduction
Article 13 - Right of Distribution
Article 14 - Right of Transmission Following Fixation
Article 15 - Right of Making Available of Fixed Broadcasts

Once a "netcast" is scheduled, and the netcaster makes a fixation, it can be re-distributed in the normal download on demand way that is the same as "merely providing access."

The US negotiators present their "netcasting" defintition in a document that also endorses a different approach to the treaty, one that focuses on "signal privacy" rather than economic rights (a position we applaud). But the US PTO/LOC also says "the protection for netcasting should be the same as that provided for traditional broadcasters and cablecasters." This is the problem. At least 83 countries have already signed the Rome Convention, so some type of Rome or Rome+ rights such as those proposed in the July 31, 2006 treaty draft are likely to be demanded by broadcasters. It is just not very realistic that a new broadcast treaty will provide for fewer economic rights than the Rome, and Rome+ rights are probably more realistic. Thus, the USPTO should either abandon its position in favor of parity between broadcasters and netcasters, or oppose any extension of the treaty to the Internet.

Of course, none of this is necessary. There is no big problem of signal theft for broadcasting, cable TV or the Internet that cannot be addressed under existing laws, including copyright. Countries like the US that never implemented Rome type "broadcaster rights" have very succcessful and profitable broadcasting industries.

And it is doubly absurd to think we are creating this new regime at the very same time the costs of publishing are falling and it is becoming so much easier to distribute audio visual content. This whole exercise is a treaty searching for a rationale.