> http://www.nyfairuse.org/action/wipo.xcast/xcast.usdelmeet.xhtml
Selections from a Meeting with the US Delegation to WIPO on the
WIPO Broadcaster's Treaty
February 8, 2006
United States Patent and Trademark Office
Arlington, Virginia
On February 8, 2006, a broad range of advocates met with the
United States Delegation to the World Intellectual Property
Organization, calling for the process by which the WIPO
Broadcaster's Treaty is being pursued to be opened up to public
input and taken up in appropriate representative and legislative
channels, including publication of the treaty in the Federal
Register. Below are select comments from this meeting, along
with links to audio files.
< SNIP >
> http://www.nyfairuse.org/action/wipo.xcast/xcast.usdelmeet.xhtml
Selections from a Meeting with the US Delegation to WIPO on the WIPO
Broadcaster's Treaty
February 8, 2006
United States Patent and Trademark Office
Arlington, Virginia
On February 8, 2006, a broad range of advocates met with the United States
Delegation to the World Intellectual Property Organization, calling for the
process by which the WIPO Broadcaster's Treaty is being pursued to be opened up
to public input and taken up in appropriate representative and legislative
channels, including publication of the treaty in the Federal Register. Below
are select comments from this meeting, along with links to audio files.
(These audio recordings are in the free and unencumbered Ogg/Vorbis format.
Click here for audio players that will allow you to listen to them
[http://www.nyfairuse.org/oggplayer/].)
In Attendance:
(* = Speakers)
US Delegation to WIPO:
Mike Keplinger*, US Patent and Trademark Office
Jule Sigall*, US Copyright Office
Ann Chaitovitz, US Patent and Trademark Office
Marla Poor, US Copyright Office
Attendees:
John Bachir*, Ibiblio
Tom Barger, DMusic.com
Shyam Balganesh, Union for the Public Domain
Marilyn Cade*, McCade, LLC
Sarah Deutsch*, Verizon Incorporated
Harold Feld*, Media Access Project
Gwen Hinze*, Electronic Frontier Foundation
Pam Howell, Esoteric Resources Incorporated
Paul Hyland*, Computer Professionals for Social Responsibility
Seth Johnson*, New Yorkers for Fair Use
Dan Krimm*, Independent Musician
Janice LaChance, Special Libraries Association
Ed Mierzwinski*, US Public Interest Research Group
John Mitchell*, InteractionLaw
Bruce Perens*, Entrepreneur
Manon Ress, Consumer Project for Technology
Judit Rius Sanjuan, Consumer Project for Technology
Richard Stallman*, Free Software Foundation
Jay Sulzberger*, New Yorkers for Fair Use
David Tannenbaum*, Union for the Public Domain
Paul Uhlir, National Academies
David Weinberger*, Harvard Berkman Center
Brett Wynkoop*, Wynn Data Limited
Mike Keplinger and Jule Sigall, Introductory Comments
http://www.nyfairuse.org/action/wipo.xcast/audio/01-Mike-Keplinger-Introductory-Comments.ogg
· There is currently a legal protection regime for broadcasters
in US, and in most places in the world.
· Our purpose is to update protection, to take into account
things that have happened since the Rome Convention in the
1970's
· We have supported protection for broadcasters and their
signals because that helps preserve incentives to promote
wide dissemination of those signals consistent with
protection of underlying copyright and neighboring rights
· We are open to considering all options on implementing
whatever comes out of the process at WIPO. That's something
Congress will have to consider, after the treaty is adopted.
· After the last meeting of the WIPO Standing Committee on
Copyright and Related Rights, the Chairman Chairman received
instructions to take the basic proposal and revise it,
streamline it, cut it down, eliminate redundancies, eliminate
provisions which have garnered little support.
· The chairman was instructed to look at provisions for
webcasting and refine the definition so it only applies to
the part that corresponds to over the air broadcasting
· We have supported extending protection to all people who
communicate this information to the public -- broadcasters,
cablecasters and webcasters
· To be effective, it must be technologically neutral -- to
ignore different media which people who assemble this content
use to get it to the public, simply is not appropriate
Jay Sulzberger, New Yorkers for Fair Use
http://www.nyfairuse.org/action/wipo.xcast/audio/02-Jay-Sulzberger.ogg
· We find it strange that the US Delegation, according to
CPTech, should be pushing very hard for a treaty which has
provisions which the Congress, the Commerce Department and
the courts have rejected vigorously in the past ten years
· We have lots to say about how bad the treaty is -- it's an
anti-copyright treaty, anti-author treaty, anti-publication
treaty -- but beyond that it contains clauses that could
require the US to install wiretapping and remote control
machinery -- also called DRM -- in every single computer sold
for the fundamental infrastructure of the Internet
· No American is for this -- people just don't understand what
DRM is, despite the recent brouhaha with Sony BMG, any DRM
has got to be much worse than Sony BMG
· The United States position is clear; Senators have spoken
directly to courts and asked them to rule, and they have: the
FCC doesn't have the right to impose this stuff
· We also find it absurd that they should be pushing for
something that would violate Article I, Section 8, that would
give copyright in effect to people who aren't the authors
· Our point is procedural -- you should not be pushing for this
without Congress, without the Library of Congress holding
public hearings and giving you instructions. That's it --
procedure; substantive things we'll argue later
Seth Johnson, New Yorkers for Fair Use
http://www.nyfairuse.org/action/wipo.xcast/audio/03-Seth-Johnson-Introductory-Comments.ogg
· What's happening is instead of going through Congress, who
have the authority, the assigned role of developing exclusive
rights policy, we have the broadcast flag being imposed by
international treaty
· You said in your introductory comments that after the treaty
is adopted, then Congress will take it up. I find that very
odd, given the subject matter of this treaty -- Congress has
this power. I'd be very interested in how you see the
relationship between the treaty-making power and the various
powers under [Article I,] Section 8 in the Constitution
· Policy-making in these areas must be taken up in
representative legislative channels, in both Houses, with
full public disclosure and input -- that means go through the
Federal Register, give plenty of time before you start going
to imposing this kind of a communications or copyright policy
-- whatever you want to call it -- in international treaties
· Congress -- both Houses -- needs to actually address this.
This is an exclusive rights policy; it doesn't matter if it's
not copyright; exclusive rights are Congress's power
· The time has come to take up the question of what are the
proper forms of exclusive rights policy -- things like
copyright, patents and trademark, or whatever you're calling
this thing -- should take in the digital age
· Exclusive rights policies must be addressed by Congress in
terms of what premises should underlie communications and
exclusive rights policy at a time when everybody owns and
uses a computer and has the power of end-to-end connectivity.
That's the condition we're in, and you have to address that.
The Constitution uniquely empowers Congress to craft
exclusive rights policy
· We must protect the principle of content-neutral, end-to-end
connectivity, and the Broadcaster's Treaty would take that
away; it would basically remove the Internet as we experience
it today
Mike Keplinger, Seth Johnson, Brett Wynkoop
http://www.nyfairuse.org/action/wipo.xcast/audio/04-Mike-Keplinger-Seth-Johnson-Brett%20Wynkoop.ogg
· Johnson: Who was it that instructed the Chairman to go
forward? You said the Chairman "was instructed" -- who
instructed him?
· Keplinger: The WIPO Standing Committee on Copyright
· Wynkoop: People that are not part of the United States
government, not elected by the people, and do not report to
people who were elected by the people of the United States,
correct?
Harold Feld, Media Access Project
http://www.nyfairuse.org/action/wipo.xcast/audio/05-Harold-Feld.ogg
· My sense is that this is a standard treaty consultation
process . . . I understand that the US is working within the
context of a recognized international treaty organization;
therefore the referral of the type that you describe -- while
a point of clarification is useful -- is not in itself
unusual or in any way an odd attempt to circumvent the
traditional legislative process; this is just one of the
things that happens over years of negotiation of the treaty
· My own feeling, having heard about this treaty almost for the
first time a month ago, and then having looked at it
seriously when I was asked to participate in this, I have to
say that I must echo the concerns of using both legislative
processes and in particular the use of publication in the
Federal Register to seek broad notice and comment on the
proposed treaty. The reason for this is not the democratic
concerns and the stakeholder concerns which have been raised
by others here, with which of course I would agree, but as a
matter of pragmatism and a desire to avoid unnecessary
conflict and unintended consequences in the implementation of
this treaty
· The medley of rights that is proposed here has huge potential
consequences extending far beyond the narrow universe that we
are used to thinking of in terms of broadcasting, and the
ability to create content and transmit content continues to
grow as . . . the nature of broadcasting itself is changing
· The nature of online distribution is constantly changing; and
we have seen here within the US within a relatively short
period of time, in the reform and expansion of the patent
regime, in the reform and expansion of the copyright regime,
that there are frequently unintended consequences that could
have been discussed, considered, and ameliorated, had a wider
range of experts and interested parties been aware of the
process and had an opportunity to meaningfully participate.
The universe of people who are producing content,
transmitting content, internally distributing it, has simply
grown too vast, and it's too invisible, either from Geneva or
even here in Washington, DC
· Consultations such as this, while important and useful,
cannot replace the opportunity to engage academics,
economists, producers of content -- from the miniscule level
of bloggers using now video and audio vlogging and wanting
that content to be retransmitted but using third party hosts,
who may over time have a different set of incentives -- to
the implications of this for multibillion dollar industries
as the convergence of telecommunications, cable and
broadcasting industries, which are rapidly moving to a more
dynamic mode of communications which encompasses within it
many things which might fall into this treaty
Bruce Perens, Entrepreneur
http://www.nyfairuse.org/action/wipo.xcast/audio/07-Bruce-Perens.ogg
· I wear two hats. One is, I am one of the founders of a
campaign called open source, which popularized the use of
freely-usable, distributable and modifiable software -- as
first elucidated by Richard Stallman, near the head of the
table
· The other hat that I wear is that I am Vice President for
Policy of SourceLabs. SourceLabs is one of the venture-
funded open source facilitating companies. This particular
one was funded last year by two venture partners, one of whom
is Brad Silverberg, the ex-head of Microsoft Windows
development -- who left Microsoft and went into the open
source business
· There are quite a lot of businesses involved in open source
software today. And I believe that the people who are
working on this treaty are either not aware of or not
considering the effect on open source -- especially if
broadcast protection mechanisms -- technical mechanisms --
are mandated
· This treaty can make open source software an uncommunicating
island -- because open source would not be allowed, under the
terms of the implementing law, to receive broadcasts, since
there would be no assurance that open source software could
comply with all of the technical protection measures that the
implementing law would require
· We believe that only through a broad public consultation on
the treaty and its effects, can [its] effects be considered.
Most of the people in the open source industry aren't even
aware of this treaty yet
· The main vehicle [for democratic discourse] today is
electronic broadcasting on the conventional media that use
radio signals -- television, etc. The main vehicle tomorrow
will be the Internet. The Internet will be the way that you
receive and participate in democratic discouse
· In order for the Internet to be an appropriate vehicle for
democratic discourss, one must be able to quote and
retransmit discussion, and one must be able to receive
discussion from all possible channels. The reason that I
bring that up is, although we've recently had hearings on net
neutrality, here in DC, I think we're not considering that
this treaty can affect net neutrality as well, because DRM-
locked receiving devices need not receive all channels. In
general, they only receive the channels that are approved by
their manufacturers. And the implementing law of this treaty
would further that restriction and I believe have a choking
effect on democratic discourse in the future, simply because
people would not be able to receive all viewpoints
David Weinberger, Harvard Berkman Center
http://www.nyfairuse.org/action/wipo.xcast/audio/08-David-Weinberger.ogg
· I fully believe that you're doing what you believe is best,
and I appreciate your meeting with us. I think that our
visions of what's going on are quite different. It seems to
me that you believe that the Internet is turning all of us
into broadcasters, and in fact I believe, and I think many of
us here believe, that the opposite is happening, that
individual users, individual creators of "content" -- a term
I don't much like, because the "content" is actually
conversations -- is feeding broadcasting, and that it's more
important for values of democracy that that discourse, that
public conversation, which is so essential to democracy, be
encouraged
· I see this as a free speech issue. The treaty will impinge
upon our ability to engage in the democratic discourse.
Culture and thought and conversation can only continue if
we're able to talk about what other people have said, without
asking their permission. A permission-based culture, which
extends to the broadcasting model, is bad for the world
that's opening up for us, which is more open to democratic
values, the same democratic values that everybody here
supports, than we could have dreamed of ten years ago
· The treaty I believe impinges seriously on that, and so the
discussion I believe needs to be opened up, very broadly --
not only to the academics and the economists, and to
business, and to public policy people -- but to citizens, who
now, in the tens of millions -- tens of millions -- are
discovering the power of their own voice, in conversations,
and the treaty will impinge on that. I very much hope that
we'll be able to open this conversation up far more broadly
Richard Stallman, Free Software Foundation
http://www.nyfairuse.org/action/wipo.xcast/audio/09-Richard-Stallman.ogg
· Twenty-two years ago I started a movement to give Americans
and the rest of the world control over what their computers
do. You see, if you use a non-free program, the developer of
the program controls what you do; you don't control it. The
only way you can control your computer is if you have certain
essential freedoms in using your software, and these freedoms
include the freedom to run it as you wish, the freedom to
study the source code, which must be available to you, and to
change it to do what you wish, the freedom to distribute
copies to others with or without your changes. These
freedoms make it possible for citizens to form communities
and make their computers do what they want
· The opposite of this is DRM, digital restrictions management
-- I won't call it "rights management" because I'm taking the
public's point of view and the public's point of view is
restrictions that they manage. Those are programs designed
specifically to restrict your use of them, so in addition to
denying you the basic control of the software, what the
developer does with this power, is he uses it to then
restrict what you do when you run the program. This is an
example of the way that this power frequently is abused.
After all, the power belongs to businesses and they can make
more money if they abuse it, so they do
· This is the antithesis of free citizens using their own
computers with software that is their own property. The
developers of this software don't even respect private
property if it isn't theirs. They say that you can't even
own a copy of the software that you run. All the copies
belong to them -- Stalin's version of private property
· In order for a society of people who are using computers to
maintain any of the freedoms we normally believe in, while
they use their computers to do their daily lives, they must
have control of their software and their computers
· This treaty prohibits this. This is not an "update" of the
Rome Treaty. This is a revolutionary change. Because the
Rome Treaty -- correct me if I'm wrong -- doesn't restrict
recording devices, does it? It only restricts broadcasters
as such. But this treaty would restrict recording devices.
It would give the TV station or whoever transmits a webcast,
power to decide whether you can make a recording, and what
you can do with it afterwards
· It's the power of a skunk. You know, the skunk sprays onto
something, and it takes you fifty years to wipe off the smell
that it put on, just because the thing passed by a skunk
· There's free software already -- in the project that I
started, the GNU project -- we developed a free operating
system that most people call Linux, but whose real name is
GNU. One of the things we developed for this system is a
program to tune in digital TV broadcasts. We're trying to
make free software you can use to do absolutely everything,
because you should have freedom in everything you do on your
computer. And this is one program we've already developed
that would be prohibited by this treaty
· Lots of other free programs to do things that we need to,
would be prohibited by this treaty as well. For instance,
somebody recently sent me a message with a pointer to a file
of audio being distributed by the Senate Judiciary. And this
is in the public domain; it's a hearing -- US Government
works are in the public domain. But under the broadcast
treaty, we would be forbidden to make a free software to
decode that broadcast. It was being sent in RealPlayer
format. We need to develop free software to read that file;
we don't have it. The Senate shouldn't be using this secret
format to distribute its public domain hearings, but they
are. They're going to be getting a lot of complaints from
people reading my website soon
· This is an example of how this treaty would take a lot of
rights away from the citizens of the US. So it's a mistake
to refer to the treaty in terms of enforcing rights. No,
it's denying rights.
· I've written a sort of parody description of the treaty
requirements, using language which takes, instead of the
broadcasters' point of view, the public's point of view. I
expect when you see this it will look shocking, over the top,
horrible, because you're used to thinking of things from the
broadcaster's point of view. Their point of view was in some
of your words. You know, they've chosen the words that are
used to describe this treaty. They chose the term digital
"rights" management. They choose these words to shape our
thoughts. So I figure, let's show the other side of this
treaty
· I hope you will ask the citizens of the US whether they want
to be restricted in this way. Talking with us is not enough.
You've got to talk to the public, and ask them -- don't ask
them, "Do you want to have these rights?" Because, of course
if you formulate the question in a misleading way, people who
haven't thought it out thoroughly will give you a confused
answer. Ask them "Do you want to be restricted in this way?
Do you want the TV station to be able to tell you whether or
not you're allowed to record the broadcast?"
Marilyn Cade (very low audio quality)
http://www.nyfairuse.org/action/wipo.xcast/audio/10-Marilyn-Cade.ogg
Dan Krimm (low audio quality)
http://www.nyfairuse.org/action/wipo.xcast/audio/11-Dan-Krimm.ogg
· My name is Dan Krimm. I?m an independent musician ? a
composer, performer and recording artist. My area of esthetic
focus started out in progressive jazz, and more recently has
evolved toward avant-garde free improvisation. I would say
that the traditional hits-driven music market, as shaped by
the audience-maximization dynamics of mass media, is utterly
useless to me as a vehicle for reaching the audience that
does exist for the music that I, and others like me, make.
The Internet holds some potential in the way of interactive
and personalized media, but it?s not yet fully expressed.
· I?m currently pursuing a Master of Public Policy degree, with
a concentration in Media, Internet and IP policy, and so I?m
personally much better informed about these issues than most
of my musical colleagues, who don?t even know what WIPO is,
much less being familiar with the issues at hand in the US
proposals for the Broadcasting Treaty. And, there is no
formal organization representing our unique interests in any
policy discussions, so far as I know. So, in order to capture
the voice of this substantial constituency of independent
musicians and their fans, I believe it is incumbent upon
policy makers to engage a public process of informing and
debating these issues, in the general representative
institutions that exist for that purpose.
· As a matter of substance, I wholly oppose the proposal to
grant additional powers to broadcasters and webcasters to
restrict the flow of information in our communications
market. As a creator, I embrace the fundamental social
contract embodied in the progress clause, but there is no
need to grant similar exclusive controls to distributors,
above and beyond creators. Distributors already have
disproportionate influence over the propagation of
information in our society, and creators who act as their own
distributors already have whatever control they need to
protect their commercial interests.
· As a creator, and simply as a citizen, I object to the
upsetting of balance between creator incentives and public
rights of fair use and public domain that these new
distributor controls would entail. All creators are users as
well as producers of content, sometimes using the content of
others directly in the course of creating our own content,
and we all benefit from fluid flow of information in society.
In fact, in the Internet age, all citizens have a potential
to become producers and publishers, not just users of
information goods.
· I see no evidence that granting these extra powers to this
narrow and controlling function in society would contribute
more social benefits than the attack on public domain and
fair use would harm society, and thus it seems to me the net
social cost would be substantial. While this is a personal
opinion that may be debatable, it seems imperative to me that
any and all such debates be held in broad daylight for all
stakeholders to consider and have voice, before any
government actors take such policy into the international
arena supposedly on our behalf. These policies would impose a
fundamental change on the dynamics of the information
marketplace, affecting the full range of society, and thus
the full range of society should have an opportunity to weigh
in on the subject. I urge you to bring these issues to the
general public for consideration before moving forward.
Brett Wynkoop, Wynn Data Limited
http://www.nyfairuse.org/action/wipo.xcast/audio/12-Brett-Wynkoop.ogg
· I'd like to start out by saying that as far as I'm aware --
and I could be wrong -- the US is not a signatory to the Rome
Convention on Broadcasting
· In the past, I've worked as a broadcast engineer. In this
country, it's always been the case that the public has had
the right to record or listen to any over-the-air
transmission. Part of this treaty would of course wipe that
out
· As others before me have said, digital restrictions
management would have to be placed in all computers in order
to ensure that people were not able to record, or in some
cases listen to, things of their own choosing. Part of the
reason that this would make various free software projects
illegal, is because most of these requirements state that the
user of the technology cannot have the ability to modify [it]
so that it can receive or record signals that are being
blocked by the broadcaster from receiving and recording. Of
course, with free software, as Richard pointed out, you've
got the ability to look at it and modify it. This particular
treaty would make two pieces of free software I know of
illegal, and there's probably more that I'm not thinking of
· The proper place for these exclusive rights issues to be
taken up, before any representatives of this government go to
WIPO, would be the US Congress. The Constitution says that
the US Congress is where exclusive rights policy is to be
determined.
· Congress normally takes up these matters with public
hearings. They're not quite as public as I'd like -- in the
digital age, they could be much more public than they are --
but at least it's the right thing
· From the standpoint of somebody who makes his living with
copyrighted works -- and I have made my living for over
twenty years by producing copyrighted works -- I don't want
to see somebody who is not a creator be given the ability to
restrict. This certainly goes against the progress of the
useful arts and sciences and the wide dissemination of
information that is the reason copyright and trademark were
set up in the US by the founders
· I was technical director of a world premiere opera last
summer; it was done as a one-act opera -- something called
A.F.R.A.I.D. We're reopening in a couple of weeks with an
expanded version in two acts. I was supposed to be at
rehearsal last night, and I told the composer, "No, I'm
sorry, I can't be at rehearsal, you'll have to do without
me." She wanted to know why, and I said, "Well, there's this
treaty coming about that the US Delegation to WIPO is pushing
for, that would restrict your use of the public domain." And
she said, "What?" I said, "Yes, they want to make it so that
if something is sent over the web or over broadcast media,
that whoever transmitted that work has the ability to
restrict how you can use it for a number of years." Now,
needless to say, Ms. McBee was quite upset about this,
because about 50% of A.F.R.A.I.D. is from writings that are
in the public domain that she set to music. This certainly
would have quelled her ability to be creative, and it
certainly would have kept . . . thousands of people from
seeing a new creative work
· We've already got enough attacks on the public domain, with
Congress's ill-considered measures of extending the copyright
term every time the Mouse is about to come out of copyright -
- which is, I consider, a travesty and a crime against the
American people
· This treaty, much like the way Congress is currently
operating on copyright issues, is theft, pure and simple.
It's theft from the public domain. It's theft from the
people of the United States of America. Nobody that I have
spoken to that makes their living by producing copyrighted
works, can see any reason that somebody that retransmits or
amalgamates to a website should have essentially the same or
in some cases more restrictive control over works than an
original creative person
· I'm urging that we should put the exclusive rights discussion
where it belongs, in Congress, have public hearings, and let
all of the stakeholders come to the table. And the
stakeholders are not the Englobulators; they are not the
Disneys; they are not the Viacoms; they are not the Sony
BMGs. The stakeholders are the citizens of the United
States. I emphasize "citizens" -- not "consumers." We have
been too long bombarded with the propaganda that the American
public are "consumers," and business and government really
forget that the American public are citizens, that the
Constitution and the laws are there to protect our citizenry,
not to protect big business
Sarah Deutsch (very low audio quality)
http://www.nyfairuse.org/action/wipo.xcast/audio/13-Sarah-Deutsch.ogg
· I wanted to echo the process concerns that Marilyn and others
have raised
· I'm here as a newcomer, to listen to all these issues because
again there hasn't been a lot of debate out there or
knowledge about the treaty
· One issue I wanted to put on the table and learn more about
here is the issue of webcasting -- it is clear in section 2
a) of the treaty that broadcasting is not supposed to include
transmissions over computer networks. There must have been a
reason why that restriction is in there. Yet, there is this
new right to webcasting, and I think this raises some
concerns among the Internet industry; for example, I guess
it's in there because of technology neutrality, where if we
give the same rights to broadcasters then we must give it to
webcasters and cablecasters
· In the net neutrality debate, some of the telephone companies
would like to be able to offer tiered levels of service, and
that's been raising much debate about this issue of giving
webcasters rights. Really the same people who are pushing
for net neutrality are then using the technological
neutrality argument to put that on the plate. In fact Yahoo
and Google and others could essentially gather up data that
other people own, have copyright in, or publish new data, and
then create toll roads to try to prevent gaining access to
the content, including the ISPs
· So I guess my reason for being here is to learn more about
that issue, and how realistic is this webcasting right going
to be, what are the reasons for it, and to learn some more
about that
John Bachir (low audio quality)
http://www.nyfairuse.org/action/wipo.xcast/audio/14-John-Bachir.ogg
· My name is John Bachir. I work at ibiblio.org, an
organization affiliated with both the school of Information
and Library Science, and the school of Journalism at the
University of North Carolina, Chapel Hill. You may have known
us as one of our two former names: sunsite, and metalab.
· Ibiblio is home to over 1500 collections, including Project
Gutenberg, which hosts transcribed plaintext files of public-
domain works, and etree.org, which hosts public-domain audio
files. We were mirroring GNU/Linux distributions and open-
source software before it was cool. Ibiblio was, in fact, the
first webserver on the Internet.
· Given the wide variety of media used and delivered by ibiblio
collections, the WIPO Broadcasting and Webcasting treaty
poses significant problems for their work. Many of our
contributors do work with public domain or alternatively
licensed materials acquired from a very wide variety of
sources. Even with existing laws, it is often quite a
challenge for creators to determine if something downloaded
online can be included in repositories or creative works, or
who the rights holder is to begin with. The United States
Copyright Office recently issued a report saying that the
situation with orphan works is serious, and poses a real
threat to dissemination and use, including scholarly and
archival dissemination and reuse. Indeed, the report suggests
that the copyright act needs amendment, to allow for some
manner of limited liability for good faith searches.
· The proliferation of rights, the difficulty of finding long-
vanished copyright holders, and the fact that multiple
copyrights could cover the same media, is already a huge
unsolved problem. But at least today a creator knows that, in
the United States, a work published before 1923, or a work
under an appropriate alternative-license such as Creative
Commons, can be put into a repository or used in a derivative
or annotated work.
· Imagine if, in addition to the existing crushing burden of
rights clearance under copyright, creators also had a
separate and entirely different obligation to clear Broadcast
or Webcast rights--even on public-domain or Creative Commons
works. Here we have yet another layer of the orphan works
problem already existent in the copyright space. The
difficulty of ascertaining whether works were originally
derived from a broadcast or webcast incurs economic overhead
in the use of public-domain works that has not existed for
the past 200 years.
· The same problems that the provisions of the Broadcast and
Webcast treaty create for the work of ibiblio collections
will be experienced by those in educational and academic
fields at large. Furthermore, the treaty provides no apparent
benefits to such communities. In fact, what little research
there is examining the effects of the Rome Convention shows
that such provisions are not in the best interest of the
commercial sector either.
· One would hope that policy made by a UN agency would be the
result of careful research and public deliberation, with the
intention of benefitting the societies and economies
involved. But with the Broadcaster and Webcaster treaty, this
is not the case. Instead, it is being created without
feedback from the public sector or even the business
community at large, under pressure and lobbying from huge
media entities, in order to grant unnatural power to product
distribution companies who add no value to creative works.
· This treaty is bad for ibiblio, bad for education, bad for
academia, bad for culture, bad for the economy, and good for
News Corp. and Yahoo!. I urge you to do a comprehensive call
for feedback from the creative and broadcast communities at
large, and refuse to participate in a treaty not approved by
the United States Congress.
John Mitchell, InteractionLaw
http://www.nyfairuse.org/action/wipo.xcast/audio/15-John-Mitchell.ogg
· The bulk of my clients are retailers of copyrighted and non-
copyrighted works of others: video, music, video games, etc.
Interestingly, I think I'm the first one here to mention
retailers, and I'm finding myself in a minority in a sense,
in a huge diversity of viewpoints, and yet realizing that
this is probably just a small snippet of the much larger
diversity of viewpoints that you might experience
· I was reminded just sitting here that about roughly fifteen
years ago Jimmy Stewart [spoke at a] hearing in the Senate,
testifying in favor of a bill to protect, to some extent,
some creative works, in his view. What we saw was the advent
of colorization of movies. These were black and white films
that the copyright owners decided they might be able to
present for a little higher market value if they could be
colorized. Now from an artistic perspective, there might
have been any number of diverse views, but these are simply
derivative works, authorized by the copyright owner, totally
legal. The "solution" was that Jimmy Stewart's heirs would
be empowered to prevent the sale or rental of colorized
videos that were already sold out there on the market. The
way it was actually drafted was that every single retailer
would have to go talk to the director and the lead artist in
every film that they wanted to rent or sell, to get their
permission before doing so. Now fortunately, retailers among
others were able to persuade Congress that this added nothing
of value, that these were rights that were being conferred on
people who were not the authors of the works, had no rights
under copyright, would in fact suppress or diminish the
availability and accessibility of these things
· Now if we fast forward to today, and look at some the things
out there, I'm not the technologist here, but just yesterday
I saw a website webcasting short films produced on cell
phones, and there's a competition for the best short cell
phone video clip. I wish I had a URL for it, sorry. But in
the context of this, of the treaty obligations the US would
have, people who did their cute little video clip, sent it to
this site, eventually maybe deleted it because it was taking
up too much space on their cell phone, are approached by an
entrepreneur, one of my clients, who says, "Look, we've seen
these great clips out here, we'd like to burn them onto DVD
and rent them and sell them in video stores -- do we have
your permission?" "Sure, I'm the author; you've got my
permission for free, for a penny, or whatever," and they go
to do it and they're told by the webcaster, "Na-ah, these
were distributed, they've gotten publicly performed through
our webcast. You are fixing those webcasts and reproducing
it from that. We have the right now to stop you." Now, the
problem here is that these rights are conferred to someone
not the author, as required under the Copyright Clause, for
non-original works, as required under the Copyright Clause.
It would even be for works that are not copyrightable, as
required under the Copyright Clause. And it would even
suppress the speech of the copyright owner
· And here's where it would work at purposes contrary to the
copyright owner's. I was thinking of examples here, Ms.
Jones' third grade class that does their little performance,
they put together this great skit, and the local television
station was nice enough to give them some air time and show
it, and grandparents and everybody wants to fix that copy and
reproduce it. And maybe they got Ms. Jones' class's
permission to do that, and the television station has the
power to say, "No, you've got to pay us to do this. It's not
our work, we didn't do it, we just broadcast it, but that's
where you got your fixation and you can't do that."
· To put it in the multi-billion dollar industry level, one of
the hottest things going on in the video industry is selling
and renting DVDs of broadcast television programming. Up
until now, retailers simply buy them from the copyright
owner, and without the consent of the copyright owner, they
can rent them. With this kind of treaty provision, it might
not matter what the copyright owner said, the broadcaster has
his way. Now we know the large studios are obviously going
to get that consent before they let them broadcast. But it
does mean that instead of the broadcaster paying cash for the
license to perform it, the studio will now have to not only
get cash, but also get the license to be able to rework that
program
· Now, we could work around perhaps some of the details on
this, you know, somehow taking it from the standpoint of
working it out between Hollywood and broadcasters. But the
core focus of this I guess that I'd like to stress is not the
need to work out the details between the giants that have
money to share back and forth, but to look at really what's
happening to the core value of the First Amendment. Under
copyright, and I think the Eldred case said it best -- the
copyright clause has its own built-in First Amendment
connotations. I wanted to read two sentences from Justice's
Breyers's dissent, just pointing this out. He says:
The Copyright Clause and the First Amendment seek related
objectives -- the creation and dissemination of
information. When working in tandem, these provisions
mutually reinforce each other, the first serving as an
"engine of free expression," the second assuring that
government throws up no obstacle to its dissemination
[Mitchell: no obstacles]. At the same time, a particular
statute that exceeds proper Copyright Clause bounds
[Mitchell: like this would absolutely do] may set Clause
and Amendment at cross-purposes, thereby depriving the
public of the speech-related benefits that the Founders,
through both, have promised.
Eldred v. Ashcroft, 537 U.S. 186, 219 (U.S. 2003) at 244,
Breyer, J., dissenting (citation omitted)
· Since clearly Congress would not be able to enact any of the
treaty obligations under the Copyright Clause -- they simply
don't fit -- they would have to look to the Commerce Clause
for the authority. And here's where the Supreme Court, or
Justice Breyer, says to us, then you can't do that. Once
you've stepped out of copyright, you're faced with the full
weight of the First Amendment, saying Congress shall make no
law abridging the freedom of speech. So the freedom of
speech of Ms. Jones' class's grandparents to make those
copies with their consent, the freedom of speech of the
copyright owners to authorize so they can make a copy, would
be abridged
· We have the Betamax issue -- suppose the broadcasters would
have the right to stop people from taping. Do we know where
things like the first sale doctrine are going to fit into
this? Would a broadcaster say, "Well the copyright owner
says the copyright law says he can rent it, but we're saying
you can't because it's a fixation of our broadcast"
· So looking at it from the Commerce Clause perspective, I
would pose this question: Could the government on its own
say, before you can fix a broadcast reproduction, before you
can reproduce that broadcast reproduction into copies, before
you can distribute those fixed copies of broadcast
reproductions, you have to get the government's permission --
you've got to come in and apply to the government for
permission to be able do that? We could unanimously say that
would be laughed out of court, it would be tossed, the
government would be restrained from requiring you to get the
government's permission to do that with speech. Now, all
we've done here with this treaty as I read it, and I've been
trying to struggle with this and trying to find some sense
and I just don't understand, how we can make the leap to then
say well, the government clearly cannot do that, but the
government's willing to empower broadcasters to suppress the
freedom of speech in the identical manner that the government
would be prohibited from doing directly
· And I guess that's the fundamental question I have here, is
how -- assuming this broadcast treaty gets through and all
the little details get worked out and we've got broadcasters
and Hollywood and the record companies and software companies
all sort of coming in and saying yeah, this works for us --
at the end of the day, when Congress is asked to pass this
into laws, or does pass these laws, how does this survive the
first First Amendment challenge which says, "Wait a minute,
this directly abridges the freedom of speech; it's not based
on the Copyright Clause; there's no way -- under heightened
scrutiny, probably not even under a rational relationship
test -- it would be able to pass scrutiny, but certainly not
as the least restrictive means to advance a compelling
government interest?"
· I don't need an answer right now, I have fleshed out a little
of this in -- eight pages only, but that's essentially what
my concerns are
Ed Mierzwinski, US Public Interest Group
http://www.nyfairuse.org/action/wipo.xcast/audio/17-Ed-Mierzwinski.ogg
· As somebody pointed out, this is not only a consumer issue;
I'm here because our members are consumers and because our
members are citizens
· I want to point out that there was a letter -- which I
believe is on the CPTech website, and I'm sure you've all
seen it; it's from October 13th, and a number of the other
large consumer-based organizations, including Consumer
Federation of America and Consumer's Union, publishers of
Consumer Reports, are on that letter -- to the Congress,
essentially asking for the same procedural recommendations
that this diverse coalition, this historic grouping of civil
society and non-government organizations, is presenting to
you: that you're down the road too far in a process that you
can easily back up, slow down, and turn around, and open up
to a democratic process
· I could talk about the concerns we have over digital rights
management, over too much intellectual property control being
granted to people who aren't even creators, over the changes
this would make to the structure of the Internet and the
openness of the Internet, and all the issues that are being
debated in Congress and the external agencies, the FCC, but I
won't; but I concur with a lot of the issues and the points
that have been raised here today
· I simply wanted to come to the meeting to point out that the
large consumer groups are very concerned about the Patent and
Trademark Office involved in a WIPO Treaty in Geneva over
something that has not been discussed in society in the
United States. The small-d democracy issues are very large
here; the changes you're talking about making that the
American people don't even know about, I think have
tremendous implications, and I still haven't heard an answer
in any -- maybe I've missed some of the material that's
released on your website, maybe I've missed some of the
material that's been presented to the Congress -- but can we
get an answer to the question: Is there going to be a public
debate of this, a notice in the Federal Register, official
public hearings, rather than just -- I appreciate the ex
parte meeting we're having today, but -- will there be an
official public debate of this before this treaty goes
forward, because I understand you're at some sort of a
decision point, where you could rubber stamp the current
version of the treaty, and it could go forward down the road?
Mike Keplinger, Seth Johnson
http://www.nyfairuse.org/action/wipo.xcast/audio/18-Mike-Keplinger-Seth-Johnson-on-Representative-Process.ogg
· Keplinger: You seem to feel that this treaty is going to
happen very quickly. I don't think it is, very frankly. As
I explained earlier, at the last meeting of the Standing
Committee on Copyright, the Chairman was asked to draft a new
version of the Consolidated Text. I know that that process
is going on. Based on the discussion at the last meeting,
and the requests that were made, I expect we're going to see
a smaller proposal coming forward. The next meeting of the
Standing Committee on Copyright is to be the first week in
May, so some time before that, that proposal will be publicly
available in multiple languages on the WIPO website. That
proposal will be discussed at the next meeting. And I am
sure it will change again
· The next checkpoint will be the meeting of the WIPO General
Assembly, which will take place in late September or early
October [2006], at which time the General Assembly will
consider whether or not to recommend that the Director
General should convene a Diplomatic Conference, with a
recommendation for a time period when that would happen.
That decision cannot be taken until next September. When
that happens, then there will be prepared a final draft of a
proposed text to go to a Diplomatic Conference
· When we have that, that certainly will be published in the
Federal Register and we will seek public comment on it.
Which will enable us to formulate the policy that we adopt to
go to a Diplomatic Conference. That's the normal treaty-
making process; it's nothing secret; it's nothing different
than has been happening with every intellectual property
treaty or every general treaty that we belong to
· Johnson: Under the Constitution, the treatymaking process
does involve the Congress to the extent that the Senate must
concur. That's the process you're describing. You're not
talking about the process that is described in the
Constitution that accords Congress power to establish
Commerce Clause policy, exclusive rights policy, and so
forth.
· Keplinger: Sure, that's Congress's power. If there is a
Diplomatic Conference, and if the Diplomatic Conference
adopts a treaty that the executive branch decides merits the
US's adherence, then the Administration will analyze that
treaty, analyze the changes that would be necessary in US law
to implement the treaty, then send that package to the
Congress for its consideration. Congress then makes the
decision whether or not the US should adhere to the treaty
· If it does, before we can adhere to the treaty, Congress must
pass legislation to give effect to that treaty here in the
United States. That will be accompanied by all of the
Congressional hearing process, and the Congressional scrutiny
of any legislation. Again, this is the normal treaty-making
process. I understand that some of you have said that in the
modern world, with increased communications, we need to
consider broadening that consultation process. We're doing
that now, and will continue to do so.
Harold Feld, Media Access Project
http://www.nyfairuse.org/action/wipo.xcast/audio/19-Harold-Feld-on-Representative-Process.ogg
· My experience is primarily with the Federal Communications Commission,
which every three years attends the International Telecommunications Union
World Radio Conference. Now, granted that there are differences because the
WRC is held every three years, and therefore brings some greater regularity to
the process. But that too is an international treaty organization which in its
conferences produces international treaties, and the FCC and State have over
the years evolved a broader, more open process of consultation, with frequent
meetings, of teams of negotiators, first at the (unclear) level, also at the
State department, which rely not only on convening meetings such as these, with
recognized stakeholders, but with publication of meeting notices seeking
guidance in the Federal Register
· In the broad world of international treatymaking and international treaty
organizations, there are a plethora of models for consulting stakeholders of
all varieties, for getting expertise of all varieties, and this process does
not need to be irregular, time-consuming, or sidetrack the United States
negotiations with our present international fora
· I recognize that the PTO has not necessarily had experience with the same
models, that the negotiation process in a number of treatymaking organizations
has been somewhat different, but I would urge you to consider on a going
forward basis, these models that have been developed by other administrative
agencies, which deal in these complex matters, that have recognized the
tremendous value in seeking expertise and input during the formulation of
positions, rather than in the process which you describe, which tends to
resolve, unfortunately, at input only at the major decision points -- which is
disruptive not merely to the treaty process, because a treaty negotiation over
many years may suddenly be derailed because it reaches an inflection point of
consultation and broader discussion, but it's terribly difficult, for
participation purposes, for those NGOs and industry groups that do follow these
treaties, because it becomes impossible for them to know at what stage in the
development they can meaningfully participate
· Again, I recognize the PTO has (unclear) but I would urge flexibility,
particularly in a treaty with its implications for such a large number of
potential stakeholders, and in which so many areas of expertise -- economics,
First Amendment, legal, international relations -- are all implicated, and
would be highly valuable in consideration of policy positions within a process
that can be [workable]
Marilyn Cade, McCade, LLC (very low audio quality)
http://www.nyfairuse.org/action/wipo.xcast/audio/20-Marilyn-Cade-on-Representative-Process.ogg
Seth Johnson, New Yorkers for Fair Use
http://www.nyfairuse.org/action/wipo.xcast/audio/21-Seth-Johnson.ogg
· First of all, regarding the effect on the public domain -- I
think I understand what the concept is, that you'll basically
have watermarking; you'll be able to say who actually
broadcast this particular fixation. Right? That's a change
in the nature of the public domain -- I mean, that's the only
way I can imagine that you could possibly make this work,
that's any kind of model that gives people any ability to
benefit from the copyright or the promotion of --
broadcasting, I guess is what you're trying to do
· What you're doing is you're changing the nature of copyright,
how it's supposed to work, its purpose, even our ability to
benefit from it
· I wanted to quickly describe the transport in case it's not
completely clear to you. For the Internet, you have routers,
and their only job is to say, "Go from here to there." And
if I send a file, that file doesn't survive -- if it can't
get there, it breaks it up and pushes. That is a highly
flexible medium, and that's the basis for all the innovation
we've had
· What you're doing with this treaty, is you're giving
broadcasters more power than producers -- and I mean
producers in both categories: authors and people who use
published works. You're basically eliminating the advances
that have been established for all of humanity by the
creation of the Internet
· And there's a big flaw in the way you've proceeded. You've
decided that you can take exclusive rights that have been
crafted for works, and you're going to apply that to a
medium. Why? Because you need to be fair. If I ask why we
need to be fair, I don't know -- is it because they're adding
some creativity? That would make them an author, right?
Then why are you doing this independently of Congress?
· And this is happening at a time when we see in Congress a
Bill proposed to put back the broadcast flag with this
concept of a historic customary use -- instead of fair use.
We're seeing it at a time when we have efforts to establish
policy that's going to mandate that in our computers there'll
be spyware that watches what we do and enforces the policies
of outsiders, on what we can actually do with the computer.
We have a law proposed that will build content control all
the way to the analog jacks, that would enforce watermarks as
well as digital rights metadata. And then you have this
thing of trying to undermine network neutrality by giving
network operators control over "information services," rather
than that generic, highly flexible medium and the
connectivity that everybody has
· Now, that generic, flexible transport is not well suited for
imposing control over "fixation" of broadcasts or static
works as a whole
· We have to have Congress establish the right principles
before WIPO sets all the wrong ones. We need Congress to
articulate this clearly, or treatymakers will interpret the
nature of copyright too freely -- and change its nature,
unilaterally
· The notion that what we're doing with copyright is protecting
the work as a whole -- I do know that you make international
trade treaties, okay, and you decide on property rules. And
perhaps it's this term "intellectual property" that's causing
people to think that "okay, we can just do the same thing"
for copyrighted stuff. It's property, we can do a trade
treaty on that -- right? But this is a special kind of
quote-unquote property -- "intellectual property" -- that
impinges on fundamental rights, impinges on the ability to
benefit from published works, and so forth. The problem is
obvious: doing this inherently violates fundamental freedoms
· Digital representation of information is the very basis of
innovation in the information age. And this is not just that
that's the nature of the computer, and it's not that that's
the nature of the transport. Instead, these designs -- the
transport and the computer -- are exactly what give us all
the means to make flexible use of information that we receive
as a result of copyright and communications policies. The
Internet transport is what assures that flexibility and
innovation
· All of us are online. We have a profound mode of shared
experience -- many forms of shared experience -- available to
us because of that flexibility
· In the real world, we bury our dead. We go online, we have
funerals. And every group that gathers for that kind of a
gathering -- whatever it is, whatever kind of ceremony,
whatever occasion, whatever purpose it is -- they have the
ability to develop a protocol, who gets to speak first, who
gets to speak of the dead, who gets to bear witness --
whatever the matter is -- who gets to analyze scientific
data, who gets to analyze a creative work, who gets to
perform, who's a presenter, who's a listener, who's a viewer.
And every such group of people who come together for some
sort of a purpose is different. They can all make their own
kind of protocol. They can choose to do that for their own
benefit, or they can make a standard, so that everybody can
interoperate -- it's up to them
· And into these spaces of people working together, we bring
copyrighted works; we bring public domain works. And there's
an aspect of even copyrighted works that is public domain
from the get-go. We do not have to wait for the term of
copyright to expire to make use of a factual element of a
published, copyrighted work. Okay? We have every right to
make use of the pieces of a work. And we can, individually
or as a group, interactively and collaboratively, produce a
new work, and give that to the world -- publish it. What you
do with this treaty, is you take that away. You take away
that ability to make flexible use of a published work --
which is the purpose of copyright -- and you take away the
flexibility of the transport
Gwen Hinze, Electronic Frontier Foundation (low audio quality)
http://www.nyfairuse.org/action/wipo.xcast/audio/23-Gwen-Hinze.ogg
· We thank you for the opportunity to meet with you this
morning to discuss our concerns.
· However, we remain troubled by the fact that there appears to
have been little analysis undertaken of the significant
changes that the proposed Treaty would entail for U.S. law,
consumers^R rights and the technology sector, and no
opportunity for a broad scale informed public consultation
process with the domestic constituencies that will be most
directly impacted by the treaty.
· EFF is concerned that the proposed treaty will endanger
consumers^R existing rights, restrict the public^Rs access to
knowledge, stifle technological innovation, preclude free and
open source software, and limit competition in the next
generation of broadcast and Internet technologies. Most
importantly, it will radically alter the nature of the
Internet as a communication medium.
· Many of the people who have spoken this morning have
addressed some of these points. I would like to comment on
several points that have not been addressed, and provide you
with a copy of the comments that EFF has previously submitted
to the WIPO Standing Committee on Copyright and Related
Rights in June 2004 and November 2005.
· I would like to reiterate the value of seeking engagement and
consultation with domestic parties at this stage in the
treaty process because the policy issues raised by the treaty
are significant. They will radically change the contours of
U.S. law and the environment for technological innovation.
· I would like to make three comments this morning.
· (1) The proposed treaty is likely to stifle technological
innovation on the Internet and in next generation broadcast
technologies.
· The proposed webcasting right would create a broad new layer
of exclusive rights over the content carried by the signal,
independent of, and additional to, the program content's
copyright. The proposed treaty would require technology
companies to negotiate and obtain clearances from two sets of
rightholders before they can create innovative technologies
that interoperate with broadcast or web content. This is
likely to stifle technology innovation.
· At present, technology companies only need to obtain
clearance from a copyright owner, or determine whether
copyright protection applies at all. This will change under
the proposed treaty. Anyone who wants to create technologies
that interoperate with broadcast or webcast content, will
need to identify and negotiate with a second set of
transmission rights entities in addition to the copyright
owner before they can safely bring technologies to market.
· Under the proposed treaty it is not clear at all that a
parallel set of exceptions and limitations to those under
U.S. copyright law will apply to the new transmission right.
· Therefore, actually working out whether your technology will
require clearance is going to be difficult, even if a
technology company can identify the transmitter involved.
This is only likely to inhibit technological innovation.
· (2) The proposed treaty appears to create a new liability
regime for Internet intermediaries that transmit data over
the Internet.
· Both the Working Papers webcasting proposal and Article 6s
right of retransmission of broadcasts and cablecasts over
computer networks may create potential liability for
intermediaries that transmit data over the Internet. Although
Article 14 provides for limited exceptions to the exclusive
rights granted to broadcasters and cablecasters, it does not
explicitly address the question of Internet intermediaries.
In addition, since the treaty grants rights that are
independent of, and additional to, copyright, any protection
granted to U.S. Internet intermediaries against online
copyright infringements for transient reproductions will not
automatically apply to transient transmissions of broadcasts
and cablecasts over the Internet.
· This is likely to apply to a wide range of Internet
intermediaries, including ISPs, Internet search engines,
video search engines and user-uploadable services such as
Google Video, Blogger, podcast producers and podcasting
services.
· I would like to understand whether the U.S. delegation has
analyzed the policy considerations and potential liability
issues raised by the proposed webcasting right in the process
of negotiating this treaty.
· (3) Technological Protection Measures
· The combination of Technological Protection Measure
provisions with the treatys broad set of post-reception
rights will allow broadcasters and cablecasters to use
technological measures backed by national laws (such as the
U.S. Broadcast Flag regulation) to preclude the development
of new technologies, such as TiVos, that allow consumers to
time-shift and space-shift lawfully acquired television
programming.
· This will be a serious redrawing of the current boundary
between consumers and copyright owners rights. As Mr.
Stallman and Mr. Perens have noted, any implementing
legislation for the treatys broadcaster technological
protection measures is likely to preclude free and open
source software technologies. On this point, I want to
emphasize a key distinction between the existing unauthorized
access regimes that protect against unlawful reception of
cable and satellite television services in U.S. law, such as
47 USC 605 and 18 USC 2511-20, and the new concept of
Broadcaster Technological Protection measures introduced by
this Treaty. Unlike the existing conditional access regime,
Broadcaster Technological Measures would allow broadcasters
and webcasters to use technological measures to control use
after a signal is received in the home, and after its been
recorded. The combination of Technological Protection
Measures with post-fixation rights is about control of the
program content carried by the signal, and not about signal
theft. It is also about control of the devices on which
consumers can watch broadcasts, cablecasts and webcasts that
they have lawfully acquired. This has significant
implications for competition and innovation.
· I would like to learn whether the U.S. delegation has given
consideration to the potential anticompetitive implications
of the broadcaster technological measures in the treaty, and
in particular, whether it would support an express exception
in the treaty language to preserve the ability of the U.S.
government to regulate potential anti-competitive
implications of the broad technology mandate that would be
required to implement the treaty in U.S. law.
· Finally, I want to reiterate a point made by others this
morning. The treatys combination of broadcaster technological
protection measures with broad post-reception rights that
apply above copyright law is likely to curtail consumers
traditional fair use rights in lawfully-acquired television
programming. Creating exclusive rights for webcasters,
combined with legally enforced technological measures, is
likely to be even more detrimental because it will restrict
the publics access to information that is in the public
domain or not protected under copyright.
· In conclusion, I urge the U.S. delegation to hold a broader
public consultation on the significant policy and civil
liberty issues raised by this treaty.
David Tannenbaum, Union for the Public Domain
http://www.nyfairuse.org/action/wipo.xcast/audio/24-David-Tannenbaum.ogg
· The thing that strikes me about the treaty at this point is
the way that it contradicts many of the fundamental policy
motivations for intellectual property -- copyright, patents,
trademarks and other copyright-like protections -- in US law.
I'm sorry, I said "intellectual property" . . . it's just a
bad habit.
· I wanted to make three broad points. One is about the policy
implications of the treaty; the second is about the way that
the treaty would interact with US law -- I increasingly
relate to the comments made by Mr. Mitchell; and the third is
the process.
· Mr. Stallman mentioned a paradigmatic case of a Senate
hearing. There are two other paradigmatic cases we thought
of: one is a documentary to be released to the public domain,
whose creator wishes the documentary to be entered into the
public domain. For instance, "Outfoxed," which is a
criticism of Fox News.
· A second paradigmatic case is a cultural product whose
producers wish for it to be distributed. I don't know if
you've seen the Saturday Night Live music video parody, for
which Saturday Night Live loaded its own video clip onto the
Internet as a cultural product -- obviously Saturday Night
Live is the center of US cultural production; it's an
important part of the economy. And it was released on many
Internet sites, like the student webcasters like Yahoo and
YouTubeTV -- these are the webcasters that the treaty is
meant for.
· So, when you think about the policy implications with respect
to the three parties using webcasting, it's not clear how the
treaty would benefit any of these parties. From the
perspective of users, we just care about what the costs of
using a cultural product would be. The treaty would increase
that cost, because it would add an additional layer of rights
for broadcasters.
· We also care about how many materials are produced, and as
you know, one important policy justification for copyright-
like laws is that they incentivize the production of more
cultural materials. It's not clear why additional incentives
need to be provided.
· From the perspective of producers -- small producers and
large producers -- they care about the cost of input into
production. This treaty would raise the cost of input,
because you would have to pay not only the original copyright
holder, but the broadcaster who held the additional rights.
This of course affects small webcasters more than it affects
large webcasters, because the large ones have the resources
to handle these rights-seeking costs. And the great thing
about the Internet is that it now enables small producers
· The third group of people who know anything about it, are the
webcasters. An interesting remark you said was that in order
for this treaty to be effective, you need to extend the
rights to webcasters. The question is "effective for what?"
Is it "effective to provide more material on the Internet?"
If that's the case, it's not clear what the treaty is doing.
Is it "effective for increasing access to public domain
material?" It's not clear that it's effective for that. And
it's unclear why it would be effective even for webcasters --
many of whom signed a letter that was sent to WIPO, including
Tim O'Brien, people who are engaged in webcasting, who don't
want this so-called benefit for themselves.
· So I have three questions based on these policy matters: One
is does the US Delegation to WIPO think that these materials
are currently be under-provided on the Internet, and then
that's the justification for supporting this? Second, does
the US Delegation support a mandatory fair use provision in
the treaty, which would preserve the rights of users and
small producers who use the material? And third, what
exactly is meant when the US Delegation says "in order to
make the treaty effective" you need to include this
provision? I think it's important to specify, analytically,
effective for what and for whom, because so far that's been
obscured in the explanation of why these provisions are being
pushed.
· The second major point I want to make is about US foreign
doctrine -- I won't say much, because I think that the
analysis earlier was very clear and persuasive -- but as you
know, under copyright, copyright for a lot of lawyers is
indefinite, and particularly when public domain materials are
being rebroadcast, it's not clear that its anything but
indefinite, having no creative spark, when rebroadcasting
public domain materials, not improved by the broadcaster. So
what is the justification? How would this fit under US
copyright law? Maybe under the Commerce Clause, but then you
run into difficulties which were mentioned earlier.
· A second concern which I don't think has been mentioned, is
that this right is apparently perpetual. You get the right -
- your control over the broadcast is extended every time you
rebroadcast the material. And on the web it's trivial to
rebroadcast material. Every time a user downloads
information from the web, that is essentially a rebroadcast.
So it's not clear how this perpetual right would fit into the
framework of US law, and why that would be justified.
· And the third and final point I want to make is one that
everyone else has made -- about the process. I understand
that the treaty is proceeding in certain ways and that you
won't be certain exactly what the provisions say until the
Diplomatic Conference. In your introductory remarks you also
framed it as "proceedings leading to the adoption of a treaty
for the protection of broadcasters" -- which suggests that
the US Delegation is fairly confident that there is going to
be a treaty for the protection broadcasters.
· We also know that these provisions for webcasting are very
novel, new provisions, and there has been less analysis; and
it seems that not only are there democratic issues, but from
the perspective of the Delegation which wants to make
effective policy for the nation, and for its influence for
effective policy in the world, it seems like it would be
valuable to get as much input as you possibly could. For
that reason I would encourage you to have a broader
consultation process.
Richard Stallman, Free Software Foundation
http://www.nyfairuse.org/action/wipo.xcast/audio/25-Richard-Stallman-on-Representative-Process.ogg
· Once there's a diplomatic conference, and it says "Here's the
treaty" and it's handed to the Senate, to have a public
consultation then would be a public consultation about "yes
or no." In order for the public to have any input into what
this treaty says, it has to have that input now, there has to
be a consultation now. Waiting for the formality of a
consultation once the treaty's already been negotiated, is
almost like not having one
Harold Feld, Media Access Project
http://www.nyfairuse.org/action/wipo.xcast/audio/26-Harold-Feld-on-Dialogue.ogg
· Many of us here would be very happy to work with staff on
ways to keep the public informed, to engage in further for a
constructive dialogue; and while certainly we would agree
that a Federal Register notice is ultimately necessary, we
recognize that there are other means that can correct
misunderstandings in the process, providing general
understanding of how this treaty moves forward, and I
certainly hope that this meeting is the beginning of a
dialogue rather than the end of one
Paul Hyland, Computer Professionals for Social Responsibility
http://www.nyfairuse.org/action/wipo.xcast/audio/28-Paul-Hyland.ogg
· We signed the letter that was referenced before, asking for a
more open process; we certainly encourage anything toward
those ends. But I'll limit my remarks to our civil liberties
concerns about this treaty.
· We support the freedom to more broadly communicate and create
materials through the Internet and technologies that may or
may not have been developed to this point, but also freedom
to innovate. In a narrow sense, among computer professionals
and people who create the technology that support community,
and other technologists, we see this treaty and technologies
that are mandated by it as limiting that freedom, both in the
broader sense of using the Internet to communicate and create
materials, and in a narrower sense, that the technology is
used to create new products that might or might not include
such technologies, that might do things that aren't even
envisioned at this time.
· I think it's sort of ironic that a so-called "intellectual
property" regime actually, rather than protecting creativity,
instead hinders it.
Mike Keplinger, Closing Comment
http://www.nyfairuse.org/action/wipo.xcast/audio/29-Mike-Keplinger-Thank-You.ogg
· Thank you very much for your comments. We'll take everything
that we've heard here today under consideration, and we'll be
back in touch.
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