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Webcasting: A Sticky Issue For WIPO
by Danielle Belopotosky
The National Academies last week hosted a symposium on a draft webcasting treaty, and the tension among the panelists spoke volumes about the controversy surrounding the plan.
The treaty, which is being negotiated at the World Intellectual Property Organization, aims to extend intellectual property rights to broadcasters in an effort to prevent the theft of broadcast signals protected under U.S. law. It includes a proposal to extend broadcasting rights to webcasts.
The National Association of Broadcasters is behind the plan. The group's desires prompted the U.S. Patent and Trademark Office to submit to WIPO a plan that would create a new layer of rights for material wirelessly transmitted over the Internet, satellite or cable networks, according to a 2002 statement by former PTO chief James Rogan.
Good For Radio, Good For The Web
Seth Greenstein, a lawyer for the Digital Media Association, said the proposal would update earlier international agreements -- including WIPO's 1961 Rome Convention, which grants copyright protection to performers, producers and broadcasters, and its 1996 Copyright Treaty and Performers and Phonograms Treaty -- to address challenges of the "modern age." The United States has not ratified the Rome Convention.
Negotiators on the treaty have compared video streams over the Internet to the transmission of programs over the radio. Internet users could receive information just as "they turn on the radio but with the click of the mouse," Greenstein said. From DiMA's standpoint, he said, webcasts ought to be treated as traditional broadcasts.
DiMA Executive Director Jonathan Potter added that "if webcasters are doing the same types of activities that broadcasters are doing, they should get the same rights." America Online, Microsoft, MTV Networks, Sony Media and Yahoo are among the association's members.
The treaty would extend copyright protection from 20 to 50 years while granting broadcasters and distributors of Internet content the same rights. Proponents argue that equal rights, regardless of technology, are only fair given that WIPO currently covers music performers, authors and producers for 50 years.
Opponents say that no additional rights are warranted and that the treaty would only erect obstacles to accessing works now free for public use. The also argue that the pact could impact the rights of content holders whose material is broadcast.
The proposal has no clear limitation and would only add "new Web rights on top of copyrights," a spokeswoman representing an Internet and telecommunications company said in an interview. She asked to not be identified.
Opponents also fear that Internet companies such AOL, Google or Yahoo that carry webcasts could charge Internet service providers and telecommunications companies licensing fees to rebroadcast webcasts promoted or carried on their portals.
James Love, director of the Consumer Project on Technology, or CPTech, said distributors of copyrighted works would get more rights to transmit video over the Internet, even if those companies did not create the information. Current law typically grants those rights to creators or performers of the works. But Love said the treaty would grant rights to transmitters of information -- even for works that currently are free.
Arguments Against The Webcasting Pact
The proposal could create unintended consequences for copyright holders, said Jennifer Urban, who directs the Intellectual Property Clinic at the University of Southern California law school. She contends that licensing schemes "could undermine them or control the dissemination" of copyrighted works.
But Potter said that in any public meeting the association has held, they have "talked about not wanting to impose liabilities."
Some ISPs, meanwhile, are concerned that the treaty might not grant them liability for the copyright infringements of their users. While the 1998 Digital Millennium Copyright Act offers such protection, the liability for transmitting a protected webcast is unclear, Urban said.
Also unclear in the treaty language is whether the definition of webcasting covers static Web pages or only streamed material, Urban said. While the pact appears to be designed to cover streamed content, language that says it would apply to "sounds, images, or sounds and images (or representations thereof)" has raised some concerns.
Michael Nelson, vice president of policy at the Internet Society, questioned how the treaty would impact file-sharing networks, distributed online gaming and increasingly common video Web logs. "It doesn't make sense to impose old models on new technologies," he said.
While Nelson's group has not officially opposed the webcasting proposal altogether, he said the society has serious questions about how it would be implemented. He further questioned whether the deal would promote or hinder innovation.
The treaty further "raises questions whether webcasters could gain control of the signal in a user's home," the spokeswoman for the telecom firm said. Additional technological protections could be implemented to make it more difficult to move digital content in the home. "The whole thing has snowballed for who can jump on board to get these rights," she said, and it is "creating toll roads on the Internet."
But Potter said the treaty aims "to set norms" for how to treat broadcasting rights online.
An Appeal For Public Input
Although negotiations have emerged with little fanfare, DiMA, the National Association of Broadcasters and Yahoo have been active in the WIPO discussions. Groups are calling for greater transparency on the issue in the United States.
In September, CPTech sent a letter to the U.S. Copyright Office and PTO, requesting that those agencies invite formal public comment on the treaty. Advocates for "fair use" of copyrighted materials, telecom firms and ISPs also have sought the right to comment. To date, a notice has not been posted in the Federal Register inviting public comment. PTO was not able for questions on the issue by press time.
CPTech also has asked Congress to intervene. In a letter to Senate Commerce Committee Chairman Ted Stevens, R-Alaska, and committee members John Kerry, D-Mass., and John McCain, R-Ariz., the group objected to efforts by the U.S. patent and copyright offices to promote the webcasting provision.
"These expanded commercial rights will harm copyright owners and the public by imposing a new layer of rights that must be cleared before works can be used, and by forcing the copyright owners to share revenues with broadcasters," the letter said.
The debate is likely to escalate in the coming months. WIPO's Standing Committee on Copyrights and Related Rights last met in November and is slated to meet in 2006, with the goal of agreeing to a high-level negotiation by late 2006 or 2007.
Michael Keplinger, a senior counselor at PTO, was slated to speak at last week's National Academies panel but did not appear. And members from the broadcasting sector -- which has supported the draft proposal, declined an invitation, according to the National Academies.
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