[LINK] Understanding the WIPO Broadcast Treaty

Kim Holburn kim at holburn.net
Wed Nov 1 11:56:37 AEDT 2006


Understanding the WIPO Broadcast Treaty
http://arstechnica.com/articles/culture/wipo.ars

Some selected text:

> Your rights are in danger.
>
> That's the message that activist groups have been spreading as the  
> World Intellectual Property Organization moves tortoise-like  
> towards the completion of a new broadcasting treaty that could  
> curtail the ways that consumers use media and could create a broad  
> new intellectual property right over electromagnetic transmissions  
> that could last for 50 years.

> The new broadcast treaty has also had a long, strange trip from  
> conception to object of international controversy. Like most long,  
> strange trips, this one began in the 60s, when the Rome Convention  
> was signed (actually the International Convention for the  
> Protection of Performers, Producers of Phonograms and Broadcasting  
> Organizations, which was signed in Rome in 1961).
>
> The Rome Convention gave European broadcasters the right to control  
> rebroadcasts, "fixations" (recordings), and public performance of  
> their transmissions for 20 years after the broadcast was first made  
> (the US never signed). The treaty included several safeguards,  
> though: people could use transmissions in news broadcasts without  
> asking permission and they could them in education and for  
> scientific research. Apart from these provisions, those who wanted  
> to make use of broadcast material had to seek the permission of the  
> broadcaster—and all of this was in addition to needing the  
> permission of the copyright holder, who is very often a different  
> party.

> We do know a few things. "Broadcasting" means "transmissions by  
> wireless means, by radio waves propagating freely in space." Clear  
> enough, right? Except it's not. Some delegations to WIPO have  
> pushed for a broader definition that includes wireline  
> transmissions. Others argue that the treaty should use both the  
> terms "cablecasting" and "broadcasting" separately. Though the end  
> result is the same, this is the sort of thing that gets argued  
> about when you put people from across the globe into a room and try  
> to hammer out a treaty.

> The EFF worries that the proposed treaty would allow broadcasters  
> to lock up public domain material simply by showing it, after which  
> potential consumers of that video would need the network's  
> permission to use it. This isn't actually true; the only thing  
> prohibited would be using your recording of that network broadcast  
> as the source for the public domain material. Under any of the  
> scenarios considered in the treaty, users could still go directly  
> to the source, obtain the material, and use it freely. The only  
> right broadcasters get would be over their own particular  
> transmission; they have no control over the source material.
>
> That said, granting additional broadcast rights could create some  
> legitimate problems. The CDT points out that this situation could  
> create ambiguity; what if you aren't sure whether the source is a  
> broadcast or not? Consider a Creative Commons-licensed clip found  
> on the Internet that a documentary filmmaker wants to use. "Under  
> the proposed treaty," says the CDT, "the person might well worry  
> that the content may have been recorded from a broadcast or  
> cablecast. For fear of violating potential broadcast or cablecast  
> rights, the person might refrain from redistribution—even though  
> the content may not have come from a recorded broadcast at all."

> Dr. Boyle also argues that the draft treaty could well be  
> unconstitutional in the US, because intellectual property rights  
> are restricted to creative work. "They [the treaty drafts] create  
> new copyright-like rights over unoriginal material, indeed material  
> that is frequently copyrighted by someone else," he writes in the  
> Financial Times. "That violates a core requirement of the copyright  
> clause of the constitution."
>
> Not surprisingly, the NAB disagrees. Jane Mago tells Ars that  
> broadcasting does involve creative work and effort. The very act of  
> building a broadcast infrastructure and keeping it running is, in  
> some sense, creative, and she notes that broadcasters do in fact  
> create the signal. Any rights granted by the treaty would be over  
> this signal, not over the material contained in it, so she believes  
> that Boyle's criticism is unfounded.

> Those who oppose the treaty are sympathetic to this problem; they  
> simply don't feel that creating a new IP right is the best way to  
> handle it. Much better, in their view, to simply outline the sort  
> of behavior that should be illegal and require signatories to  
> criminalize it.
>
> James Love, who directs the Consumer Project on Technology, tells  
> Ars Technica that a rights-based approach is funadmentally wrong- 
> headed because broadcasters are getting these additional rights at  
> no additional risk. Broadcasters are "doing what they would do  
> anyway," he says, but he, like most others, would support a signal  
> theft approach.


--
Kim Holburn
IT Network & Security Consultant
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Democracy imposed from without is the severest form of tyranny.
                           -- Lloyd Biggle, Jr. Analog, Apr 1961






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