[cc-community] WIPO Killing CC ?!

Christian Ahlert ca at openbusiness.cc
Thu May 4 09:33:43 EDT 2006

James Love discusses on A2K how the WIPO Broadcast Treaty could  
effectively circumvent or supersede CC licensed material if applied  
to the Internet".

See for CC relevant sections of his email:


Or his whole, very informative, email:

     From:       james.love at cptech.org
     Subject:     [A2k] WIPO carves up the Internet (and the  
broadcast spectrum)
     Date:     4 May 2006 13:27:05 BDT
     To:       random-bits at lists.essential.org, a2k at lists.essential.org


WIPO carves up the Internet (and the broadcast spectrum)
May 4, 2006    James Love

Don't bother reading this unless the words "new intellectual property
right" and "the Internet" seem important when put together, because
it is a twisted and complicated story. Even the key players are
struggling to figure out what is going on. But like a lot of twisted
and complicated things, it is important.

The World Intellectual Property Organization (WIPO) is a specialized
UN agency, headquartered in Geneva, Switzerland. This week it is
holding a contentious five-day negotiation on a new Treaty, the
purpose of which is to provide a new "protection" for "broadcasting
and webcasting organizations."

What does this mean? WIPO is debating whether or not to create a new
intellectual property right in information that is distributed over
television, radio, cable television, or through any wired or wireless
computer network, including the Internet. This is something different
from copyright. Indeed, it is designed to benefit people who cannot
get a copyright, because a work belongs to someone else (the person
or group that created it), or because the information is in the
public domain. The new right is not a "copyright," but a
"broadcaster" or "webcaster" right. It is a bad idea when applied to
television or radio, but a disaster if applied to the Internet.

In different ways, the US and the EU both think they can use this
right to extract money for simply distributing information over the
Internet into foreign markets.

The right comes at the expense of consumers and copyright owners --
benefiting the distributors of information. It might be called the
"middleman right." This has attracted a large group of corporate
lobbyists who want to see their clients named as beneficiaries of the

It works like this. If the owner of a broadcasters or webcaster
publishes anything, they get an ownership right in the information,
equal to the rights of copyright owner, so before you could make a
copy, share or reuse the information in any way, you would have to
get permissions from both the copyright owner and distributor of the
work. This is supposed to "protect" the "caster" for its investments
in broadcasting or webcasting.

The meetings at WIPO are chaired by a very strong advocate of high
levels of intellectual property rights, Jukka Liedes, from Finland.

The European Union, the United States Government and several other
governments want this new right to last 50 years, beginning each time
information is republished.

This new right only applies to copies of the works distributed by the
"casting" organization, so if you can get a copy from another source,
it would not apply, something that would not be a problem if the work
was a Hollywood film or music recording widely available elsewhere in
DVD or CD formats. But for a number of other works, there just won't
be any practical or cost effective way of getting a copy from another
source. (Which makes the "casting" right so valuable).

Why is this such a big deal, and particularly for the Internet?
First, there are lots of important works that are not protected by
copyright, including events of high public interest such as
presidential speeches, recordings of US Supreme Court debates,
recordings of meetings and telephone calls by several US presidents,
and some Congressional hearings. And, there are far more works that
are technically protected by copyright, but which are in practice
freely available, because the owners of the work want to share it
widely, or do not choose to enforce restrictions on how a work is

Web pages are full of documents, sound recordings and video that are
licensed under Creative Commons licenses, or simply passed around
informally. Information on the Internet often is republished on many
different web sites, each reaching its own communities. This is
exploding at an astonishing rate as the costs of making and hosting
works falls. Within a short time, anyone will be able to create a
webcast from a mobile phone, and create records of meetings of all
types, news events, performances, interviews, or any number of other

Increasingly, people are using these works to create newer works, in
documentaries, news reports and commentary, or cultural or technical
works that remix or mashup content. Grid Computing and other emerging
technologies are creating astonishingly creative and important ways
of collaborating.

Copyright alone presents huge problems for the distribution of and
creation of these new Internet based works. But a new intellectual
property right for webcasting will make things even more difficult,
at least doubling the permissions one needs. At a minimum it will
increase transaction costs. At worst, it will change the culture of
sharing information on the Internet, with some exercising as many
rent seeking rights as they can acquire.

Who is pushing for this new "webcasting" middleman right? It is not
the vast majority of bloggers, web page owners and others who are
creating and distributing content. It is a tiny handful of big
corporate players, including most notably US companies like Yahoo,
News Corp (owner of MySpace), Microsoft, Time-Warner/AOL, AT&T, and a
handful of large European media companies, including it seems, the BBC.

Yahoo and others see themselves as aggregators and distributors of a
wide varieties of audio visual works created by others, including
music performances and films from all over the world. Under the most
aggressive proposals debated this week, the Webcasting right will
make Yahoo a part owner in everything they "webcast," and potentially
give them the right to claim things like fees from cyber-cafes,
community Wifi networks, schools and educational institutions, even
when works are in the public domain or are freely licensed under
creative commons type licenses, as well as a number of other
situations. This comes at the expense of both the copyright owners
and consumers.

The Broadcast/webcast right, if defined too broadly, as some here
want, also allows the broadcaster/webcasters to compete against the
copyright owners in downstream commercialization of works, which is
another reason why it makes copyright owners unhappy.

The US and the EU are split on who should be the beneficiaries of
this new right. The EU, lead by copyright chief Tilman Lueder, who
formerly worked on competition issues, wants to restrict this new
webcasting right to the incumbent broadcasting organizations, like
BBC, so that only they would be able to claim the layer of rights,
and not new competitors, even though they are both operating on the

The US, led by Library of Congress lawyer Jule Sigall, wants to
extend this new right to companies like Yahoo, News Corporation,
Microsoft, Time-Warner or AT&T, but not to "bloggers or people who
just maintain web pages." Right now the treaty definitions extend to
pretty much any legal entity that creates a web page. During
discussions with the US delegation, I actually created a webcasting
site webcastingexample.blogspot.com, to show how trivial it was to
get the 50 years of exclusive rights over copies of Congressional
testimonies involving Avian Flu.

About eighty-percent of the push for this is coming from the United
States, about 19 percent from the European Union, and about 1 percent
from other countries. No one who is pushing these treaties can
explain why anyone who would get the right actually needs it in the
first place, and there is no assessment of how this will impact
copyright owners, consumers or creative communities and innovative


The original basis for this right is a 45 year-old treaty called the
Rome Convention on the protection of performers, producers of
phonograms and broadcasting organizations. The Rome Convention is now
signed by 83 countries, but not by more than 100 other countries,
including the United States. Every country, including the United
States, gives some types of rights to performers (actors, singers,
musicians, dancers, and other persons who act, sing, deliver,
declaim, play in, or otherwise perform literary or artistic works) or
producers of sound recordings, but the US and many other countries
did not create a special right for broadcasters.

The Rome Broadcasting Right is considered the weakest and most
controversial component of the Rome Convention. Broadcasters
typically rely upon free public spectrum, are hugely profitable, and
do not need any additional incentives to broadcast. As Jamie Boyle
has pointed out, the US never accepted this right, and we have a huge
and highly profitable broadcast sector. (Dito for the cable TV
industry). Basically, the Rome Broadcaster right is a 45 year old
mistake. But like many other intellectual property treaties, it is
extremely difficult to roll back unnecessary or restrictive IP rights.

The US based National Association of Broadcasters (NAB) lead by
lobbyist Ben Ivins, had pushed for years for WIPO to "update" the
1961 Rome Convention to expand the Broadcaster rights, extend the
term (from 20 to 50 years), and add a number of other things. Even
though NAB is pushing a European style approach, the USPTO and US
Library of Congress has strongly backed a new treaty, extending
European legal norms.

Because broadcasters worldwide play an important role in shaping
public views on politicians, they have extraordinary political power.
Yahoo, now led by Terry Stempel, a former Hollywood executive, pushed
to include Webcasters in the treaty, with full parity rights of the
Broadcasters through the trade association DiMA and a number of
private lobbyists. Seth Greenstein, a DC-based lobbyist, said he
wrote the key sections of the current treaty that extended the Rome
rights to webcasting organizations. Lobbyist Jonathan Band has been
downplaying the importance of the treaty to the technology and
library communities, despite its close parallels to a new
intellectual property right for databases, which he opposes on behalf
of other clients.


There is a deeply divided debate at WIPO over the scope of rights
associated with the Broadcaster or Webcasting organizations. The
European Union and some other countries are pushing very strong ROME+
rights in the treaty. A growing fraction on the other side, are
pushing for a very thin layer of protection that is really only
useful in protecting against piracy of a broadcast/webcast, but does
not create an ownership right in the work. At this meeting Jule Sigal
of the US Library of Congress has moved toward the signal protection
only approach, supported by most NGOs, copyright owners and many
developing countries. This was a long overdue and welcome development
that has enraged the NAB. It is uncertain how this debate will play
out, given the strong position of the European Union to promote its
much different approach, and the very difficult problem of lower
global treaty norms for intellectual property protection. (See memo


If you don't know about the Treaty, it is because there has not been
a single story about it in the New York Times or Wall Street Journal,
and I think only two stories in the Washington Post, the most recent
of which ran last year, and one in the New York Herald Tribune, which
few people in the United States read. The computer trade journals
have written very little about it either.

The USPTO and Library of Congress have rejected numerous requests to
issue formal requests for comment the treaty, and have scheduled no
public meetings on the treaty. The US Congress has not held any
hearings on the treaty. When the National Academies held a recent 5-
hour public event about the meeting, not a single member of the US
negotiating team attended.

Ironically, it was a webcast of the National Academies event that has
created more resistance. Key Intel officials listened to the National
Academies event, and decided to oppose it. This has been a wake-up
call for many in the technology community. Some big firms are siding
with Intel, that the whole treaty poses a number of problems and
should be opposed. Others, like AT&T, are trying to ensure they get
the new webcasting rights.

We have told technology companies, including Yahoo, Myspace, AT&T,
Google, and others, that it is short sighted to see this new right as
something that will only benefit them as publishers. There is
enormous value in sites like Yahoo, Google, Myspace, Blogspot and
millions of other large and small web pages, blogs etc, which
flourishes because of the relative freedom that exists on the
Internet. New regulations, restrictions and costs of sharing of
information will shrink this value.

In the developing countries, there is strong opposition to the
expansion of the Rome broadcaster right to the Internet. They
correctly see this as something that will increase transaction costs
and prices, harm access to knowledge, and undermine the rights of
their own copyright owners in the works distributed over the Internet.

A larger and growing number of non-profit groups like CPTech, EFF,
Public Knowledge, Consumers International, Consumers Union, (non-US)
library groups (like IFLA, eIFL), IP-Justice, TWN, the Open Knowledge
Foundation, Union the for Public Domain, and other "A2K" groups are
playing a very important role in opposing the treaty. With the
exceptions of James Boyle at Duke and Jennifer Urban at USC, US
academics have not expressed interest in the treaty so far.... we are
hoping that will change.

-----Original Message-----
From: James Love To: Lee Knife (DIMA), Bradley Silver (TimeWarner),
Sarah Deutsch (Verizon), Fritz Attaway (MPAA); Ben Ivins (NAB),
Biddle, Brad (Intel); David Fares (NewsCorp), Gwen Hinze (EFF), Jason
Pielemeier (Yale ISP), J Mago (NAB), Kevin Rupy (USTelecom), Marily
Cade (AT&T), Manon Ress (CPTech), Matt Schruers (CCIA), Peha (IP
Justice), Thiru (CPTech), Winston Tabb (IFLA),
Sent: Tue May 02, 2006
Subject: Inclusion of webcasting or other services in Treaty

I think should offer some comments on the CPTech position on the
inclusion of webcasting or other Internet services in the Treaty.

1. If the treaty was only about some theft of service, and did not
involve an intellectual property right for transmitting/disseminating/
publishing information, then we would not care much what services are
included. But of course, the treaty does contain IP rights, and so we
do care, a lot. So do a lot of others, including copyright owners and
developing country delegates.

2. There is very little chance that this treaty will be adopted
without Rome type rights, or even Rome+ rights, for the following
reasons. First, 83 countries have signed the Rome, and many already
have in domestic law Rome+ rights, including most countries in
Europe, and it would be hard for many of these countries to support
something that lowers the global norms on rights substantially.
Second, the TRIPS already has some IP protection for broadcasters,
particularly for those who use the related rights approach, and you
won't change this. Third, NAB and other broadcasters organizations
would oppose a treaty that does not have Rome+ rights, since it would
make them worse off than the Rome, which they already have.

3. NAB wants Rome+. DIMA want parity with whatever broadcasters get.
That leads to an import of Rome type rights into the Internet. If you
say you like parity for the Internet, what you are saying in
practical terms is that the Internet should have Rome type rights. We
are very opposed to this, and for that reason, we are willing to say
that parity is a bad idea, and will harm the Internet, and harm
copyright owners. I really don't think it is even good for DIMA
members, but that's a different issue.

4. In terms of efforts by some to actually expand the definitions of
webcating to include more and more services on the Internet, it just
makes the whole treaty even worse for those who hate the Rome
approach, and it isn't just me you have to consider. Anyone listening
to the debate should appreciate how much resistance there is to ANY
inclusion of webcasting, let along the even broader definitions that
pick up other services.

5. Our position is that the US delegate should defend US norms, which
include no protection for webcasting, and no ROME or ROME+ rights.
(why not address webcasting issue in USA before demanding a global
treaty). One way to do this is to kill this treaty, which the US
could easily do, since it is the main demander for it. The SCCR could
work on other issues..... like a global norm for minimum limitations
and exceptions for persons living with disabilities, libraries,
distance education etc, which has already been proposed by Chile, and
which would be welcomed by developing countries, and would be
consistent with US copyright traditions. It could revisit the
webcasting issue later after US law is more mature on this issue, and
more is known about the technology.

6. Another possible thing to consider is something that would solve
the very real problems facing non-USA sports broadcasters. This we
could support, as we have indicated many times.

7. All the talk about piracy in relationship to broadcasting has been
mostly for public relations. Piracy is already illegal under lots of
different laws, including copyright law. WIPO could work on some best
practices models for countries to plug in some of the small gaps in
some broadcasting regimes, without even worrying about a treaty on
this. And if piracy was a big problem, then NAB and other
broadcasters could have a signal theft only treaty in 5 minutes, but
they don't really want one.

8. A final note about the Internet. The Internet probably never would
have existed had it been regulated like broadcasters, because
lobbyists would have fought to control every new idea and technology.
I don't think the lack of regulatory parity for the Internet was a
bad thing.


James Love, CPTech / www.cptech.org / mailto:james.love at cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040

"If everyone thinks the same: No one thinks."  Bill Walton

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Christian Ahlert
ca at openbusiness.cc

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