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List:       dmca-discuss
Subject:    [DMCA_Discuss] MaryBeth Peters on Xcast Treaty
From:       Seth Johnson <seth.johnson () realmeasures ! dyndns ! org>
Date:       2006-03-18 14:41:47
Message-ID: 441C1C2B.F812273E () RealMeasures ! dyndns ! org
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> From February 22:

> http://arstechnica.com/news.ars/post/20060222-6237.html


Broadcast Treaty has potential to grant unwarranted "protections"

2/22/2006 3:47:32 PM, by Peter Pollack


The subject of an ongoing series of discussions between the World
Intellectual Property Organization (WIPO), broadcasters, and
representatives from a variety of nations, the WIPO Broadcast
Treaty (http://www.eff.org/IP/WIPO/broadcasting_treaty/) carries
the promise of standardizing how certain types of intellectual
property are treated around the world. It also presents the
ominous threat of granting a powerful 50-year right of control to
anyone who first broadcasts audio or video content.

A video featuring comments on the WIPO treaty by US Copyright
Office head Marybeth Peters has recently surfaced
(http://www.boingboing.net/2006/02/21/us_copyright_head_wo.html).
In it, she sheds some light on the fact that, although US
broadcasters would love to see the additional control granted to
them, at least some people in the government are not necessarily
in agreement on the issue, and the topic is not yet decided.
Because the WIPO Broadcast Treaty is not yet a hot-button issue,
many people may not have heard much about it and a bit of
background is in order.

For the purposes of our discussion, it should be noted that
broadcasters are separate from content creators. Broadcasters are
working to protect you (in theory) and themselves (most
certainly) from evildoers who would steal a legitimate broadcast
signal. They plan to institute this protection by gaining
specific legal rights for themselves at the expense of the
content creator and the fair use. If you've ever posted any kind
of sound and video on the Internet, you could be affected by this
provision of the Broadcast Treaty, should it be adopted.

First, let's try to envision an environment in which a person
creates a work of audio and video. That person would then be
considered the copyright holder. If that person licenses their
work to a broadcaster, a contract would be created that
enumerates exactly what the broadcaster is allowed to do, and for
how long it can be done, e.g., the broadcaster has exclusive
rights to broadcast the work for five years, etc. After the term
of the contract, the copyright holder gets those rights back.

If that idea makes sense to you, take a look around, because
that's essentially the situation we have in the United States
right now. There are exceptions and nuances to copyright law that
have been omitted for the sake of clarity, but the overall
concept remains true.

In other parts of the world, the situation is somewhat different
(http://news.ft.com/cms/s/441306be-2eb6-11da-9aed-00000e2511c8.html):

    ... nearly 50 years ago broadcasters in some countries got an
additional right, layered on top of the copyright. Even if the
material being broadcast was in the public domain, or the
copyright holder had no objection to redistribution, the
broadcaster was given a legal right to prevent it - a 20-year
period of exclusivity. The ostensible reason was to encourage
broadcasters to invest in new networks.

In the early days of broadcasting, governments often instituted
regulations which affected the broadcasting environment in their
country for many years to come. Some of these regulations were
smart, some were foolish. In hindsight, the idea that
broadcasters needed a 20-year copyright-like period to maintain
control of a broadcast seems odd. The US had no such law, and
American broadcast networks have thrived so much that many
societies around the world—including our own—have spent much of
the past half-century wringing their hands over the cultural
influence of American broadcasting.

Nevertheless, US broadcasters have sometimes looked at their
counterparts in countries with the 20-year protection law and
wished that they were given similar rights. With the advent of
the Internet, options are now being discussed that are analogous
to the decisions made in the early years of broadcasting, and
broadcasters are eyeballing an opportunity to make sweeping
changes in the name of protecting intellectual property.

The proposed changes would institute the protection law in all
countries which sign the Broadcast Treaty, increase its time span
from 20 years to 50, and include audio and video content on the
Internet under the definition of broadcasting.

In other words, suppose a TV show is shown on ABC. ABC would then
get control over any and all rebroadcasts of that show for the
next 50 years. Similarly, upload a personal video for hosting on
YouTube or Google, and that web site would gain control over it
for a half-century. Welcome to the future, Pomme and Kelly
(http://video.google.com/videoplay?docid=1015911837691979057).
[video]

Cheering on the protection provision in the Broadcast Treaty is
DiMA, the Digital Media Association, which counts Apple,
Microsoft, Yahoo, AOL, and Napster among its members and the MPAA
and RIAA among its friends. DiMA argues that the proposed
protection needs to be extended to webcasts, lest piracy run
rampant, but they never get around to explaining why the
protection is needed in the first place—even for traditional
broadcast (http://www.digmedia.org/content.cfm?id=7240).

    Equivalent legal protection against commercial theft of
webcasts will be a win for all. Copyright owners and performers
who receive royalties from webcasting will not lose money to
which they are entitled. Producers will know that material they
license for webcast cannot lawfully be retransmitted or
commercially exploited without their permission. Investors will
know that webcasters have a chance to protect their business and
expand their own audience.

Silly me, I thought retransmitting copyrighted material was
already against the law. I'm not sure how an illegal act can be
prevented by making it more illegal, but giving broadcasters
copyright-like control would be certain to at least have the
effect of tangling fair use in an additional layer of bureaucracy
while providing a new stream of licensing fees to broadcasters by
making them effectively co-copyright holders.

Finally, Marybeth Peters weighs in as someone out of the
ordinary: a government employee possessing the voice of reason:

    "We actually do have in our communications law a signal
protection provision. Theft of services. You can't basically
steal a cable, um, signal without consequences. So, the concept
that they have there, is already in the law of the United States
as it exists. The question is, should you expand it out? I think
the most controversial piece is, the scope of the right that's
being created, and the position that the US took, well, if you
are going to give that type of a right to a broadcast—theft of
their signal—then you should look at all people who are similarly
situated, including webcasters. Now, that has been totally
rejected by the rest of the world.

    [...]

    "I actually think that, from what I've read, that Europe
wanted to, Europe wanted to basically protect broadcasters when
they simulcast. We don't see the difference, so if you're gonna
go that far, then, we think you should go further. But, what I
read in the cables, and when I talk to my people, um, there
really has not been support for this broader, um, scope of a
treaty...and, we'll see what's in the next two meetings.
(Transcribed from the video by the author)"

The head of the US Copyright Office thinks that the support isn't
there for additional broadcaster protection, and it isn't needed
anyway. History seems to demonstrate that she's right, but
there's no doubt that the money and the lobbying hammer will
continue to come down on the side of big broadcasting and the
Internet services. It's just a question of how hard and how soon.


-- 

RIAA is the RISK!  Our NET is P2P!
http://www.nyfairuse.org/action/ftc

DRM is Theft!  We are the Stakeholders!

New Yorkers for Fair Use
http://www.nyfairuse.org

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