A UN/WIPO Plan to Regulate Distribution of Information on the Internet

The distribution companies are seeking to claim ownership rights in works they did not create, and which they do not own.
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A UN Agency is debating a sweeping new form of regulation for the Internet. The call for this new regulation is being led by the United States government and the European Commission, pushed by highly paid lobbyists for a trade association that includes Yahoo, Microsoft, AOL, Real Networks and a handful of other companies.

The United States government negotiators represent the two agencies. The United States Copyright Office, headed by Mary Beth Peters. The United Patent and Trademark Office is run by former Republican hill staffer John Dudas. dudas2004mar30.jpgmarybeth_peters.jpg

The US negotiators are not trying to impose US law on the rest of the world. They are instead seeking a new global law that is completely outside of US legal traditions, and according to legal experts, of dubious constitutional legality in the United States.

The European Commission represents with a single voice the position of some 455 million persons in 25 member countries of the European Union. The new copyright chief for the EC is Tilman Lueder.

The European Commission is also not trying to impose current European legal traditions on the rest of the world. Both the US and the EC negotiators are trying to create a brand new and untested regime of Internet regulation that they have never even attempted to adopt in their own Congress or parliaments.

The fora for this international law-making exercise is the World Intellectual Property Organization, known in English speaking countries as WIPO. What is proposed has nothing to do with copyrights or patents, but rather something new, that no country has yet tried, and which is granted to protect “investments” in the distribution of works, rather than to reward creative activity. The treaty is being pushed by WIPO's top official charge of copyright policy, former US Trade Representative and noted textile negotiator, Deputy Director of WIPO, Rita Hayes.

What is proposed is as follows. Any web page operator who makes any combination or representations of “images or sounds . . . accessible to the public . . . at substantially the same time,” would be granted a new right, to authorize or prohibit anyone from copying the data, or republishing or re-using the information in any form.

This may sound like copyright, but it’s not. This new “webcaster” right is something that would apply to public domain material, and it would apply to works that are copyrighted, even if the webcaster is not the copyright owner, and does not even have a license to use or to restrict access to the copyrighted work.

What this means is this. If you download a file from the Internet, you would have to get the permission of the web page operator before you could republish the data elsewhere. This permission would be in addition to any permissions you would need from the actual copyright owner, and it would even be required if you are seeking to publish something that was either in the public domain under copyright law, or that had been licensed for distribution under something like a creative commons license.

This new “webcaster right” would be automatic, and come also with a whole set of new requirements to enforce technological protection measures (TPM) and digital rights management (DRM) schemes on Internet transmissions. The webcaster would have an ownership right in the information for 50 years, and the 50 year term would start new with every transmission of information.

The rationale for the new “webcasting” right concerns a related effort to update sections of a 1962 treaty called the Rome Convention, which provides for a more limited but still controversial “broadcasters’ right” for information broadcast on traditional television or radio. In some countries, broadcasters are given a 20 to 50 year right in the information they broadcast, which like the proposed webcaster right, is separate from and in addition to the rights (if any) of copyright owners.

The United States and more than 100 other countries have never signed the Rome Convention, and do not recognize such a right. Most European countries have signed the Rome Convention and have the “broadcasters right” as part of a scheme of “related rights” that co-exist with copyright.

Academics like Jamie Boyle from Duke note that the co-existence of different legal regimes in different countries provides for a natural experiment. Is the Rome "broadcasters' right" needed to stimulate investment in broadcasting? Obviously not, he notes, given the health of broadcasters in countries like the US, which never signed the Rome Convention.

But in any case, the Rome "broadcasters right" has never been applied to the Internet, where it is expected to have a much different impact. On the Internet, people are more than just passive viewers of network content -- they create, remix, and share information in a constantly evolving and creative way.

Broadcasters, including the US broadcasters who have never had such a right, want an “updated” and expanded “Rome+” treaty, with greater rights to commercialize other people’s works, longer minimum (50 year) terms, and other extras, like new TPM/DRM obligations. Because broadcasters put politicians on the air, they have a lot of political power, and it is possible they will get a new treaty. The most active company in the US pushing for this appears to be News Corporation, the well-connected owner of Fox news.

The webcasters recognize the broadcasters have political influence they could only dream of, and also that they will be competing with the broadcasters for more and more context. They have demanded “parity” with the broadcasters in any new treaty, effectively importing the new Rome+ regulatory regime to the Internet, in order to be “technologically neutral.” Thus a controversial regime that was designed for TV and radio would be dumped on the Internet, in order to harmonize the two systems.

The actual proposals for new treaty provisions on this “webcaster” right were written by lobbyists for a trade association called DiMA, that includes some 25 firms, including such heavy hitters as America Online, Apple, Microsoft, RealNetworks and Yahoo!

Yahoo, now run by former Hollywood exec Terry Semel, is the most visible promoter of the webcasting treaty proposal.

DiMA’s pricey lobbying team includes DiMA Chief Jonathan Potter and lobbyists-for-hire Seth Greenstein in Washington, DC and Lucy Cronin in Brussels.
jon_potter.jpg sethg.jpg lucy_c_cronin.jpg

WIPO will convene meetings in April and June to debate this issue, and then decide by September 2006 if a diplomatic conference on the new Rome+ broadcaster treaty will be scheduled, and if they will consider treaty provisions for “webcasting.”

Right now the US and the WIPO Secretariat are pushing a proposal to extend all of the TV and Radio Rome+ provisions to the Internet, under three difference mechanisms, which all pretty much do the same thing. Last week the EC’s copyright chief Tilman Lueder surprised a lot of people when he endorsed the proposal to keep webcasting in the terms of reference for the new treaty -- reversing earlier EC positions on the webcasting proposal, which they had earlier opposed. Lueder said the new treaty had to be “technology neutral,” which means the new rights have to apply to all of the new technologies -- even if they undermine the very traditions that have made the Internet so valuable. (In this case, the illogical logic of harmonization).

Meanwhile, a number of civil society NGOs, academic scholars and some businesses have been pressing the US and the EU to consult formally with the technology community on the new proposals. So far the US and the EU negotiators refuse to do so, out of a fear that the more people find out about this little known treaty, the less they will like it.

One final note about the use of langauge and symbols to sell this treaty. Both the broadcasters and the webcasters claim that they are just trying to curb piracy. Well, if the works they broadcast or webcast are copyrighted, we already have lots of laws and treaties for that, including for the example the two 1996 WIPO Copyright treaties (the WCT and the WPPT). Indeed, the copyright owners are actually hostile to both the broadcast and the webcast treaties precisely because they prefer that copyright owners call the shots, and control access to the works. And, all parties, including cyber-rights, consumer and copyright owners, have agreed to support a narrow treaty that protects traditional broadcasters from someone hacking a signal illegally. But what the broadcasters and the webcasters really want has nothing to do with protecting copyrighted works. They want to "own" the content of what they transmit, even when they are not the creative party, and even if they can't acquire such rights from the copyright owner (if any).

In the words of the treaty critics, the treaty proponents are guilty of piracy of the knowledge commons. They are seeking to claim ownership rights in works they did not create, and which today they do not own. They want something different from copyright, and different from the legal regime that exists in any country. They want to own what they simply transmit. And this will be quite harmful to the Internet.
For more information on the treaty, and what various NGOS, academics, and others are saying, see:

To see some cool works that will be restricted by this treaty, see:

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