Webcasting Treaty Would Seize Rights from Creators and the Public

Even as the film, music and publishing industries climb on their high horses to demand that the public respect copyright laws, they are quietly flexing their political muscles in obscure policy venues to eviscerate the public’s fair use and public domain rights, and create entirely new rights to lock up culture for themselves. The latest dispatch from this front comes from that Paul Revere of the intellectual property world, Jamie Love of the Consumer Project on Technology, who is sounding the alarm about a proposed webcasting treaty now being considered at the World Intellectual Property Organization (WIPO).

The treaty would authorize a webcaster to “take a work private,” even if it is already in the public domain or the copyright owner has licensed the work for broad public use (via a Creative Commons license, for example). As Donna Wentworth explains on Copyfight:

…a company could take a movie that’s fallen into the public domain, webcast it, and keep the general public, to whom it belongs, from recording it. It could webcast Creative Commons-licensed songs that people have specifically earmarked for easy digital distribution and remixing, then demand that no one touch the webcast. And there is no additional creative effort necessary to accrue these rights. All you have to do is feed any combination of sound or images through a web server, and you’re golden.

The treaty also has language that would make it illegal to use devices that enable people to skip commercials on radio play lists.

Largely at the behest of Yahoo, the National Association of Broadcasters and Fox, the United States Government is aggressively pushing the treaty even though its implications have hardly been studied, the public’s and creators’ rights would be severely compromised, and no similar webcasting law exists anywhere. The idea is apparently to craft a self-serving new legal regime behind closed doors, and exclude the public just long enough for the treaty proposal to become an unstoppable “international consensus.”

A number of consumer groups met with the U.S. Copyright Office on September 15 and were astonished to learn, that the proposed treaty has hardly been evaluated in a serious way. As Love reports, the webcasting treaty has not been evaluated for how it might affect the “orphan works” problem [in which ownership of works cannot be determined, impeding uses of the work]; how new webcasting rights would affect copyright owners, podcasters and peer-to-peer networks; and what unintended consequences might be in creating a new right of transmission for the Internet. There has not even been any analysis of what U.S. laws might have to change if the treaty were ratified!

On September 19, the Consumer Project on Technology wrote a letter to twelve key senators and representatives to try to slow down the webcasting treaty process and open it up to public scrutiny and debate. In the meantime, WIPO is apparently planning to forge ahead regardless.

Forget Tom Friedman’s pap; this is what globalization is all about: the use of remote, invitation-only international policy venues by corporate elites to secure new markets and bypass the democratic process. For more on the webcasting treaty, check out an excellent analysis by Love’s group, the Consumer Project on Technology, and an earlier analysis by Copyfight’s Ernie Miller.