Definition of webcasting

by James Packard Love

The U.S. delegation is required to submit more information about the scope of international protection for "webcasting" to WIPO by August 1, and is asking for suggestions for definitional language by email by July 15.

I was asked by someone to provide an example or conceptual model of a “restrictive” definition.

We had earlier pointed out the current definitions of webcasting organizations and activites are extremely broad, including for example, the type of activities discribed in this web page:

Look, I'm a Webcaster

The February 8, 2006 definition (SCCR_14_2) of webcasting and webcasting organizations looked like this:

(a) “webcasting” means the transmission by wire or wireless means over a computer network for the reception by the public, of sounds or of images or of images and sounds or of the representations thereof, by means of a program-carrying signal which is accessible for members of the public at substantially the same time. Such transmissions, when encrypted, shall be considered as “webcasting” where the means for decrypting are provided to the public by the webcasting organization or with its consent.

(b) “webcasting organization” means the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representations thereof, and the assembly and scheduling of the content of the transmission.

I'm not sure the best strategy for narrowing the definition, and this is highly risky without some understanding of the rights one might associate with the defintiions . But assuming I hated the rights, I would consider things like this:

1. Limit webcasting to only scheduled streaming of audio and video feeds, and specificially exclude text, images and data that could be viewed separately from the video feed.
2. Exclude from protection any streaming of audio and video feeds of public domain materials, or for which the webcaster does not have evidence establishing the copyright owner wishes to restrict access.
3. Exclude from the protection any streaming of meetings or events the primary purpose or effect of which is to promote transparency of government or non-government entitites.
   
4. Put conditions on scheduling, to include evidence that (a) the scheduling is independently promoted, (b) that a signficant amount of the traffic is from the scheduled stream, (c) that the material would not otherwise be available from the site except for the scheduled streaming, and (d) the material is commerically valuable, costly to stream, and would not and or is not available to the public from other sources, without measures to commerically exploit the works.
5. The method of obtaining access to the streamed work is itself restrictive, in the sense that it requires remunerative subscriptions,
   
6. The technologies used to stream the works do not undermine any of the public's rights under copyright, such as fair use or other non-remunerative uses permited under copyright.

This is just for discussion... and I'll solicit suggestions about modifications or additions that would provide greater protections to copyright owners and the public, and reserve the right to completely change my mind once the errors of these proposals have been pointed out.