13 October 2005

Dear Senators Bill Frist, Harry Reid, Arlen Specter, Patrick J. Leahy, and Representatives Dennis Hastert, Nancy Pelosi, James Sensenbrenner, Jr., and John Conyers, Jr.

RE:  Request for Public consultations regarding Webcasting treaty proposal at WIPO

We are writing to ask that Congress insist that the United States negotiators  block a diplomatic conference at WIPO that would create a new Intellectual Property Right for Broadcasting and Webcasting Organizations until a federal register notice requests public comment on the costs and benefits of the proposal.

The treaty proposal is complex and will have far-reaching consequences. But few US firms or members of the public are even aware of the proposal.  Moreover, the U.S. government agencies responsible for WIPO negotiations on the treaty have not yet adequately analyzed even the most basic issues, including, for example, the impact of the treaty on the Internet, or the required changes in U.S. law.

We oppose in particular a proposal in the draft treaty that would create a new intellectual property right affecting both the rights of the general public and the rights of copyright holders.   Specifically, this proposal would grant to persons who make combinations or representations of images and sounds available to the public over broadcast networks and other networks, including the Internet, a 50-year exclusive right to authorize or prohibit the copying or redistribution of such information. Not only would this right, granted to broadcasters and webcasters, allow those who transmit content to effectively close off works in the public domain, but it also would encumber the rights of copyright holders (making it harder for them to license their works to others), and would pre-empt the rights of many stakeholders, including the general public, under our copyright law.

This new intellectual-property right is an expanded version of a related right for broadcasting organizations that is provided for in the Rome Convention, a treaty the United States and more than 100 other countries have never signed.  Nevertheless, the United States is proposing to extend this controversial right to the Internet (and other networks, including private networks).

A small number of webcasters are asking that they be given the same intellectual property rights that the treaty would give to broadcasters.  But many other Internet companies, including those also involved in webcasting, "reject the idea that the Internet needs or will benefit from the extension of these pseudo-copyrights to so-called 'Webcasters.'"  These companies further argue that "Adding a new layer of intermediaries, over and above copyright holders, for the re-use of information on the Internet benefits no one -- save those intermediaries.  If an Internet company has the rights to a work, or need not secure the rights to a work due to a limitation in copyright, or because the work is in the public domain, there is no rational reason to require that the company also seek the permission of a further intermediary whose sole creative contribution to the work is in making it available." [1]

Finally, we note that there are serious definitional problems with the proposal's approach to webcaster rights -- it may burden all World Wide Web content (including text and still images) with a rights framework that was designed for broadcasting radio waves over the air.

We ask that any decision about a diplomatic conference be deferred until there is an opportunity for the affected parties -- ranging from librarians and civil society groups to recording artists, filmmakers, and publishers -- to comment on the proposal through an appropriate federal register notice.

Sincerely,

Mark Cooper
Consumer Federation of America

Mike Godwin
Legal Director
Public Knowledge

James Packard Love
Consumer Project on Technology

Professor Jennifer M. Urban
The Law  School, University of Southern California*

Robin Gross
IP Justice

Frannie Wellings
Free Press

Jeannine Kenney
Consumers Union

Paul Hyland
Computer Professionals for Social Responsibility (CPSR)

Wendy Seltzer
Fellow, Berkman Center for Internet & Society at Harvard Law School

Professor James Boyle
Duke Law School*

Gwen Hinze
Electronic Frontier Foundation (EFF)
San Francisco, CA

David Tannenbaum
Union for the Public Domain (UPD)

Joshua D. Sarnoff
Glushko-Samuelson Intellectual Property Law Clinic
Washington College of Law
American University
Washington, DC

Eric Blossom
GNU Radio
Blossom Research, LLC
Reno, NV

Corynne McSherry
Electronic Frontier Foundation (EFF)
San Francisco, CA

Malla Pollack
American Justice School of Law
University of Idaho

Ken McEldowney
Executive Director
Consumer Action
San Francisco, CA

Marc Rotenberg
EPIC / Public Voice
Washington, DC

Ed Mierzwinski, Consumer Program Director
U.S. Public Interest Research Group (U.S. PIRG)
Washington, DC

Jack Willis
LinkTV

Anatoly Volynets
President
www.total-knowledge.com, California

Michael Shames
Executive Director
Utility Consumers' Action Network
San Diego, CA

Steve Cleary
Director
AkPIRG
Anchorage, AK

Billie J. Kincade
President
Victim's Committee for Recall of Defective Vehicles, Inc.
Catoosa, OK

Paul Hinman*
ASCAP
Nashville TN

Daniel Krimm
Los Angeles, CA

Patricia Dolan
Santa Fe, New Mexico

Claire Stewart
Northwestern University Library
Evanston, Illinois

Peter Suber
Open Access Project Director
Public Knowledge
Washington, DC

A. Michael Froomkin
U.Miami School of Law
Coral Gables, FL

Sasha Costanza-Chock
Communication Rights in the Information Society

Eddan Katz
Information Society Project
Yale Law School
New Haven, CT

David Meieran
Global Thought
Pittsburgh, PA

Joshua Sturgill
Morehead, KY

Dorothy Kidd
Dept. of Media Studies
University of San Francisco

Marcus Estes
Tables Turned

Matthew L. Seidl
Wraith Interprises
Longmont, CO

David Tarleton
Tarleton / Dawn Productions
Los Angeles, CA

James Bessen
Boston University School of Law
Harpswell, ME

John Markos O'Neill
San Francisco, CA

Keith Copenhagen
Orinda, CA

Carolyn Sortor
Dallas, TX

Leslie B. Gore
Kay Gore
Virginia Beach, VA

Richard A. Milewski
RamPage Publishing

John Lozier
Harping for Harmony Foundation
Morgantown, WV

Brianna Shepard
Los Angeles, CA

Tom Cassel
New York, NY

Robert Thornton
Rockville, MD

Daniel Lowe
Concord, OH

Jason J. Bundy
Clearwater, FL

Ben Seigel
Madison, WI

Adam Thompson
Los Angeles, CA

hannah sassaman
prometheus radio project
philadelphia, pa

Joseph Pietro Riolo
East Stroudsberg, PA

William S. Stuart
Integral Evaluation, LLC
Willimantic, CT

Jeremiah Blatz
Interpublic Group of Companies
New York, NY

Gloriana St. Clair, Dean
Carnegie Mellon University Libraries
Pittsburgh, PA

Barb Sorensen
Singer/Songwriter
Schaumburg, IL





* institution for identifying purposes only
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[1] http://www.eff.org/IP/WIPO/?f=3D20041117_open_letter.html