Tilman Lueder Head of Unit, Unit D.1
Copyright and knowledge-based economy
DG Internal Market and Services
European Commission
B-1049 Bruxelles

Dear Mr. Lueder,

CPTech wishes to express opposition to the proposed World Intellectual Property Organisation’s (WIPO ) Treaty on Broadcasting and Webcasting. Our objections relate to both the provisions that concern traditional broadcasting, and those that would create new global intellectual property rights for webcasting.

The proposals to expand the broadcasting provisions already provided for in the Rome Convention, are a poorly conceived and harmful effort by broadcasters to obtain an expanded set of commercial rights over material that they did not create and do not own. The proposals go far beyond the purported aim of the Treaty, which was to protect against signal piracy.

We have copyright laws to protect the rights of the creative community. Creative persons (and holders of copyrights) are free to license their works to broadcasting entities on any terms they wish, including delegations of authority to restrict unauthorized uses of works. The Treaty is not designed to protect copyright owners, but rather to change the bargaining position of the broadcasters at the expense of both copyright owners and the public, and to allow broadcasters to extend these economic rights to works that are in the public domain, or which have been freely licensed for public use, for example under a creative commons license. By expanding the economic rights of the broadcasting organizations, not only will the Treaty undermine the primacy of the interests of the copyright owners, and diminish the public domain, but the enhanced role of new intermediators will create higher transaction costs and exacerbate the problems of ‘orphan works’ (works whose owners or authors are not identifiable)

WEBCASTING

As troublesome as these provisions are when applied to broadcasting, they are far more serious if this paradigm is applied to the Internet, a platform that is quite different than anything we have ever seen before. The Internet is a dynamic and powerful force for promoting access to knowledge goods, and this is largely because it has been less regulated and freer than broadcast radio or television. The webcasting treaty language is an attempt to control the free flow of information on the Internet in a way that will be profoundly harmful to the public, and to many innovative services and technologies. The imposition of a new layer of formalities, and the attempt to claim ownership over copyright free or freely licensed works will have large negative consequences on the entire Internet Community, who are largely unaware of these discussions.

Why is the webcasting provision being considered in this treaty? The proposal originated from the United States trade negotiators seeking to add on the webcasting proposal to a different treaty involving broadcasting organisations. Such a proposal has not been adopted by any parliaments anywhere. The Treaty is not trying to harmonise intellectual property laws,rather it creates brand new and untested regulatory regimes for the Internet ,through the World Intellectual Property Organisation -- and trade delegations that are clearly captured by a few rent seeking corporate lobbyists. This is appalling. How can anyone call for a global Treaty creating new and intrusive changes in the way information is distributed on the Internet, before any country has done so domestically? Are trade officials the new global parliament on intellectual property policy on matters of first impression?

To date the European Commission has not supported the proposal for the inclusion of webcasting. However the WIPO Secretariat has produced an options paper on webcasting, which is to be discussed at the Special Standing Committee session on 20-21 November 2005, and the Commission will have to confirm its position. We are concerned that despite widespread opposition the key option that should be included in this paper, to exclude webcasting, is missing. We are further concerned about rumours from the US that the Commission is minded to change its opposition to the inclusion of webcasting in some form. We urge the Commission to resist such pressure and to maintain its opposition.

The Commission has however, put forward its own troubling proposal, that new rights should be given to broadcasters to cover simulcasting (the simultaneous and unchanged retransmission on computer networks of its broadcast, by broadcast organisations.) There is a grave danger that this will in effect cover webcasting by the back door. The Commission is aware that there are real difficulties in formulating a clear distinction between simulcasting and webcasting. Indeed a number of organisations who are supporting this Treaty, which gives them new rights over digital content are opposing content obligations in the context of the current review of the Television without Frontiers Directive. One of the reasons claimed for such opposition, is the difficultly in distinguishing between linear and non linear content. As one industry group states:

‘These difficulties surrounding the classification of content in a multiplatform arena reflect the fact that we simply no longer have an adequate definition for what the terms ‘broadcasting’ and to some extent ‘telecommunications’ will mean five years from now .It seems sensible for this issue to be explored further before any adaptation of broadcast regulation is undertaken’ ( Intellect Response to the European Commission Issue Papers).