From November 3 to 5, the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) will meet in Geneva to decide how to proceed on proposals for a new global intellectual property treaty. The proposed treaty concerns a system of ownership for material transmitted over wireless means such as television, radio and satellite, as well as wired communications over cable networks, and also over Internet computer networks.

This proposal expands or gives new rights to transmitters of information, even if they are not the creators of that information. Rights that are normally reserved to creators and performers would be afforded to organizations that merely transmit creations and performances -- even if those works are in the public domain, or if those works' authors wish to have the works distributed without restriction.

There are proposals to extend coverage to broadcast, cablecast, and webcasting technologies, and the treaty will be referred to here as the "casting" treaty.

RELATIONSHIP TO OTHER TREATIES

The proponents of the treaty claim it is needed to update protections for broadcasters in the WTO TRIPS accord and in the Rome convention. However, in this case "updating" means extending terms from the 20 years of the TRIPS and the Rome Convention, to 50 years, extending the protection to many new technologies, and creating new rights. The proponents claim the extension to 50 years is a matter of "fairness," since in 1996, a WIPO performers and phonograms treaty (the WPPT) provided a 50 year term.

Most countries are subject to the TRIPS, but the TRIPS does not require members to provide these "related rights" to broadcast organizations if they provide copyright owners the right to protect materials when broadcast. The US for example does not provide a "related right" to broadcast organization, but does protect content under copyright laws, or theft of cable satellite signals under regulatory regimes.

The United States is not a signatory to the Rome Convention, and no European country is a signatory to the WPPT. Indeed, the members of the WPPT are mostly developing countries that signed the treaty in response to US trade pressures.

EXTENSION TO NEW TECHNOLOGIES

The development of new information technologies makes the proposed casting treaty important. The changes are in two primary areas. First, the nature of what is considered a broadcast is changing, particularly with digital technologies. Even analogue broadcasts are now including more and more text, including machine-readable subtitles, and the future of digital broadcasts are increasingly embracing broader scope of content, including text, data, still pictures, and other elements not traditionally associated with television or radio. Firms are developing and expanding the scope of content distributed as music, films, news, sporting events, etc, to take advantage of the ability of the public to receive and manipulate a variety of types of information.

Second, there is an explosion of new technologies that "broadcast" by wireless means, and that transmit via the Internet and Internet-like networks.

The lines between these technologies are constantly being blurred. Cable and satellite television networks offer Internet services, and new wireless networks for television, mobile phones, audio broadcasts, Internet connections and other services are increasingly offering the products and services of the others.

The current proposals for the treaty often approach the issue as if the content is static (what was broadcast in the 1950's or 60's), while there is a need to accommodate the new platforms to deliver content. However, it is increasingly difficult to maintain that expanding both the scope for content and the covered platforms will not have far-reaching consequences.

WHAT CONTENT IS COVERED?

In a recent discussion of the treaty at the Consumers International/TACD Lisbon workshop on WIPO, some national negotiators said the treaty would cover text and data, while others said it would not. In a recent USPTO/LOC briefing on the treaty, the same issues were debated, and some content/casting entities claimed the treaty would and should cover any information transmitted, while others said this was not intended.

A typical proposed definition of covered content would be "sounds, images or sounds and images, or of the representations thereof," with additional terms that address the issue of how the material is disseminated. For Broadcasting and Cablecasting, the US has suggested an exclusion of "transmissions over computer networks or any transmissions where the time and place of reception my be individually chosen by members of the public." However, this limitation does not appear in the US definition for webcasting. Instead there is only a requirement that the webcaster make the material accessible to the public "at substantially the same time." CPTech understands this to be only a condition of when the data is first made available, and not when it is downloaded. Some webcasters have said the want protection for the files that can be accessed on demand. CPTech has asked WIPO members to clarify this point.

If the threshold is simply and only "making accessible" the materials "at substantially the same time," then plausibly the entire world wide web is covered, including every image and sound on the Internet. If text is included under images or sounds (or representations thereof) , as some delegates claim, then nearly the entire world wide web would be included. Certain peer-to-peer networks, such as emule, would appear also be included in the definition of webcasting. If this is not intended, it can and should be clarified.

THE CONSEQUENCES OF GRANTING OWNERSHIP, CONTROL AND PROTECTION BASED SOLELY ON TRANSMISSION (Particularly when applied to the Internet).

The casting entities fundamentally want a layer of ownership over materials that they did not create or previously own. They want the treaty to declare they "own" what they transmit, even when the materials are in the public domain (government works, older works, materials donated to the public domain, etc), when they cannot be copyrighted (facts, data, other non-copyrightable materials), or when owned by third parties, including those who have no interest in suppressing distribution of works (speeches by government officials, Al Qaeda tapes, listserves, newsgroups, etc).

If the treaty covers all new wireless methods of "broadcasting" content, and if it covers cable networks, and if it covers "webcasting," it is difficult to imagine what will not fall under its scope. Some critics of the treaty have shifted from asking what will be covered, to asking what will *not* be covered.

CPTech has asked WIPO officials, the US, the EU and other WIPO members and stakeholders to provide assurances that text, data, literary works, still photos, and other works be explicitly excluded from the treaty scope. We are waiting to see if any such limitations are forthcoming. The US delegation is pushing the hardest to include a new category for "webcasting" in the treaty, and they claim there is no intention to use the treaty to cover the entire Web with a new layer of ownership based solely on transmission, but even if the treaty could actually be limited to traditional analogue type television and radio content, it would still have a significant effect in reducing the public domain, by granting a 50 year term of exclusive rights on all "images, sounds and sounds and images, and representation thereof," which would actually be included.

PROTECTION SCHEME SIMILAR TO SUI GENERIS PROTECTION OF DATABASES

The rationale and basis for protection is very similar to the various proposals to provide protections to elements of databases, including the EU directive on the protection databases, the failed 1996 WIPO treaty on databases, and the current proposals in the US Congress on databases. In each case, there is no claim of authorship, but an appeal to protect investments needed to gather, organize and disseminate the work. If the casting treaty is approved, WIPO will be under tremendous pressure to move forward on a new treaty on databases, since the rationale for protection is essentially the same. Indeed, in the recent CI/TACD Lisbon meeting on WIPO, the question was asked, is there anything the webcasters do that would not already be protected in Europe under the European laws on databases? The answer was not clear, but it may be that the webcasting treaty would go even further and reduce the public's rights to use Internet accessible materials even more.

THE APPROPRIATE TERM FOR PROTECTION OF INVESTMENT.

Wholly apart from the issue of whether or not any new intellectual property protection should be extended to casting entities, there is an important issue concerning the appropriate term for the protection of investments.

In the WTO TRIPS accord, minimum protections of patented inventions and broadcast signals are 20 years, while the term of copyright is a minimum of 50 years. In the US and the EU, investment based IP regimes have a variety of different terms.

The TRIPS (Article 39) requires protections against unfair commercial use for undisclosed data used to support the registration of certain pharmaceutical and agricultural products. Companies spend millions of dollars on clinical trials to support the registration of pharmaceutical drugs, sometimes when there is no patent on the product. In the United States, data for new chemical entities receive exclusive rights for 5 years, and data used to support broader uses of a product receive 3 years of exclusive rights. In Europe, data for drug registration may receive 6 to 10 years of exclusive rights. The US provides for 10 years of rights for data used to support the registration of pesticides (7 USC Chapter 6, Subchapter II, Sec 136a. Registration of pesticides), subject to compulsory licensing of data to competitors (based upon equitable sharing of costs). The US and the EU are pushing developing countries to adopt similar measures to protect investments in registration data, and these efforts are controversial. In the CAFTA negotiations domestic agricultural and pharmaceutical producers are resisting US and EU style protections. Earlier, Argentina successfully resisted US pressure to adopt such measures, as being beyond the WTO TRIPS requirements.

Other types of protection for investment are the terms for exclusivity of orphan drugs in the US (seven years) and Europe (10 years), or to protect investments in pharmaceutical paediatric tests (6 months of exclusivity).

The European Directive for the protection of databases provides for a 15-year term of protection.

The "casting" entities seek a 50-year term, which is entirely based upon an appeal to protect investment. This is 45 years longer than the United States protects investments in pharmaceutical clinical trials, 35 years longer than the EU database directive and 30 years longer than TRIPS currently protects broadcast signals. There is ZERO economic or moral rationale to provide a 50-year term to protect investments in the transmission of the works not created by the casting entities, and it sets a bad precedent for investment based types of protection. By the very nature of protections based upon investments, the term should be no longer than what is needed.

Excessive terms of protection harm the public by increasing prices and reducing access to information.

When there is no economic justification for the protection, only a demonstration of the political power of the casting entities, the unjust extension of protection will breed cynicism and contempt for intellectual property regimes and erode efforts to build more respect for intellectual property regimes.

RELATIONSHIP TO GPL

We have asked the US government to look at the possible impact of the treaty on the GNU General Public License (GPL), and in particular, we asked if a person who received material licensed under the GPL could undermine its openness requirements by making modified code available over a network with a new layer of treaty rights. This depends in part upon the scope of content that is covered under the treaty.

TECHNOLOGICAL MEASURES

The proposed treaty also would mandate the prohibition of circumvention of technical measures intended to restrict "unauthorized" use of materials. This echoes the US movement to create a "broadcast flag" regime through the FCC, which would require the permission of copyright giants before new technologies could be brought to market, and which bans "open source/free" software for use in digital television contexts. If the scope of this proposal indeed extends to all information transmitted online, over the air, and so forth, then this requirement would stifle all innovation in tools that send and receive information -- at every turn, a rights-holder would be waiting to assert the ability to control the way that browsers, email clients, phones, file-sharing applications and so on are designed and deployed. Indeed, the US is thought to be waiting until the FCC announces a position on this controversial issue, and then to push for inclusion of similar obligations in the WIPO treaty.

In June, the North American Broadcasting Association said WIPO must move further into technological measures to protect content and transmissions. The presentation included two officials from News Corporation (Fox, Murdoch).

NEW RIGHTS

There are numerous proposals for various rights to be associated with the casting treaty, including the right to prohibit or authorize fixations, or the rentals of fixations. Some content owners see the casting entities as seeking to use the treaty framework to expand their control over the retail exploitation of their works. Creators of works who are not in a strong bargaining position relative to "casting" entities are concerned that the treaty will erode their control over works.

There is considerable controversy over the proposal to extend the treaty to webcasting, and to include new rights to exploit works. A June 2003 statement by 15 organizations representing authors, publishers, performers and producers opposed the extension of the treaty to webcasting, pointing out it would extend even to private individuals transmitting content from their homes. These groups also object to the expansion of the scope of the treaty from "signal" piracy, to measures "not required to fight privacy but to exploit the context used by the broadcasting organizations (e.g. sweeping transmission and communication to the public)." (Joint Recommendation of Right Holders on the Protection of Broadcasting Organisations, June 2003).

NEXT STEPS

The Civil Society Coalition (CSC) is accredited in the WIPO SCCR, and will have as many as 10 persons in Geneva for the November 3-5 meeting. Manon Ress is coordinating CPTech's work on the casting treaty, and a number of NGOs and experts from the US, Europe, Africa and Asia will be attending the meeting.

One possible outcome of the November meeting will be an agreement to create a chairman's draft treaty, with different possible strategies in terms of how ambitious the draft is in terms of inclusion of controversial issues. The Webcasters (Time-Warner, Yahoo, Microsoft, DiMA, etc) would like to be included in this treaty, while some WIPO members, including Japan, want a separate instrument for webcasting.

For more information, see: http://www.cptech.org/ip/wipo/wipo-casting.html

* Cory Doctorow from EFF made helpful comments and suggestions on an earlier draft.