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Webcasting Gets a Reprieve

International treaty provisions that would prevent the retransmission of media over the Web have been dropped – for now.

If proposed rules preventing the digital retransmission of TV, radio, or cable broadcasts are adopted as part of an international treaty on broadcasting, it could have repercussions throughout the nascent world of Web broadcasting. For instance, it might become illegal for musicians to offer recordings of their performances on their own websites, or for bloggers to post video and audio files – even if the content is in the public domain.

But last week countries opposed to these provisions – which would have given broadcasters and cable TV companies broad new rights to control information on the Internet – managed to strip them from the treaty, at least temporarily.

During a five-day meeting in Geneva of the U.N. World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights, an unlikely coalition of delegates from developing nations and technology organizations such as Intel and the U.S. Telecom Association voiced strong objections to treaty provisions covering webcasting and “simulcasting” over broadcast or cable networks and computer networks. By the end of the meeting, on May 5, the committee, which had intended to finish a draft treaty that could be agreed upon by the WIPO General Assembly in 2007, decided to send the assembly only the less controversial sections of the treaty. Debate over the Internet provisions was deferred until this fall.

“The good news is that webcasting is out of the treaty,” says Robin Gross, executive director of IP Justice, a civil liberties organization based in San Francisco, which sent a representative to the meeting. “But it’s a little too soon to celebrate,” he adds, since one article still in the main draft of the treaty gives broadcasters the exclusive right to authorize retransmission of their broadcasts by any means, including over computer networks.

Disparagement of the proposed webcasting rules has been rife since a previous meeting of the WIPO committee last November, when delegates from the United States proposed extending the draft treaty’s protections for traditional broadcasts to cover material delivered over the Internet. According to Gross and other observers, the “WIPO Treaty on the Protection of Broadcasting Organizations,” as the document is called, was originally conceived to strengthen legal safeguards against signal theft – the interception and sharing of satellite, cable, or over-the-air broadcasts.

But as work on the draft treaty progressed, proposed rules giving the original broadcasters of a program the sole power to authorize such rebroadcasts via traditional means grew to include Internet transmission. “We saw the big broadcasters getting very interested in this treaty and adding a whole new slew of rights,” Gross says, as well as inserting new proposals via a sympathetic U.S. delegation to the WIPO committee.

The proposed webcasting rules would give broadcasting organizations a new kind of property right over audio and video transmissions. Once a film, TV show, or song had been broadcast, the draft proposals gave the broadcaster control over access to that content for as long as 50 years.

In Geneva last week, representatives from Brazil, Iran, Thailand, India, Chile, Colombia, Peru, Argentina, Bangladesh, and Ghana, as well as other nations, expressed anger about the provisions, and questioned why the language from the November meeting remained in the draft treat – despite the objections of many WIPO members.

“There cannot be any rights [in the treaty] overlaying the rights of the content owners,” stated one delegate from India, according to a transcript of the meeting prepared by the Electronic Frontier Foundation (EFF). “India opposes the inclusion of webcasting in any fashion…the focus should be empowering broadcast organizations to prevent piracy of signals.”

Allied with the dissenting nations were several U.S. technology organizations, including chipmaker Intel. Jeff Lawrence, director of digital home and content policy at Intel, and Brad Biddle, a senior attorney in Intel’s Systems Technology Lab, released a statement in advance of the meeting expressing the company’s opposition to the treaty. “Proponents have not demonstrated that the benefits of creating new exclusive rights outweigh the burdens that these new rights impose,” they said.

The problem, from Intel’s point of view, is that the proposed webcasting restrictions could limit the ways consumers can manipulate and experience digital media in their homes – and therefore depress the market for new entertainment-oriented computing systems. “The treaty could give broadcasting organizations the right to control uses of content within the home – uses that are legitimate and non-infringing under copyright law,” wrote Lawrence and Biddle. “For example, makers of digital video recorders could be required to obtain licenses and agree to limitations imposed by broadcasters in order to enable ‘time shifting’ of broadcast content.”

In the end, the U.N. committee members voted to remove the webcasting language from the main treaty draft, and instead placed it into a new proposal to be discussed at a separate meeting.

The U.S. delegation was “not happy about the outcome,” according to Gwen Hinze, a staff attorney for the EFF who blogged about the conference from Geneva. The delegation “said it was concerned with the ‘missed opportunity’ to provide protection” for webcasts by traditional broadcasters, he wrote. “[Now] we wait to see the new draft proposal [due in August].”

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The mission of the World Intellectual Property Organization, one of 16 specialized agencies of the United Nations, is primarily to harmonize copyright and patent laws around the world. It oversees 23 international treaties on intellectual property rights enacted since 1883, and periodically drafts new treaties to keep up with changing markets and communications technologies.

Its last major treaties, the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty, both adopted in 1996, forced signatories to amend their own copyright laws to deal with the rise of digital piracy, for example, by outlawing attempts to foil digital encryption schemes and other anti-copying technologies. In the United States, these treaties led directly to the enactment of the Digital Millennium Copyright Act of 1998, which has been criticized by freedom-of-information advocates for stifling fair and legal uses of copyrighted content.

“WIPO is a tool by which old media industries try to suppress the new developments that threaten their control,” says Tim O’Reilly, CEO of technology publisher O’Reilly Media, one of 20 technology companies to endorse an EFF briefing paper opposing the webcasting provisions last November. “While the Net is not without its problems, it’s still in the formative stages, and I’d sure hate to see it put under all the same regimes as old media,” says O’Reilly. “After all, the new activity on the net arose specifically because of the opportunity to route around some of those restrictions.”

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