Sunday, February 26, 2006

Excess in Proposed WIPO "xcasting" treaties

Sceptics about the proposed broadcasting and webcasting rights treaty being pushed at WIPO have much to worry about in terms of hopefully unintended but clearly foreseeable negative consequences for users' rights involving insubstantial copying, fair use and fair dealing, access to orphan works, of course the public domain.

The proposed treaties might make more sense to those who have concerns for these issues if those advocating for the treaties would come out and expressly disclaim any interest in preventing any acts in relation to the underlying works taken alone (i.e. without commentary or other copyrightable added value) if the broadcaster or webcaster doesn't own copyright in those works.

A museum does not own any copyright in a 500 year old painting. Publishing a reproduction of it, no matter how "accurate", should not give it any rights - as the American Bridgeman v. Corel decision states. There are lots of ways to "monetize" the publication of catalogues, post cards, etc. without effectively asserting copyright in the underlying PD works.

A convincing case has not been made that broadcasters or webcasters need to be able to assert rights in underlying works that are either in the PD or are orphaned. Simply making them available, by broadcasting, communicating, distribution or whatever term you like without more shouldn't create obstacles to access and entry into the PD.

The treaty proposals appear to go much farther than necessary to combat misappropriation or theft of signals, which is a valid concern.

The concerns of the user community are also heightened by the increasing incidence of convergence of broadcasters' and webcasters' interests with copyright ownership interests, so that control of the "master" or readily accessible copies may be in the hands of the broadcaster/webcaster - who will be tempted to use the new found rights to strategically and effectively elongate and perhaps even perpetuate expired underlying rights.

Actually, the issues may be even more serious from a practical standpoint in respect of possible over layering or over restriction of rights by webcasters as compared to broadcasters, if only because it's easier to imagine how webcasters could deploy DRM or TPM or otherwise enforce their proposed rights. That’s because webcasting is digital. Traditional broadcasting, however, is still analog.

It's going to be a while before analog broadcasting disappears and the analog hole will hopefully be around for some time - so that the public can continue to benefit from the PD, fair use and their other rights.

And by the way, Canada has potentially much to contribute on this issue at WIPO - even if only to help explain the issues to many countries that clearly don't understand them. Why are we sending undoubtedly well informed, well prepared and relatively large delegations who are virtually silent on the official record when there is so much that needs to be asked and said?

There is a lot at stake and Canada has a lot of responsibility - not only to its corporate stakeholders but to its citizens - and to other countries who have looked to Canada for leadership in the past and in other fora. Silence, in this instance, amounts to acquiescence to a troubled treaty proposal with profound potential effect concerning which there is little understanding.


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