New Yorkers For Fair Use

© Copyright for the Digital Millennium

Tell Congress and WIPO:

No Broadcast Policy Without Representation!

Stop the WIPO Netcasters Treaty

Please tell Congress and the US Delegation to WIPO not to unilaterally impose communications and copyright policies by international treaty, but through representative legislative channels, in consultation with the constituents whose fundamental rights these policies affect.

Please forward this notice to any other concerned parties you might know.

The Broadcast Flag is back, and it's bigger and it's crazier and it's stronger and, almost incredibly, it's even more un-Constitutional than before!

There is more to the Netcaster's Treaty than the Broadcast Flag. The Netcasters's Treaty would take away copyright from authors and hand copyright-like powers to all "netcasters".

And there is even more to the treaty than the Broadcast Flag and the attack on copyright. The treaty would grant "netcasters" power to prevent distribution of works in the public domain, just because the "netcaster" puts the work into a "netcast".

The much-derided Digital Millennium Copyright Act (DMCA) became United States law in 1998 as a fulfillment of treaty obligations enacted in the same way the Netcasters Treaty is being pursued -- and the Netcasters Treaty is far worse.

We can't let that happen again.

What's Going On:

Circumstances force us to call for a stop to the US Delegation to WIPO's push for the Netcaster's Treaty, and for Congress to take up their responsibility to address the questions of what communications and copyright policies suit the conditions of the digital age, and to do so with public and expert consultation and input. We must also tell Congress to be very clear and specific about the nature of these policies in the context of an age of ubiquitous computing and connectivity -- or else these policies will be interpreted freely and established unilaterally by treatymakers usurping Congress's assigned power to make copyright and communications policy.

The broadcasters right, a right not recognized under our own law, but adhered to by some other countries who have signed the Rome Treaty, is being used by those who purport to speak on our behalf at the World Intellectual Property Organization, to establish a drastic change in the nature of our newly-established modes of communication. The broadcaster's right, supposedly restricted to protecting the misappropriation of broadcast signals, is being extended to apply to a medium to which it is not well suited (the Internet), to cover others' original works being broadcast, and to apply to "webcasting."

IP Justice summarizes the faults of the treaty here.

Here are some articles about the Netcasting Treaty. More analysis can be found in the links at the bottom of this action alert:

The Netcasting Treaty is a direct infringement on our Constitutionally-protected fundamental rights of free speech, press, assembly, and our right to own and use fully functional computers. Congress holds the power to establish policies related to exclusive rights for original works, and must be called to take up this task in good faith, as otherwise our liberties will be trampled.

Please tell Congress and the US Delegation to WIPO not to unilaterally impose communications and copyright policies by international treaty, but through representative legislative channels, in consultation with the constituents whose fundamental rights these policies affect, so that our interests will be served!

Policy without Representation

James Love and Manon Ress of the Consumer Project for Technology have for years fought a valiant struggle to protect us from the encroachments of a nightmare process of enacting communications and copyright policies through international treaties. They describe a process wherein "intellectual property" policies are made conditions of free trade agreements, and where narrow interests have overtaken the proceedings of the UN-established World Intellectual Property Organization. They continue this struggle to this day, and they need our help to reverse the tide.

The Digital Millennium Copyright Act was enacted as a result of much the same pattern of arrogant, non-representative policy-making practice. The Netcasters Treaty is much, much worse.

To get a sense of the flavor of these proceedings, click here to see the comments of Ben Ivins, representative of the National Association of Broadcasters, regarding the Netcasting Treaty.

On October 13, 2005, a band of citizens and organizations petitioned Congress to stop the US Delegation to WIPO's push for the Netcasting Treaty and for the government to hold public hearings. As of this date, the Congress of the United States of America has not responded. We must demonstrate to Congress that we know what our stakes are in this manner.

Many people and organizations have expressed opposition to the Netcasting Treaty, but the US delegation continues to press for it. Numerous statements by concerned parties strongly opposed to the treaty may be found among the links at the bottom of this action alert.

The US Delegation is the prime mover behind the Netcaster's Treaty at WIPO. They continue to press WIPO to proceed to a "Diplomatic Conference," a special meeting which signals that a treaty is substantially complete, essentially ready for signing by country diplomatic representatives -- and WIPO is dutifully heeding their directions. Click here for the current status of the treaty, as reported by WIPO at their most recent meeting on the subject.

That the diplomatic conference has been stalled this far is due to the considerable efforts of CPTech and other public interest organizations that have joined the fight in the international arena. Finally, we who defend our liberties and understand the real implications of the new technologies in our lives are having our presence felt -- if not suitably recognized.

A Matter of Constitutional Powers

Under current government administrative procedures, agency activities are overseen by the Office of Information and Regulatory Affairs (OIRA), an office established in the early 80's whose function is essentially to provide means for oversight by the executive branch. The OIRA reviews prospective policies by government agencies prior to their being posted in the Federal Register for public review, and regularly requires Regulatory Impact Assessments and analyses of costs and benefits for significant government policies. Apparently, the activities of the US Delegation to WIPO in pursuing the Netcasters Treaty are not regarded as warranting this form of oversight.

Perhaps it is believed that this area of policy may be pursued unilaterally as an expression of the executive power to make treaties with the Senate's concurrence. Perhaps Congress has forgotten or simply does not sufficiently understand its assigned power and responsibilities in this area. In any case, communications and copyright policies must be pursued with recourse to the interest of the public, through representative legislative proceedings, and their impact reaches far beyond even the purview of the OIRA, as such policies have a profound relationship to the most fundamental precepts that underlie the American experiment -- including the liberties we hold most sacred.

What It Means:

The Netcasting Treaty is simply the means to eliminate the advances that have been attained for all of humankind by the establishment of the Internet.

The Internet provides us all with extraordinary new modes of shared experience, the capacity to express ourselves publicly, freely, interactively and collaboratively, making flexible use of published information, and developing new means of benefiting from universal connectivity.

This world will be taken from us if we allow the Netcasting Treaty to come to pass.

We are witnessing the arrogant pursuit of this treaty in a context of the reintroduction of the broadcast flag in a new form that supplants "fair use" with a provision for "customary historic use;" of increasing attempts to establish pervasive and invasive means for restricting our rights under "Digital Rights Management;" of imposing legal and technical constraints on the entire processing stream of digital technology up to and including analog input/output jacks; and of ending the mutually observed principle of the content-neutral end-to-end transport of bits that governs the basic architecture of the Internet, the key principle that assures the Internet's amenability to flexible use and innovation for all.

The Netcasting Treaty is the international device for accomplishing all of the above at once.

The Netcasters Treaty delivers the same implications as the broadcast flag: you may not own a fully functional computer, and you may not analyze and process digital information if it is video or audio.

The Digital Millennium Copyright Act was enacted in the United States Legislature as a fulfillment of treaty obligations that were established at WIPO in exactly this same way. If we do not stop the Netcasters Treaty, all of the above will become a matter of our national law in exactly the same manner.

This is why it is critical to call Congress to take up their assigned role in developing copyright and communications policy, now and no later.

The Netcasting Treaty:

  • Unilaterally imposes the broadcast flag by international treaty
  • Will impose unprecedented trammels on virtually all Internet transmissions
  • Benefits entrenched broadcasters at the expense of the web and future innovation
  • Chills freedom of expression by extending the DMCA to cover public domain works
  • Grants copyright protection over unoriginal “signals” in direct violation of fundamental rights
  • Blocks fair use and other copyright provisions that enable the public to make use of and benefit from published information
  • Gives broadcasters greater rights than producers of original works
  • Eliminates the public domain for audio and video programming
Digital representation of information is the very basis of innovation in the information age. This is not merely because that's the basic nature of a computer; and it is not merely because the fundamental design of the Internet transport works that way. It is rather that those designs give all of us the means to make effective use of the information that we receive as a result of copyright and communications policies. The effect of the Netcasters Treaty is to eliminate your right to make productive, flexible use of published information -- that is, your right to own and use a fully functional computer, connected to a Net which functions as ours does today.

The Netcasters Treaty is an attempt to establish the broadcast flag by treaty rather than through representative channels, because we in the information freedom community have successfully repelled attempts to establish it through policy at the national level. Congress is the representative organ in our republic, and Congress holds the responsibility to develop policy that is right for all of us in the information age -- but now the pursuit of the Netcasters Treaty represents an attempt to circumvent the representative channels by independent treatymaking activity.

We have therefore arrived at a circumstance wherein we must call Congress to assert their specifically enumerated powers and defend our fundamental right of representation in the development of communications and copyright policy.

Please tell Congress and the US Delegation to WIPO to uphold the Constitution, to not allow communications and copyright policies to be unilaterally imposed by international treaty, but to be undertaken through representative legislative channels, in consultation with the constituents whose fundamental rights these policies affect:

What to Tell Congress and the US Delegation:

  • Tell the US Delegation and Congress that policymaking in the areas the Netcaster's Treaty addresses must be taken up in representative legislative channels, in both Houses, with full public disclosure and input.
  • Tell the US Delegation and Congress that we do not want a broadcast flag mandate.
  • Tell Congress the time has come to take up the questions of what proper form exclusive rights policies such as copyright should take in the digital age. They must address what premises should underly communications and exclusive rights policies in a time when everyone owns and uses computers and has the power of end-to-end connectivity.
  • Stress that the Constitution uniquely empowers them to craft exclusive rights policy -- with specific provision that they do so with attention to the goal of promoting the progress of science and the useful arts.
  • Tell Congress that copyright and communications policies are their explicit purview, that these policies address areas that impact fundamental liberties and should therefore not be infringed by unilateral treatymaking activity.
  • Tell them that the principle of content-neutral, end-to-end connectivity must be guarded as a fundamental precept in both copyright and communcications policy.
  • Tell them that we no more desire to plug the "analog hole" than we wish to have our right to own a fully-functional computer taken from us.

Background Links:

Next Readings:
Statements from Most Recent WIPO Meeting on Broadcasting Treaty:
Other Analyses:
IP Justice: Electronic Frontier Foundation: Union for the Public Domain: News Articles:

Link Pages: