New Yorkers For Fair Use

© Copyright for the Digital Millennium
Meeting with US Delegation to WIPO on Broadcaster Treaty  

Selections from a Meeting with the US Delegation to WIPO
on the WIPO Broadcaster's Treaty

February 8, 2006

United States Patent and Trademark Office
Arlington, Virginia




On February 8, 2006, a broad range of advocates met with the United States Delegation to the World Intellectual Property Organization, calling for the process by which the WIPO Broadcaster's Treaty is being pursued to be opened up to public input and taken up in appropriate representative and legislative channels, including publication of the treaty in the Federal Register.  Below are select comments from this meeting, along with links to audio files.

(These audio recordings are in the free and unencumbered Ogg/Vorbis format.  Click here for audio players that will allow you to listen to them.)

In Attendance:
(* = Speakers)

US Delegation to WIPO:
Mike Keplinger*, US Patent and Trademark Office
Jule Sigall*, US Copyright Office
Ann Chaitovitz, US Patent and Trademark Office
Marla Poor, US Copyright Office

Attendees:
John Bachir*, Ibiblio
Tom Barger, DMusic.com
Shyam Balganesh, Union for the Public Domain
Marilyn Cade*, McCade, LLC
Sarah Deutsch*, Verizon Incorporated
Harold Feld*, Media Access Project
Gwen Hinze*, Electronic Frontier Foundation
Pam Howell, Esoteric Resources Incorporated

Paul Hyland*, Computer Professionals for Social Responsibility
Seth Johnson*, New Yorkers for Fair Use
Dan Krimm*, Independent Musician
Janice LaChance, Special Libraries Association
Ed Mierzwinski*, US Public Interest Research Group
John Mitchell*, InteractionLaw
Bruce Perens*, Entrepreneur
Manon Ress, Consumer Project for Technology
Judit Rius Sanjuan, Consumer Project for Technology
Richard Stallman*, Free Software Foundation
Jay Sulzberger*, New Yorkers for Fair Use
David Tannenbaum*, Union for the Public Domain
Paul Uhlir, National Academies
David Weinberger*, Harvard Berkman Center
Brett Wynkoop*, Wynn Data Limited

Mike Keplinger and Jule Sigall, Introductory Comments

  • There is currently a legal protection regime for broadcasters in US, and in most places in the world.
  • Our purpose is to update protection, to take into account things that have happened since the Rome Convention in the 1970's
  • We have supported protection for broadcasters and their signals because that helps preserve incentives to promote wide dissemination of those signals consistent with protection of underlying copyright and neighboring rights
  • We are open to considering all options on implementing whatever comes out of the process at WIPO.  That's something Congress will have to consider, after the treaty is adopted.
  • After the last meeting of the WIPO Standing Committee on Copyright and Related Rights, the Chairman Chairman received instructions to take the basic proposal and revise it, streamline it, cut it down, eliminate redundancies, eliminate provisions which have garnered little support.
  • The chairman was instructed to look at provisions for webcasting and refine the definition so it only applies to the part that corresponds to over the air broadcasting
  • We have supported extending protection to all people who communicate this information to the public -- broadcasters, cablecasters and webcasters
  • To be effective, it must be technologically neutral -- to ignore different media which people who assemble this content use to get it to the public, simply is not appropriate
  • Jay Sulzberger, New Yorkers for Fair Use
  • We find it strange that the US Delegation, according to CPTech, should be pushing very hard for a treaty which has provisions which the Congress, the Commerce Department and the courts have rejected vigorously in the past ten years
  • We have lots to say about how bad the treaty is -- it's an anti-copyright treaty, anti-author treaty, anti-publication treaty -- but beyond that it contains clauses that could require the US to install wiretapping and remote control machinery -- also called DRM -- in every single computer sold for the fundamental infrastructure of the Internet
  • No American is for this -- people just don't understand what DRM is, despite the recent brouhaha with Sony BMG, any DRM has got to be much worse than Sony BMG
  • The United States position is clear; Senators have spoken directly to courts and asked them to rule, and they have: the FCC doesn't have the right to impose this stuff
  • We also find it absurd that they should be pushing for something that would violate Article I, Section 8, that would give copyright in effect to people who aren't the authors
  • Our point is procedural -- you should not be pushing for this without Congress, without the Library of Congress holding public hearings and giving you instructions.  That's it -- procedure; substantive things we'll argue later
  • Seth Johnson, New Yorkers for Fair Use
  • What's happening is instead of going through Congress, who have the authority, the assigned role of developing exclusive rights policy, we have the broadcast flag being imposed by international treaty
  • You said in your introductory comments that after the treaty is adopted, then Congress will take it up.  I find that very odd, given the subject matter of this treaty -- Congress has this power.  I'd be very interested in how you see the relationship between the treaty-making power and the various powers under [Article I,] Section 8 in the Constitution
  • Policy-making in these areas must be taken up in representative legislative channels, in both Houses, with full public disclosure and input -- that means go through the Federal Register, give plenty of time before you start going to imposing this kind of a communications or copyright policy -- whatever you want to call it -- in international treaties
  • Congress -- both Houses -- needs to actually address this.  This is an exclusive rights policy; it doesn't matter if it's not copyright; exclusive rights are Congress's power
  • The time has come to take up the question of what are the proper forms of exclusive rights policy -- things like copyright, patents and trademark, or whatever you're calling this thing -- should take in the digital age
  • Exclusive rights policies must be addressed by Congress in terms of what premises should underlie communications and exclusive rights policy at a time when everybody owns and uses a computer and has the power of end-to-end connectivity.  That's the condition we're in, and you have to address that.  The Constitution uniquely empowers Congress to craft exclusive rights policy
  • We must protect the principle of content-neutral, end-to-end connectivity, and the Broadcaster's Treaty would take that away; it would basically remove the Internet as we experience it today
  • Mike Keplinger, Seth Johnson, Brett Wynkoop
  • Johnson: Who was it that instructed the Chairman to go forward? You said the Chairman "was instructed" -- who instructed him?
  • Keplinger: The WIPO Standing Committee on Copyright
  • Wynkoop: People that are not part of the United States government, not elected by the people, and do not report to people who were elected by the people of the United States, correct?
  • Harold Feld, Media Access Project
  • My sense is that this is a standard treaty consultation process . . . I understand that the US is working within the context of a recognized international treaty organization; therefore the referral of the type that you describe -- while a point of clarification is useful -- is not in itself unusual or in any way an odd attempt to circumvent the traditional legislative process; this is just one of the things that happens over years of negotiation of the treaty
  • My own feeling, having heard about this treaty almost for the first time a month ago, and then having looked at it seriously when I was asked to participate in this, I have to say that I must echo the concerns of using both legislative processes and in particular the use of publication in the Federal Register to seek broad notice and comment on the proposed treaty.  The reason for this is not the democratic concerns and the stakeholder concerns which have been raised by others here, with which of course I would agree, but as a matter of pragmatism and a desire to avoid unnecessary conflict and unintended consequences in the implementation of this treaty
  • The medley of rights that is proposed here has huge potential consequences extending far beyond the narrow universe that we are used to thinking of in terms of broadcasting, and the ability to create content and transmit content continues to grow as . . . the nature of broadcasting itself is changing
  • The nature of online distribution is constantly changing; and we have seen here within the US within a relatively short period of time, in the reform and expansion of the patent regime, in the reform and expansion of the copyright regime, that there are frequently unintended consequences that could have been discussed, considered, and ameliorated, had a wider range of experts and interested parties been aware of the process and had an opportunity to meaningfully participate.  The universe of people who are producing content, transmitting content, internally distributing it, has simply grown too vast, and it's too invisible, either from Geneva or even here in Washington, DC
  • Consultations such as this, while important and useful, cannot replace the opportunity to engage academics, economists, producers of content -- from the miniscule level of bloggers using now video and audio vlogging and wanting that content to be retransmitted but using third party hosts, who may over time have a different set of incentives -- to the implications of this for multibillion dollar industries as the convergence of telecommunications, cable and broadcasting industries, which are rapidly moving to a more dynamic mode of communications which encompasses within it many things which might fall into this treaty
  • Bruce Perens, Entrepreneur
  • I wear two hats.  One is, I am one of the founders of a campaign called open source, which popularized the use of freely-usable, distributable and modifiable software -- as first elucidated by Richard Stallman, near the head of the table
  • The other hat that I wear is that I am Vice President for Policy of SourceLabs.  SourceLabs is one of the venture-funded open source facilitating companies.  This particular one was funded last year by two venture partners, one of whom is Brad Silverberg, the ex-head of Microsoft Windows development -- who left Microsoft and went into the open source business
  • There are quite a lot of businesses involved in open source software today.  And I believe that the people who are working on this treaty are either not aware of or not considering the effect on open source -- especially if broadcast protection mechanisms -- technical mechanisms -- are mandated
  • This treaty can make open source software an uncommunicating island -- because open source would not be allowed, under the terms of the implementing law, to receive broadcasts, since there would be no assurance that open source software could comply with all of the technical protection measures that the implementing law would require
  • We believe that only through a broad public consultation on the treaty and its effects, can [its] effects be considered.  Most of the people in the open source industry aren't even aware of this treaty yet
  • The main vehicle [for democratic discourse] today is electronic broadcasting on the conventional media that use radio signals -- television, etc.  The main vehicle tomorrow will be the Internet.  The Internet will be the way that you receive and participate in democratic discouse
  • In order for the Internet to be an appropriate vehicle for democratic discourss, one must be able to quote and retransmit discussion, and one must be able to receive discussion from all possible channels.  The reason that I bring that up is, although we've recently had hearings on net neutrality, here in DC, I think we're not considering that this treaty can affect net neutrality as well, because DRM-locked receiving devices need not receive all channels. In general, they only receive the channels that are approved by their manufacturers.  And the implementing law of this treaty would further that restriction and I believe have a choking effect on democratic discourse in the future, simply because people would not be able to receive all viewpoints
  • David Weinberger, Harvard Berkman Center
  • I fully believe that you're doing what you believe is best, and I appreciate your meeting with us. I think that our visions of what's going on are quite different.  It seems to me that you believe that the Internet is turning all of us into broadcasters, and in fact I believe, and I think many of us here believe, that the opposite is happening, that individual users, individual creators of "content" -- a term I don't much like, because the "content" is actually conversations -- is feeding broadcasting, and that it's more important for values of democracy that that discourse, that public conversation, which is so essential to democracy, be encouraged
  • I see this as a free speech issue.  The treaty will impinge upon our ability to engage in the democratic discourse.  Culture and thought and conversation can only continue if we're able to talk about what other people have said, without asking their permission.  A permission-based culture, which extends to the broadcasting model, is bad for the world that's opening up for us, which is more open to democratic values, the same democratic values that everybody here supports, than we could have dreamed of ten years ago
  • The treaty I believe impinges seriously on that, and so the discussion I believe needs to be opened up, very broadly -- not only to the academics and the economists, and to business, and to public policy people -- but to citizens, who now, in the tens of millions -- tens of millions -- are discovering the power of their own voice, in conversations, and the treaty will impinge on that.  I very much hope that we'll be able to open this conversation up far more broadly
  • Richard Stallman, Free Software Foundation
  • Twenty-two years ago I started a movement to give Americans and the rest of the world control over what their computers do.  You see, if you use a non-free program, the developer of the program controls what you do; you don't control it.  The only way you can control your computer is if you have certain essential freedoms in using your software, and these freedoms include the freedom to run it as you wish, the freedom to study the source code, which must be available to you, and to change it to do what you wish, the freedom to distribute copies to others with or without your changes.  These freedoms make it possible for citizens to form communities and make their computers do what they want
  • The opposite of this is DRM, digital restrictions management -- I won't call it "rights management" because I'm taking the public's point of view and the public's point of view is restrictions that they manage.  Those are programs designed specifically to restrict your use of them, so in addition to denying you the basic control of the software, what the developer does with this power, is he uses it to then restrict what you do when you run the program.  This is an example of the way that this power frequently is abused.  After all, the power belongs to businesses and they can make more money if they abuse it, so they do
  • This is the antithesis of free citizens using their own computers with software that is their own property.  The developers of this software don't even respect private property if it isn't theirs.  They say that you can't even own a copy of the software that you run.  All the copies belong to them -- Stalin's version of private property
  • In order for a society of people who are using computers to maintain any of the freedoms we normally believe in, while they use their computers to do their daily lives, they must have control of their software and their computers
  • This treaty prohibits this.  This is not an "update" of the Rome Treaty.  This is a revolutionary change.  Because the Rome Treaty -- correct me if I'm wrong -- doesn't restrict recording devices, does it?  It only restricts broadcasters as such.  But this treaty would restrict recording devices.  It would give the TV station or whoever transmits a webcast, power to decide whether you can make a recording, and what you can do with it afterwards
  • It's the power of a skunk.  You know, the skunk sprays onto something, and it takes you fifty years to wipe off the smell that it put on, just because the thing passed by a skunk
  • There's free software already -- in the project that I started, the GNU project -- we developed a free operating system that most people call Linux, but whose real name is GNU.  One of the things we developed for this system is a program to tune in digital TV broadcasts.  We're trying to make free software you can use to do absolutely everything, because you should have freedom in everything you do on your computer.  And this is one program we've already developed that would be prohibited by this treaty
  • Lots of other free programs to do things that we need to, would be prohibited by this treaty as well.  For instance, somebody recently sent me a message with a pointer to a file of audio being distributed by the Senate Judiciary.  And this is in the public domain; it's a hearing -- US Government works are in the public domain.  But under the broadcast treaty, we would be forbidden to make a free software to decode that broadcast.  It was being sent in RealPlayer format.  We need to develop free software to read that file; we don't have it. The Senate shouldn't be using this secret format to distribute its public domain hearings, but they are.  They're going to be getting a lot of complaints from people reading my website soon
  • This is an example of how this treaty would take a lot of rights away from the citizens of the US.  So it's a mistake to refer to the treaty in terms of enforcing rights.  No, it's denying rights.
  • I've written a sort of parody description of the treaty requirements, using language which takes, instead of the broadcasters' point of view, the public's point of view.  I expect when you see this it will look shocking, over the top, horrible, because you're used to thinking of things from the broadcaster's point of view.  Their point of view was in some of your words.  You know, they've chosen the words that are used to describe this treaty.  They chose the term digital "rights" management.  They choose these words to shape our thoughts.  So I figure, let's show the other side of this treaty
  • I hope you will ask the citizens of the US whether they want to be restricted in this way.  Talking with us is not enough.  You've got to talk to the public, and ask them -- don't ask them, "Do you want to have these rights?"  Because, of course if you formulate the question in a misleading way, people who haven't thought it out thoroughly will give you a confused answer.  Ask them "Do you want to be restricted in this way?  Do you want the TV station to be able to tell you whether or not you're allowed to record the broadcast?"
  • Marilyn Cade (very low audio quality)
     

    Dan Krimm (low audio quality)

  • My name is Dan Krimm. Iím an independent musician Ė a composer, performer and recording artist. My area of esthetic focus started out in progressive jazz, and more recently has evolved toward avant-garde free improvisation. I would say that the traditional hits-driven music market, as shaped by the audience-maximization dynamics of mass media, is utterly useless to me as a vehicle for reaching the audience that does exist for the music that I, and others like me, make. The Internet holds some potential in the way of interactive and personalized media, but itís not yet fully expressed.
  • Iím currently pursuing a Master of Public Policy degree, with a concentration in Media, Internet and IP policy, and so Iím personally much better informed about these issues than most of my musical colleagues, who donít even know what WIPO is, much less being familiar with the issues at hand in the US proposals for the Broadcasting Treaty.  And, there is no formal organization representing our unique interests in any policy discussions, so far as I know. So, in order to capture the voice of this substantial constituency of independent musicians and their fans, I believe it is incumbent upon policy makers to engage a public process of informing and debating these issues, in the general representative institutions that exist for that purpose.
  • As a matter of substance, I wholly oppose the proposal to grant additional powers to broadcasters and webcasters to restrict the flow of information in our communications market. As a creator, I embrace the fundamental social contract embodied in the progress clause, but there is no need to grant similar exclusive controls to distributors, above and beyond creators. Distributors already have disproportionate influence over the propagation of information in our society, and creators who act as their own distributors already have whatever control they need to protect their commercial interests.
  • As a creator, and simply as a citizen, I object to the upsetting of balance between creator incentives and public rights of fair use and public domain that these new distributor controls would entail. All creators are users as well as producers of content, sometimes using the content of others directly in the course of creating our own content, and we all benefit from fluid flow of information in society. In fact, in the Internet age, all citizens have a potential to become producers and publishers, not just users of information goods.
  • I see no evidence that granting these extra powers to this narrow and controlling function in society would contribute more social benefits than the attack on public domain and fair use would harm society, and thus it seems to me the net social cost would be substantial.  While this is a personal opinion that may be debatable, it seems imperative to me that any and all such debates be held in broad daylight for all stakeholders to consider and have voice, before any government actors take such policy into the international arena supposedly on our behalf. These policies would impose a fundamental change on the dynamics of the information marketplace, affecting the full range of society, and thus the full range of society should have an opportunity to weigh in on the subject. I urge you to bring these issues to the general public for consideration before moving forward.
  • Brett Wynkoop, Wynn Data Limited
  • I'd like to start out by saying that as far as I'm aware -- and I could be wrong -- the US is not a signatory to the Rome Convention on Broadcasting
  • In the past, I've worked as a broadcast engineer.  In this country, it's always been the case that the public has had the right to record or listen to any over-the-air transmission.  Part of this treaty would of course wipe that out
  • As others before me have said, digital restrictions management would have to be placed in all computers in order to ensure that people were not able to record, or in some cases listen to, things of their own choosing.  Part of the reason that this would make various free software projects illegal, is because most of these requirements state that the user of the technology cannot have the ability to modify [it] so that it can receive or record signals that are being blocked by the broadcaster from receiving and recording.  Of course, with free software, as Richard pointed out, you've got the ability to look at it and modify it.  This particular treaty would make two pieces of free software I know of illegal, and there's probably more that I'm not thinking of
  • The proper place for these exclusive rights issues to be taken up, before any representatives of this government go to WIPO, would be the US Congress.  The Constitution says that the US Congress is where exclusive rights policy is to be determined.
  • Congress normally takes up these matters with public hearings.  They're not quite as public as I'd like -- in the digital age, they could be much more public than they are -- but at least it's the right thing
  • From the standpoint of somebody who makes his living with copyrighted works -- and I have made my living for over twenty years by producing copyrighted works -- I don't want to see somebody who is not a creator be given the ability to restrict.  This certainly goes against the progress of the useful arts and sciences and the wide dissemination of information that is the reason copyright and trademark were set up in the US by the founders
  • I was technical director of a world premiere opera last summer; it was done as a one-act opera -- something called A.F.R.A.I.D.  We're reopening in a couple of weeks with an expanded version in two acts.  I was supposed to be at rehearsal last night, and I told the composer, "No, I'm sorry, I can't be at rehearsal, you'll have to do without me."  She wanted to know why, and I said, "Well, there's this treaty coming about that the US Delegation to WIPO is pushing for, that would restrict your use of the public domain."  And she said, "What?"  I said, "Yes, they want to make it so that if something is sent over the web or over broadcast media, that whoever transmitted that work has the ability to restrict how you can use it for a number of years."  Now, needless to say, Ms. McBee was quite upset about this, because about 50% of A.F.R.A.I.D. is from writings that are in the public domain that she set to music.  This certainly would have quelled her ability to be creative, and it certainly would have kept . . . thousands of people from seeing a new creative work
  • We've already got enough attacks on the public domain, with Congress's ill-considered measures of extending the copyright term every time the Mouse is about to come out of copyright -- which is, I consider, a travesty and a crime against the American people
  • This treaty, much like the way Congress is currently operating on copyright issues, is theft, pure and simple.  It's theft from the public domain.  It's theft from the people of the United States of America.  Nobody that I have spoken to that makes their living by producing copyrighted works, can see any reason that somebody that retransmits or amalgamates to a website should have essentially the same or in some cases more restrictive control over works than an original creative person
  • I'm urging that we should put the exclusive rights discussion where it belongs, in Congress, have public hearings, and let all of the stakeholders come to the table.  And the stakeholders are not the Englobulators; they are not the Disneys; they are not the Viacoms; they are not the Sony BMGs.  The stakeholders are the citizens of the United States.  I emphasize "citizens" -- not "consumers."  We have been too long bombarded with the propaganda that the American public are "consumers," and business and government really forget that the American public are citizens, that the Constitution and the laws are there to protect our citizenry, not to protect big business
  • Sarah Deutsch (very low audio quality)
  • I wanted to echo the process concerns that Marilyn and others have raised
  • I'm here as a newcomer, to listen to all these issues because again there hasn't been a lot of debate out there or knowledge about the treaty
  • One issue I wanted to put on the table and learn more about here is the issue of webcasting -- it is clear in section 2 a) of the treaty that broadcasting is not supposed to include transmissions over computer networks.  There must have been a reason why that restriction is in there.  Yet, there is this new right to webcasting, and I think this raises some concerns among the Internet industry; for example, I guess it's in there because of technology neutrality, where if we give the same rights to broadcasters then we must give it to webcasters and cablecasters
  • In the net neutrality debate, some of the telephone companies would like to be able to offer tiered levels of service, and that's been raising much debate about this issue of giving webcasters rights.  Really the same people who are pushing for net neutrality are then using the technological neutrality argument to put that on the plate.  In fact Yahoo and Google and others could essentially gather up data that other people own, have copyright in, or publish new data, and then create toll roads to try to prevent gaining access to the content, including the ISPs
  • So I guess my reason for being here is to learn more about that issue, and how realistic is this webcasting right going to be, what are the reasons for it, and to learn some more about that
  • John Bachir (low audio quality)
  • My name is John Bachir. I work at ibiblio.org, an organization affiliated with both the school of Information and Library Science, and the school of Journalism at the University of North Carolina, Chapel Hill. You may have known us as one of our two former names: sunsite, and metalab.
  • Ibiblio is home to over 1500 collections, including Project Gutenberg, which hosts transcribed plaintext files of public-domain works, and etree.org, which hosts public-domain audio files. We were mirroring GNU/Linux distributions and open-source software before it was cool. Ibiblio was, in fact, the first webserver on the Internet.
  • Given the wide variety of media used and delivered by ibiblio collections, the WIPO Broadcasting and Webcasting treaty poses significant problems for their work. Many of our contributors do work with public domain or alternatively licensed materials acquired from a very wide variety of sources. Even with existing laws, it is often quite a challenge for creators to determine if something downloaded online can be included in repositories or creative works, or who the rights holder is to begin with. The United States Copyright Office recently issued a report saying that the situation with orphan works is serious, and poses a real threat to dissemination and use, including scholarly and archival dissemination and reuse. Indeed, the report suggests that the copyright act needs amendment, to allow for some manner of limited liability for good faith searches.
  • The proliferation of rights, the difficulty of finding long-vanished copyright holders, and the fact that multiple copyrights could cover the same media, is already a huge unsolved problem. But at least today a creator knows that, in the United States, a work published before 1923, or a work under an appropriate alternative-license such as Creative Commons, can be put into a repository or used in a derivative or annotated work.
  • Imagine if, in addition to the existing crushing burden of rights clearance under copyright, creators also had a separate and entirely different obligation to clear Broadcast or Webcast rights--even on public-domain or Creative Commons works. Here we have yet another layer of the orphan works problem already existent in the copyright space. The difficulty of ascertaining whether works were originally derived from a broadcast or webcast incurs economic overhead in the use of public-domain works that has not existed for the past 200 years.
  • The same problems that the provisions of the Broadcast and Webcast treaty create for the work of ibiblio collections will be experienced by those in educational and academic fields at large. Furthermore, the treaty provides no apparent benefits to such communities. In fact, what little research there is examining the effects of the Rome Convention shows that such provisions are not in the best interest of the commercial sector either.
  • One would hope that policy made by a UN agency would be the result of careful research and public deliberation, with the intention of benefitting the societies and economies involved. But with the Broadcaster and Webcaster treaty, this is not the case. Instead, it is being created without feedback from the public sector or even the business community at large, under pressure and lobbying from huge media entities, in order to grant unnatural power to product distribution companies who add no value to creative works.
  • This treaty is bad for ibiblio, bad for education, bad for academia, bad for culture, bad for the economy, and good for News Corp. and Yahoo!. I urge you to do a comprehensive call for feedback from the creative and broadcast communities at large, and refuse to participate in a treaty not approved by the United States Congress.
  • John Mitchell, InteractionLaw
  • The bulk of my clients are retailers of copyrighted and non-copyrighted works of others: video, music, video games, etc.  Interestingly, I think I'm the first one here to mention retailers, and I'm finding myself in a minority in a sense, in a huge diversity of viewpoints, and yet realizing that this is probably just a small snippet of the much larger diversity of viewpoints that you might experience
  • I was reminded just sitting here that about roughly fifteen years ago Jimmy Stewart [spoke at a] hearing in the Senate, testifying in favor of a bill to protect, to some extent, some creative works, in his view.  What we saw was the advent of colorization of movies.  These were black and white films that the copyright owners decided they might be able to present for a little higher market value if they could be colorized.  Now from an artistic perspective, there might have been any number of diverse views, but these are simply derivative works, authorized by the copyright owner, totally legal.  The "solution" was that Jimmy Stewart's heirs would be empowered to prevent the sale or rental of colorized videos that were already sold out there on the market.  The way it was actually drafted was that every single retailer would have to go talk to the director and the lead artist in every film that they wanted to rent or sell, to get their permission before doing so.  Now fortunately, retailers among others were able to persuade Congress that this added nothing of value, that these were rights that were being conferred on people who were not the authors of the works, had no rights under copyright, would in fact suppress or diminish the availability and accessibility of these things
  • Now if we fast forward to today, and look at some the things out there, I'm not the technologist here, but just yesterday I saw a website webcasting short films produced on cell phones, and there's a competition for the best short cell phone video clip.  I wish I had a URL for it, sorry.  But in the context of this, of the treaty obligations the US would have, people who did their cute little video clip, sent it to this site, eventually maybe deleted it because it was taking up too much space on their cell phone, are approached by an entrepreneur, one of my clients, who says, "Look, we've seen these great clips out here, we'd like to burn them onto DVD and rent them and sell them in video stores -- do we have your permission?"  "Sure, I'm the author; you've got my permission for free, for a penny, or whatever," and they go to do it and they're told by the webcaster, "Na-ah, these were distributed, they've gotten publicly performed through our webcast.  You are fixing those webcasts and reproducing it from that.  We have the right now to stop you."  Now, the problem here is that these rights are conferred to someone not the author, as required under the Copyright Clause, for non-original works, as required under the Copyright Clause.  It would even be for works that are not copyrightable, as required under the Copyright Clause.  And it would even suppress the speech of the copyright owner
  • And here's where it would work at purposes contrary to the copyright owner's.  I was thinking of examples here, Ms. Jones' third grade class that does their little performance, they put together this great skit, and the local television station was nice enough to give them some air time and show it, and grandparents and everybody wants to fix that copy and reproduce it.  And maybe they got Ms. Jones' class's permission to do that, and the television station has the power to say, "No, you've got to pay us to do this.  It's not our work, we didn't do it, we just broadcast it, but that's where you got your fixation and you can't do that."
  • To put it in the multi-billion dollar industry level, one of the hottest things going on in the video industry is selling and renting DVDs of broadcast television programming.  Up until now, retailers simply buy them from the copyright owner, and without the consent of the copyright owner, they can rent them.  With this kind of treaty provision, it might not matter what the copyright owner said, the broadcaster has his way.  Now we know the large studios are obviously going to get that consent before they let them broadcast.  But it does mean that instead of the broadcaster paying cash for the license to perform it, the studio will now have to not only get cash, but also get the license to be able to rework that program
  • Now, we could work around perhaps some of the details on this, you know, somehow taking it from the standpoint of working it out between Hollywood and broadcasters.  But the core focus of this I guess that I'd like to stress is not the need to work out the details between the giants that have money to share back and forth, but to look at really what's happening to the core value of the First Amendment.  Under copyright, and I think the Eldred case said it best -- the copyright clause has its own built-in First Amendment connotations.  I wanted to read two sentences from Justice's Breyers's dissent, just pointing this out.  He says:
  • The Copyright Clause and the First Amendment seek related objectives -- the creation and dissemination of information. When working in tandem, these provisions mutually reinforce each other, the first serving as an "engine of free expression," the second assuring that government throws up no obstacle to its dissemination [Mitchell: no obstacles]. At the same time, a particular statute that exceeds proper Copyright Clause bounds [Mitchell: like this would absolutely do] may set Clause and Amendment at cross-purposes, thereby depriving the public of the speech-related benefits that the Founders, through both, have promised.
    Eldred v. Ashcroft, 537 U.S. 186, 219 (U.S. 2003) at 244, Breyer, J., dissenting (citation omitted)
  • Since clearly Congress would not be able to enact any of the treaty obligations under the Copyright Clause -- they simply don't fit -- they would have to look to the Commerce Clause for the authority.  And here's where the Supreme Court, or Justice Breyer, says to us, then you can't do that.  Once you've stepped out of copyright, you're faced with the full weight of the First Amendment, saying Congress shall make no law abridging the freedom of speech.  So the freedom of speech of Ms. Jones' class's grandparents to make those copies with their consent, the freedom of speech of the copyright owners to authorize so they can make a copy, would be abridged
  • We have the Betamax issue -- suppose the broadcasters would have the right to stop people from taping.  Do we know where things like the first sale doctrine are going to fit into this?  Would a broadcaster say, "Well the copyright owner says the copyright law says he can rent it, but we're saying you can't because it's a fixation of our broadcast"
  • So looking at it from the Commerce Clause perspective, I would pose this question:  Could the government on its own say, before you can fix a broadcast reproduction, before you can reproduce that broadcast reproduction into copies, before you can distribute those fixed copies of broadcast reproductions, you have to get the government's permission -- you've got to come in and apply to the government for permission to be able do that?  We could unanimously say that would be laughed out of court, it would be tossed, the government would be restrained from requiring you to get the government's permission to do that with speech.  Now, all we've done here with this treaty as I read it, and I've been trying to struggle with this and trying to find some sense and I just don't understand, how we can make the leap to then say well, the government clearly cannot do that, but the government's willing to empower broadcasters to suppress the freedom of speech in the identical manner that the government would be prohibited from doing directly
  • And I guess that's the fundamental question I have here, is how -- assuming this broadcast treaty gets through and all the little details get worked out and we've got broadcasters and Hollywood and the record companies and software companies all sort of coming in and saying yeah, this works for us -- at the end of the day, when Congress is asked to pass this into laws, or does pass these laws, how does this survive the first First Amendment challenge which says, "Wait a minute, this directly abridges the freedom of speech; it's not based on the Copyright Clause; there's no way -- under heightened scrutiny, probably not even under a rational relationship test -- it would be able to pass scrutiny, but certainly not as the least restrictive means to advance a compelling government interest?"
  • I don't need an answer right now, I have fleshed out a little of this in -- eight pages only, but that's essentially what my concerns are
  • Ed Mierzwinski, US Public Interest Group
  • As somebody pointed out, this is not only a consumer issue; I'm here because our members are consumers and because our members are citizens
  • I want to point out that there was a letter -- which I believe is on the CPTech website, and I'm sure you've all seen it; it's from October 13th, and a number of the other large consumer-based organizations, including Consumer Federation of America and Consumer's Union, publishers of Consumer Reports, are on that letter -- to the Congress, essentially asking for the same procedural recommendations that this diverse coalition, this historic grouping of civil society and non-government organizations, is presenting to you: that you're down the road too far in a process that you can easily back up, slow down, and turn around, and open up to a democratic process
  • I could talk about the concerns we have over digital rights management, over too much intellectual property control being granted to people who aren't even creators, over the changes this would make to the structure of the Internet and the openness of the Internet, and all the issues that are being debated in Congress and the external agencies, the FCC, but I won't; but I concur with a lot of the issues and the points that have been raised here today
  • I simply wanted to come to the meeting to point out that the large consumer groups are very concerned about the Patent and Trademark Office involved in a WIPO Treaty in Geneva over something that has not been discussed in society in the United States.  The small-d democracy issues are very large here; the changes you're talking about making that the American people don't even know about, I think have tremendous implications, and I still haven't heard an answer in any -- maybe I've missed some of the material that's released on your website, maybe I've missed some of the material that's been presented to the Congress -- but can we get an answer to the question: Is there going to be a public debate of this, a notice in the Federal Register, official public hearings, rather than just -- I appreciate the ex parte meeting we're having today, but -- will there be an official public debate of this before this treaty goes forward, because I understand you're at some sort of a decision point, where you could rubber stamp the current version of the treaty, and it could go forward down the road?
  • Mike Keplinger, Seth Johnson
  • Keplinger: You seem to feel that this treaty is going to happen very quickly.  I don't think it is, very frankly.  As I explained earlier, at the last meeting of the Standing Committee on Copyright, the Chairman was asked to draft a new version of the Consolidated Text.  I know that that process is going on.  Based on the discussion at the last meeting, and the requests that were made, I expect we're going to see a smaller proposal coming forward.  The next meeting of the Standing Committee on Copyright is to be the first week in May, so some time before that, that proposal will be publicly available in multiple languages on the WIPO website.  That proposal will be discussed at the next meeting.  And I am sure it will change again
  • The next checkpoint will be the meeting of the WIPO General Assembly, which will take place in late September or early October [2006], at which time the General Assembly will consider whether or not to recommend that the Director General should convene a Diplomatic Conference, with a recommendation for a time period when that would happen.  That decision cannot be taken until next September.  When that happens, then there will be prepared a final draft of a proposed text to go to a Diplomatic Conference
  • When we have that, that certainly will be published in the Federal Register and we will seek public comment on it.  Which will enable us to formulate the policy that we adopt to go to a Diplomatic Conference.  That's the normal treaty-making process; it's nothing secret; it's nothing different than has been happening with every intellectual property treaty or every general treaty that we belong to
  • Johnson: Under the Constitution, the treatymaking process does involve the Congress to the extent that the Senate must concur.  That's the process you're describing.  You're not talking about the process that is described in the Constitution that accords Congress power to establish Commerce Clause policy, exclusive rights policy, and so forth.
  • Keplinger: Sure, that's Congress's power.  If there is a Diplomatic Conference, and if the Diplomatic Conference adopts a treaty that the executive branch decides merits the US's adherence, then the Administration will analyze that treaty, analyze the changes that would be necessary in US law to implement the treaty, then send that package to the Congress for its consideration.  Congress then makes the decision whether or not the US should adhere to the treaty
  • If it does, before we can adhere to the treaty, Congress must pass legislation to give effect to that treaty here in the United States.  That will be accompanied by all of the Congressional hearing process, and the Congressional scrutiny of any legislation.  Again, this is the normal treaty-making process.  I understand that some of you have said that in the modern world, with increased communications, we need to consider broadening that consultation process.  We're doing that now, and will continue to do so.
  • Harold Feld, Media Access Project
  • My experience is primarily with the Federal Communications Commission, which every three years attends the International Telecommunications Union World Radio Conference.  Now, granted that there are differences because the WRC is held every three years, and therefore brings some greater regularity to the process.  But that too is an international treaty organization which in its conferences produces international treaties, and the FCC and State have over the years evolved a broader, more open process of consultation, with frequent meetings, of teams of negotiators, first at the (unclear) level, also at the State department, which rely not only on convening meetings such as these, with recognized stakeholders, but with publication of meeting notices seeking guidance in the Federal Register
  • In the broad world of international treatymaking and international treaty organizations, there are a plethora of models for consulting stakeholders of all varieties, for getting expertise of all varieties, and this process does not need to be irregular, time-consuming, or sidetrack the United States negotiations with our present international fora
  • I recognize that the PTO has not necessarily had experience with the same models, that the negotiation process in a number of treatymaking organizations has been somewhat different, but I would urge you to consider on a going forward basis, these models that have been developed by other administrative agencies, which deal in these complex matters, that have recognized the tremendous value in seeking expertise and input during the formulation of positions, rather than in the process which you describe, which tends to resolve, unfortunately, at input only at the major decision points -- which is disruptive not merely to the treaty process, because a treaty negotiation over many years may suddenly be derailed because it reaches an inflection point of consultation and broader discussion, but it's terribly difficult, for participation purposes, for those NGOs and industry groups that do follow these treaties, because it becomes impossible for them to know at what stage in the development they can meaningfully participate
  • Again, I recognize the PTO has (unclear) but I would urge flexibility, particularly in a treaty with its implications for such a large number of potential stakeholders, and in which so many areas of expertise -- economics, First Amendment, legal, international relations -- are all implicated, and would be highly valuable in consideration of policy positions within a process that can be [workable]
  • Marilyn Cade, McCade, LLC (very low audio quality)
     

    Seth Johnson, New Yorkers for Fair Use

  • First of all, regarding the effect on the public domain -- I think I understand what the concept is, that you'll basically have watermarking; you'll be able to say who actually broadcast this particular fixation.  Right?  That's a change in the nature of the public domain -- I mean, that's the only way I can imagine that you could possibly make this work, that's any kind of model that gives people any ability to benefit from the copyright or the promotion of -- broadcasting, I guess is what you're trying to do
  • What you're doing is you're changing the nature of copyright, how it's supposed to work, its purpose, even our ability to benefit from it
  • I wanted to quickly describe the transport in case it's not completely clear to you.  For the Internet, you have routers, and their only job is to say, "Go from here to there."  And if I send a file, that file doesn't survive -- if it can't get there, it breaks it up and pushes.  That is a highly flexible medium, and that's the basis for all the innovation we've had
  • What you're doing with this treaty, is you're giving broadcasters more power than producers -- and I mean producers in both categories: authors and people who use published works.  You're basically eliminating the advances that have been established for all of humanity by the creation of the Internet
  • And there's a big flaw in the way you've proceeded.  You've decided that you can take exclusive rights that have been crafted for works, and you're going to apply that to a medium.  Why? Because you need to be fair.  If I ask why we need to be fair, I don't know -- is it because they're adding some creativity?  That would make them an author, right?  Then why are you doing this independently of Congress?
  • And this is happening at a time when we see in Congress a Bill proposed to put back the broadcast flag with this concept of a historic customary use -- instead of fair use.  We're seeing it at a time when we have efforts to establish policy that's going to mandate that in our computers there'll be spyware that watches what we do and enforces the policies of outsiders, on what we can actually do with the computer.  We have a law proposed that will build content control all the way to the analog jacks, that would enforce watermarks as well as digital rights metadata.  And then you have this thing of trying to undermine network neutrality by giving network operators control over "information services," rather than that generic, highly flexible medium and the connectivity that everybody has
  • Now, that generic, flexible transport is not well suited for imposing control over "fixation" of broadcasts or static works as a whole
  • We have to have Congress establish the right principles before WIPO sets all the wrong ones.  We need Congress to articulate this clearly, or treatymakers will interpret the nature of copyright too freely -- and change its nature, unilaterally
  • The notion that what we're doing with copyright is protecting the work as a whole --  I do know that you make international trade treaties, okay, and you decide on property rules.  And perhaps it's this term "intellectual property" that's causing people to think that "okay, we can just do the same thing" for copyrighted stuff.  It's property, we can do a trade treaty on that -- right?  But this is a special kind of quote-unquote property -- "intellectual property" -- that impinges on fundamental rights, impinges on the ability to benefit from published works, and so forth.  The problem is obvious: doing this inherently violates fundamental freedoms
  • Digital representation of information is the very basis of innovation in the information age.  And this is not just that that's the nature of the computer, and it's not that that's the nature of the transport.  Instead, these designs -- the transport and the computer -- are exactly what give us all the means to make flexible use of information that we receive as a result of copyright and communications policies.  The Internet transport is what assures that flexibility and innovation
  • All of us are online.  We have a profound mode of shared experience -- many forms of shared experience -- available to us because of that flexibility
  • In the real world, we bury our dead.  We go online, we have funerals.  And every group that gathers for that kind of a gathering -- whatever it is, whatever kind of ceremony, whatever occasion, whatever purpose it is -- they have the ability to develop a protocol, who gets to speak first, who gets to speak of the dead, who gets to bear witness -- whatever the matter is -- who gets to analyze scientific data, who gets to analyze a creative work, who gets to perform, who's a presenter, who's a listener, who's a viewer.  And every such group of people who come together for some sort of a purpose is different.  They can all make their own kind of protocol.  They can choose to do that for their own benefit, or they can make a standard, so that everybody can interoperate -- it's up to them
  • And into these spaces of people working together, we bring copyrighted works; we bring public domain works.  And there's an aspect of even copyrighted works that is public domain from the get-go.  We do not have to wait for the term of copyright to expire to make use of a factual element of a published, copyrighted work.  Okay?  We have every right to make use of the pieces of a work.  And we can, individually or as a group, interactively and collaboratively, produce a new work, and give that to the world -- publish it.  What you do with this treaty, is you take that away.  You take away that ability to make flexible use of a published work -- which is the purpose of copyright -- and you take away the flexibility of the transport
  • Gwen Hinze, Electronic Frontier Foundation (low audio quality)
    • We thank you for the opportunity to meet with you this morning to discuss our concerns.
    • However, we remain troubled by the fact that there appears to have been little analysis undertaken of the significant changes that the proposed Treaty would entail for U.S. law, consumers^R rights and the technology sector, and no opportunity for a broad scale informed public consultation process with the domestic constituencies that will be most directly impacted by the treaty.
    • EFF is concerned that the proposed treaty will endanger consumers^R existing rights, restrict the public^Rs access to knowledge, stifle technological innovation, preclude free and open source software, and limit competition in the next generation of broadcast and Internet technologies. Most importantly, it will radically alter the nature of the Internet as a communication medium.
    • Many of the people who have spoken this morning have addressed some of these points. I would like to comment on several points that have not been addressed, and provide you with a copy of the comments that EFF has previously submitted to the WIPO Standing Committee on Copyright and Related Rights in June 2004 and November 2005.
    • I would like to reiterate the value of seeking engagement and consultation with domestic parties at this stage in the treaty process because the policy issues raised by the treaty are significant. They will radically change the contours of U.S. law and the environment for technological innovation.
    • I would like to make three comments this morning.
    • (1) The proposed treaty is likely to stifle technological innovation on the Internet and in next generation broadcast technologies.
    • The proposed webcasting right would create a broad new layer of exclusive rights over the content carried by the signal, independent of, and additional to, the program content's copyright. The proposed treaty would require technology companies to negotiate and obtain clearances from two sets of rightholders before they can create innovative technologies that interoperate with broadcast or web content. This is likely to stifle technology innovation.
    • At present, technology companies only need to obtain clearance from a copyright owner, or determine whether copyright protection applies at all. This will change under the proposed treaty. Anyone who wants to create technologies that interoperate with broadcast or webcast content, will need to identify and negotiate with a second set of transmission rights entities in addition to the copyright owner before they can safely bring technologies to market.
    • Under the proposed treaty it is not clear at all that a parallel set of exceptions and limitations to those under U.S. copyright law will apply to the new transmission right.
    • Therefore, actually working out whether your technology will require clearance is going to be difficult, even if a technology company can identify the transmitter involved. This is only likely to inhibit technological innovation.
    • (2) The proposed treaty appears to create a new liability regime for Internet intermediaries that transmit data over the Internet.
    • Both the Working Papers webcasting proposal and Article 6s right of retransmission of broadcasts and cablecasts over computer networks may create potential liability for intermediaries that transmit data over the Internet. Although Article 14 provides for limited exceptions to the exclusive rights granted to broadcasters and cablecasters, it does not explicitly address the question of Internet intermediaries. In addition, since the treaty grants rights that are independent of, and additional to, copyright, any protection granted to U.S. Internet intermediaries against online copyright infringements for transient reproductions will not automatically apply to transient transmissions of broadcasts and cablecasts over the Internet.
    • This is likely to apply to a wide range of Internet intermediaries, including ISPs, Internet search engines, video search engines and user-uploadable services such as Google Video, Blogger, podcast producers and podcasting services.
    • I would like to understand whether the U.S. delegation has analyzed the policy considerations and potential liability issues raised by the proposed webcasting right in the process of negotiating this treaty.
    • (3) Technological Protection Measures
    • The combination of Technological Protection Measure provisions with the treatys broad set of post-reception rights will allow broadcasters and cablecasters to use technological measures backed by national laws (such as the U.S. Broadcast Flag regulation) to preclude the development of new technologies, such as TiVos, that allow consumers to time-shift and space-shift lawfully acquired television programming.
    • This will be a serious redrawing of the current boundary between consumers and copyright owners rights. As Mr. Stallman and Mr. Perens have noted, any implementing legislation for the treatys broadcaster technological protection measures is likely to preclude free and open source software technologies. On this point, I want to emphasize a key distinction between the existing unauthorized access regimes that protect against unlawful reception of cable and satellite television services in U.S. law, such as 47 USC 605 and 18 USC 2511-20, and the new concept of Broadcaster Technological Protection measures introduced by this Treaty. Unlike the existing conditional access regime, Broadcaster Technological Measures would allow broadcasters and webcasters to use technological measures to control use after a signal is received in the home, and after its been recorded. The combination of Technological Protection Measures with post-fixation rights is about control of the program content carried by the signal, and not about signal theft. It is also about control of the devices on which consumers can watch broadcasts, cablecasts and webcasts that they have lawfully acquired. This has significant implications for competition and innovation.
    • I would like to learn whether the U.S. delegation has given consideration to the potential anticompetitive implications of the broadcaster technological measures in the treaty, and in particular, whether it would support an express exception in the treaty language to preserve the ability of the U.S. government to regulate potential anti-competitive implications of the broad technology mandate that would be required to implement the treaty in U.S. law.
    • Finally, I want to reiterate a point made by others this morning. The treatys combination of broadcaster technological protection measures with broad post-reception rights that apply above copyright law is likely to curtail consumers traditional fair use rights in lawfully-acquired television programming. Creating exclusive rights for webcasters, combined with legally enforced technological measures, is likely to be even more detrimental because it will restrict the publics access to information that is in the public domain or not protected under copyright.
    • In conclusion, I urge the U.S. delegation to hold a broader public consultation on the significant policy and civil liberty issues raised by this treaty.

    David Tannenbaum, Union for the Public Domain

  • The thing that strikes me about the treaty at this point is the way that it contradicts many of the fundamental policy motivations for intellectual property -- copyright, patents, trademarks and other copyright-like protections -- in US law.  I'm sorry, I said "intellectual property" . . . it's just a bad habit.
  • I wanted to make three broad points.  One is about the policy implications of the treaty; the second is about the way that the treaty would interact with US law -- I increasingly relate to the comments made by Mr. Mitchell; and the third is the process.
  • Mr. Stallman mentioned a paradigmatic case of a Senate hearing.  There are two other paradigmatic cases we thought of: one is a documentary to be released to the public domain, whose creator wishes the documentary to be entered into the public domain.  For instance, "Outfoxed," which is a criticism of Fox News.
  • A second paradigmatic case is a cultural product whose producers wish for it to be distributed.  I don't know if you've seen the Saturday Night Live music video parody, for which Saturday Night Live loaded its own video clip onto the Internet as a cultural product -- obviously Saturday Night Live is the center of US cultural production; it's an important part of the economy.  And it was released on many Internet sites, like the student webcasters like Yahoo and YouTubeTV -- these are the webcasters that the treaty is meant for.
  • So, when you think about the policy implications with respect to the three parties using webcasting, it's not clear how the treaty would benefit any of these parties.  From the perspective of users, we just care about what the costs of using a cultural product would be.  The treaty would increase that cost, because it would add an additional layer of rights for broadcasters.
  • We also care about how many materials are produced, and as you know, one important policy justification for copyright-like laws is that they incentivize the production of more cultural materials.  It's not clear why additional incentives need to be provided.
  • From the perspective of producers -- small producers and large producers -- they care about the cost of input into production.  This treaty would raise the cost of input, because you would have to pay not only the original copyright holder, but the broadcaster who held the additional rights.  This of course affects small webcasters more than it affects large webcasters, because the large ones have the resources to handle these rights-seeking costs.  And the great thing about the Internet is that it now enables small producers
  • The third group of people who know anything about it, are the webcasters.  An interesting remark you said was that in order for this treaty to be effective, you need to extend the rights to webcasters.  The question is "effective for what?"  Is it "effective to provide more material on the Internet?"  If that's the case, it's not clear what the treaty is doing.  Is it "effective for increasing access to public domain material?"  It's not clear that it's effective for that.  And it's unclear why it would be effective even for webcasters -- many of whom signed a letter that was sent to WIPO, including Tim O'Brien, people who are engaged in webcasting, who don't want this so-called benefit for themselves.
  • So I have three questions based on these policy matters: One is does the US Delegation to WIPO think that these materials are currently be under-provided on the Internet, and then that's the justification for supporting this?  Second, does the US Delegation support a mandatory fair use provision in the treaty, which would preserve the rights of users and small producers who use the material?  And third, what exactly is meant when the US Delegation says "in order to make the treaty effective" you need to include this provision?  I think it's important to specify, analytically, effective for what and for whom, because so far that's been obscured in the explanation of why these provisions are being pushed.
  • The second major point I want to make is about US foreign doctrine -- I won't say much, because I think that the analysis earlier was very clear and persuasive -- but as you know, under copyright, copyright for a lot of lawyers is indefinite, and particularly when public domain materials are being rebroadcast, it's not clear that its anything but indefinite, having no creative spark, when rebroadcasting public domain materials, not improved by the broadcaster.  So what is the justification?  How would this fit under US copyright law?  Maybe under the Commerce Clause, but then you run into difficulties which were mentioned earlier.
  • A second concern which I don't think has been mentioned, is that this right is apparently perpetual.  You get the right -- your control over the broadcast is extended every time you rebroadcast the material.  And on the web it's trivial to rebroadcast material.  Every time a user downloads information from the web, that is essentially a rebroadcast.  So it's not clear how this perpetual right would fit into the framework of US law, and why that would be justified.
  • And the third and final point I want to make is one that everyone else has made -- about the process.  I understand that the treaty is proceeding in certain ways and that you won't be certain exactly what the provisions say until the Diplomatic Conference.  In your introductory remarks you also framed it as "proceedings leading to the adoption of a treaty for the protection of broadcasters" -- which suggests that the US Delegation is fairly confident that there is going to be a treaty for the protection broadcasters.
  • We also know that these provisions for webcasting are very novel, new provisions, and there has been less analysis; and it seems that not only are there democratic issues, but from the perspective of the Delegation which wants to make effective policy for the nation, and for its influence for effective policy in the world, it seems like it would be valuable to get as much input as you possibly could.  For that reason I would encourage you to have a broader consultation process.
  • Richard Stallman, Free Software Foundation
  • Once there's a diplomatic conference, and it says "Here's the treaty" and it's handed to the Senate, to have a public consultation then would be a public consultation about "yes or no."  In order for the public to have any input into what this treaty says, it has to have that input now, there has to be a consultation now.  Waiting for the formality of a consultation once the treaty's already been negotiated, is almost like not having one
  • Harold Feld, Media Access Project
  • Many of us here would be very happy to work with staff on ways to keep the public informed, to engage in further for a constructive dialogue; and while certainly we would agree that a Federal Register notice is ultimately necessary, we recognize that there are other means that can correct misunderstandings in the process, providing general understanding of how this treaty moves forward, and I certainly hope that this meeting is the beginning of a dialogue rather than the end of one
  • Paul Hyland, Computer Professionals for Social Responsibility
  • We signed the letter that was referenced before, asking for a more open process; we certainly encourage anything toward those ends.  But I'll limit my remarks to our civil liberties concerns about this treaty.
  • We support the freedom to more broadly communicate and create materials through the Internet and technologies that may or may not have been developed to this point, but also freedom to innovate.  In a narrow sense, among computer professionals and people who create the technology that support community, and other technologists, we see this treaty and technologies that are mandated by it as limiting that freedom, both in the broader sense of using the Internet to communicate and create materials, and in a narrower sense, that the technology is used to create new products that might or might not include such technologies, that might do things that aren't even envisioned at this time.
  • I think it's sort of  ironic that a so-called "intellectual property" regime actually, rather than protecting creativity, instead hinders it.
  • Mike Keplinger, Closing Comment
  • Thank you very much for your comments.  We'll take everything that we've heard here today under consideration, and we'll be back in touch.

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