Treaty could cast shadow on Webcast rights

At a meeting in Geneva, the World Intellectual Property Organization's Standing Committee on Copyright and Related Rights agreed to prepare a draft of the treaty by April 1, 2004. A second meeting is scheduled for June, followed by an expected diplomatic conference during which nations that are members of WIPO--a U.N. agency--could sign the final treaty.

The proposed treaty--which was suggested by the Bush administration and is backed by Yahoo, the Washington-based Digital Media Association and other U.S. Webcasters--generally seeks to extend to Webcasters the same level of international intellectual property protection that TV and radio broadcasters currently enjoy. The Webcasting sections are part of a broader proposal titled "Protection of the Rights of Broadcasting Organizations."

"No treaty, including Webcasting, has been drafted, negotiated, signed or approved by any committee at WIPO," said Richard Owens, the head of the Copyright E-Commerce, Technology and Management Division of WIPO.

Jamie Love, who works for the Ralph Nader-affiliated Consumer Project on Technology, says the proposed treaty is worrisome because it creates an additional legal protection for works in the public domain that are Webcast.

"Say there's a film that's out of copyright and in the public domain, but it's in the vault of some movie studio," Love said. "If you got it from the broadcast, you're not allowed to make a copy. You have to go to the original source."

In other words, anyone viewing a Webcast of material that falls outside of copyright--such as a government-created documentary or a very old movie or audio recording--may not be able to freely store and redistribute that content.

Love added that some nations consider sports events to be in the public domain, but the proposed treaty would give both Webcasters and TV broadcasters the right to block retransmission. "Broadcasters see this as a way to extend rights to noncopyrighted information," said Love, who attended the WIPO meeting in Geneva.

Seth Greenstein, a partner at law firm McDermott Will & Emery who represents the Digital Media Association, said the proposed treaty is necessary to protect the rights of Webcasters in WIPO nations that do not have copyright laws as extensive as those in the United States.

"Because Webcasting is already delivered by digital networks, it's particularly susceptible to retransmission via the Internet," Greenstein said. "So far, a number of Internet companies have successfully used technological fixes to thwart piracy of their signal, but it would be more effective if those technological fixes were supported by legal prohibitions and remedies as well."

Greenstein is legal counsel to the Digital Media Association, whose members include AOL, FullAudio, Listen.com, RealNetworks and Yahoo. He acknowledged Love's concern about the sweep of the proposed treaty, but said such restrictions were necessary to protect the economic investment of Webcasters. "What we're saying is that if you take a look at what Webcasters do, it's the same acts that you've been trying to protect for all these years with broadcasting," Greenstein said. "Don't focus on the differences in technology."

The U.S. Patent and Trademark Office, which sent a delegation to Geneva on behalf of the Bush administration, did not immediately return phone calls on Thursday.

According to the treaty language proposed by the U.S. delegation, Webcasting means "the making accessible of transmissions of the same sounds, images, or sounds and images or the representations thereof, by wire or wireless means over a computer network at substantially the same time."

Love warned that definition is broad enough to include Web pages, which would create a new intellectual property right for virtually all Internet publishers--perhaps even peer-to-peer networks--and further curb consumers' access to works in the public domain. Supporters of the proposal say that interpretation is incorrect, and the definition could be tweaked for clarification if necessary.