With just over a week's public notice, WIPO has scheduled a Broadcasting Treaty seminar in Barcelona, Spain next week. Not surprisingly, the speakers are overwhelmingly pro-treaty, with Yahoo Europe leading the discussion on webcasting (Yahoo is in favor of including webcasting in the treaty, no matter how bad the underlying policy). Clearly, WIPO is trying to ram this treaty through, and probably senses the growing opposition from NGOs and industry alike.
Meanwhile, Jamie Boyle has written another great piece for the Financial Times on the lack of common sense and process behind this treaty. He talks about the treaty's effect on orphan works (it would exacerbate the problem) and on fair use (it is not required under the treaty). But Jamie lands his best punches on process – particularly the complete lack of evidence for the treaty and the US's lead role in pressing for the inclusion of webcasting. He closes with this provocative thought:
In my view, the current drafts of the Broadcast Treaty would be unconstitutional if implemented in American law. They create new copyright-like rights over unoriginal material, indeed material that is frequently copyrighted by someone else. That violates a core restriction of the copyright clause of the constitution. They also ignore the fixation requirement.
But forget the attempt to predict what the Supreme Court would do if it heard the case. Are the US's negotiators ignoring their constitutional responsibilities, and seeking to get a bad treaty passed with inadequate public debate of its desirability, constitutionality or consequences? About that there is no doubt at all. Shame on them. Jefferson and Madison would not approve. Should we?
Here is my question: Last week, several dozen NGOs and companies asked the Judiciary Committee to hold hearings and have a public proceeding on this treaty. Isn't it about time?