The Best Debate Nobody Heard
The Best Debate Nobody Heard
The Best Debate Nobody Heard

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    From the desk of PK President, Gigi B. Sohn:

    What if they gave a debate and nobody came? Yesterday, the National Academy of Sciences hosted a terrific debate between proponents and opponents of the WIPO Broadcast Treaty before an audience of about two dozen. The treaty, which was allegedly intended to protect broadcasters against signal theft, instead gives them a 50-year copyright-like right in the programs they transmit. Broadcasters already get a 20-year right in those transmissions under the Rome convention, to which the US is not a party. So it seems somewhat odd that the U.S. Delegation to WIPO is now endorsing the longer term of protection.

    The other issue raised by the treaty is whether webcasters should be given the same rights as broadcasters under the treaty. Apparently, only the US delegation is promoting this point of view.

    The one representative of the US delegation who was to speak, Michael Keplinger of the Patent and Trademark Office, did not show up. Nor did the broadcasters themselves. So the discussion was left to the other seven panelists. Representing the pro-side were Seth Greenstein and Jon Potter, both of the Digital Media Association (DiMA), which represents webcasters, and Fritz Attaway of the Motion Picture Association (MPAA has not taken a position on the treaty). For Greenstein, Potter and the webcasters, inclusion in this treaty is less about the rights granted therein and more about regulatory “parity.” In their minds, there is little or no difference between broadcasting and webcasting, other than the means of distribution (spectrum versus Internet) While I have some sympathy with their desire for parity, it is hard to support them in their effort to obtain that parity in a bad and unnecessary treaty. Fritz Attaway's appearance was simply puzzling – as anti-treaty panelist Jamie Love said, copyright holders are not supportive of giving broadcasters a right over and above their copyrights, because it diminishes the value of the latter. Fritz also ditched his “broadcasting is special” meme that he adopts when talking about the broadcast flag in arguing for parity between broadcasters and webcasters.

    Perhaps I am biased, but the anti-side presentations were just outstanding. First up was Jen Urban of the USC law school, who gave a terrific presentation detailing her concerns with the treaty and how it would not provide for the exemptions and exclusions under copyright law. She also talked about how, since webcasting was not necessarily limited to video, that data could be protected under the treaty, in contravention of this country's law banning the protection of facts. Jen was followed by an equally excellent presentation by Mike Nelson of IBM, speaking for the Internet Society, who gave a primer on how the Internet and distributed computing work. Mike also talked about how extending broadcaster rights to webcasters would raise a myriad of problems, such as the fact that anybody who sends streaming video over the Internet would be considered a webcaster under treaty. His thesis was that broadcasting and webcasting are different, and regardless of the substance of the treaty, should not be treated the same. Wrapping up was the International uber-advocate Jamie Love of the Consumer Project on Technology, who reiterated the lack of need for the treaty and that it was not accomplishing its intended purpose – signal theft protection. He also chided WIPO for always defaulting to increasing protection, even where it has not been shown to benefit creators or the public, particularly in third world countries. He argued that WIPO has other more pressing matters before it, including the development agenda, which seeks to develop IP policies that help, rather than hinder developing countries.

    The final speaker was Jon Band, who was advertised as talking about a “third way.” Jon stated that while he believed the treaty was unnecessary, the practical effect of the treaty would be very limited. He did have one major caveat to his overall lack of concern – that that exemptions and limitations on copyright, including fair use and first sale, had to be included in the treaty to protect the rights of the public to use these broadcasts.

    It was unfortunate that so few attended this important and timely debate. It means that opponents of the treaty have a lot of work to do to educate the public, the press and policymakers. We can take some of the blame – our resources have not permitted us to be more fully engaged. But we hope that this will change very soon.

    It's not posted yet, but hopefully soon you'll be able to view the webcast here.