Reasons to Reject the WIPO Committee Chairman's Consolidated Text for a
the public domain for audio and video programming.
The WIPO copyright committee's
proposal for a Broadcasting Treaty (as drafted by the committee
chairman) endangers the public domain for copyrighted materials. It permits broadcasting corporations to
“copyright” and control the public's use of programming that is already
in the public domain (i.e., legally belongs to the public). This creates a devastating effect on education
and development, particularly in countries that can afford it the least.
2. Based upon
erroneous notions of science that defy the laws of physics.
The Chairman's Consolidated Text is predicated upon
“bad science”. Articles 8 – 12 establish
rights for broadcasting corporations that are based upon the “fixation”
of a broadcast signal. However, a
broadcast signal cannot as a matter of simple physics become “fixed”. Broadcast signals exist in the air so it is
impossible to “fix” a broadcast
signal as the treaty supposes.
obligations for countries that drastically exceed current international
The Consolidated Text requires nations to amend
their domestic laws to create greater restrictions over broadcast media
than current international treaty obligations require of countries. For example, the Rome Convention permits
countries to grant rights to broadcasting organizations -- but only for
20 years. Article 15 of the Consolidated
Text proposes to require all countries to create such rights for
broadcasting organizations for a minimum of 50 years, more than double
the current international standard, and outliving the economic life
span of a broadcast and the time required to recoup any economic
investment in the programming.
freedom of expression by outlawing the circumvention of technological
restrictions similarly to U.S. Digital Millennium Copyright Act (DMCA).
Article 16 of the Consolidated Text forbids the
decryption of broadcast signals, even if the programming is in the
public domain or when its creator does not wish to suppress its
distribution. Alternative V outlaws a
broad range of devices (including personal computers), software, and
other technical information that could help a consumer to decrypt a
broadcast signal. Similar prohibitions in
the US DMCA have been invoked to prevent the publication of scientific
papers, prosecute reputable cryptographers, censor journalists, limit
fair use rights, and prevent competition.
to apply to webcasting and virtually all Internet transmissions of
Article 6 and Article 11 broadly forbid the
transmission and retransmission of broadcast programming by any means,
including over the Internet. Alternative C
would also extend the Broadcasting Treaty to webcasting activities,
dramatically widening the scope of its application beyond traditional
broadcasting. By including Internet
transmissions in its scope, the treaty goes beyond its stated objective
and proposes to regulate an enormous breadth of ordinary consumer
activity and endangers freedom of expression on the Internet.
developing countries to adhere to treaties that will harm their
Alternative AA in Article 24 requires nations to become
signatories to the WIPO Copyright Treaty (WCT) and the WIPO
Performances and Phonograms Treaty (WPPT) in order to become a party to
the Broadcasting Treaty. Alternative CC in
Article 26 requires nations to accede to or ratify these treaties to be
eligible to sign on to the Broadcasting Treaty. These
provisions attempt to force nations to agree to treaties that many
countries have intentionally rejected since they contain provisions
that are dangerous to their citizens' civil liberty and the nation's
overall economic development. For example,
many developing countries have specifically chosen not to ratify WCT
and WPPT because they contain measures against the circumvention of
technological restrictions that restrict freedom of expression and
chokehold technological innovation.
copyright protection over “signals”, something that is neither creative
nor original and outside the scope of copyright protection.
The Consolidated Text departs from the Satellites
Convention's “signal centric” approach and attempts to set a dangerous
precedent by granting copyright protection for things that do not
qualify as creative works, such as broadcast signals.
Under both US Copyright law and the US Constitution, only
creative works that are original are eligible for copyright protection.
fair use and other limitations and exceptions to rightsholders'
Article 14 confines any limitations and exceptions to
the new rights of broadcasting corporations to only special cases that
do not conflict with the broadcasters' exploitation of the broadcasts. Alternative T would only allow countries to
maintain their national law limitations and exceptions concerning
noncommercial broadcasts if they were in force by the date of the
treaty's diplomatic conference.
advantage to current entrenched broadcasting industry at expense of
future innovators and non-traditional broadcasters.
Article 6 grants existing broadcasting corporations a
new right of retransmission for broadcasts “by any means” including
over the Internet. This provides the
traditional broadcasting industry with a competitive advantage over
webcasters and other “new-media” retransmitters who discover new and
innovative ways of providing entertainment to consumers but will be
prevented from doing so because this broad grant forecloses all future
means of redistribution that is yet to be discovered.
broadcasting corporations greater rights than artists are granted over
their own performances.
Article 6's right of retransmission provides
broadcasting corporations with higher levels of protection over
broadcasts than the law gives to the actual creators of the content
being broadcast. Canada proposed a
reservation to it out of concern that it creates “a situation where the
level of protection of broadcasts would exceed the rights of the
rightsholders of the content being broadcast.” Also,
Article 12's right to make available allows broadcasting corporations
to prevent other rightsholders (such the performers of the underlying
program) from making their performances available for viewing.
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