Intellectual property campaigners and podcasters oppose the new
treaty. They claim that it puts more control over content in the
hands of big business.
The treaty is the subject of discussions in Barcelona today at a
conference organised by UN Agency WIPO (the World Intellectual
Property Organisation). Opponents say the conference was called too
quickly – just eight days ago – for dissenting voices to be able to
take part. Even the supportive UK Patents Office told OUT-LAW that
it had received its invitation too late to attend.
A Patents Office spokesman confirmed that observing treaty
negotiations was his office's responsibility, and that it was
supportive of the treaty as its stands, and of its controversial
appendix, which governs podcasting.
"This treaty is about updating laws that were written before the
problems caused by digital distribution were thought of," said the
spokesman. "We represent both the industries that are under threat
from this activity and the consumer interests."
Though WIPO declined to comment on the controversy surrounding
the draft treaty, it did release a statement. "Updating the IP
rights of broadcasters currently provided by the 1961 Rome
Convention began at WIPO in 1997. A growing signal piracy problem
in many parts of the world, including piracy of digitised
pre-broadcast signals, has made this need more acute."
However, critics argue that the treaty could be interpreted as
going further than simply preventing cross-border piracy of
signals. Broadcasters in the UK already own copyright in their
broadcasts. Critics argue that the treaty grants them a whole new
right over the contents of their broadcast.
"This is a right just for transmitting something, and it exists
on top of the existing copyright," said Rufus Pollock, a director
of the Open Knowledge Foundation and a member of the board of the
Open Rights Group.
"You retain the copyright in your material," said James Boyle, a
law professor at Duke law School in North Carolina and founder of
the Center for the Study of the Public Domain. "I, the broadcaster,
get a right over any copy or retransmission of my broadcast (which
contains your material). Thus if someone copied your movie from my
broadcast they could infringe both sets of rights."
Separately, webcasters and podcasters are worried about WIPO
extending broadcasting rules to the internet. In May WIPO agreed to
take out provisions relating to webcasting from the treaty. They
have appeared in the draft treaty ahead of today's conference as a
'non-mandatory appendix on the protection in relation to
webcasting'. The conference itself is called 'From The Rome
Convention to Podcasting'.
"They had previously agreed to leave podcasting out to get its
own legislation. Now it's pretty clear they are going to put it
back in," said Dean Whitbread, chairman of the UK Podcasters'
Association.
Podcasters are worried that material which they disseminate
under free use licences can be re-published by broadcasters' web
operations. They argue that under the treaty that organisation then
has certain rights over any copies of that re-published version of
their work.
"If I say my work has to be free in perpetuity, then it has to
be free in perpetuity," said Whitbread.
Many podcasters publish under 'Creative Commons' licences which
allow unlimited publishing and forwarding free of charge under
certain conditions, notably that the material is always free, or
that it is always credited. Podcasters argue that the treaty, if
applied to the internet, could threaten that right.
"They can [still publish under Creative Commons] but those
licences cover the copyright," said Pollock. "They don't cover the
extra right the broadcaster/webcaster would get."
"We don't mind regulation, we just want it to be reasonable,"
said Whitbread. "Podcasting and broadcasting are not the same. I
don't think as podcasters we should be subject to the same
legislation."
