Joho the Blog
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The US delegation to WIPO is pushing for a "webcasting" extension that would require you to get permission before you could reproduce content that has been "webcast," even if that content is in the public domain. "Webcast" means that some combination of "images or sounds" have been made "accessible to the public...at substantially the same time." If you find that disturbingly vague, join the club. Then pick up the club and let's see if we can beat this thing into the ground. (More info here. A list of more info here.)

Making this enforceable would require strong DRM and the "trusted" hardware that trusts us users so much that it locks us out of root control of our own systems. (Enjoy the Vista!)

Yesterday morning I joined about twenty concerned citizens in a discussion with Michael Keplinger, a senior counsel at the US Patent and Trademark Office and one of our representatives to WIPO. It was supposed to last an hour. It went on for almost two. Unfortunately, it was mainly us declaiming, rather than an actual discussion. On the other hand, our aim was to ask for public hearings on the US position on webcasting, which is where the discussion should happen.

Almost everyone had prepared a statement and read it. Because the attendees were diverse — lawyers, musicians, democracy activists, even a couple of telcos — the arguments were also diverse. Some were fairly detailed on legal issues; I personally thought they were the most effective. Here are some of the points people made, in no particular order:

Our WIPO delegation is pushing for a treaty that includes requirements the Congress and courts have already rejected. E.g., the Broadcast Flag.

There will be unintended consequences to this type of change that could be ameliorated if the discussion of the provisions were opened up to include all the stakeholders, including technologists, economists, creators, various businesses, and, most of all, citizens.

Although the treaty is presented as an extension of the Rome Treaty on broadcasting from the '70s (a treaty the US did not sign), it goes much further, restricting recording devices.

The provisions would greatly impede, and perhaps kill, the open software movement/industry.

Constitutionally, Congress is the body authorized to deal with exclusive rights issues.

This bears on Net neutrality. A Google or Yahoo could gather public domain info and works and have the right to create a "toll road" for access to them.

Copyright clearance is already a mess, but this would add another layer. The difficulty of telling whether a work derived from a webcast work would be an overwhelming burden, especially for smaller companies.

If you had to apply to the government for permission to republish public domain works found on someone's site, it would be laughed out of court. How can the government then empower broadcasters to limit freedom of speech in a way that the government is not allowed to?

This treaty would add a second layer of copyright without the limitations on copyright that have emerged over the years.

Do we need copyright law to incentivize the production of creative works? Judging from the abundance of creative work on the Internet, apparently not. So, what need does this treaty address?

Do you support a mandatory Fair Use provision in the treaty?

The webcaster's power seems to be renewed every time the material is downloaded. Is it effectively perpetual?

My takeaway from Mr. Keplinger's brief response was that the process is too far along for there to be any significant changes to it. Keplinger said explicitly that the time for discussion is once the treaty has been ratified [wrong word, I'm sure...sorry] by WIPO and it's presented to Congress. The USPTO doesn't hold open hearings during the treaty development process. But, as was pointed out, Congress can only say yes or no to the treaty. Now is the time to have discussions that could shape it.

Nevertheless, it seems to me — i.e., I'm repeating opinions held by people who understand this stuff — this is not a done deal. Congress could reject it, other WIPO participants could strike the Webcasting portion of the treaty, or there even could be sufficient outcry to cause some reflection about it.

Fascinating morning.

(By the way, my remarks were brief. I basically said that the Web shouldn't be reconfigured so it's more like a broadcast medium and that it's bad for democracy and culture when we have to ask permission to talk about works.)