Monday, September 19, 2005

Broadcasters and a WIPO Treaty

I have been watching the "Yes Men," a documentary about two guys who spoof on the WTO, mostly via invitations sent to a domain site they own The WIPO is like the WTO, at least by also having a W and an O at the beginning and end of its name, and by being concerned with intellectual property. WIPO not only administers the Berne Convention and the WCT and WPPT treaties, it is instrumental in their formulation and negotiation. Most recently, broadcasters have been pushing for a new treaty of their own. On September 16th, the Copyright Office held a meeting with some NGOs about this. At the end of September, there is a WIPO General Assembly at which the issue of a possible diplomatic conference toward a new treaty will be taken up.

Here is an August 24, 2005 Document prepared by the WIPO Secretariat summarizing broadly previous discussions. Here is an April 2005 working paper, and the most recent public draft, from May 2005. Here is a link to CPTech which has a number of links to documents, with a not altogether accurate review of the current state of the law.

Broadcasters do enjoy in the U.S. a copyright in their broadcast day, the compilation of a full-day programming, as well as in the shows they produce. Since 1992, they also possess "retransmission consent" in Section 325(b)(1) of the Communications Act. Retransmission consent is a copyright right not passed under the Copyright Act and over the objection of the House Judiciary Committee. This right gives broadcasters the ability (if they have the economic stroke) to "just say no" to cable companies. (Larry Tisch then at CBS thought this would be a huge money machine; it isn't).

Broadcasters internationally aren't viewed as copyright owners and thus aren't covered by the WCT or WPPT, although they are covered by the 1961 Rome Convention, to which the U.S. does not adhere. The U.S. is very active in this new effort and of signal importance (pun intended) is whether the new right (if there is one) should cover webcasting and have DMCA like Chapter 12 provisions.

The time to get involved is now, not later, wherever you come out on the issue. Recall that early proposals for what became the DMCA Chapter 1200 provisions floundered domestically until the decision was made by the Administration to go the back-door international treaty route and use that obligation as leverage for domestic changes. That approach was not used during Berne adherence but only because then House Judiciary IP chair Bob Kastenmeier made clear that Congress had a very important role to play. One hopes that is the case here.

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