WIPO

WIPO’s Broadcasting Treaty: Still Harmful, Still Unnecessary

Timothy Vollmer, November 14th, 2012

Creative Commons has been involved in discussions at the World Intellectual Property Organization (WIPO) over the last several years, and we’ve made interventions in support of the public domain, as well as other topics.

One issue in particular that is resurfacing at WIPO is a draft treaty for the Protection of Broadcasting Organizations, or “Broadcasting Treaty.” If passed, the Broadcasting Treaty would grant to broadcasters a separate, exclusive copyright-like right in the signals that they transmit, separate from any copyrights they or others may have in the content of the transmissions. Some advocates of the treaty support granting these rights to broadcasters for a minimum of 50 years (and others, for a minimum of 20). And, because these additional rights would add a layer of rights atop the underlying copyright in the works being broadcast, the Broadcasting Treaty would permit broadcasters to restrict access to works already licensed under a Creative Commons license, or in the public domain. This new set of rights would unnecessarily complicate the rights-negotiation process that Creative Commons has attempted to simplify.

Antennas to heaven

Antennas to Heaven / mhiguera / CC BY

The Broadcasting Treaty has been on and off WIPO’s agenda since at least 1996. This is not the first time that CC has voiced its concern about the potentially harmful effects of a Broadcasting Treaty. In 2006, we signed a letter of concern (PDF) with 37 other organizations representing a broad range of information technology, consumer electronics and telecommunications companies, library associations, and civil society organizations. The letter told WIPO that if a treaty is deemed necessary, it should be based on a “signal-based” approach, focusing specifically on protecting broadcasting signals from intentional misappropriation or theft. The statement called for the inclusion of a mandatory baseline set of limitations and exceptions in order to ensure that uses of broadcasted content that are lawful under copyright law are not inhibited by the treaty. And in general, the letter questioned the need for a Broadcasting Treaty in the first place, suggesting that current legal frameworks already provide the necessary enforcement mechanism for “signal piracy” (unauthorized use of a broadcast, prohibited by the broadcaster).

Why is a Broadcasting Treaty problematic for users of Creative Commons licenses?

A report (PDF) by Professor Patrícia Akester, commissioned by UNESCO, concluded that a Broadcasting Treaty could “prevent or restrict the flow of information with respect to materials which may not be protected by copyright, such as news of the day, or which are in the public domain, because their term of protection has expired or in relation to materials created by third parties who do not wish to prevent dissemination of the latter… . For example, a broadcast of a speech by a public official may be covered by the scope of the proposed Treaty, even though it may not be protected by copyright, and a broadcast of materials under a Creative Commons license may prevent users from fixing such materials.” Anyone who would want to use a broadcast would have been compelled to get permission from the broadcaster in addition to the copyright holder. This would negatively affect users of Creative Commons licenses. It would grant broadcasters an additional right above and beyond those rights granted to the copyright holder. So, even though CC licenses provide for a clear set of permissions in advance, broadcasters’ rights could trump those rights, requiring that a user get permission or pay a license fee to the broadcaster to use the broadcasted content. Most WIPO member nations have agreed to pursue the more limited signal-based approach, but it’s not clear whether this path would avoid interfering with the permissions granted from the Creative Commons licenses.

CC licenses forbid licensees from applying adding technological protection measures (DRM) to a work if doing so prohibits other users from exercising the rights granted under the license. A broadcast treaty that authorizes application of DRM to their signals — depending on its final scope — would very likely conflict with that prohibition. Moreover, the Treaty permits countries to enact far-reaching anti-circumvention laws that stop users from breaking DRM to use the broadcast content — inclusive of any CC-licensed content, which by the terms of the license is expressly permitted. This may put licensees in a situation of either not being able to exercise rights granted under copyright via the CC licenses, or risk violating law when they circumvent the technological protection measure to do so.

Adding additional intellectual property rights via a broadcast right is bad policy and yet another representation of the expanding rights grab from entities who are not the copyright holder. And said well by Public Knowledge, “Intellectual property rights should go to authors or inventors, not middlemen.” This statement represents the underlying utility of Creative Commons since its inception: CC licenses provide powerful yet easy-to-implement solutions in order to reduce the legal transaction costs associated with sharing content. In addition, the Broadcasting Treaty could give rise to a sort of re-enclosure of the public domain by granting rights to broadcasters even after a user has placed a work in the public domain using the CC0 Public Domain Dedication.

The creation of new “copyright-like” rights has been increasing over the last several years, to the detriment of creativity and innovation. The Broadcasting Treaty is a direct attack on the rights of creators to share their work as they see fit under the existing (and increasingly protectionist) copyright regime. As Mike Linksvayer wrote in 2010, “With a proliferation of rights, it is harder to know who has exclusive control over what, or whether multiple parties have exclusive control over different rights over a work. This phenomenon of too many property claims forms what is sometimes called an anticommons — overlapping exclusive claims can prevent anyone from using a work — the opposite (thus “anti”) of a commons, in which anyone may use a work under a clear, easily discernible set of rules.” Creative Commons licenses have been a successful mechanism for creators who want to share to communicate their intentions clearly in an environment that has been increasingly hostile toward them. The Broadcast Treaty is antithetical to these methods of sharing and collaboration, but perhaps most harmful to CC-licensed works and to the public domain.

Bottom line: A Broadcasting Treaty is not needed

Is there need for such a treaty? Public interest advocates point out that the additional rights granted to broadcasters via a Broadcasting Treaty are simply not necessary because broadcasters already have legal remedies available to them to combat signal theft. An often cited example is the famous case of the Canadian company iCraveTV. iCraveTV decided to broadcast via the Internet 17 US-based channels on the grounds that local laws allowed it to transmit wireless broadcast cable signals without paying. And, because these channels were received at the Canadian border, iCraveTV argued it was exempt from paying royalties. Broadcasters in the US sued iCraveTV alleging copyright infringement. iCraveTV quickly settled, and the site shuttered shortly thereafter.

Copyright law already grants a complex bundle of rights to authors, and most of the time broadcasters are either copyright holders or licensees of copyrights. Public Knowledge notes, “broadcast signal piracy is almost always also copyright infringement and already illegal.” Similarly, Knowledge Ecology International wonders why the Broadcasting Treaty is necessary: “[W]e have yet to hear a cogent explanation of the problem the treaty is supposed to solve, or how it will work. We have asked the US government and other countries to explain what piracy problem the broadcaster treaty is expected to solve that can’t be solved by enforcing existing copyright laws and related rights laws, and we are still waiting for an answer.”

Establishing a Broadcasting Treaty could in effect negate the permissions that users of Creative Commons licenses wish to communicate, and grant unwarranted rights to broadcasting organizations that have added little or no value to the underlying work being transmitted. The proposed benefit to society resulting from creation and enforcement of additional rights for broadcasters under a Broadcasting Treaty is unclear. If there is a dire need to create additional rights for broadcasting organizations, the data demonstrating this need should be presented and impartially evaluated. If there is no discernable reason backed up by data, then the treaty should be abandoned.

What are the next steps?

Right now WIPO has released a working document (PDF) on the draft treaty, to be discussed and negotiated at the upcoming WIPO Standing Committee on Copyright and Related Rights (SCCR) meeting taking place in Geneva 19-23 November. Creative Commons is considering developing an intervention for the meeting, as we have permission to attend and contribute to the WIPO proceedings alongside other NGOs. We urge WIPO to make these deliberations as transparent as possible so that the public knows about the discussions. The Electronic Frontier Foundation has already raised concerns that WIPO is pushing for a treaty to be signed quickly. And they also released a statement (PDF) during the July SCCR meeting. WIPO should carefully consider the implications to the public interest and properly address the recommendations from civil society organizations.

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Creative Commons at WIPO for the 9th meeting of the Committee on Development and IP

Timothy Vollmer, May 22nd, 2012

Recently, Andrés Guadamuz from CC Costa Rica was in Geneva at the 9th session of the Committee on Development and Intellectual Property (CDIP) at WIPO. Andrés has represented Creative Commons over the past few years at WIPO. CDIP was established in 2008 and deals with intellectual property issues relevant to developing nations. CC gained permanent observer status at CDIP in 2011.

At the meeting, Creative Commons delivered an intervention (this means offered a formal spoken comment) on Agenda Item CDIP/9/INF/2: Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain (PDF). The original study by Professor Séverine Dussolier can be located here for reference. Here are the recommendations under discussion:

1(c) The voluntary relinquishment of copyright in works and dedication to the public domain should be recognised as a legitimate exercise of authorship and copyright exclusivity, to the extent permitted by national laws (possibly excluding any abandonment of moral rights) and upon the condition of a formally expressed, informed and free consent of the author. Further research could certainly be carried out on that point. [...]

1(f) International endeavours should be devoted to developing technical or informational tools to identify the contents of the public domain, particularly as far as the duration of copyright is concerned. Such tools can be data collections on works, databases of public domain works, or public domain calculators. International cross-operation and cross-referencing of such tools is of particular importance. [...]

2(a) The availability of the public domain should be enhanced, notably through cooperation with cultural heritage institutions and UNESCO (through its work on the preservation of intangible cultural heritage).

Creative Commons made a statement focusing primarily on Sections 1(c) and 1(f). CC communicated that in support of 1(c) it has developed the CC0 public domain waiver as a tool for those who wish to relinquish copyright, database, and related rights to the extent allowed by law. In support of 1(f), CC welcomed the mention of its tools as a mechanism that can help identify works already in the public domain (such as the Public Domain Mark) and communicate license metadata so that search engines can filter and display to users what content is available for reuse, and under which conditions.

Below is the text of the intervention (PDF) made by Andrés. This crux of this entry is cross-posted at TechnoLlama. The COMMUNIA association, of which Creative Commons is a founding member, also offered an intervention on this agenda item. You can find previous CC interventions and associated WIPO documents on the wiki.

Creative Commons statement to the CDIP on the Public Domain

Thank you Mr Chairman, we would like to congratulate you on your election to preside this Committee.

In his keynote presentation to the Global INET Conference here in Geneva just a couple of weeks ago, Dr Francis Gurry described intellectual property as a balancing mechanism for all of the often competing rights and equities that occur in and around the creation of innovation. Creative Commons strongly believes in this balance of rights, and strives to offer technical and legal tools to make that balance possible. We also believe that an integral part of that balance has to be the protection and promotion of the Public Domain. The public domain enriches the global cultural and intellectual environment; it allows the reproduction and reuse of countless classics that are often modernized and reintroduced to new audiences and new generations. One could almost say that they are remixed.

It is with that in mind that we welcome the Secretariat’s inclusion on this session of the Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of The Scoping Study on Copyright and Related Rights and The Public Domain, and commend the author of The Scoping Study, Prof. Severine Dusollier. We encourage the adoption of all three recommendations, but we would like to complement the information contained in the document with regards to recommendations 1c and 1f.

With regards to Recommendation 1c, and as the document CDIP/9/INF/2 accurately describes, Creative Commons offers CC0, a universal tool that allows users to voluntarily relinquish all copyright, database and related rights to the fullest extent allowed by law. CC0 is a tool that was conceived and created out of both necessity and demand. Dedicating works to the public domain is difficult if not impossible for those wanting to contribute, voluntarily and of their own free will, their works for public use before applicable copyright or database protection terms expire. Few if any jurisdictions have a process for doing so easily and reliably. Laws vary from jurisdiction to jurisdiction as to what rights are automatically granted and how and when they expire or may be voluntarily relinquished. We understand the inherent difficulties with dealing with this issue in a comprehensive manner given the different approaches to copyright seen from Common and Civil legal traditions. Moreover, our conversations with copyright holders over CC’s 10 years in existence revealed that for some rights holders, there is a desire to signal clearly and unequivocally that their work may be used without reference to restrictions that the holder no longer wishes to retain for any number of reasons. This demand, coupled with the complex and lack of harmonized copyright frameworks, resulted in the creation of CC0. CC0 has been leveraged by numerous important rights holders, including the Dutch Government, the British Library, and the Personal Genome Project, and is part of the legal framework for important projects such as Europeana. For these reasons, we second the Secretariat’s recommendation to conduct a study on copyright relinquishment, and we also encourage this Committee to continue this important avenue.

With regards to Recommendation 1f, we once again welcome the Secretariat’s specific mention of the practices and tools available through Creative Commons. The possibility of marking copyright works with license metadata can tell search engines what is available for reuse, and under which conditions. We applaud all of the national and regional practices cited in the Secretariat’s document, and agree that these efforts must continue. Specifically, we encourage member states and regional bodies to continue to attempt to make public registry data more widely available. We would like to see a more proactive role by WIPO in the international arena. Among other promising avenues, WIPO could host some tools to facilitate the sharing of public registry information on their website, such as an aggregated database of existing registries.

Concluding, Creative Commons thoroughly supports efforts that will enhance the ability of rightsholders to voluntarily relinquish copyright thereby enriching the public domain, and of the public to access and use the public domain as copyright law full intends.

Thank you.

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Creative Commons at WIPO

Diane Peters, November 15th, 2011

This week, Andres Guadamuz (CC Costa Rica) is representing Creative Commons at the 8th Session of the Committee on Development and Intellectual Property (CDIP) of the World Intellectual Property Organization (WIPO). The agenda [PDF] promises review of several pending recommendations as well as a discussion of future work by the CDIP. Consistent with protocol, Creative Commons prepared a statement for the opening session, which you can read here, as well as find CC’s prior statements and presentations at the CDIP and other WIPO meetings and conferences.

This is one in a series of engagements by Creative Commons with WIPO, which commenced in 2005 through our then-subsidiary, Creative Commons International (since renamed iCommons, and now an independent organization). During those early years, our participation at WIPO meetings was largely focused on educating WIPO members about CC as an alternative licensing system that facilitates the distribution and reuse of materials around the world, and copyright in a digital age. In 2009, Creative Commons became an ad hoc observer to the CDIP, and has since participated directly in several meetings and conferences. As well, CC founder Lawrence Lessig keynoted last year’s WIPO conference on Facilitating Access to Culture in the Digital Age. Prof. Lessig’s remarks highlighted the role that CC licenses play in enabling the sharing and reuse of creativity under the existing copyright regime, and called for the creation of a blue sky commission to consider copyright reform.

Our engagements with WIPO have been constructive, and educated us on the importance of being active in this and other fora where important policy discussions are taking place. This year, Creative Commons gained permanent observer status with WIPO on the CDIP, allowing us to regularly participate in the conversations and activities that WIPO hosts. Among other things, we plan to participate in select CDIP meetings and other activities where our experience and expertise can best be leveraged for maximum impact.

You can follow CC’s involvement in this meeting of the CDIP and otherwise vis-a-vis WIPO on this blog as well as via Andrés’ blog.

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WIPO, CC, and Nurturing the Public Domain

Aurelia J. Schultz, August 10th, 2009

For the past year, Creative Commons has been working on tools to help increase access to works in the public domain. Often, it is not clear whether a work has entered the public domain or is still covered by copyright protection. This lack of clarity can cause a lot of problems, and Creative Commons is not the only one concerned about the issue.

For example, WIPO (the World Intellectual Property Organization) has begun research on tools for increasing access to the public domain, which relates to what we do at CC in several ways. Part of the WIPO research includes a comparative Scoping Study that will look at different countries’ legislation to see how how the public domain is defined and how public domain works are located. Encouragingly, Severine Dusollier, head of Intellectual Property Rights at Centre de Recherches Informatique et Droit and Creative Commons’ Belgium project lead, is in charge of this study. CC conducted a similar study last year and we’re paying close attention to how our results relate to WIPO’s. (Please note: the CC study is closed; no new input from the form will be accepted.) Part of WIPO’s study reviews private copyright documentation systems, including Creative Commons. Other samples in the study will include traditional collective rights management organizations.

Also of interest to our work at CC is WIPO’s expansion of a previous survey that takes an in-depth look at how deposits work as counterparts to a copyright registration system. One effect of registration, especially with a deposit requirement, is that it helps accrue a central collection location of works. These collections then contain copies of the works as well as relevant information necessary to make a determination of whether or not a work is in the public domain. WIPO’s work with registration and deposit systems is an important step in the quest to identify the contours of the public domain; however, not all copyright-protected work is registered or deposited.

Furthermore, finding information about non-registered or non-deposited works can be very difficult. For this reason, Creative Commons has begun building tools to identify, tag, and increase access to public domain works. Two of these tools, CC0 and the Public Domain Certification Tool, are already in existence and available for your use. A third, the Public Domain Assertion Tool, is on its way.

CC0 allows a copyright owner to waive rights in a work, effectively placing it as close as possible to being in the public domain. Finding works placed in the public domain through the CC0 waiver is easy, because CC0 is machine-readable just like the CC licenses. Our Public Domain Certification Tool can currently be used to indicate that a particular work is already in the public domain. But we are also working on a more robust version of this tool called the Public Domain Assertion tool. This tool will allow anyone to indicate facts about a particular digital instance of a work, giving individuals and institutions a way to participate in making our cultural heritage more user-friendly.

The tool’s output will link to relevant facts and a human-readable deed to assist users in deciding whether a work is in the public domain, and thus available for use without copyright restriction in one or more jurisdictions. For example, U.S. works may be in the pubic domain for any number of reasons but may not be in the public domain world-wide. Diane Peters, CC’s General Counsel, noted that the new tool will “increas[e] the effective size [of the public domain], even if due to copyright extensions works are not naturally added to the public domain.”

So stay tuned for the updates from the future of the public domain!

Aurelia J. Schultz, Google Policy Fellow and Joe Merante, Legal Intern

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