Problems with WIPO broadcasting treaty

The UK Podcasters Association has issued press release highlighting problems with the WIPO Broadcasting Treaty (read the text of the Treaty here). The treaty is being debated in Geneva tomorrow. UKPA states that:

UKPA (UK Podcasters Association) has been working for months with the Irish PodRepBod, the German Podcastverband, the Open Rights Group in the UK and the EFF in the US to resist aspects of the Broadcast Treaty, which many podcasters, podcast users and a growing number of politicians feel are inimical to the healthy development of grassroots new media culture. The issues are about copyright, and the ongoing ownership of content.

Many podcasters fear that the Treaty is giving broadcasters the upper hand when it comes to rights, and creative people everywhere are becoming wary of blanket licenses which remove their rights in the small print - YouTube and MySpace have recently attracted widespread criticism and some legal action.

Activists are also pushing for recognition of Creative Commons licenses in the Treaty - millons of people who self-publish, webcast, and podcast use these licenses for their content; CC is a widely understood and established system which must be respected.

UKPA's campaign has unified podcasters globally, particularly in the UK, Eire, Germany, and the US, in a common cause, to influence the outcome of this looming - and binding - international legislation.

EFF has issued a "Joint Statement of Podcasting Organizations and Podcasters on the Proposed Wipo Treaty for the Protection of Broadcasts and Broadcasting Organizations Presented to 15th Session of Wipo Standing Committee on Copyright and Related Rights" and others may sign onto the statement by contacting EFF from the link on the statement page (or by emailing at podcastersandwipo@eff.org). Gwen Hinze will be presenting the joint statement, which argues these reasons for opposing the Treaty:

We oppose the extension of the draft Treaty to the Internet for three reasons.

1. There is no need for the proposed new rights. Webcasting, podcasting, and myriad other forms of online distribution have flourished without the sort of rights this Treaty would grant. Though podcasting is only in its infancy, tens of thousands of podcasts are already being made available, reaching an estimated total audience in the millions. To the extent this Treaty would grant rights to podcasters who also stream their content, including many of the undersigned, we have no desire for such rights.

2. Innovation in podcasting and other new Internet distribution tools will suffer. Podcasting came about because of the widespread adoption of general purpose portable audio players like iPods, as well as use of web syndication technologies like RSS. Had these novel tools been hampered by the secondary liability concerns that the treaty's overbroad intellectual property rights pose for technology developers and manufacturers of devices that could be used to infringe the new rights, podcasting might never have flourished. This Treaty would hinder innovation in future tools by forcing technology developers to obey government TPM mandates over device design. Along with increasing the potential financial costs for innovators, the TPM mandates will limit the types of features on new devices.

3. Extending the Treaty to the Internet will harm the flow of information and free speech online. Podcasters' freedom of expression is likely to suffer as a result of reduced innovation. Moreover, the treaty will impede podcasters' access to and non-infringing use of copyrighted content. Podcasters can currently rely on national copyright laws to lawfully include copyrighted materials in their programs, whether for news reporting, education, or other permitted uses. The proposed Treaty would undermine those uses by layering a new and overbroad set of rights on top of copyright. This will require a second layer of rights clearance for transmitted materials. This will increase transaction costs for podcasters, who already face significant hurdles in obtaining necessary copyright clearances due to undeveloped licensing markets. But it will also give broadcasters the ability to silence podcasters who depend on use of copyrighted materials.

Learn more about the WIPO treaty here and here.

NOTE: There is a factual error on the UKPA's press release. It states that I authored the US version of the CC licenses. That's not correct. I co-authored the Podcasting Legal Guide with Mia Garlick (CC's general counsel) and the Harvard Berkman Center, and through Stanford Law School's Center for Internet & Society's fellowship program. I did not, however, author the original CC licenses. I am advising the UKPA in the development of a possible UK-specific license for podcasters that would hopefully avoid some of the problems with the Treaty.