WIPO Broadcasting Treaty
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WIPO Broadcasting Treaty

November 26, 2019

DEREK SLATER: Our principal
issues are some of the kind of classic civil liberties
issues, like privacy and free speech. And also a lot of the funds
that you give us, that our donors give us, go to litigation
on these issues. So we’re about half lawyers,
fighting in the courts to protect your rights. Also, we have some staff
technologists who work out what these new technologies
do, how they affect our freedoms. And there are people
like me who do some communications work and also
help channel the voices of ordinary individuals to
policymakers, to legislators, to Congress, to make sure that
ordinary people are heard in major policy debates. So we take on those issues with
privacy and free speech. Also electronic voting will be
there on the frontline in the November election as we’ve
been for the last four years or so. And also we deal
with innovation policy and fair use. Many of you may be familiar with
some of our major issues, because they have to do
a digital copyrights. And, of course, Google itself
is at the center of many of the major digital copyright
issues today. While that’s certainly true,
it’s important to realize that the issues Google is facing now
with respect to copyright aren’t exactly novel. They are an evolution of an
ongoing battle we’ve been having over these issues for
eight or ten years, or more. About how we properly strike the
balance between the rights of copyright holders to have
enough encouragement to produce their works, and the
rights of the public, the rights of follow-on artists, the
rights of educators, the rights of citizens, the rights
of innovators, to reuse those works to create new technologies
that reuse those works, and how we properly
strike the balance between those two goals. And I want to make it clear
that Google’s part of this evolution, of this battle,
because it really helps set the context for what Gwen is
about to tell you about. Gwen is going to tell you about
a new IP-like regime for broadcast, cablecast,
netcasting, that’s being discussed in a far-off policy
body in Geneva. The decisions made there will
affect the internet, will affect Google, will affect
you in three years, five years, ten years. They may have grave consequences
for the internet, for Google, for you. So to think about how this
copyright evolution has affected Google, I put
one case into focus. There’s a case by Perfect Ten
against Google right now, that’s now on appeal. In that case, Perfect Ten, adult
magazine publisher, sued Google for linking to images
that may be infringing, and for its image search that shows
thumbnails of these potentially infringing images. Interestingly enough, Perfect
Ten’s arguments mirror, in many ways, the arguments of
Hollywood and the major record labels in their cases against
file-sharing companies, and for that reason, the motion
picture association and record labels have lined
up in support of Perfect Ten in this case. EFF has been involved in file
sharing issues for many years and we took the Grokster case
about file sharing networks to the Supreme Court. On the most narrow terms, that
case dealt with whether people could create multipurpose file
sharing networks, and distribute software
to the public. More broadly, it dealt with the
issue of all innovators, whether they could create new,
exciting, multipurpose technologies, without
begging permission. Again, Google didn’t have to beg
permission from Hollywood in order to create its
search engine. They could come up with the
algorithm, implement it, put the website up. That was it. That sort of wide berth for
innovation is critical to get new, exciting technologies
like the ones that are created here. While the Supreme Court’s
decision in Grokster was flawed in many ways, it did hold
intact one of the most important standards that
protects innovators. And we’re very happy that the
Court left that intact. EFF was also involved in a case
called Kelly versus Ariba Soft, which dealt with one of
the early image search engines and said that the search engine
basically by making the thumbnails was making a fair use
of the copyrighted works, a legal use even though they
didn’t have permission from the copyright owners. That precedent is, of
course, important in the Perfect Ten case. It’s also critical when it comes
to Google book search, the analogy being that an
excerpt from a book, a small snippet similar to a thumbnail
of an image. So it’s these sort of, this
evolution of the digital copyright fight that’s now
coming to a head with Google. So with that in mind, it’s
important that the we turn to the broadcasting treaty, we
nip whatever problems that there might be in the bud,
before they come back to haunt innovators ten years on. As many innovators have been
haunted by the problems with transitioning copyright
into the digital age. And with that said, I’ll turn
things over to Gwen to talk about the broadcasting treaty. GWEN HIZE: Well I also want to
thank you, and thank the kind folk at Google for the
opportunity to talk with you today. This is actually a very timely
time for doing this presentation. This week in the marble halls
of Geneva, the World Intellectual Properties’ 182
members are going to vote about whether the two convene
a diplomatic conference, an intergovernmental conference on
adopting this controversial new broadcasting treaty that I’m
about to tell you about. My goal today is to give you
a sense about why EFF is concerned about this. We’ve been working in opposition
to this treaty for three years because
of our concerns. And my goal is to try to give
you a sense about why you at Google should also be concerned
about this, and what you can do. Let’s start out by looking at
what the treaty would change. The treaty is above and beyond
copyright as Stephanie put it. The treaty would create a broad
new set of rights that apply, in addition to, and over
the top of copyright. Broadcasters and
cablecasters– the treaty covers both
broadcast and cable customers– would get new rights: a right
to control the recording or the fixation of their
transmissions, a right to control or authorize who
can do simultaneously transmissions of broadcast and
cablecast over the internet, and broad new 50 year rights
that apply to recorded content, so, rights that would
include making available transmission of recorded copies,
distribution and public communication of recorded
content but over the internet and other traditional
broadcast and cablecast channels. Most importantly, the treaty
includes a requirement for countries that sign on to
provide legal protection to technological protection
measures that are used by broadcasters and cablecasters. Many of the folk here, I’m sure,
are familiar with the Digital Millennium Copyright
Act that Daphne mentioned. So what we’re looking at here is
an additional set of rights that apply over the top of
copyright, and a new type of DRM regime, Digital Rights
Management regime, backed up by law. The treaty would, in effect,
allow broadcasters and cablecasters to use these broad
new rights, backed up by the legally enforced
technological protection measures, to restrict access
to material that’s transmitted, even if the use
of that material would be permitted under national
copyright law, if the material’s Creative Commons
licensed, for instance, or if copyright didn’t apply, for
instance, where a work might be in the public domain, and
therefore not subject to copyright at all. This is obviously a concern to
those of us to believe that access to information is what
gives us a foundation for technological innovation and
what’s necessary for social and economic development. I want to pause here and just
note one important thing. My last bullet point here. At the moment, US broadcasters
do not have intellectual property rights in their
broadcasts, and cablecasters, likewise. So the treaty would actually be
quite a radical change for those of us in the
United States. The reason that US broadcasters
don’t have intellectual property rights
over broadcast is because the US has never signed on to the
1961 Rome Convention, which is the existing international
instrument that grants broadcasters 20 year rights in
countries that have signed on to that treaty. The US isn’t a party to that. So instead, in the United
States, broadcasts are protected by a mixture of
copyright in the underlying content, some Federal
Communications Act provisions, and at the state level, there
are various criminal laws that deal with theft of services, or
theft of pay programming. There’s also some provisions
that specifically deal with that decryption devices
for devices that receive encrypted content. Webcasting. This is why you should care
about this treaty. You may not care about
broadcasting and cablecasting, but the treaty may well
cover webcasting. In 2002, the United States made
a proposal to extend the treaty to webcasters. There are various webcasting
companies in the United States, Yahoo, Newscorp, and the
Digital Media Association, their industry body, who have
asked for these rights in the treaty to be granted
to webcasters. And their main argument
for wanting these rights is one of parity. They believe that broadcasters
and webcasters should get equivalent rights because
they’re often transmitting the same type of content even if
the platform’s different. And for that reason, the United
States put forward a proposal in 2002 and then
again in 2003 to include webcasting and that’s been
in the treaty up until the last draft. That has been extremely
controversial. In 2004 and 2005, most of the
other member countries at WIPO have rejected the extension of
the treaty to the internet, and webcasting was the main
point of contention. Negotiations actually almost
came to a stop earlier this year because of this
very issue. And so, as a compromise, as a
way forward, in May, 2006, WIPO agreed to take webcasting
out of the country and split the treaty in two. So what we currently have is
a treaty that theoretically deals with broadcasting
and cablecasting in a traditional sense. And we’re dealing with
that at the moment. That’s on a fast track. And we separately had a new,
second instrument that will deal with internet
transmissions, and specifically with webcasting. The goal is to have that be a
separate instrument that will be part of discussions
in November. But it didn’t actually
work out that way. The nice clear and simple divide
is not actually what we have in practice. The current draft of the
treaty actually doesn’t include webcasting, but what it
does do, as I mentioned, is give broadcasters and
cablecasters exclusive right of control over simultaneous and
deferred transmissions of their content over
the internet. So the internet is still part
and parcel of the current treaty draft. The story does not end there. The US, in August, produced a
new proposal to extend the treaty to a subset of webcasters
called netcasters. That will either– depending on how the vote goes
this week in Geneva– that will either be part of the
current treaty that is on the table, or else, as I said, it
will be kind of a new treaty. So we’ll have a new conversation
about a new treaty that will look probably
quite a lot like this treaty that would deal with
netcasting. The key question you’re probably
asking is what does netcasting look like? This is stuff that makes a
copyright lawyers heart warm. This slides goes for two– this
definition, which is the definition of the proposed
extension. It goes to two slides, and I’m
going to let the words speak for themselves, because
if I read that out you’d all go to sleep. Right, so you’ve all got that? Great. Great. As I said, it’s truly lawyerly
dream stuff. I guess that sort of the simple
takeaway from that is it’s an amalgam of
various things. It looked like IP TV, mixed with
some simulcasting, and it has to be done by a legal
entity, whatever that means. But that’s not currently
in the treaty. As I said, that’s on the
table, lurking in the background. We’re waiting to see
what happens. So the treaty does include
internet transmission that potentially could also
include these. So what’s so bad about
the treaty? Why is EFF concerned? Well the ostensible reason why
we are going through this process of negotiating a treaty
is signal protection. There’s a concern that
broadcasters invest money and cable houses as well, and in
order to protect the signal that they’ve invested money
into, we should have a treaty. I think many people agree that
that’s a laudable aim. There’s a general consensus
amongst all the people who are following the treaty,
that signal protection is a worthy goal. The problem is the current
treaty draft goes beyond signal protection and creates
new intellectual property rights, 50 year intellectual
property rights, over broadcast and cablecasts, and
potentially over netcasts, and those broad new rights, backed
by, as I mentioned, legally enforced technological
protection measures, can do or could do four things. First, they could create
potential liability for internet intermediaries. They certainly will stifle
technological innovation, which is one of the
reasons EFF cares. They will restrict access to
knowledge and freedom of speech online and the online
communities, and they’re likely to threaten consumers
existing timeshifting, and in home or personal networking
retransmission rights in the United States, which is
something that’s currently lawful under US copyright law. AUDIENCE: What is TPM? GWEN HIZE: Technological
Protection Measure. Thank you for the
clarification. Well, we think this will be bad
for the entire internet. But to make this a little bit
more concrete, and to explain why, we’d like to give you an a
sense about how this treaty might apply to Google’s mission,
“to organize the world’s information and make it
universally accessible and useful.” And we thought what we’d try
to do here is highlight how some of Google’s current
products and some of the products that we think might be
likely to be developed, how they might be implicated by
the new rights that this treaty would create. You guys know Google way
better than I do. So, I know the broadcasting
treaty. What I have chosen to do is,
chosen these three areas, and I’d be happy to talk further
about other Google products that might be on the line
in the question session after we finish. So let’s look at Google
search engines. Let’s consider Google’s video
search, the current video search and a new product that
would be an index created by Google of the world’s audio
and TV broadcast content. There are already entities that
are out there archiving radio and television
broadcasts. Google might well want to create
an index that actually provides user functionality
to finding content in that archive. That technology relies on access
to recorded content without seeking prior
explicit permission. How would the broadcasting
treaty implicate that? Well the broadcasting treaty
will change that environment for two reasons. First, it will require
permission for copying, for indexing, and for displaying
search results and linking to search results. Secondly, what we can see
straight up front is the technological protection
measures, if they’re used on broadcast or cable cast content
might prevent some material even being part of an
archive or even being indexed, and therefore be proud of it as
such results that you say so you might see parts of the
world’s audio and television broadcast archive being
blocked out of the Google search. How does copyright
deal with this? Well, I wanted to highlight
here that we have a sense about how this goes in the
copyright world, particularly as regards to search engines. But what I also want to
highlight here is what is novel about these rights. As I mentioned these
rights don’t exist in the United States. Broadcasters do not have
intellectual property rights in the broadcasts
and cablecasts. And this treaty is not
a copyright treaty. This treaty would create
a new and completely unknown set of rights. In copyright, we’ve got a
hundred plus years of history. We know what the
boundaries are. We know what sort of secondary
liability what indirect liabilities for copyright
might look like. We have no idea whether they
will be secondary liability, and what it will look like in
relation to these rights. In relation to the direct rights
that a company might violate, again, we have no clear
boundaries about what the scope of these
rights will be. So, while I’m highlighting the
way that copyright has dealt with these things, or
imperfectly dealt with these things in the case of the
Perfect Ten case, I just want to highlight that much
of what we’re dealing with here is the unknown. And that’s exactly why many
people are concerned about this treaty and its
implications. But to look at the basics, if
we’re talking about creating an index on a search, we’re
talking about potential reproduction in relation
to caching. And we’re talking about display
rights, arguably distribution rights. So there might be questions
about whether Google would directly violate copyright
owner’s rights. We’ve seen that in the subject
of litigation in Parker v. Google, Field v. Google, and
Perfect 10 v. Google. I’m sure many of the folks who
work on these cases know chapter and verse exactly
how these issues work. So I’m going to greatly
oversimplify here and just say, there are a number of
potential points here where Google might find, if it were to
create a broadcast index or index of broadcast and audiocast
works, it might find that there’s some question
about liability. There may be issues about
reproduction. As I mentioned, the treaty
precludes any reproduction of recorded content without prior
permission from broadcasters and cablecasters. It also gives broadcasters and
cablecasters exclusive control over making available, or
transmission, or communication of recorded content. And so anything that looks like
a display by producing a search result, again, might
involve either primary or secondary broadcast treaty
liability for Google. The point I want to highlight
here is this: in the copyright cases that Google’s been
involved in so far, Google has largely, with some exceptions
relating to fair use of [UNINTELLIGIBLE] in relation to
Google image search, Google has benefited from the
exceptions and limitations in US copyright law. That has allowed Google to
release to the market fantastic, innovative products
that benefit all society. It has, in fact, benefited,
from fair use, something that’s well understood
in the United States. It’s benefited from a series of
statutory save harbors for internet service providers who
cache, host, and who provide location information tools. And it’s also benefited from
a fairly well defined and understood set of principles
could about secondary liability for copyright. What’s different in relation to
the broadcasting treaty is that none of that
is guaranteed. There is no guarantee that there
will be any equivalent or mirror set of exceptions and
limitations to these new broadcasting rights. And that should be a source
of major concern. It’s for exactly that reason
that internet service providers such as AT&T, Verizon,
and US Telecom have weighed in in opposition to
this treaty, because it creates potential liability for
any internet intermediary, not just Google, but any
internet service provider who, for instance, transmit content
and authorized recordings across the network might find
that it has potential liability under this treaty,
with no guarantee that there will be internet intermediary
exceptions that parallel those that we currently rely
on in copyright law. The treaty actually allows
countries who sign on to the treaty to create mirror
exceptions, but it doesn’t require it. So what that means in practical
terms, is that you have a domestic battle when it
comes down to implementing this treaty in US law. And that looks like the will
of your relevant national government versus the strength
of your domestic lobbying enterprises on behalf of the
broadcasters who are seeing these rights. And what I fear is that we’ll
see a battle at the US Congressional level to protect
every single exception and limitation in copyright law that
we rely on repeated at the broadcasting treaty level. Let’s look at another part of
the Google video service. Google video is also a
hosting enterprise. Users can upload content to the
Google video website, and the question that Google might
be asking itself here– well there are two questions–
one is, will Google get the benefit of this treaty? Is it possible that Google will
suddenly find itself in a situation where Google gets 50
year rights over everything that its users upload
to Google video. Will it suddenly get the
absolute exclusive rights of control over internet
redistribution of Google video content? That comes down to, will
Google be considered a netcaster for the purposes of
that long definition I put up a couple slides back? I think the answer to
that is likely not. And that’s because if you went
back and looked at the wording there, the concept that is
clearly envisaged by the netcasting provision, is IP
TV, in the sense that the person who’s doing the
transmission controls the timing of the information being
pushed out to consumers, and that content is received
near simultaneously. Obviously, in relation
to Google video, that doesn’t apply. The end user who’s watching a
Google video will be the one who pulls the content. So the second question Google
might have is, will there be any potential liability for
hosting material that might be infringing? Obviously, if Google were to
get direct licensing from broadcasting and cablecasting
networks for their content, that wouldn’t be an issue. But because the treaty gives
broadcasters and cablecasters the exclusive right over
recording broadcast or cablecast content, it’s possible
that Google could find itself in a situation where
an end user posts to Google video something that
is an unauthorized recording of content. Well, what does that mean? In the copyright context, we
know what that looks like. We’ve got a well understood,
somewhat imperfect mechanism for dealing with that. We have this provision, a notice
and takedown procedure that is one of the statutory
safe harbors in the Copyright Act in Section 512. And it’s straightforward. It doesn’t always work
perfectly, but if someone who is hosting material receives a
letter, a notice and takedown request from someone who alleges
that material being hosted is copyright infringing,
if the hoster takes down the material, then
notifies the original poster then they’ve done so, they’ve
got limited liability for copyright infringement. Again, my point here is there
will be no equivalent regime for broadcasting content. You cannot assume that the
same type of mirror exceptions, or the same type
of safe harbors will be created in relation to this
new set of rights. Finally, I wanted to sort of
touch on an another area where Google has an important
mission in making content available. And it does it through
new technology. I wanted to look
at two things. One is a new version of Google
News that actually looks at broadcast and cablecast content
and mention Google Books here. The Google book search project,
but its partner program, and the library project
are very important in this regard. Each of those projects would
require access to content without prior permission. Even if it’s with compensation,
as in the case of Google’s payments to
Associated Press for its news feeds to Google News, and it’s
not clear exactly what the broadcasting treaty will do in
this regard, other than to give you some sort of broad,
brush stroke answers. Obviously there’s a concern,
or there might be a concern that there will be additional
licensing costs to pay here, parallel to those that apply
in relation to Associated Press and Google News feeds. The second, and perhaps more
important point, is to notice how the treaty impacts
technological innovation. So the creation of new devices
and new technologies that Google might create in order to
make content available to the world citizen is what’s
at risk here. I’m going to pause and just
note, in relation to this whole suite of issues. In the copyright context,
again, we have a really defined and clearcut principles
in US law that gave us bellwethers, that give us
markers, so that we know roughly when we’re doing
technological innovation where the lines are, and where
we’re safe to move. There’s obviously fair use,
implied license, and reverse engineering, that is protected
as a form of either unprotected speech or fair use
in the United States law. All of these things are well
understood mechanisms, but they won’t apply, again, in the
proposed treaty context So, I just want to touch on
specifically why if there is concern about technological
innovation and hopefully speak to your hearts here about why we
think you folks should also be concerned about
this treaty. We think that the combination
of the technological protection measures, legally
enforced technological protection measures, with broad,
50 year post recording rights, is going to have four
potential consequences. First, at sort of the very top
level, the development of any new technology that
interoperates with broadcast or cablecasts, or potentially
netcast content is going to have to do an additional set
of rights clearances. They’ll be copyright,
potentially, and also transmitter clearance. Secondly, as I mentioned,
there’s a possibility that the treaty wound create new
potential secondary liability for software developers and
technology makers, device manufacturers, who create goods,
products that end users might use to infringe these new
rights of broadcasters, cablecasters, and potentially
netcasters. That’s going to chill
innovation. Many companies are currently
worried that this particular point. Third, and most important from
EFF’s point of view, is the fact that the treaty includes
legally enforced technological protection measures that, in
combination with the broad post-recording 50 year rights
that I mentioned, will allow broadcasters and cablecasters,
and, again, potentially netcasters, to control the
market in devices that will receive that content. So what we’re talking about
there is set-top boxes, DVR’s, and if we talk about netcast,
personal computers. What that might look like is
precluding the development of the next Tivo or the
next Slingbox. Finally, our experience in the
United States has led us to conclude that the broadcaster
technological protection measures that are envisaged by
the treaty might require technology mandate laws in order
to be implemented as part of national law. I’m sure many of the folk in the
room are familiar with the broadcast flag regulation from
the SEC that’s currently stalled and has been the subject
of many legislative attempts to reinsert it. Let me just say this, since
I’m sure many of you are familiar with the technology
issues. Technology mandates are not
good for innovation. They increase design costs. They reduce feature sets. And they are likely to reduce
market competition in devices. For consumers also,
they’re bad news. Consumers usually bear the brunt
of the increased costs. And more importantly, a broad
technology mandate law, like the one that we expect would
need to be put in place to implement the rights that are
part of the treaty, could potentially override
consumers’ existing time-shifting rights under US
copyright law, and their ability to retransmit or use
material that’s been lawfully acquired inside the home or
their personal network. OK. So I talked a little
bit about Google. My goal in doing so is to try
to let you see that some of the range of issues that EFF
is concerned about here. As I said, this treaty is bad
for the internet community as a whole, not just Google. But if it’s bad for Google,
it’s bad for the internet. What we’re talking about is
changing the current internet world, a world which is based
on permission-free internet exchanges, and replacing it
with a transmission right. Remember, broadcasters don’t
have to have creative content, purely transmission rights what
we’re talking about here. And if that’s backed by legally
enforced technological protection measures, as I said,
we’re concerned that will have at a great impact
both on the device design market, but also on people’s
free speech and communication rights. For other companies, other
internet companies, other web portals, other internet
intermediaries, we think the liability issues are somewhat
similar to some of the things we’ve talked about in relation
to some of Google’s products. I also just when it emphasizes
last point here that the treaty is that the entire
internet community, not just internet companies. Podcasters, the user-generated
content that’s part of YouTube, and part of the rich
media experience of MySpace, all of this is put at risk
here by this treaty. And last week, and again
yesterday, EFF delivered a letter to WIPO that’s signed
by 200 podcasters and podcasting organizations,
representing collectively. thousands of podcasters around
the world that voices their concerns about this treaty. They’ve got two particular
concerns: one, in relation to their freedom of expression. They believe that the ability
to get rights clearance for the material they want to
use in their podcasts. They already face significant
hurdles due to undeveloped licensing markets. If you add another layer of
rights above and beyond copyright or on top of that,
that’s just going to make one more barrier to make it a little
bit more insurmountable for podcasters to license,
create content. The second reason they’re
concerned, as I mentioned, is the impact this treaty will
have on technological innovation and the environment
that allowed the creation of such things as Ipods and web
syndication technologies like RSS that make podcasting
possible. This is a major concern to many
people in the free speech community online. Alright, next question. What state is the treaty at? Well, as we speak, discussions
are underway in Geneva. The WIPO General Assembly is
meeting this week and it has the task of voting on whether
to hold a diplomat conference next July. It’s been a recommendation from
the copyright committee part of WIPO that they should,
in fact, be at this conference. The WIPO general assembly, the
plenary body of WIPO, has to make that decision this week. If they decide to convene that
conference, the goal would be to have the treaty adopted
then in July. They could go otherwise, but
unfortunately, it’s just not clear at this stage which
way this is going to go. If the treaty is adopted, in
the United States law, a treaty is not self-executing, so
then what we would need to see is US implementation
legislation that would make the treaty part of US law. And as I mentioned, what we see
the effect is that will be a battle for trying to develop
balanced exceptions and limitations, that provide enough
room for technological innovations to go ahead, a
battle that may well be hard for and difficult to predict. I’m going to hand it over to
Derek to tell you what you can do to support EFF’s efforts
in this area. DEREK SLATER: To sort of wrap
things up and tie it together, I think it is what Gwen meant,
what happens to be bad for the internet in this case
is bad for Google. I’m sure there are some things
that are bad for Google that are good for the internet, but
in this case, but what’s bad for the internet is bad for
Google, and I hope we’ve instilled a lot of fear in you. [LAUGHTER] DEREK SLATER: Sometimes we have
people say well, we’re just fear mongering. That what we’re doing is just
speculating here, but it could go either way. Well. let me ask you who is really
speculating here, right? Because right now, we have a
world where to use broadcast content in all sorts of legal
ways, you don’t have to go ask permission first. Google could
make a lot of new services that would be really innovative,
and so could other innovators. On the other hand, under this
treaty, we have a world where the first line in your business
model is not create a cool new product, it’s ask
broadcasters permission to create a cool new product. Who’s going to fund that? What VC wants to fund that
where you have to ask permission first? I think you’re going to have
a lot less takers. Now, OK, so we’re
not speculating. What about the broadcasters? Right? Is there a lack of broadcast,
cablecast, and webcast content that you have access to? Do these people need more
incentives to distribute works in these ways? No. There’s tons of broadcast,
cablecast content. Sure, you have things about
theft of service and signal piracy, people not getting cable
that they haven’t paid for, not getting HBO if they
haven’t paid for it. Sure, that’s a whole different
thing than what this treaty is about. As Gwen has explained, we’re
talking about a broad regime of new rights and new technical
restrictions on use of your Tivo, and all
sorts of things. OK. What the broadcasters happen to
have, of course, is a lot of money, a lot of power because
of a lot of money. And it’s tough to fight
alone against that a lot of the time. It’s expensive enough to fly
to Geneva as Gwen has to do over and over again to wrangle
with these people in far-off policy bodies. So a couple things
that we would, of course, love you to do. Not Google, but certainly
you as individuals. One, you can go to our website,
action.eff.org, and take action now to tell
your representatives to oppose this treaty. Second thing you can
do is support EFF. As I said, we are small
organization. We’re 25 people. Small budget. We fight a lot of tough cases on
a lot of different issues. Litigation is hard. Flying to Geneva is hard. And it’s expensive. So, as I said, we have on the
table over there brochures and little donation envelopes. You can also go to our website,
sign up, become a member, get a hat, get a
t-shirt, get an LED keychain, good stuff, right? And you’ll be supporting a good
cause So those are the three things. Spread the word about
the treaty, too. But mainly go to our action
center now, and then support EFF. We’d be quite pleased. Thanks so much for your time. FEMALE SPEAKER: And I would add
to that Google will match donations to EFF. I’ve heard rumors of whoever
does the donation matching digging in their heels and
trying not to match. If they do that, email me, or
email [? AMAC ?] and we’ll straighten that out. Because EFF is doing
great work. I’ll say that personally. This isn’t Google urging
you to donate to EFF. And so I’m sure a lot of you
have questions, so let’s open up the floor. Yeah, go ahead. AUDIENCE: And as far as I’m
concerned, you all are a great organization, and the work you
do is not duplicated in a lot of other places, so please
take my comments in that light, because as a friend I
want to push you a little bit on one or maybe two issues. It jars me when you talk about
the creation of new rights for people like broadcasters, and I
was thinking about it while you were talking, And there are
other words that I think are more suitable here, I
mean, simple words like powers, because when you talk
about rights, you are talking about the thing that this
country was built on, right? A key part of the Constitution
is the Bill of Rights and, in there, it’s really about the
rights of actual human beings, and limiting the powers
of government, right? GWEN HIZE: Right. AUDIENCE: The right of the
people peaceably to assemble and petition the government to
redress your grievances. That’s a right that limits
government power, and I feel like– it just kind of hits me
every time we talk about giving broadcasters new rights,
I feel like what strikes me is the issue of the
ability of small numbers of commercial entities to limit,
restrict, or control what actual human beings are to
do, and that’s what– that’s the thing that bothers
me as I hear this. DEREK SLATER: I think
well, yeah– GWEN HIZE: We’re not
going to disagree. I mean, I can phrase it in sort
of legalistic terms as a set of exclusive rights because
that’s what the treaty says, but I think what’s at
stake here, 100% is the power, the power to control your
devices, the power to limit free speech online, the power
to limit your ability as a consumer to time shift and to
retransmit content within your home, so I agree. AUDIENCE: I mean I completely
second what he said about EFF and the work it does. And his comment about using
words like restrictive powers, and things, but are you aware
of any broadcasters in whose interest these new powers
ostensibly would be, who nevertheless have come
out against it? Is there anyone who’s said we
don’t want these powers? GWEN HIZE: In relation
to broadcasters, no. I mean, to be perfectly frank,
the people that been pushing for this in the United States
are the North American Broadcasting Association, and,
as I mentioned, there’s a number of webcasters. On the webcasting front,
there are a number of– there was a letter that was
presented to WIPO back in 2004, signed by 20 major
webcasters and internet companies, people including
Mark Cuban, the owner of HDNet, Elliot Noss from Tucows,
Tim O’Reilly, a number of internet illuminati, people
you have a dog in this fight, who would get the benefit of
this treaty who expressly rejected webcasting. They actually thought it would
hurt their interests and give an edge to incumbents over
their enterprise. But no, broadcasters,
surprisingly, are pushing for these rights. And I think this is actually
kind of surprising in the US context, because in the US,
we’ve never really granted powers, or rights
based on purely investment-driven motives. We, at least in relation to
copyright, requires some modicum of creativity, So this
whole concept of what I mentioned in the 1961 Rome
Convention, that’s alien to the US traditions. But yet, broadcasters here are
particularly keen to have these types of rights. And they want economic rights. They have used the word
economic rights, so. DEREK SLATER: Let’s go
back down the row. AUDIENCE: So first off, I want
to publicly thank EFF for helping us in North Carolina,
with relation to e-voting. We had a case this past December
where one of the major electronic voting
[UNINTELLIGIBLE] said, well, we don’t want to comply
with the law because it’s too expensive. And they actually got
a restraining order based on that. EFF stepped in and helped
overturn that. So, you know, EFF has helped
[UNINTELLIGIBLE] there. But my question with regard to
this is, where does it leave the copyright holders. So for example, if I create
something, some one minute video clip, and then it’s
broadcast against my wishes, in violation of copyright law? What happens? What’s going to go on
there basically? GWEN HIZE: This is the
$64,000 question. The treaty says that it doesn’t
have– the treaty’s preamble says that it’s not
intended to effect existing copyright rights. AUDIENCE: Did the DMCA
say that too? GWEN HIZE: Well. Leaving aside the DMCA, the
interesting point to note here is that there’s a collective
of rightsholders organizations, the international
phonographic and phonographic industries to
continue the international version of the IAA and the UPA,
they and a number of the rightsholders organizations,
have, at the last few WIPO making up until recently,
opposed the treaty and have said that they are concerned
about the potential for conflict because of
the overlapping nature of the rights. They’ve issued public statements
on this point. I have to say as the endgame
draws near, the NBA, in America actually have come out
in support of the treaty, but have said, along with the RAA,
that they support the treaty, but they support only a narrow
signal piracy based treaty. Well, hey, EFF and the 40
signatories you signed onto that led to the USPTO two weeks
ago and to WIPO last week, also support a signal
piracy treaty history. This treaty ain’t that. DEREK SLATER: I think the more
interesting hypothetical that I talk about a lot with Gwen is
if you have a public domain work, work that is not under
copyright anymore, or something that has been
permissibly licensed like a Creative Commons license work,
what happens when that gets broadcast, right? The broadcaster gets rights over
that public domain work, even though under copyright, you
would be totally free to use it however you want. Alright it’d be basically
snatching that work back from the public domain and putting
it back under a broadcaster’s power. AUDIENCE: It’s like, so say
someone comes to you with respect to your point about,
your gold point, about becoming [INAUDIBLE]
more rights? Say that someone comes to you
with a video and says, would you please put our
video online? The original content
[UNINTELLIGIBLE]. This happens all time. But that piece of content
[INAUDIBLE PHRASE]. Will he now be a copyright
owner himself, now [UNINTELLIGIBLE]? DEREK SLATER: Say somebody
records the Simpsons and wants to put it on Google Video or
broadcast their own thing and record with the– AUDIENCE: Say that– I don’t know– DEREK SLATER: Say it’s fairly
simple, the Simpsons– AUDIENCE: –a sitcom has
discovered that they want to be able to put short clips of
their sitcom on Google video– FEMALE SPEAKER: Yes,
the copyright– [INTERPOSING VOICES] AUDIENCE: But, that sitcom
is broadcast as well. But the people who produce
the sitcom want it to be on Google video. Do they have to then– or is Google’s responsibility
to then go back to the broadcaster? GWEN HIZE: So I think
this is one of the interesting questions. I think in a competitive
licensing market, where you’ve got two entities, on my reading,
that could authorize retransmission in that
situation, the treaty’s formal language says that copyright
is not affected. But as a practical matter, it
is effectively a limited licensing pool for that. Copyright holders might find
that don’t get as much of a high as they previously did. I mean, obviously, these think
are dealt with in the US at the moment under contract lower,
and there’s be another analysis of that. But, yeah, it looks like two
entities have the ability to authorize retransmission and
extract licensing fees. FEMALE SPEAKER: Could I ask. Could you give us sort of a
quick overview, of who is showing up in Geneva. You’ve given us sort
of bits and pieces GWEN HIZE: Well, I think the
thing I what to point out here is there’s been a sea change in
the last few months the u s industry has shown up in force
and one of the reasons I’m here is because I’d like to
see Google as part of that contingent. But let me give you
some names– Intel, Sony, Panasonic, AT&T,
Verizon, Dell, US telecom industry body for the telcos,
the Computer Communications Industry Association and the
Consumer Electronics Association– together with EFF, a number of
major public interest groups, and all the international and
US libraries signed on to a joint statement opposing the
current treaty draft. And that was delivered
to WIPO last week. Of those, a number of those– as I said, Intel been there
in person, CCI is there in person, Verizon, AT&T,
US telecom. They are all there in person
and they’re going to Geneva because they really are quite
worried about how far advanced this treaty is. DEREK SLATER: Let’s go back– AUDIENCE: Is broadcasting
content defined broadly as chiefly advertising or is it
just programming that is exclusive with them? GWEN HIZE: Broadcasting. There is no definition of
broadcast. That is one of the things that a number of
countries would like to see in the current treaty. The current treaty draft instead
defines broadcasting, and it talks about transmission
of a combination of sounds and audio or the
representation thereof. It doesn’t deal with
anymore and detail. That’s a very good point. AUDIENCE: So assuming the treaty
passes in Geneva, as you mentioned the key fight then
is in Washington at US [UNINTELLIGIBLE], the
timeline there is late ’07-’08, I assume. I was wondering if EFF has any
intelligence on what US Congress is thinking
about this. DEREK SLATER: Well, let’s kind
of cross that bridge when we get there, right? In the meantime there are many
fights that have to do with restrictions on your
non-infringing use of broadcast content. So as Gwen mentioned, there’s
this thing called the broadcast flack. Which would basically require
all digital television sets to recognize certain copy
protection, controls over the air HDTV, right? So this is again Tivo having to
go beg permission from the FCC and Hollywood to build
their newest devices. That’s a live issue right now,
in fact, mainly in the Stevens Bill in the Senate that has to
do with telecom reform, it’s been snuck in there as well. A similar bill regarding digital
radio that’s been snuck in there, and also
about satellite radio. So, those are really the live
issues right now and those are ones that are, I think, going to
be live in Washington over the next, foreseeable future. When this comes up– the timetable in Geneva is
pretty hazy as it is, right? GWEN HIZE: They’ve suspended
discussions today, Geneva time, in order to have informal
discussions between member countries, because
it’s such a divided question at the moment. You basically have the United
States opposing the convening of a diplomatic conference. And for different reasons. many people. In many countries in Latin
America and in Asia. And on the other side you’ve got
Europe, Eastern Europe and Russia calling for a diplomatic
conference. It’s hung in the balance
at the moment. So it’s difficult to predict. The other thing I would point
out is EFF members had been taking action for some
time on the treaty. We’ve sent, I think over, in
total over the last couple of, last year and a bit, maybe
2,800 of our members have contacted their congressional
representatives about this, and our understanding is that
actually this is becoming quite a live issue. A number of the companies who
are now involved in opposing this treaty, have also been
separately engaging in discussions with Congressional
committee people, and those conversations are ongoing but
at the House and Senate committee level. AUDIENCE: I’m going to make the
point, I suddenly realized I’m confused. If I take a picture of the Mona
Lisa, I don’t own the Mona Lisa, but I still
own the rights to my picture of the Mona Lisa. GWEN HIZE: Right. AUDIENCE: This was my
understanding of what this transmission bill was. And you’re saying, no, you’re
actually– if someone goes– If someone goes to the Louvre
[UNINTELLIGIBLE] here’s the Mona Lisa, are you
saying that they now own the content of their transmission
and that they own the Mona Lisa too? I thought that this was what
you were saying before. That the full transmitting
is what do we do? Do they own the transmission or
do they own the content of the or part of the transmission,
even as a separate entity? DEREK SLATER: So, there’s a
copyright holder, right? So there’s a copyright holder
who is transmitting the television show, right? Or who, rather, not
transmitting, is delivering it to who ever is transmitting. They’re the copyright holder. They have their bundle of
copyrights, rights, distributor rights, copy,
things like that. Then, there’s going to be,
whoever the cablecaster is, is going to get a separate sort
of rights and it’s over recording and use of that work
later, right, so you– AUDIENCE: [INAUDIBLE] DEREK SLATER: But if
you record it and then reuse it, right? Setting it up, right? GWEN HIZE: This is the
issue in a nutshell. Basically what most people who
are concerned about this treaty are concerned about is
the fact that it goes beyond signal protection. We understand what it means to
siphon off a cable or get unauthorized access to a
satellite signal, it’s not clear to us why you need
intellectual property powers or rights to protect something
that is already protected under copyright. EFF and many of the industry
groups who I mentioned just now would be happy to see a
treaty go forward if it just dealt with signal piracy. This treaty doesn’t deal
with signal piracy. The issue is it deals, it has
these broad rights set up for after you’ve recorded the
content, and that necessarily fudges the distinction between
signal protection and content protection. AUDIENCE: You mentioned before
a broadcast that is part of creative commons suddenly
losing [UNINTELLIGIBLE]. I picture the Mona
Lisa and maybe– GWEN HIZE: And many podcasters
probably feel the same way. Yes. AUDIENCE: You kind of touched on
it but what is the argument that the broadcasters
are making? Like what technologies are they
saying that they would implement if only they
had these new powers? What are they scared away from
right now that they could do under these new powers? GWEN HIZE: Obviously, I can’t
speak for the broadcasters. All right. I have to make it clear that
we are on one side of this particular conversation. What I can say is to repeat some
of the things that the broadcasters have said. I think that’s a fair
way to describe it. There was a US Patent and
Trademark Office roundtable that took place on
September 5. At that, the Senior Associate
General Counsel for the North American Broadcasting
Association said that the reason they were looking for
these rights, looking for this treaty, was to protect against
internet retransmission of signal piracy That’s
what they said. And he mentioned, in particular,
a case called the Ikrave case. It dealt with a Canadian
internet company that received television programming from the
US, and retransmitted it over the internet. Now in that particular case,
Ikrave, that they managed to shut down by the copyright in
the content going back to one question how did that she took
action in US Court and closed down Ikrave. But he mentioned
that is not the case. What they wanted was to have– the broadcasters, in that
instance– he said wanted to have a direct right of action. They didn’t want to have to
wait until the copyright owners weighed in and protected
their content. So that’s one thing. The second comment he made in
May of this year just before the World Cup kicked off in all
its glorious force, was that broadcasters wanted
to protect sports broadcasting rights. And that certainly has been
something that’s been said at many meetings over the last
eight years that this has been the discussion at WIPO. and again you know EFF’s point
would be, well, copyright and protective services laws do it
better in the United States and in many other countries
in the world. show us why you still need these
new 50 new rights, and more to the point, we’ve seen
things like podcasting and Youtube and Myspace proliferate
and manage to disseminate content on the
internet without 50 year rights, why again do we
need 50 year rights? I guess my point is we don’t
think there is adequate justification but that’s
what they said, so in fairness to them. Explanation. FEMALE SPEAKER: I think we’re
winding down on time so maybe one more question
if there is one? AUDIENCE: It sounds like there
are countries out there that do have some notion of
broadcast rights? GWEN HIZE: Yes. AUDIENCE: First, what are the
big countries that have them, and second, are you seeing
any of these hypothetical situations that we’re bringing
up for the United States, do you see similar parallels in
countries which already do have these rights or powers? GWEN HIZE: So there
are 83 countries– WIPO has- just to sort
of benchmark things– WIPO has 182 member countries. 83 countries have signed on to
the 1961 Rome Convention. And so, I guess to answer your
questions about what are the major countries, well Australia,
where I’m from has broadcasting rights, Europe
has rights, and I guess, a large amount of the push for a
sort of intellectual property rights, powers-based approach,
is coming from the European countries. And the European Commission,
which as I said is one of the 25 member states and 3 accession
states are speaking as one, calling for
this diplomatic conference to be convened. So they are very keen
to this go ahead. My understanding is that at
least in relation to things like what might be called
simulcasting or netcasting, I think that in some European– not at the community level,
but in some European countries, that right exists. It certainly exists
in Britain. but there’s actually been little
use on the ground– use of that right today. The technology is not there even
if the right exists on the law books. It’s a paper right. So It’s difficult to make
any assessment. And the other point I was
making, this treaty would be broader than the 1961
treaty which the US never signed onto. It would be broader because
it has expanded coverage. It covers broadcasters,
cablecasters, and potentially netcasters. It a broader range of rights. And most importantly of all,
for the Technological Protection Measure provision,
is novel here. So many of the things we’re
particularly concerned about haven’t been part of that
framework yet, because TPN’s, Technical Protection Measures
have not been a part of the broadcasting framework, even
in the countries that are signed on tomorrow. So thanks so much to both
of you for coming. Derek has a table of information
over there, and I think is more than happy to tell
you more about EFF and their programs, and they’re at
EFF.org, if you want to find out more about them, and give
them a round of applause. [APPLAUSE]

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