Copyright may be the 800-pound gorilla of the Internet, but there's a brand-new pseudo copyright in the works capable of swallowing massive chunks of the public domain, bones and all.
As I understand it, the new right -- or rather, set of rights -- would give companies fresh exclusive rights on top of any existing rights for anything they "webcast" (that is, transmit by web servers over the Internet and other networks). In other words, a company could take a movie that's fallen into the public domain, webcast it, and keep the general public, to whom it belongs, from recording it. It could webcast Creative Commons-licensed songs that people have specifically earmarked for easy digital distribution and remixing, then demand that no one touch the webcast. And there is no additional creative effort necessary to accrue these rights. All you have to do is feed any combination of sound or images through a web server, and you're golden.
If you've been following the goings-on at the World Intellectual Property Organization (WIPO), you won't be surprised to learn that this new right is being negotiated behind closed doors at the urging of Yahoo and a handful of other companies, without any public debate and over the repeated protests of public interest groups and webcasters who have specifically rejected this new "protection." As CPTech points out in a new letter to members of Congress, this is a prime example of US trade policy completely captured by a small group of corporate lobbyists. After all, how else could a set of rights this powerful slip under the radar -- especially when there has been, as CPTech notes,
1. No analysis of how US law would have to change in the treaty passed.
2. No analysis of the unintended consequences of creating a new right of transmission for the Internet.
3. No analysis of the impact of the new right on copyright owners.
4. No analysis or concern about how the new [intellectual property] right would affect the orphan works problem.
5. No analysis of the impact of the webcasting treaty on podcasting.
6. No analysis of whether the treaty language would unwittingly create a property right to persons operating peer-to-peer networks or search engines.
Negotiators are moving full-steam ahead, and there may be movement on this as soon as next week. CPTech has already petitioned
the Library of Congress and US Patent and Trademark Office to slow down and invite the public into the process, but Congress may be more effective at calling on US negotiators for a time-out. I hope so.
Two quick recommendations before I go: When the treaty was released in draft form last year, Ernie Miller wrote an exhaustive analysis/critique that helps explain why these additional rights are "bad, bad, bad" -- check it out here. And don't miss Cory's post from last week, WIPO wants to give webcasters the right to steal from public domain, Creative Commons and GPL.