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13 October 2005 Dear Senators Bill Frist, Harry Reid, Arlen Specter, Patrick J. Leahy, and Representatives Dennis Hastert, Nancy Pelosi, James Sensenbrenner, Jr., and John Conyers, Jr. RE: Request for Public consultations regarding Webcasting treaty proposal at WIPO We are writing to ask that Congress insist that the United States negotiators block a diplomatic conference at WIPO that would create a new Intellectual Property Right for Broadcasting and Webcasting Organizations until a federal register notice requests public comment on the costs and benefits of the proposal. The treaty proposal is complex and will have far-reaching consequences. But few US firms or members of the public are even aware of the proposal. Moreover, the U.S. government agencies responsible for WIPO negotiations on the treaty have not yet adequately analyzed even the most basic issues, including, for example, the impact of the treaty on the Internet, or the required changes in U.S. law. We oppose in particular a proposal in the draft treaty that would create a new intellectual property right affecting both the rights of the general public and the rights of copyright holders. Specifically, this proposal would grant to persons who make combinations or representations of images and sounds available to the public over broadcast networks and other networks, including the Internet, a 50-year exclusive right to authorize or prohibit the copying or redistribution of such information. Not only would this right, granted to broadcasters and webcasters, allow those who transmit content to effectively close off works in the public domain, but it also would encumber the rights of copyright holders (making it harder for them to license their works to others), and would pre-empt the rights of many stakeholders, including the general public, under our copyright law. This new intellectual-property right is an expanded version of a related right for broadcasting organizations that is provided for in the Rome Convention, a treaty the United States and more than 100 other countries have never signed. Nevertheless, the United States is proposing to extend this controversial right to the Internet (and other networks, including private networks). A small number of webcasters are asking that they be given the same intellectual property rights that the treaty would give to broadcasters. But many other Internet companies, including those also involved in webcasting, "reject the idea that the Internet needs or will benefit from the extension of these pseudo-copyrights to so-called 'Webcasters.'" These companies further argue that "Adding a new layer of intermediaries, over and above copyright holders, for the re-use of information on the Internet benefits no one -- save those intermediaries. If an Internet company has the rights to a work, or need not secure the rights to a work due to a limitation in copyright, or because the work is in the public domain, there is no rational reason to require that the company also seek the permission of a further intermediary whose sole creative contribution to the work is in making it available." [1] Finally, we note that there are serious definitional problems with the proposal's approach to webcaster rights -- it may burden all World Wide Web content (including text and still images) with a rights framework that was designed for broadcasting radio waves over the air. We ask that any decision about a diplomatic conference be deferred until there is an opportunity for the affected parties -- ranging from librarians and civil society groups to recording artists, filmmakers, and publishers -- to comment on the proposal through an appropriate federal register notice. Sincerely, Mark Cooper Consumer Federation of America Mike Godwin Legal Director Public Knowledge James Packard Love Consumer Project on Technology Professor Jennifer M. Urban The Law School, University of Southern California* Robin Gross IP Justice Frannie Wellings Free Press Jeannine Kenney Consumers Union Paul Hyland Computer Professionals for Social Responsibility (CPSR) Wendy Seltzer Fellow, Berkman Center for Internet & Society at Harvard Law School Professor James Boyle Duke Law School* Gwen Hinze Electronic Frontier Foundation (EFF) San Francisco, CA David Tannenbaum Union for the Public Domain (UPD) Joshua D. Sarnoff Glushko-Samuelson Intellectual Property Law Clinic Washington College of Law American University Washington, DC Eric Blossom GNU Radio Blossom Research, LLC Reno, NV Corynne McSherry Electronic Frontier Foundation (EFF) San Francisco, CA Malla Pollack American Justice School of Law University of Idaho Ken McEldowney Executive Director Consumer Action San Francisco, CA Marc Rotenberg EPIC / Public Voice Washington, DC Ed Mierzwinski, Consumer Program Director U.S. Public Interest Research Group (U.S. PIRG) Washington, DC Jack Willis LinkTV Anatoly Volynets President www.total-knowledge.com, California Michael Shames Executive Director Utility Consumers' Action Network San Diego, CA Steve Cleary Director AkPIRG Anchorage, AK Billie J. Kincade President Victim's Committee for Recall of Defective Vehicles, Inc. Catoosa, OK Paul Hinman* ASCAP Nashville TN Daniel Krimm Los Angeles, CA Patricia Dolan Santa Fe, New Mexico Claire Stewart Northwestern University Library Evanston, Illinois Peter Suber Open Access Project Director Public Knowledge Washington, DC A. Michael Froomkin U.Miami School of Law Coral Gables, FL Sasha Costanza-Chock Communication Rights in the Information Society Eddan Katz Information Society Project Yale Law School New Haven, CT David Meieran Global Thought Pittsburgh, PA Joshua Sturgill Morehead, KY Dorothy Kidd Dept. of Media Studies University of San Francisco Marcus Estes Tables Turned Matthew L. Seidl Wraith Interprises Longmont, CO David Tarleton Tarleton / Dawn Productions Los Angeles, CA James Bessen Boston University School of Law Harpswell, ME John Markos O'Neill San Francisco, CA Keith Copenhagen Orinda, CA Carolyn Sortor Dallas, TX Leslie B. Gore Kay Gore Virginia Beach, VA Richard A. Milewski RamPage Publishing John Lozier Harping for Harmony Foundation Morgantown, WV Brianna Shepard Los Angeles, CA Tom Cassel New York, NY Robert Thornton Rockville, MD Daniel Lowe Concord, OH Jason J. Bundy Clearwater, FL Ben Seigel Madison, WI Adam Thompson Los Angeles, CA hannah sassaman prometheus radio project philadelphia, pa Joseph Pietro Riolo East Stroudsberg, PA William S. Stuart Integral Evaluation, LLC Willimantic, CT Jeremiah Blatz Interpublic Group of Companies New York, NY Gloriana St. Clair, Dean Carnegie Mellon University Libraries Pittsburgh, PA Barb Sorensen Singer/Songwriter Schaumburg, IL
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