It's been four or five years since Electronic Frontier Foundation joined the fight against the United Nations' "broadcast treaty," and this week, just as things were looking darkest, we scored our most definitive victory,
The broadcast treaty creates a copyright-like "broadcast right," for the entities that make works available. So while copyright goes to the people who create things, broadcast rights go to people who have no creative contribution at all. Here's how it would work: say you recorded some TV to use in your classroom. Copyright lets you do this — copyright is limited by fair use. But the broadcast right would stop you — you'd need to navigate a different and disjointed set of exceptions to broadcast rights, or the broadcaster could sue you.
That's just for openers. The broadcast right also covers works in the public domain that no one has a copyright in — and even Creative Commons works where the creator has already given her permission for sharing! You can't use anything that's broadcast unless you get permission from the caster. What's more, they're trying to extend this to the net, making podcasting and other communications where the hoster isn't the copyright holder (that is, where you create the podcast but someone else hosts it) into a legal minefield.
Now, though, the treaty is in disarray. This week saw a new meeting on the treaty with the Chairman of the committee ignoring his orders from the WIPO General Assembly (which instructed him to prepare a treaty that stopped people from stealing cable, but didn't create this para-copyright regime), pushing for a rapid movement to a "diplomatic conference," the final step on the way to a global treaty. It looked bad for our heroes.
But the representatives of the world's governments wouldn't be railroaded. After a week of hard debate, all motion to a diplomatic conference has been abandoned. Instead, this has been turned into just another regular agenda item for future meetings, as in "OK, onto that broadcast treaty: is everyone in favor of this yet? No? OK, next item."
This is a gigantic victory for our side. When we started going to the World Intellectual Property Organization, we had no idea how we would manage it. There is no constitution to appeal to there. They control the venue and call the shots. But we went in and blogged the negotiations (the first ever look inside the sausage factory of a UN treaty negotiation), bringing unparalleled transparency to the negotiations. We rallied dozens of other organizations to come to Geneva. We argued. We posted guards over our position papers when someone started to throw them in the bathrooms and hide them behind the plants (first they ignore you, then they laugh at you, then they fight you — then you win!). We slashdotted them. We wrote them letters. We went all over the world and talked to librarians, activists, and hackers. We proposed a better treaty that would limit copyright around the world and give rights to archivists, educators and disabled people to use and preserve creative works.
We kicked ass.
And we won. (For now.)
A mighty congratulations to my colleagues at EFF, especially Gwen Hinze, EFF's international directory, who's been slugging away there like mad. And an even bigger thanks to all of you, the activists on the net, for your letters to WIPO, your blog posts, your donations to EFF. We did it!
The Diplomatic Conference had been scheduled to take place in November 2007. It has now been postponed indefinitely until Member States reach agreement on the objectives, specific scope and object of protection of the proposed treaty. Given the vast differences between Member States' positions that emerged this week on core parts of the treaty, agreement does not look likely in the near future. Although the treaty is still on WIPO's agenda and by no means dead, the practical effect of today's decision is that it is no longer on the fast track. That's good news indeed for the Internet Community, including the over 1500 podcasters who signed an Open Letter to WIPO expressing concern about the treaty, which EFF delivered to WIPO this week. Member States refused to set a date for a diplomatic conference. They rejected proposals from the WIPO Copyright Committee Chair, Mr. Jukka Liedes, to postpone the diplomatic conference to November/ December 2008, to convene a further "Special Session" of the WIPO Copyright Committee focused on finalizing the treaty, and to create a "modern framework" for "webcasting organizations". Instead, it was agreed that the subject of protection of broadcasting and cablecasting organizations would stay on the agenda and be discussed in regular sessions of the WIPO Standing Committee on Copyright and Related Rights.
