The UN's World Intellectual Property Organization has abandoned its plans to create a podcast-killing treaty — for now. This is the Broadcast Treaty, which will create a new group of rightsholders, the people who transmit information (broadcasters, satellite casters, cablecasters, but for now, not webcasters). These people get a "broadcast right" to the works they transmit, over and above the copyright that goes to those works' creators. That means that even if you have the creator's permission to use a work you've received, you still need to get clearance from the broadcaster, whose only contribution to the work was putting it on the air.
Uses that are considered fair under copyright — things you can do without the creator's permission, like quoting and parody — won't be fair uses under broadcast rights. And broadcast rights will cover things copyright doesn't cover, like works in the public domain, factual material and government materials. And the broadcast right trumps the Creative Commons licenses that have already been applied to 53 million works in a scant three years; even though those authors want you to distribute their works, the "casters" still get to stop you.
The US had pushed hard to get this new right applied to the web, even though virtually every country in the world had rejected this idea. The US was put up to this by Yahoo and Microsoft, who have giant databases of webcasts that other people have entrusted to them, which they wanted to get an ownership interest over. Over and over again, the world's nations have told the US that this wasn't an option, and over and over again, the Chairman of the committee snuck away between meetings and stuck it back into the treaty.
The fourteenth treaty negotiation meeting has just concluded, and webcasting is off the table again. It's been relegated to its own, separate negotiations, to be discussed at a later date. I hope that when that meeting comes around, the tens of thousands of podcasters who would be screwed by the webcasting right — because it would cripple providers' ability to index, mirror, transcode, distribute and archive their casts, and make it much harder to quote from other podcasts in your own — get a seat at the table.
The webcasting provision was killed through hard work from EFF, the Consumer Project on Technology, IPJustice, and many other activist groups that have endured great hardship at these meetings, having their materials stolen, getting shut out by dirty tricks, and being intimidated by UN staff. It's an amazing tribute to their work that they've kept the Internet safe — for now.
So webcasting is out, but the question is for how long? The U.S., which proposed its inclusion, was not happy about the outcome. It said it was concerned with the "missed opportunity" to provide protection for new entities, but said that it would reluctantly be prepared to accept the two-track approach — on the condition that if the WIPO General Assembly did not convene a Diplomatic Conference dealing with "traditional broadcasting" when it meets in September, any future discussions on a Broadcasting Treaty would include protection for new Internet entities.
