WIPO's Poison Cloud Draws Nearer

I've written before about the pernicious WIPO Broadcasting Treaty that is being discussed. Sadly, it's rumbling ever closer, and bringing with it a terrible cloud:

US industry was prominent at the meeting, as several representatives from information and communications technology (ICT) companies were there in opposition. Jeffrey Lawrence, director of digital home and content policy at Intel, said it would create a "whole cloud of liability issues."

"We have the patent cloud, the copyright cloud, and now we’re going to have a broadcast cloud," Lawrence said. He predicted such a treaty would "stifle innovation because it creates uncertainty." In addition, it has significant Internet ramifications, as it could impact cable and home networking, seen as critical to ICT industries. The movement of content is the "next killer application" for industries, he said. Lawrence called on industries to "stand up" to fight the treaty as it is proposed. Other opposed companies present at the meeting were Verizon and AT&T.

TRIPS Tripped up by Doha?

Here's a hopeful analysis. It concerns the pernicious Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, which is often used by Western nations to force other countries to pass harsh laws that control intellectual monopolies.

The piece claims that TRIPS was accepted by developing countries as a quid pro quo for obtaining fairer treatment for their agricultural goods. But the recent collapse of the so-called Doha round of trade negotiations means that such fairer treatment is unlikely to be forthcoming. So, the logic runs, maybe developing countries should give TRIPS the heave-ho in return. Interesting.

Will WIPO Wipe the Floor?

This is how the world ends, not with a bang - not with a clash of titans - but with a whimper, in an obscure WIPO committee. The committee in question rejoices in the moniker "U.N. World Intellectual Property Organization's Standing Committee on Copyright and Related Rights Committee". And this is how the report on the EFF's site lays out the effects of the current draft of its work:

The treaty would give broadcasters, cablecasters, and potentially webcasters, broad new 50 year rights to control transmissions over the Internet, irrespective of the copyright status of the transmitted material. It also requires countries to provide legal protection for broadcaster technological protection measures.

Essentially it would be a huge win for the major content owners, a huge win for the status quo, and a huge win for IP maximalists. As this piece from Boing Boing explains, those IP maximalists are largely in the US, and the proposals in this treaty are largely driven by their agenda of locking down all forms of content, everywhere in the world, in the belief that it will increase their profits, even if it will chill all kinds of creative expression in the process.

Nothing new there, then. But what is notable is how the battle is being taken behind the scenes - not in public forums where alternative viewpoints can be aired, and the erroneous logic of the proposal refuted - but in the dark, rank, chummy world of deadly-tedious drafting committees, where every trick in the book can be used to out-manoeuvre those fighting to defend creative freedom.

The treaty in question is a case in point. As the EFF report on the moves explains:

Webcasting is now back in the treaty, after spending last year in a separate "working paper" because the majority of countries opposed its inclusion in 2004. Despite many counties' opposition again in 2005, it’s been included in the treaty as a non-mandatory Appendix. Countries that sign the treaty have the option – at any time -- to grant webcasters the same exclusive rights given to broadcasters and cablecasters by depositing a notice with WIPO.

At the same time, some of the key proposals to balance the impact of the new treaty have been removed from the new draft treaty text (the Draft Basic Proposal) and relegated to a new separate "Working Paper". For instance, the alternative that the treaty not include the contentious Technological Protection Measure obligations is not in the Draft Basic Proposal, but has been sidelined to the Draft Working Paper.

Unfortunately, it is hard to see who is going to stop this. As more and more battles are won at the national level, so the fight over content moves up the stack, to supra-national bodies that wield immense power, are subject to little or no oversight, and which are largely aligned with the interests of the already-rich and the already-powerful against anybody who would like to share a little of that money and power.

Update 1: The EFF reports that webcasting is now out of the main treaty again, but that the threat in the longer-term remains.

Update 2: Here's a good report by James Love on where things now stand (via On the Commons).

Watching IP Watch

Another great site revealed by Open Access News and the indefatigable Peter Suber: IP Watch. Intellectual property - the very term is hated by people like Richard Stallman - is one of those areas that can make your toes curl just at the thought of the mind-numbing subtleties and complexities involved. But make no mistake: this is an area that matters, and more than ever as the analogue and digital worlds are becoming fuzzy at the edges, and people are tempted to apply old analogue rules to new digital creations.

This lends one story on IP Watch a particular importance, since it deals with the thorny area of balancing rights of digital access and protection. What makes the story particularly interesting is that it reports on a "side event" of a World Intellectual Property Organization (WIPO) meeting.

Now, this may not seem like a big deal, but traditionally WIPO has been all about protecting the intellectual property rights of big content "owners" - record companies, the film industry, etc. So the idea that there could be some discussion about the other side of the coin - access rights - even at a non-official meeting, was a tiny but momentous step.

The end of the journey, which promises to be both long and arduous, is a recognition that access is just as important as protection, that the open approach is as valid as the proprietary one. Although this might seem milk and water stuff to long-time proponents of free software and related movements, it would be truly revolutionary if WIPO ever reached such a point.

Indeed, I would go so far as to predict that WIPO will be one of the last bastions to fall when it comes to recognising that a fresh wind is blowing through the world of intellectual domains - and that these domains might just be commons rather than property as WIPO's own name so prominently and problematically assumes.

Chile Turns up the Heat on WIPO

Good to see another country standing up for open content/public domain (via Open Access News). One of the key issues in tackling the unbalanced nature of the current copyright/patent laws is getting the World Intellectual Property Organisation (WIPO) to recognise that its job is bigger than simply protecting today's IP fatcats.