Posts by Sherwin Siy:

Senators Patrick Leahy and Arlen Specter recently sent a letter to the Copyright Office and the PTO, expressing their concern about the WIPO Broadcast Treaty. In it, they voice many of the same concerns that have brought together a broad alliance of public interest groups, libraries, technology groups, and communications providers against the treaty as it is currently envisioned at WIPO.

Specifically, the senators (who are, respectively, the Chair and Ranking Member of the Judiciary Committee) are worried that granting broadcasters a separate, 20-year-long IP right in broadcasts could interfere with the fair use of works, as well as complicating the legal hoops that consumers would have to jump through. The letter also addresses the fact that copyright owners and ISPs could run into unintended liabilities under the treaty.

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The newly-formed House Antitrust Task Force (a subset of the House Judiciary Committee) yesterday held a hearing on the proposed merger between XM and Sirius, the two satellite radio companies.

Proponents of the merger argue that combining the two struggling companies will allow subscribers better access to programming, and that efficiencies gained in the merger will help the new company compete against the various existing and emerging audio services in the market. Opponents say that the merger will result in a monopoly in the satellite radio market.

There's a wide variety of interests at stake, though, and the positions of the various witnesses at the hearing reflected that.

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Macrovision, a company that makes DRM, has posted a response to Steve Jobs's thoughts on music and DRM (Alex bogged about that here).

While others have covered the Macrovision response more succinctly, I wanted to expand further on some of the ideas implicit in the Macrovision letter.

In its second bullet point, the letter says the following:

DRM increases not decreases consumer value –

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If a lot of the talk about the WIPO broadcast treaty seems abstract to you, here's an example that's close to home, and all too real.

You may have heard of the controversy surrounding Spocko and KSFO. Spocko is a blogger who was criticizing the content and tone of a morning program on KSFO. In order to call attention to the radio show's vitriol, Spocko wrote the show's advertisers, including in his complaints links to his blog, where he had posted audio clips of the show. USA Today has a summary of the story here, and EFF, which has been involved in the issue, talks about it here.

KSFO's parent company then sent Spocko a "cease and desist" letter, claiming copyright violations and demanding that Spocko take down the audio clips. Of course, what Spocko was doing was classic fair use–taking portions of another's copyrighted works for the purpose of comment and criticism. There's no chance whatsoever that ABC could win an infringement suit in court.

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The WIPO General Assembly told the SCCR last year that it had to prepare a workable signal-based broadcast treaty in the space of two meetings this year. After one of those two meetings, where do we stand?

Not a whole lot further along than when we started, I'm afraid. Even basic questions, such as what the SCCR was supposed to be doing, were the focus of debate. For instance, one debate from last year was over whether the treaty would be "rights-based," granting broadcasters an exclusive right in broadcasts, or "signal-based," meaning that the treaty would focus on preventing signal theft. This debate shouldn't have continued over into this year, since last year, the General Assembly mandated that a treaty be "signal-based." The only problem is that various delegations and the Chair soon insisted that "signal-based" could encompass a system of exclusive rights.

This distinct lack of consensus on the most basic issues meant that this first Special Session was spent mostly setting up procedural structures for revision and drafting of the current draft treaty. In the end, no editing of that draft, known as SCCR 15/2, was done. Instead, the Chair of the Committee issued a series of "non-papers," so called because they had no official status, and were only intended to serve as discussion points. These non-papers covered some of the key issues under discussion, in the hopes that they could be resolved before attacking the larger draft treaty.

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At the end of the session, very little progress seems to have been made towards a WIPO Broadcast treaty that anyone can agree upon. This might see to be a cause for celebration, since it puts the brakes on the creation of an international instrument that is likely to erode the rights of both users and copyright owners.

However, there may be reason for caution, since it's not clear how this lack of progress will play out as the deadline for a workable draft treaty approaches. This is because the General Assembly of WIPO has given the SCCR only one more meeting to get a treaty right before the potential Diplomatic Conference in November/December this year.

I hope to post a summary and commentary on the events of the past week a little bit later; for now, here's the summary of events of day 3.

The third and final day of this session began in "informal" session, meaning that NGOs like us weren't allowed in. Apparently, very little progress was made in this session, just as little had been made in closed session the night before. When we were allowed back in after noon, a document was circulated by the chair: a draft of conclusions reached by the SCCR in this first session of the year.

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Building consensus and emphasizing commonalities are bedrocks of international diplomacy, which is why so many of the statements today, at the first special session on the WIPO broadcasting treaty, focus on working together and common goals. Despite this, there seem to be fundamental differences on how the various countries have interpreted the mandate from last fall's General Assembly.

The body meeting now, the Standing Committee on Copyright and Related Rights (SCCR), was told to meet twice before convening a diplomatic conference that would finalize the treaty. The specific instructions required the SCCR to use these two meetings to come up with a "signal-based" approach to the treaty. The meetings were also to define the objectives of the treaty, the scope of protection (e.g., how much protection do broadcasts get? Should they be dependent upon protections for underlying works?), and exactly what objects are protected under the treaty (e.g., what constitutes a broadcast, and how do you distinguish it from the content carried in its signal?). The last draft proposed treaty, known as SCCR 15/2, was to serve as the beginning basis for negotiations. This is the first of those two meetings, and it's gotten off to a strained start.

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Senator Feinstein has just reintroduced the PERFORM Act, a bill we've seen, and fought against, before. The bill blocks digital radio services from using statutory license fees unless they place extremely restrictive DRM on the devices that receive their signal. If they don't put the DRM in, they stand to pay much higher fees to broadcast any given song, or could be barred from broadcasting it at all.

We've issued a statement to the press here, but we can go into a little more detail on this blog.

The PERFORM Act makes changes to section 114 of the Copyright Act. Currently, section 114 lets analog radio broadcasters play music over the air without paying money to record labels (they do, however, still have to pay songwriters), and it lets digital radio broadcasters pay a set fee to record labels whenever they broadcast copyrighted works, instead of having to negotiate with each record label separately. So the provision guarantees that copyright holders can't bar digital radio stations from playing their music, so long as they pay a fee determined by the Copyright Office.

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A couple of disparate items caught my attention recently, and illustrate an ongoing shift in how we find information. First, there's this Marc Fisher column about the precarious situation of "From the Top," a classical music radio program on the air in DC. Then (via Slashdot), there's this roundup of Internet rants, raves, and predictions from the end of 1994.

What caught my eye about the posting on "From the Top" was this anecdote by Christopher O'Reilly, the creator and host of the show:

"When we started 'From the Top,' the original idea was to cross genres, to include bluegrass and a jazz quintet from New York," he says. "But when we shipped the pilot shows to classical stations, they said, 'If you have one minute of jazz or bluegrass, you're off, because we're a classical station.'"

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The US Copyright Office and the Patent and Trademark Office today held a roundtable discussion to hear from various industry and public interest organizations before the WIPO meeting in Geneva later this month. Like last September's roundtable, the discussion was fairly informal, with each speaker given two minutes to speak, and the chance to rebut counter-arguments only after everyone in the room had a chance to talk.

Manon Ress at CPTech has a more detailed blow-by-blow account of the meeting; I'll try and summarize the main points here.

Ann Chaitovitz of the USPTO opened the discussion by noting that the WIPO General Assembly had called for a narrower signal-based treaty, and that the US delegation was interested in hearing the attendees' opinions on that, as well as particular concerns about the current draft of the treaty. Basically, a signal theft treaty would require countries to prohibit illicit retransmission of broadcasts, while an exclusive rights-based treaty would grant broadcasters ownership of their signals–in most drafts, even after the broadcast signal had been recorded by a user.

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