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The Problem with Webcasting
A cast that can be imprisoning

by Andy Oram

There's a new restriction on content waiting in the wings--a "webcaster's right" that allows websites to control the dissemination of content they put up. With this new privilege, they'll be able to prevent retransmission even if the copyright on that content is owned by somebody else--even, in fact, if that content was in the public domain.

What is webcasting, and what will be the effects of this restriction? Nobody knows--except, one supposes, the large web portals pursuing the webcaster's right. I will try to ferret out what they want to do in the course of this article.

First Came the Broadcaster's Right

Unbeknownst to most Americans, in many European countries, TV and radio stations for some time had a "right" to control dissemination of their broadcasts. A U.S. delegation to the World Intellectual Property Organization, (peopled by members of the Copyright Office and the U.S. Patent and Trademark Office), wants to bring these restrictions home.

The harm this could do to public discourse hit me just recently when I attended a forum on wiretapping, where several TV clips of George W. Bush's speeches were aired. The value of seeing these excerpts was incalculable. But if we had to adhere to the broadcasters' treaty, showing them would have been illegal. By copyright law, showing them in a non-profit educational setting was probably fair use--but it's not clear how any concept of fair use would apply to a broadcasters' treaty.

Because it's often impossible to contact the original copyright holder, the right to retransmit broadcasts is essential to public discourse. Copyright is motivated by the laudable goal of encouraging authors' creativity and productivity--but what value do broadcasters add? There's precious little creativity involved in sending out a broadcast. Nevertheless, broadcasters are claiming an extra layer of rights--which adds an extra barrier to reuse.

It's important to note that this legal maneuvering goes on in the context of publishers' growing technical restrictions on dissemination through digital rights management, and their attempts to plug the "analog hole" so that no rebroadcasts could take place anyway. But now we face the prospects of new barriers that have existed nowhere before now.

Then Came the Webcaster's Right

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The U.S. WIPO delegation is also pushing for an extension of the broadcasters' control to the Web. The European broadcast laws don't cover the Web (although a European Union representative recently endorsed the U.S. proposal), so this is a new threat to the public domain.

What would a webcaster's right mean? It would mean you couldn't retransmit content put up by someone else on the Web without permission. The proposal tries to indicate that the restriction covers only images and sound, but it's not clear that a line can be drawn between such content and other things, including text. At any rate, the idea of extending the broadcaster's right to the Web is bizarre and fundamentally out of sync with how the Web works. The whole basis of the Web is making links; people don't normally copy and retransmit material.

I take it back. Copying and retransmission happens on the Web all the time. It's call caching, and it's crucial to the efficient operation of the Web. Even if the webcasting treaty leaves a loophole to allow caching, the treaty may hamper another promising way of reducing the load on servers: chained downloads that piggyback on intermediate nodes, the basis for useful protocols such as BitTorrent.

The U.S. delegation is pushing for this strange new right under the catch-all rubric of "harmonizing" the Web with broadcasting, and, of course, that shibboleth of regulators, "technological neutrality." But because equating Web distribution with broadcasting is absurd on the face of it, one has to wonder what is really on the minds of the large portals who put so much energy into forcing this radical change on the public.

The light went off in my head after hearing about plans by telephone companies to reserve parts of their internet bandwidth for premium content, rather like cable TV. This has been widely reported, and I blogged about it last December in an article titled "Can We Still Say that Nobody Owns the Internet?"

Since then, on January 6, the Wall Street Journal reported that the carriers are trying to enter into special deals with major sites such as Google to offer those sites faster downloads for a price--and the websites are responding positively. Depending on your point of view, this is the natural next step in what you could either regard as:

  1. A fair way to fund expensive network upgrades (except that phone companies have already won major pricing concessions from regulators, supposedly to fund those upgrades).
  2. Or, an unprecedented coup by those who own the pipes to control what flows over those pipes.

So the telephone companies, which have also become major internet providers, think they can intensify the commercial use of their internet connections by providing their own content (or content licensed from partners) at higher cost. Would it be too far-fetched to think that web portals have a similar idea? If they had their own premium content, they could essentially become like cable TV satellite radio companies. On January 9, the Wall Street Journal reported the next brick laid on the edifice, as Google announced it would offer TV shows and videos for a fee (restricted, to boot, by a DRM scheme).

I don't mind premium content at special prices (hey, O'Reilly Media itself started a subscription service called Safari), but I don't see why a special webcaster's right is needed to provide it.

Somebody is whispering poisonous thoughts in the ears of the portal owners. Suppose the next Wizard of Oz type of blockbuster goes over your wires ... You could get out of the nerve-wracking business of constant innovation and start to make an easy living off of cash cows ... Just imagine millions of captive viewers coming back to view your ads month after month. Expect to see a further proliferation of DRM systems and the erosion of fair use in the near future.

I believe that the resurgence of internet entrepreneurialism--the wave of creative guys in lofts being bought out by the likes of Google, Yahoo, and America Online--shows that innovation has not run its course yet, and that we should keep competition vibrant. That means no new, artificial monopolies on content.

The publishers who fund Safari are creating a successful business with a modest investment and a legal foundation in standard copyright. Other writers and artists may try to create their own online businesses with even smaller investments, and may therefore depend more on portals or "webcasters" for dissemination. In the balance of control between artists and portals, I vote for the current legal system that favors artists.

I recently sent the U.S. delegates to WIPO the following document in a bid to ward off the webcaster's right--through the mechanism of throwing the matter before Congress.

Submission to U.S. WIPO Delegation Concerning Webcast Rights

This paper calls for Congress to take up the question of broadcast ownership rights on the internet, before they are proposed to the World Intellectual Property Organization by a United States delegation.

The proposed extension of broadcast ownership to the internet represent a new feature in the dissemination of information, and a potentially disruptive change. Such a far-reaching grant of ownership should be subjected to particular scrutiny and diligently checked for ripple effects, because it consists of a sui generis right that can profoundly change the creation and distribution of content. Therefore, Congress should be the body in the U.S. to make the decision whether to request such an ownership change.

To show the value of legislative deliberation, this paper will examine the history of another recent, sui generis right: laws restricting collections of information, also known as database protection.

As with broadcasting and the internet, laws restricting collections of information were proposed by large companies with a valuable resource (CD-ROMs and other data listings used in many research areas), and were accompanied by claims that the current legal framework would eliminate the incentive to produce more such databases.

The first victory for collections of information was in a directive discussed in the European Community in the early 1990s and formalized in a March 11, 1996 directive. It was subsequently made law in a dozen European countries.

The scope and power of collections-of-information restrictions grew as the directive went through EC deliberations. (Nowadays, because the public interest sector in Europe is more organized and can make itself heard better within the EU, this directive might not have passed at all.) The original proposal was not a sui generis right, but a modest reinterpretation of unfair competition to cover commercial reuse of collections of information.

But seeing an unobstructed road ahead of them, database manufacturers managed to extend the collections-of-information concept to the point where it gave them control over the reuse of facts in their databases, which no other law or treaty had done. The new right made it risky for users of databases to extract large amounts of information from a database, which frequently has to be done to generate statistics, check results reported in papers, and do other forms of research.

Database manufacturers simultaneously pressed for collections-of-information laws in the United States. During the 1990s and early 2000s, laws regarding collections of information were introduced four or five times into Congress, and defeated every time. WIPO noted the loss of support for database protection and refused to take up the issue.

What happened to the momentum? Congress listened to both sides, and realized that every ownership right in information represents a trade-off. Restricting access and reuse of information must be considered in light of the potential brake it puts on the research required to produce the next information breakthrough.

This restriction could be justified only by evidence that there is widespread copying, and that it is inadequately prevented by other laws such as copyright and unfair competition. However, there is no evidence that such widespread copying has taken place.

As reported by James Boyle, the European Commission recently conducted a study and reported that the presence of collections-of-information laws had no measurable impact on the production of databases. So the economic argument for collections-of-information laws is weak. And this result is easily to explain, because the most obvious kinds of copying (burning a CD-ROM, for instance) are prohibited by copyright law.

Thus we can draw our first lesson from the collections-of-information history: when a new and far-reaching change concerning information rights is considered by a national legislative body, this puts the change through valuable scrutiny and allows, more than in non-elected international bodies, the true interests of both information producers and the general public to be heard. The national body provides more transparency in deliberations; more time and opportunity for key players such as non-governmental organizations and small, competitive producers to express their points of view; and more of a sense of responsibility toward constituents.

Another valuable lesson can be gleaned from the history of collections-of-information laws: the danger of basing a legal framework on the exigencies of a particular industry at a particular time, especially in a fast-changing technological environment.

Essentially, collections-of-information laws were conceived at a time when most databases were distributed by CD-ROM. A few services such as Lexis were online, but they had very restricted audiences. The model for a collection of information was a fixed set of data, sold as a tangible item.

By the time the first European countries passed their collections-of-information laws, it was becoming apparent that this model was obsolete. Very few people get information nowadays by popping a CD-ROM into a computer; instead, they visit a website and enter a search term.

There are several important impacts of this change on collections-of-information laws:

Thus, technological and social change calls into question the value and relevance of collections-of-information laws.

We can apply the same criteria to broadcasting laws on the internet. These are narrowly tailored to particular uses of information made by large news and portal websites, just as the collections-of-information laws were tailored to the distribution of data on CD-ROM.

But what new technologies will come along after the Web? Could broadcast laws hamper their development and adoption? Who will be the information providers and distributors in the next generation of new media, and will they need or benefit from broadcast protection? How will the locking up of content in a broadcast treaty affect the dynamic and free-flowing innovation currently represented by weblogs, wikis, podcasts, and other media yet to be invented?

And what about the assumptions behind the broadcast treaty? Is putting up a web page comparable to broadcasting a program over television or satellite? Few people redistribute web content; instead, they make a link to it.

However, useful applications exist for reducing the strains on servers by sending data hop by hop between user systems, piggy-backing on intermediate nodes to distribute streams and large data transfers. This is just one example of potential innovations that might be squelched by overreaching laws on webcasting.

This issue calls for careful consideration and views from all sides. Congress is the body most suited to undertake this examination in the U.S..

For More Information

EFF material on webcasting and the broadcasting treaty in general

Article by James Love, director of Consumer Project on Technology, on the webcast treaty: "A UN/WIPO Plan to Regulate Distribution of Information on the Internet"

My article on collections of information: "The Sap and the Syrup of the Information Age: Coping with Database Protection Laws"

Update on European database treaty by law professor James Boyle


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