Statement to US delegation to WIPO about the Broadcasting and Webcasting “rights” treaty

My name is John Bachir. I work at ibiblio.org, an organization affiliated with both the school of Information and Library Science, and the school of Journalism at the University of North Carolina, Chapel Hill. You may have known us as one of our two former names: sunsite, and metalab.

Ibiblio is home to over 1500 collections, including Project Gutenberg, which hosts transcribed plaintext files of public-domain works, and etree.org, which hosts public-domain audio files. We were mirroring GNU/Linux distributions and open-source software before it was cool. Ibiblio was, in fact, the first webserver on the Internet.

Given the wide variety of media used and delivered by ibiblio collections, the WIPO Broadcasting and Webcasting treaty poses significant problems for their work. Many of our contributors do work with public domain or alternatively licensed materials acquired from a very wide variety of sources. Even with existing laws, it is often quite a challenge for creators to determine if something downloaded online can be included in repositories or creative works, or who the rights holder is to begin with. The United States Copyright Office recently issued a report saying that the situation with orphan works is serious, and poses a real threat to dissemination and use, including scholarly and archival dissemination and reuse. Indeed, the report suggests that the copyright act needs amendment, to allow for some manner of limited liability for good faith searches.

The proliferation of rights, the difficulty of finding long-vanished copyright holders, and the fact that multiple copyrights could cover the same media, is already a huge unsolved problem. But at least today a creator knows that, in the United States, a work published before 1923, or a work under an appropriate alternative-license such as Creative Commons, can be put into a repository or used in a derivative or annotated work.

Imagine if, in addition to the existing crushing burden of rights clearance under copyright, creators also had a separate and entirely different obligation to clear Broadcast or Webcast rights–even on public-domain or Creative Commons works. Here we have yet another layer of the orphan works problem already existent in the copyright space. The difficulty of ascertaining whether works were originally derived from a broadcast or webcast incurs economic overhead in the use of public-domain works that has not existed for the past 200 years.

The same problems that the provisions of the Broadcast and Webcast treaty create for the work of ibiblio collections will be experienced by those in educational and academic fields at large. Furthermore, the treaty provides no apparent benefits to such communities. In fact, what little research there is examining the effects of the Rome Convention shows that such provisions are not in the best interest of the commercial sector either.

One would hope that policy made by a UN agency would be the result of careful research and public deliberation, with the intention of benefitting the societies and economies involved. But with the Broadcaster and Webcaster treaty, this is not the case. Instead, it is being created without feedback from the public sector or even the business community at large, under pressure and lobbying from huge media entities, in order to grant unnatural power to product distribution companies who add no value to creative works.

This treaty is bad for ibiblio, bad for education, bad for academia, bad for culture, bad for the economy, and good for News Corp. and Yahoo!. I urge you to do a comprehensive call for feedback from the creative and broadcast communities at large, and refuse to participate in a treaty not approved by the United States Congress. Thank you for your time.

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