Intellectual property campaigners and podcasters oppose the new treaty. They claim that it puts more control over content in the hands of big business.
The treaty is the subject of discussions in Barcelona today at a conference organised by UN Agency WIPO (the World Intellectual Property Organisation). Opponents say the conference was called too quickly – just eight days ago – for dissenting voices to be able to take part. Even the supportive UK Patents Office told OUT-LAW that it had received its invitation too late to attend.
A Patents Office spokesman confirmed that observing treaty negotiations was his office's responsibility, and that it was supportive of the treaty as its stands, and of its controversial appendix, which governs podcasting.
"This treaty is about updating laws that were written before the problems caused by digital distribution were thought of," said the spokesman. "We represent both the industries that are under threat from this activity and the consumer interests."
Though WIPO declined to comment on the controversy surrounding the draft treaty, it did release a statement. "Updating the IP rights of broadcasters currently provided by the 1961 Rome Convention began at WIPO in 1997. A growing signal piracy problem in many parts of the world, including piracy of digitised pre-broadcast signals, has made this need more acute."
However, critics argue that the treaty could be interpreted as going further than simply preventing cross-border piracy of signals. Broadcasters in the UK already own copyright in their broadcasts. Critics argue that the treaty grants them a whole new right over the contents of their broadcast.
"This is a right just for transmitting something, and it exists on top of the existing copyright," said Rufus Pollock, a director of the Open Knowledge Foundation and a member of the board of the Open Rights Group.
"You retain the copyright in your material," said James Boyle, a law professor at Duke law School in North Carolina and founder of the Center for the Study of the Public Domain. "I, the broadcaster, get a right over any copy or retransmission of my broadcast (which contains your material). Thus if someone copied your movie from my broadcast they could infringe both sets of rights."
Separately, webcasters and podcasters are worried about WIPO extending broadcasting rules to the internet. In May WIPO agreed to take out provisions relating to webcasting from the treaty. They have appeared in the draft treaty ahead of today's conference as a 'non-mandatory appendix on the protection in relation to webcasting'. The conference itself is called 'From The Rome Convention to Podcasting'.
"They had previously agreed to leave podcasting out to get its own legislation. Now it's pretty clear they are going to put it back in," said Dean Whitbread, chairman of the UK Podcasters' Association.
Podcasters are worried that material which they disseminate under free use licences can be re-published by broadcasters' web operations. They argue that under the treaty that organisation then has certain rights over any copies of that re-published version of their work.
"If I say my work has to be free in perpetuity, then it has to be free in perpetuity," said Whitbread.
Many podcasters publish under 'Creative Commons' licences which allow unlimited publishing and forwarding free of charge under certain conditions, notably that the material is always free, or that it is always credited. Podcasters argue that the treaty, if applied to the internet, could threaten that right.
"They can [still publish under Creative Commons] but those licences cover the copyright," said Pollock. "They don't cover the extra right the broadcaster/webcaster would get."
"We don't mind regulation, we just want it to be reasonable," said Whitbread. "Podcasting and broadcasting are not the same. I don't think as podcasters we should be subject to the same legislation."