1) The proposed WIPO "Treaty on the Protection of Broadcasting Organisations" threatens to encroach on the public domain for the following reasons...

a) This treaty would give broadcasters the power to control all recording and use of broadcasts. Other international agreements, such as TRIPS, give countries the option of granting these powers only to copyright holders. With this treaty each program or piece that is broadcast could be controlled by both copyright holders and broadcasters at the same time. Users of broadcast material would then have to get “clearance” from both groups, creating harmful burdens for the public.

b) Currently, if countries decide to give special powers to broadcasters, they only have to grant these powers for twenty years. This treaty would require countries that sign the treaty to extend the length of broadcasters’ powers to fifty years. The twenty years is already longer than the effective life of a patent, and four times as long as the US government restricts the use of data on clinical trials for pharmaceutical drugs. With the proposed extension, WIPO would set a precedent that governments should give investors the long periods of control over works that have only been granted to authors and other creative works.

c) The treaty would give broadcasters exceptional powers over materials that are in the public domain, cannot be copyrighted, or were created by third parties who have no interest in suppressing distribution. Broadcasters would receive these powers simply by transmitting materials. This is a much lower bar than copyright, which does not grant authors and artists control unless there is originality and creativity involved. Even controversial powers granted to database compilers require substantial investment. Giving broadcasters 50 years of control every time something is broadcast is in effect equivalent to granting an endlessly renewable copyright, with no standards for originality, creativity or substantial investment.

d) Since many public domain works are available only when transmitted by broadcasters, requiring countries to grant fifty years of power and control to broadcasters would dramatically shrink the public domain. There is no economic or moral rationale for this extension.

e) The definition of "webcasting" in Article 2(g), Alternative C, is so broadly drawn that it could be interpreted as granting control over nearly all transmissions of images and sounds over the internet and internet-like networks.

f) The WIPO treaty requires signatories to outlaw the circumvention of technology locks that prevent fair use. One version of the treaty would even outlaw the sale or provision of any device capable of decrypting a program signal. Broadcasters can use these locks to prevent uses of broadcasts that are clearly for the public good, such as the ability to archive public domain works for preservation and historical interest.

g) A prohibition against "formalities," means that broadcasters won't have to indicate their control over any particular broadcast, which will make it difficult to know who "owns" the rights to a broadcast. This would make it nearly impossible for the public to discern the boundaries of the public domain.

2) The public is not served by imposing these restrictions. A "compromise" version imposing part of these restrictions could be less bad, but no one has made the case that the treaty will benefit the public, or that it is needed. The risks to the public of potentially bad outcomes in a diplomatic conference outweigh the possible benefits, if any, of proceeding.