[governance] Danger of YouTube/Dailymotion Censorship in WIPO Audiovisual Treaty?

[Riaz K Tayob]

Posted with permission from another list...

Riaz


-------- Original Message --------


From:     Hannibal Travis <travish at FIU.EDU>
Reply-To:     Hannibal Travis <travish at FIU.EDU>
T


Articles 5-7 and 16 of the draft treaty causes me grave concern as a 
tool for censorship of remix culture and fair use works.  Article 16 
requires parties to provide civil remedies against those who negligently 
facilitate the distribution, importation for distribution, communication 
or making available to the public, "performances or copies of 
performances fixed in audiovisual fixations knowing that electronic 
rights management information has been removed or altered without 
authority."  This would appear to prohibit, for example, the use of 
clips of news or sports content with copyright notices or DRM or 
browsewrap/clickwrap terms and conditions of use omitted, even when the 
clips are used in transformative works such as documentary film, news 
reporting, parodies, lip-synching, etc.  The DMCA has a copyright 
management info provision (1202(a)) but it requires intentional removal 
or alteration not negligence (article 16 requires civil liability 
against those "having reasonable grounds to know, that it will induce, 
enable, facilitate, or conceal an infringement of any right" under the 
treaty).  There are already precedents for using the copyright 
management info provision of the DMCA to restrict remix culture:
https://www.eff.org/deeplinks/2009/03/ap-uses-dmca-intimidate-hope-artist
  http://title17.net/2011/06/third-circuit-issues-important-dmca-and-fair-use-ruling/.
http://www.citmedialaw.org/blog/2012/can-aps-copyright-claims-hold-meltwater

Article 5 states that independently of any economic rights, and even 
after the transfer of them, a performer has a right as to fixations of 
live performances "to object to any distortion, mutilation or other 
modification of his performances that would be prejudicial to his 
reputation, taking due account of the nature of audiovisual 
fixations."   This of course could lead to endless litigation concerning 
mashups and the like, redolent of Lenz. v. Universal, Gilliam v. ABC, 
Lewis Galoob v. Nintendo, and Campbell v. Acuff-Rose.  Article 6 seems 
to grant a broad new right to restrict the "communication" of unfixed 
performances not already subject to broadcast, exceptions to which "may" 
but do not need to be granted. Article 7 restricts "indirect 
reproduction" of performances; J.R. Pardo defines indirect reproduction 
as covering transient and incidental reproductions such as those which 
facilitate or make up technological communications systems.  The 
temporary and incidental reproductions of performances are not carved 
out of the treaty's indirect reproduction right as they are in the EU 
Information Society Directive.  This raises the risk of huge new ISP 
liabilities and resulting overreactions, the dangers of which led to 
DMCA  512.

Article 17 forbids any formalities in the audiovisual work ownership 
right, which threatens the many important roles that formalities play in 
U.S. copyright law from playing their usual part.  See e.g. Christopher 
Sprigman, Reform(aliz)ing Copyright, 57 STAN. L. REV. 485, 489 (2004).  
As Jason Mazzone has argued: "The U.S. Copyright Office registers 
copyrighted works, but there is no official registry for works belonging 
to the public. As a result, publishers and the owners of physical copies 
of works plaster copyright notices on everything. These publishers and 
owners also restrict copying and extract payment from individuals who do 
not know better or find it preferable not to risk a lawsuit. These 
circumstances have produced fraud on an untold scale...."  Imagine the 
scale of the ownership-related misrepresentations that will occur when 
formalities such as registration are done away with.  John Bergmayer of 
PK argued in 2011 that: " Creating new kinds of 'middleman rights' could 
increase the complexity of dealing with content exponentially. It could 
give broadcasters the right to prevent recording shows for later 
viewing, or even effectively remove works from the public domain. "

Although Article 13 provides that parties may provide similar exceptions 
and limitations to the audiovisual protection right as they do for 
copyright, paragraph 2 of that article subjects such exceptions and 
limitations to the three-step test which may not allow fair use to 
injure the normal licensing expectations of the owner of any right in 
the audiovisual performance.  Cf. EU vs. USA on the small business 
exemption.  Thus, the USA could be brought up on WTO claims or 
threatened claims of allowing fair use of audiovisual clips on YouTube 
and be forced to reform its copyright law in response; there are 
precedents for this from 1989 copyright reform and 2011 patent reform.

Does anyone else have any information or thoughts about these issues 
with the treaty?

Hannibal Travis
Associate Professor of Law
Florida International University - College of Law
11200 S.W. 8th St., RDB Hall, Miami, FL 33199
http://ssrn.com/author_id=496059

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