Weighing Webcasters' Rights to Content

"We do have an economy that operates on market principles," says Michael Keplinger, a senior counsel at the U.S. Patent and Trademark Office. "And intellectual property rights have served very well to help that market function."

At a fundamental level, digital-rights advocates agree. But that does not mean, they argue, that everything should be owned. They see social value in some works and information being freely accessible, especially in an interconnected world.

For example, say an independent filmmaker releases a movie on a cable TV station. If someone copies it and gets permission from the creator to post some or all of it on a Web site, should that person also need rights from the first broadcaster?

Increasingly, some artists are making their works available under nonrestrictive copyright terms. Would they need to retool those agreements to trump the distribution rights set forth in the proposed treaty?

And then there is the public event, which might be as local as a school board meeting or as international as a war. If Yahoo has the feed, either from its own employee or someone else, what rights does it have as the conduit for millions of viewers?

Broadcasters and webcasters insist that the balance of fair use and public domain works will not be upset by the treaty. Even if the treaty passes and the United States signs it, Congress then must pass implementing rules, and the broadcasters and webcasters say they have no desire to change U.S. laws.

Opponents fear the balance will be upset, noting the support Congress has consistently given to intellectual property holders.

It all might come to a head over the next several months at the World Intellectual Property Organization. At this point, there appears to be sufficient support for proposed rules governing broadcasters, though that could change. U.S. negotiators are in a distinct minority in seeking parity for webcasters.

Jonathan Krim can be reached atkrimj@washpost.com.