- The creator of the work wants to distribute it freely, but doesn't have the technical or financial resources to get that done. Current copyright law would permit persons to record the broadcast and to circulate the work on the Internet -- but under the proposed treaty, the broadcaster could bar or limit such circulation. In effect, the broadcaster would become the gatekeeper for a work that otherwise could be freely distributed in accordance with the wishes of the copyright holder.
- An artist or filmmaker with limited resources wants to obtain authorization to use clips from a broadcast or cablecast in a documentary or similar creative work. Under current copyright law, the process of identifying and negotiating with the appropriate rights holder can already be complicated. But the proposed treaty could double the potential complication, and perhaps the cost as well, by adding another rights holder. The clearance process would become even more time consuming and expensive – causing some would-be clearance seekers to give up on using the works in question.
- A person wants to use audio or video recorded from a broadcast or cablecast in a manner that would constitute lawful fair use under current copyright law. This should mean that no authorization is necessary. But unless the treaty's implementing legislation were to include exceptions that precisely track fair use provisions in U.S. copyright law (something the treaty permits but does not require), adoption of the treaty would mean that the person would still need to seek authorization from the broadcaster or cablecaster. And even if the broadcaster/cablecaster rights were made subject to exactly the same fair use exceptions as copyright law, the existence of a second rights holder would effectively double the number of parties who could challenge the assertion of fair use and tie matters up in costly litigation. This could chill the exercise of fair use.
- A person receives audio or video content over the Internet and wishes to engage in further redistribution. (This kind of viral distribution is common on the Internet and is one of the medium's strengths.) The content features a Creative Commons copyright license, making it clear that redistribution does not pose a copyright problem. But the person does not know how the content was originally distributed. Under the proposed treaty, the person might well worry that the content may have been recorded from a broadcast or cablecast. For fear of violating potential broadcast or cablecasts rights, the person might refrain from redistribution – even though the content may not have come from a recorded broadcast at all.
(Creative Commons, by the way, is a non-profit group that issues various intellectual property rights licenses to folks who want to share their content more widely than traditional, stricter property rights might assume.)You can read the entire CDT briefing on the issue here. This treaty appears to be another method to chip away at free speech.
- A work has just entered the public domain, meaning that it is no longer subject to copyright protection. Under current law, personal recordings made from past broadcasts of the work could be transmitted lawfully over the Internet, and any future broadcasts of the work could be recorded and shared. Under the proposed treaty, however, the broadcaster would retain control over all such recording and transmission for 50 years from the date of the broadcast. Despite the work's public domain status, the broadcaster could effectively control access for decades to come.