April 6, 2006 | By Fred von Lohmann

Smithsonian-Showtime: Why the Broadcasting Treaty Matters

EFF has long been a critic of the proposed WIPO Broadcasting Treaty, and now we have a particularly vivid example of how the treaty imperils the public domain.

The Smithsonian Institution recently announced a joint venture with Showtime that gives the cable TV network exclusive commercial access to the Smithsonian's archival materials (much of which consists of public domain materials). According to the Washington Post:

Jeanny Kim, the vice president for media services at Smithsonian Business Ventures, said the filmmakers who were doing "more than an incidental treatment" of a subject mainly from Smithsonian materials or wishing to focus on a Smithsonian curator or scientist would first have to offer the idea to Smithsonian/Showtime. Otherwise, the archives could not be used outside the realm of news programs (such as "60 Minutes" and "Dateline") in most cases.

This arrangement is troubling for many reasons. In the words of Ken Burns, one of America's most accomplished documentarians, "It feels like the Smithsonian has essentially optioned America's attic to one company, and to have access to that attic, we would have to be signed off with, and perhaps co-opted by, that entity." (For a stark contrast to the Smithsonian approach, take a look at the BBC's Creative Archive.)

But consider just how much worse this arrangement might become if the WIPO Broadcasting Treaty comes into force. Under current copyright law, Showtime would have no exclusive rights over any public domain materials that they broadcast on their "Smithsonian on Demand" channel. So subsequent creators remain free to record the programs, extract the public domain elements, and re-use them, without fear of copyright lawsuits.

The Broadcasting Treaty could change all that. By creating new exclusive rights for broadcasters, the proposed treaty could block subsequent creators from recording and extracting the public domain material from the broadcast. Instead, they would have to independently obtain access to the original public domain materials. But Showtime has already locked up a deal that gives its people exclusive access to the originals. Catch-22!

It's bad enough when private parties lock up exclusive access rights to public domain materials in archives, museums, and libraries. Combine that with the Broadcasting Treaty, and you have a recipe for a public domain land grab.

We don't know whether the WIPO Broadcasting Treaty would necessarily lead to this result, as those who are supporting it (including the USPTO) have refused to "speculate" on what U.S. implementing legislation might look like, and whether they would support parallel exceptions to copyright law. But unless and until the treaty precludes a public domain land grab, it's hard to see how any friend of the public domain can support it.


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