Open Access News

News from the open access movement

Tuesday, September 12, 2006

More on the broadcasting treaty and OA

Mike Carroll, The Broadcast Treaty and Open Access, Carrollogos, September 11, 2006.  Excerpt:

Michael Geist has a nice column today once again reminding us about why the WIPO negotiations over a Broadcast Treaty are trouble. See also the CPTech blog. A number of technology companies and public interest organizations oppose the treaty for these reasons.

One quick point about the Treaty and then a point for Open Access advocates. In my view, representatives of copyright-owning organizations have made the wrong bet in either supporting or staying neutral on this issue. They have bet that broadcasters will, on balance, help them enforce their rights against those who transmit copyrighted works that have been broadcast. As technology evolves, and broadcasters use the rights created by the Treaty to protect their business model, these copyright owners will regret the choice they make today.

Some Open Access advocates, librarians in particular, have been active in opposing the treaty. For those who have not tuned in, the important thing to watch is how the policy debate is conducted. Who has the burden of persuasion? Ben Ivins of the National Association of Broadcasters argues that because other countries give broadcasters a distinct right in their signal, it is opponents of the treaty who must show that the treaty would be harmful. This argument is exactly backward. In the United States, a proponent of a law that restricts speech has the burden to show that the restriction will advance an important governmental interest....

Allocating the burden of persuasion is just as important with respect to the Federal Research Public Access Act (FRPAA). The AAP is doing its best to argue that proponents of the legislation must prove that the benefits of open access outweigh the costs. That, I am afraid, is not the way it works in any society that embraces a principle of freedom of expression. Thus, the first response from the open access community should be that the burden is on those who would restrict public distribution of publicly-funded research to show that such restrictions advance an important public interest. Then, we can take up the question of how to measure benefits and costs.

PS: For more background, I discuss other OA implications of the WIPO broadcast treaty in Three gathering storms that could cause collateral damage for open access (March 2006).