4/12. The Copyright Office (CO) and the U.S. Patent and Trademark Office (USPTO) announced that they will hold a public roundtable discussion of the World Intellectual Property Organization's (WIPO) Standing Committee on Copyright and Related Rights (SCCR) proposed draft Treaty on the Protection of the Rights of Broadcasting Organizations.

This event will be held on Wednesday, May 9, 2007, at 2:00 PM, at the Library of Congress. The deadline to request to attend or participate is 5:00 PM on Friday, May 4, 2007. See, notice in the Federal Register, April 12, 2007, Vol. 72, No. 70, at Pages 18493-18494.

The latest draft of this proposed treaty is contained in the WIPO's March 8, 2007, paper [MS Word] titled "Draft Non-paper on the WIPO Treaty on the Protection of Broadcasting Organizations".

The treaty would require member nations to create a new class of intellectual property rights for "broadcasting organizations" in their broadcast signals, and other things. It would require nations to create several exclusive rights in broadcast signals (with a 20 year term of protection), to create certain unspecified rights prior to broadcast, to create bans on circumvention efforts, and to ban the making or importing of devices that circumvent.

The rights would in many ways be analogous to copyright. However, there is no requirement that the entity obtaining the rights create or license the works that are broadcast. Moreover, there is no registration requirement.

Article 3 provides, in part, that "The provisions of this Treaty shall not provide any protection in respect of ... any transmissions over computer networks (transmissions using the Internet Protocol, ``webcasting´´, or ``netcasting´´)." (Parentheses in original.)

Perhaps the most significant provisions of this latest draft are found in Articles 8, 9, and 10, which impose requirements on member nations.

Article 8(1) provides in full that "Broadcasting organizations shall enjoy the exclusive right of authorizing:
  (i)  the simultaneous or deferred retransmission of their broadcasts by any means;
  (ii) the fixation of their broadcasts; and
  (iii) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts."

This article requires nations to create at least three types of rights: retransmission, fixation, and reproduction. (Article 8(2) allows nations a second alternative. However, it too requires nations to create retransmission, fixation, and reproduction rights.)

Article 9 then requires a fourth right. It provides, in full, that "Broadcasting organizations shall enjoy adequate and effective legal protection against any acts referred to in Articles 8 and 10 of this Treaty in relation to their signals prior to broadcasting."

To the extent that this extends exclusive rights to things that do not exist, the meaning of this article is uncertain. The draft defines "broadcast" as "an electronically generated signal transmitted by wireless means and carrying assembled and scheduled programs for the reception by the general public". That is, does this article require protection against retransmission of signals that have not been transmitted in the first place? Does it require fixation rights in that which has not been fixed? Does it ban reproduction of that which has not been produced? Does it ban decryption of that which has not been encrypted? Article 9 has a certain Alice in Wonderland quality.

Perhaps this is in some way analogous to copyright statutes that allow holders of certain works, such as new movies, to bring legal actions prior to the completion of the copyright registration process. However, there is no requirement under the draft treaty that broadcasters register the signals in which they will obtain exclusive rights.

Article 10 then creates a fifth, sixth and seventh right. It requires nations to provide "adequate and effective legal protection against unauthorized
  (i) decryption of an encrypted broadcast;
  (ii) manufacture, importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast; and
  (iii) removal or alteration of any electronic information relevant for the application of the protection of the broadcasting organizations."

The draft, at Article 11, allows, but does not require, nations to create private rights of action for violations of Article 10.

What Article 10(iii) means would be open to interpretation. For example, it could be analogous to protection of the integrity of copyright management information. (See, 17 U.S.C. § 1202.)

Providing "protection against ... decryption of an encrypted broadcast" is broad. Like Article 8(1), Article 10, contains no requirement that the broadcast organization own the copyright in the underlying content. It contains no requirement that decryption be for the purpose of rebroadcast or retransmission. It contains no fair use exception. It contains no educational or library use exception. It allows no exception for blocking ads or removing obscenity or violence in home or school viewing of broadcast signals.

Article 12 of the draft treaty provides that nations may "provide for the same kinds of limitations or exceptions with regard to the protection of broadcasting organizations as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works, and the protection of related rights." While U.S. national legislation creates numerous exceptions to the exclusive rights of copyright (see, 17 U.S.C. §§ 107 through 122), U.S. national legislation creates no exceptions to the ban on circumvention (see, 17 U.S.C. § 1201). The draft treaty is clear that no nation would be required to create any exceptions. Moreover, Article 10 of the draft may be construed in a manner that would prohibit the U.S. from creating exceptions to the Article 10 requirements, regarding circumvention, on the grounds that the U.S. copyright statute now contains no exceptions to the ban on circumvention.

In addition, the language of Article 10 would put broadcasters in the position to regulate, and authorize, the design of consumer electronic devices. Yet, not only do broadcasters need not create or hold copyrights in the content contained in the broadcast signals for which they obtain protection, they need not invent, or hold patent rights in, the technologies that they would regulate.

The U.S. Constitution provides that the "Congress shall have the Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

This clause authorizes the Congress to pass laws that incent creation by enabling creators to exclude others from copying their works, or practicing their inventions, in order to enable them to collect rents from the licensing of their works or inventions. Yet, this draft treaty would require the Congress to create a panoply of rights in entities that have created nothing and invented nothing. Moreover, the collection of rights in the draft treaty goes beyond protecting signals from broadcast retransmission, and viewing of subscription services by non-paying free riders. The draft treaty would work a transfer of some rents from creators of content and inventors of technologies to broadcasters of signals. It would thereby reduce the incentives for creators to create, and inventors to invent.

Of course, the Congress has the power to create intellectual property rights under other authorities. For example, trademark protection rests upon the commerce clause rather than the authors and inventors clause.

The WIPO set a deadline of March 28, 2007, for nations to submit comments on the draft treaty.

15 nations submitted comments. See, WIPO web pages with hyperlinks to these comments. See especially, comment [14 pages in PDF] filed by the U.S., comment [2 pages in PDF] submitted by Japan, comment [13 pages in PDF] submitted by India, comment [1 pages in PDF] submitted by the People's Republic of China, and comment submitted by the European Union [4 pages in PDF].

The WIPO Standing Committee on Copyright and Related Rights (SCCR) may issue another paper, also titled "Non-paper", on May 1, 2007, that takes into account the above comments.

The WIPO's SCCR will meet again on June 18 through 22, 2007, in Geneva, Switzerland.

4/12. The Federal Trade Commission (FTC) released a report [136 pages in PDF] titled "Marketing Violent Entertainment to Children: A Fifth Follow-up Review of Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries" . See also, FTC release.

The report contains numerous recommendations to be implemented by voluntary private sector initiatives, but no recommendations for legislation.

With respect to video games, the FTC report finds that "internal marketing documents and ad placements for selected M-rated games showed that the video game companies contacted for this Report did not specifically target advertising for those games to children under 17. In addition, advertising on television programs popular with teens appears to be diminishing."

However, the FTC report finds many examples of "Internet advertising that would appear to violate the industry’s standard of not placing ads for M-rated games on websites with an under-17 audience of at least 45%. Sixteen of the twenty M-rated games selected by the Commission ran ads on sites that appear to equal or exceed the 45% standard."

It also found that "Video game retailers substantially improved their enforcement of policies prohibiting children under 17 from purchasing M-rated games without parental permission. Forty-two percent of the children in the Commission’s mystery shopper survey were able to purchase M-rated games, a statistically significant improvement from the 69% able to make the purchases in the 2003 survey."

The report also states that "Mobile phone games are a growing segment of the video game market and pose several challenges for the industry’s self-regulatory system. Mobile phone game developers often do not seek ESRB ratings; they do not sell their products through traditional retail channels, instead licensing their products directly to wireless carriers.

For the movie industry, the FTC report states that a "review of internal marketing documents for selected R-rated films showed that the studios did not specifically target advertising for those films at children under 17. The industry, however, continues to advertise R-rated movies on television shows popular with children under age 17, and some advertising violated the standard adopted by several studios that prohibits the placement of advertisements for R-rated films in media with an under-17 audience share over 35%."

The report also states that the "examination of the Internet advertising for twenty R-rated movies revealed that 90% were advertised on websites where under-17 visitors constitute one third or more of the audience."

Finally, for the music industry, the FTC report states that its "review of internal marketing documents and ad placements for explicit-content labeled music showed that the major record labels did not specifically target advertising for those albums to children under 17. There were few ads in print media popular with teens, but the music industry continues to advertise on cable TV shows with young teen audiences of 40% or more. In addition, the industry advertised music with a parental advisory label on websites reaching a substantial percentage of children under 17."

4/11. Edward Fox was named Assistant Secretary for Public Affairs at the Department of Homeland Security (DHS). He previously worked for the U.S. Agency for International Development (USAID). See, DHS release.

4/11. The U.S. Chamber of Commerce promoted Ann Beauchesne to head its Homeland Security Division. See, Chamber release.

4/9. The U.S. Chamber of Commerce named Michael Ryan SVP and Executive Director of its Center for Capital Markets Competitiveness (CCMC). See, Chamber release.

4/12. The Government Accountability Office (GAO) released a report [64 pages in PDF] titled "Taxpayer Service: State Experiences Indicate IRS Would Face Challenges Developing an Internet Filing System with Net Benefits". This report states that "Some states and countries allow taxpayers to prepare and file tax returns on their Internet Web sites at no charge, an option not available to federal taxpayers. Such a service might mitigate the concerns taxpayers have about current electronic filing options, which require filing through a third party and may involve fees. Increased electronic filing would reduce IRS’s paper processing costs, reduce transcription errors, and speed up refunds." It adds however, that "the idea is controversial. IRS already has a Free File program which offers free return preparation and filing by private companies for some people via IRS’s Web site. Some are opposed to IRS competing with tax preparation software companies."

4/12. Rep. Tom Davis (R-VA), the ranking Republican on the House Government Oversight and Reform Committee, released a report [3 pages in PDF] titled "Seventh Report Card on Computer Security at Federal Departments and Agencies". It give an overall grade of C-. It awards the Department of Homeland Security (DHS) a grade of D and the Department of Defense a grade of F. See also, Rep. Davis' release.

4/10 9:30 AM. The U.S. Patent and Trademark Office (USPTO), National Inventors Hall of Fame Foundation, and The Advertising Council announced "a national, multimedia public service advertising (PSA) campaign to engage a new generation of children in innovation". See, Department of Commerce release.

The House will not meet on April 2-6 or 9-13. See, House 2007 calendar. The next meeting will be at 2:00 PM on April 16.

The Senate will meet at 9:30 AM for morning business. It will then resume consideration of S 372, the Intelligence Authorization Act for Fiscal Year 2007.

? 10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of S 236, the "Federal Agency Data Mining Reporting Act of 2007" and HR 740, the "Preventing Harassment through Outbound Number Enforcement (PHONE) Act of 2007". The agenda also includes consideration of several judicial nominees: Frederick Kapala (to be a Judge of the U.S. District Court for the Northern District of Illinois), Halil Suleyman Ozerden (U.S.D.C. Southern District of Mississippi), and Benjamin Hale Settle (U.S.D.C. Western District of Washington). The SJC rarely follows its published agenda. See, notice. Press contact: Tracy Schmaler at 202-224-2154 or Tracy_Schmaler at judiciary dot senate dot gov. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Filing Your Taxes: An Ounce of Prevention is Worth a Pound of Cure". The hearing will also address the use of identity theft to fraudulently obtain the tax refunds of others, and the Internal Revenue Service's loss of computers and data thereon. Location: Room G50, Dirsksen Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Developments in Trade Remedy Proceedings and Legislation with China". The speakers will be Robert Heilferty (Office of Chief Counsel for Import Administration, Department of Commerce), Stephen Kho (Akin Gump), Jayme Roth, Marguerite Trossevin (Mayer Brown), and Eileen Bradner (moderator, Wiley Rein). See, notice. The price to attend ranges from $5-$25. For more information, call 202-626-4363. Location: Alston & Bird, 950 F St., NW.

12:00 NOON. Rep. Tom Davis (R-VA) and others will hold a news conference to release a report on how effective federal agencies have been at addressing their information security challenges, and in complying with the Federal Information Security Management Act of 2002. The other speakers will include Karen Evans (Office of Management and Budget) and Bobbie Kilberg (head of the Northern Virginia Technology Council). For more information, contact David Marin at 202-225-5074. Location: Center for Innovative Technology, auditorium, 2214 Rock Hill Road, Herndon, VA.

2:00 PM. The Senate Banking Committee's (SBC) Subcommittee on Security and International Trade and Finance will hold a hearing titled "Pirating the American Dream: Intellectual Property Theft’s Impact on America’s Place in the Global Economy and Strategies for Improving Enforcement". The witnesses will include Sen. George Voinovich (R-OH), Moises Naim (Foreign Policy Magazine), Loren Yager (Government Accountability Office), Brad Huther (U.S. Chamber of Commerce), and Tim Demarais (ABRO Industries). See, notice. Location: Room 538, Dirksen Building.

Day one of a three day conference hosted by the American Bar Association (ABA) titled "The 22nd Annual Intellectual Property Law Conference". See, notice. Location: Crystal Gateway Marriott Hotel, Arlington, VA.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Missoula intercarrier compensation reform plan federal benchmark mechanism proposal. This proceeding is CC Docket No. 01-92. See, notice in the Federal Register, March 26, 2007, Vol. 72, No. 57, at Pages 14060-14061.

9:00 AM - 12:30 PM. Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) will host one of its series of Advanced Technology Program (ATP) Proposers' Conferences regarding its FY 2007 award of subsidies under the ATP program. This program provides about $60 Million in funding for technology research, including nanotechnology research. The deadline to submit proposals is 3:00 PM on May 21, 2007. See, notice in the Federal Register, April 10, 2007, Vol. 72, No. 68, at Pages 17838-17841. Location: NIST Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

Day two of a three day conference hosted by the American Bar Association (ABA) titled "The 22nd Annual Intellectual Property Law Conference". See, notice. Location: Crystal Gateway Marriott Hotel, Arlington, VA.

Day three of a three day conference hosted by the American Bar Association (ABA) titled "The 22nd Annual Intellectual Property Law Conference". See, notice. Location: Crystal Gateway Marriott Hotel, Arlington, VA.

The House will return from recess at 2:00 PM.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding amending 37 CFR 2.64 to require a request for reconsideration of an examining attorney's final refusal or requirement to be filed through the Trademark Electronic Application System (TEAS) within three months of the mailing date of the final action. See, notice in the Federal Register, February 14, 2007, Vol. 72, No. 30, at Pages 6984-6986.

8:30 - 10:30 PM. The DC Bar Association will host a lecture titled "Entertainment Law: The Year In Review". The speaker will be Stan Soocher (University of Colorado at Denver). The price to attend ranges from $20 to $37.50. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

2:00 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "XM Sirius". See, notice. Location: Room 253, Russell Building.

ROOM CHANGE. 10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Department of Justice Oversight". The witness will be Attorney General Alberto Gonzales. Press contract: Tracy Schmaler (Leahy) at 202-224-2154 or Courtney Boone (Specter) at Courtney_Boone at judiciary-rep dot senate dot gov or 202-224-2984. Location: Room 216, Hart Building.

11:00 AM. The Cato Institute will host a panel discussion titled "Calm before the Storm? Developments in U.S. Trade Remedy Laws". The speakers will be Rep. Phil English (R-PA), David Hartquist (Committee to Support U.S. Trade Laws), Daniel Porter (Vinson & Elkins), and Daniel Ikenson (Cato). See, notice. Lunch will be served after the program. Location: Cato, 1000 Massachusetts Ave., NW.

12:30 PM. Rep. Charles Rangel (D-NY), Chairman of the House Ways and Means Committee, will give a speech. Location: National Press Club, 529 14th St. NW, 13th Floor.

TIME? The Computer and Communications Industry Association (CCIA) will host an event titled "Policy in a New Congressional Environment". Location: Willard Intercontinental Hotel.

Day one of a three day workshop hosted by the National Institute of Standards and Technology (NIST) and others titled "6th Annual PKI R&D Workshop: Applications-Driven PKI (It's The Apps, Stupid!)". See, notice. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

TIME? The Department of Defense's (DOD) Defense Science Board Task Force on Integrating Sensor-Collected Intelligence will meet in closed session regarding intelligence, surveillance and reconnaissance systems. See, notice in the Federal Register, April 2, 2007, Vol. 72, No. 62, at Page 15659. Location: Science Applications International Corporation, 4001 N. Fairfax Drive, Arlington, VA.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association (FCBA) will host an lunch titled "2nd Annual Diversity and Young Lawyers Committees Mentoring Luncheon". For more information contact, Colin Sandy at 202-682-2496 or csandy at neca dot org. Location: Arnold & Porter, 10th Floor, 555 12th St. NW.

4:00 - 5:30 PM. Klaus Kleinfeld, P/CEO of Siemens AG, will give a speech. See, registration page. Prices vary. Location: U.S. Chamber of Commerce, 1615 H St., NW.

Day two of a three day workshop hosted by the National Institute of Standards and Technology (NIST) and others titled "6th Annual PKI R&D Workshop: Applications-Driven PKI (It's The Apps, Stupid!)". See, notice. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

TIME? The Department of Defense's (DOD) Defense Science Board Task Force on Integrating Sensor-Collected Intelligence will meet in closed session regarding intelligence, surveillance and reconnaissance systems. See, notice in the Federal Register, April 2, 2007, Vol. 72, No. 62, at Page 15659. Location: Science Applications International Corporation, 4001 N. Fairfax Drive, Arlington, VA.

9:00 AM - 2:30 PM. The Federal Communications Bar Association's (FCBA) Ad Hoc Committee on on Homeland Security and Public Safety will host a continuing legal education (CLE) seminar titled "Regulatory and Policy Approaches to Address Emergency Response and Disaster Recovery". See, registration form [PDF]. The price to attend ranges from $100-$300. Location: Wiley Rein, 1776 K St., NW.

10:00 AM - 12:00 NOON. The Department of State's (DOS) Advisory Committee on International Communications and Information Policy will meet to discuss the U.S. preparations, including formation of the U.S. delegation, for the 2007 World Radiocommunication Conference (WRC-07) that will take place in Geneva, Switzerland, October 22 through November 16, 2007. See, notice in the Federal Register, April 5, 2007 Vol. 72, Number 65, Notices, at Pages 16867-16868. See also, WRC-07 conference web site. Location: Dean Acheson Auditorium, Harry Truman Building, 2201 C St., NW.

2:00 - 4:00 PM. The House Science Committee's (HSC) Subcommittee on Research & Science Education will meet to mark up HR __, a bill to authorize appropriations for FY 2008, 2009 and 2010 for the National Science Foundation (NSF). Location: Room 2318, Rayburn Building.

Day three of a three day workshop hosted by the National Institute of Standards and Technology (NIST) and others titled "6th Annual PKI R&D Workshop: Applications-Driven PKI (It's The Apps, Stupid!)". See, notice. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

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