Worse news - WIPO

If the news about the Smithsonian deal wasn't bad enough, the Electronic Frontier Foundation (and others) have pointed out that under the WIPO Broadcasting Treaty being considered now, any public domain work used in this agreement could become copyrighted - and controlled - by Showtime for 50 years.

From EFF:

"If adopted, the WIPO treaty will give broadcasters 50 years of copyright-like control over the content of their broadcasts, even when they have no copyright in what they show. A TV channel broadcasting your Creative Commons-licensed movie could legally demand that no one record or redistribute it -- and sue anyone who does. And TV companies could use their new rights to go after TiVo or MythTV for daring to let you skip advertisements or record programs in DRM-free formats.

If that wasn't bad enough, the US contingent at WIPO is pushing to have the treaty expanded to cover the Net. That means that anyone who feeds any combination of "sound and images" through a web server would have a right to meddle with what you do with the webcast simply because they serve as the middleman between you and the creator. If the material is already under copyright, you would be forced to clear rights with multiple sets of rightsholders. Not only would this hurt innovation and threaten citizens' access to information, it would change the nature of the Internet as a communication medium."

It looks like the Smithsonian has (probably accidentally) just sold their public domain holdings to Showtime in addition to their other works. Now, in addition to a bum deal for indies who want to make a film using Smithsonian work, tons of public domain work would become the property of Showtime screwing the rest of us as well.

Smithsonian and Indies

The NYTimes had a great article this weekend on the potential problems arising from the Smithsonian’s recent decision to pact with Showtime to create Smithsonian Networks. Smithsonian Networks will develop television programming using Smithsonian Collections and staff, and appears to be part of a VOD package from which both Showtime and the Smithsonian will profit. The deal also creates a new “right of first refusal” over producers hoping to use the same resources. In other words, if you want to make a film using Smithsonian archival items or quotes from their staff, they could stop you by saying they may want to produce the same type of film.

This is a horrible threat to independent filmmakers. The article had quotes from famous filmmakers, such as Ken Burns, about how disastrous this could be for their filmmaking. But it’s not just heavyweights like Burns who are affected. Laurie Kahn-Leavitt, director of the film “Tupperware,” was told her film would have been denied under this pact. This deal let’s the Smithsonian decide on a “case by case basis” what films they will allow. What will be allowed? A spokesperson said that films with incidental and brief uses might be allowed, but the terms of the contract are confidential. In reality this means that if they think a film will be profitable, they won’t allow you to make it unless you work with them.

While I am usually all for collaborations between for-profit and non-profit organizations, such deals are risky when they work to the exclusivity of others. The Smithsonian is a public archive, it was established specifically to spread knowledge throughout the world. It’s archives are a public trust, and they are funded as such – 60% of their budget comes directly from the Government as Federal Appropriations and another 15% comes from Government grants. That means from you and your tax dollars. So, the Smithsonian is using our tax dollars to create a public archive and is now turning around and selling it under confidential terms that limit the rights of anyone else to use it for the public good.

This is absurd. It’s also something that groups like AIVF, IDA and IFP should be fighting as part of their mandate to help their filmmaker members. I haven’t spoken with any of them, and they may be planning to protest this action, but as I mentioned earlier, many of them are too cash-strapped to take on political action. Nevertheless, this is another example of an area where a strong support group for filmmakers could be of help –lobbying Congress, Showtime and the Smithsonian against this action. I haven’t see much press about this outside of Anthony Kaufman’s blog – so start telling your friends.

In the meantime, the political blog The Daily Kos has taken up the story and they have a great post which breaks down the entire situation, including a break-down of funding for the Smithsonian and links for Congress members and the Smithsonian’s Board. Here’s one place you can send complaints to:

Secretary Lawrence M. Small
Smithsonian Information
PO Box 37012
SI Building, Room 153, MRC 010
Washington, DC 20013-7012

Office of Public Affairs: (202) 633-2400