Confessions of a Mad Librarian

Regular readers (if there's any left, and it's my fault if there isn't) know that one of my a/vocational loves is film archiving and preservation. So, the following intrigues me.

Last month, The Smithsonian Institute and the cable network Showtime announced a development deal that will launch a new programming service with Smithsonian content [PDF].

Public-private partnership. That's nothing new. No big deal.

But some filmmakers are making a big deal of it. According to the New York Times, the SHO-Smithsonian deal includes a right of first refusal for works "that rely heavily on Smithsonian collections or staff."

On March 9, Showtime and the Smithsonian announced the creation of Smithsonian Networks, a joint venture to develop television programming. Under the agreement, the joint venture has the right of first refusal to commercial documentaries that rely heavily on Smithsonian collections or staff. Those works would first have to be offered to Smithsonian on Demand, the cable channel that is expected to be the venture's first programming service.

...

The Showtime venture, under which the Smithsonian would earn payments from cable operators that offered the on-demand service to subscribers, comes as the Smithsonian has suffered financial problems. At a Congressional hearing on Wednesday, a Smithsonian official said some necessary repairs to Smithsonian buildings could not be made because of lack of financing. That led to a suggestion by Representative James P. Moran, Democrat of Virginia, to suggest that the institution should charge admission, a proposal that its board of regents has rejected repeatedly.

The Showtime agreement began attracting widespread attention this week as filmmakers said they had been told that some of their projects might fall under the agreement. Two Smithsonian curators, who were granted anonymity because they feared for their jobs if they spoke publicly about the Showtime venture, said in interviews yesterday that they could not be certain what kind of projects would be subject to the restrictions because details of the contract with Showtime had been shared with few employees below the executive level.

Edit: Boing Boing notes the potential for more controversy: the broadcast treaty currently proposed by the World Intellectual Property Organization has provisions that would give exclusive rights of transmission for all broadcast material to the broadcaster for 50 years, with no express exception for material already in the public domain.

EFF has an entire page about the broadcasting treaty. And the actual draft [HTML] can be found here. My mad law-readin' skillz do not yet extend to international treaty language, but the relevant articles appear to be Articles 6-12 (EFF has highlighted Art. 6 for criticism), with a provision for exceptions in Article 14.

Not being well-versed in the law, it seems that if the language is meant to protect transmissions, but not the original content that goes into transmission, then no worries. However, if the exclusivity passes from the transmission into the content (except for that which has been licensed for transmission by a rights-holder), then yes ... there seems to be reason for concern. Any Berne, TRIPS, WIPO, etc. specialists out there to clue me in?