WIPO Moves Fast on Broadcast Treaty. Webcasters Tremble !

Michael Hedges - September 18, 2006

Time being relative, the United Nations organization watching intellectual property law is moving at blinding speed. In the blink of the galactic eye broadcasters will likely have a new set of worldwide rights…and governments will have new controls on the internet.
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The World Intellectual Property Organization (WIPO) delegates met last week (September 11-13) in Geneva to set in stone a broadcast treaty forever preventing “thieves” from scooping up content and, well, using it for free. The new WIPO broadcast treaty enshrines a broadcast right, different from a copyright. Next summer when the requisite diplomatic conference will convene and vote, a legality, the functioning concepts of fair use and public domain could cease to exist.

European and other broadcasters have had the legal right, like authors and musicians, to control the broadcasting or re-broadcasting of their property. A broadcast signal has been considered “property,” except in the United States, which never signed the 1961 Rome Convention on copyrights.

The WIPO Treaty on Protection of Broadcasting Organizations began its life in 1998 in the worthy cause of protecting broadcasters from signal piracy. In many countries, once a broadcast – program or any other element - has been broadcast – sent through the airwaves – it – the broadcast broadcast – enters the public domain where broadcasters rights are lost in the ether. This principle allowed the earliest of early cable operators to “capture” a broadcast signal, send it by wire to subscribers and be responsible for, inter alia, copyrights, authors rights, music rights. This was seen as good, as it allowed wider distribution where over-the-air distribution was limited.

As cable replaced terrestrial analogue broadcast as the dominant distribution of choice, broadcasters – paying a wide variety of rights fees, often with limited access to negotiation – struck back, looking for a piece of that subscription money. The WIPO broadcast treaty goes well beyond re-broadcasting.

American and European broadcasters are looking to strengthen their rights claim on broadcast signals to, obviously, the internet. Governments, too, are anxious to place new and vigorous controls on the internet, though for other less economic reasons. And a WIPO treaty seems to be the perfect place to get the job done.

The most egregious of the WIPO broadcast treaty’s provisions is terminating any notion of fair use. Without obtaining rights from the broadcaster of origin, nobody (you, me, YouTube or the Committee to Protect Journalists) will be able to distribute by any means, through any medium a previously broadcast signal.  To the delight of broadcasters and advertisers the world over a “solution” might be found to the TiVO problem: folks recording a program then fast-forwarding through the commercial announcements. Broadcasters will have the right to control access to their signals through any means.

Supporters of open digital rights are aghast, though it must be said they came late to the discussions. And so it is with many international treaties affecting the media. Broadcasters themselves, except Europe’s public broadcasting institutions, largely ignored the latest International Telecommunications Union (ITU) international negotiations on frequency allocations only to later to discover that once the digital switch is pulled – and it’s the ITU doing the pulling – those analogue broadcast frequencies can still operate but without the protection of an international treaty. Tant pis, as we say in French.

“When I look at the language of the treaty, I begin to get frightened," said intellectual property lawyer Jim Burger to the LA Times’ Jim Puzzanghera, one of the very few journalists to report on the WIPO broadcast treaty.

“It is one of the worst pieces of IP legislation I’ve ever seen,” said Duke University law professor James Boyle.  “It just takes the biscuit.”

At the top level, critics fear this stretch of broadcast rights to the internet will add a painful layer of international regulation to new media, choking it now when nurturing is more important. Underneath that, the specifics are worse. Broadcast rights could be extended after copyrights have expired.  Transferring previously broadcast signal content from one device to another, even within a home, would require permission from broadcast rights holders. 

Even within the United Nations family, there’s concern about the WIPO treaty. The United Nations Educational, Scientific and Cultural Organization (UNESCO) reported earlier this year that the proposal “could prevent or restrict” news and information vital in democratic societies.

The sharpest and most salient criticism centers on failing business models as new media emerges. Like the music industry and film producers, broadcasters are united with governments in protecting their interests without regard to consumers and reality-based economics. One WIPO attorney, discussing the treaty with ftm, said that installing digital rights management (DRM) software in all electronic equipment will “solve” the “problem.”

After telling the story about 12 Ukrainian hackers “fixing” the latest DRM software in two hours, the attorney simply frowned.

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WIPO Broadcasting Rights Treaty Skids to a Halt - October 5, 2006

The diplomatic language was typically vague but the World Intellectual Property Organization (WIPO) General Assembly overruled a committee decision to fast-track a Broadcasting Rights Treaty.

The proposed treaty would create a new set of rights law, itself a set beyond conventional wisdom, protecting the transmission source above other copyright holders. Originally proposed as an anti-piracy agreement protecting against international signal theft the treaty would establish rights fees for re-transmission via the internet. The measure is necessary, according to WIPO, to update the 1961 Rome Convention on Copyrights.

The Standing Committee on Copyrights and Related Rights (SCCR) planned to fast-track the treaty with one technical meeting in December to polish the details then a diplomatic conference in mid-2007. WIPOs General Assembly, convened in Geneva October 3, decided otherwise as consensus is required for all WIPO treaties and India, the United States and Brazil posted objections to the treaty being moved so quickly through the treaty process. Instead, two technical conferences will be held in January and June next year. The possibility for a diplomatic conference was pushed back six months, until the end of 2007.