July 6th, 2011
It's Back: WIPO Broadcasting Treaty Returns From The Grave
News Update by Gwen Hinze
Co-authored by Richard Esguerra
https://www.eff.org/deeplinks/2011/07/its-back-wipo-broadcasting-treaty-returns-grave
Longtime readers will remember the WIPO Broadcasting Treaty, which EFF has
opposed since 2004 because it would harm consumers, citizen journalists, the
free flow of information on the Internet, and innovation. Since 2006, EFF and a
broad coalition [PDF] of public interest groups, libraries, creative industry
members, telecommunications and technology companies have been explaining how
granting broadcasters and cablecasters the intellectual property rights
envisaged by the draft Treaty would wreak havoc on the Internet community.
After much debate and little agreement about key aspects of the Treaty, such as
its objectives, specific scope, and object of protection, negotiations stalled
in 2007. But it now seems to have come back from the dead in a little-noticed
but highly-coordinated effort to grant broadcasters exclusive, 50-year
intellectual property rights over Internet transmissions. WIPO member states
agreed on June 24 [PDF] to meet for two days before the next Copyright
committee meeting in November specifically to try to reach agreement on a new
treaty proposal, with the goal of asking WIPO member states in 2012 to schedule
an intergovernmental Diplomatic Conference at which the revised Treaty could be
adopted.
The renewed interest in the Broadcasting Treaty has been spurred both by
complaints from incumbent broadcasting organizations, and a campaign from the
WIPO Secretariat to conclude the Treaty after more than 12 years of
negotiations with no consensus. The Secretariat commissioned three studies,
organized several regional seminars, and in April held an informal consultation
which led to the creation of a new document with "elements" for a treaty.
Meanwhile South Africa submitted a new treaty proposal of its own, and sports
broadcasters have been lobbying hard for a treaty at both the April and June
meetings in Geneva. All of this was aimed at kick-starting the stalled
negotiations and finalizing a Broadcasting Treaty. For now, it appears to have
worked.
Why should we be worried about this? Broadcasters claim that a treaty is needed
to protect against signal piracy, and that the Broadcasting Treaty is simply
"updating" their rights for the digital age. But what's really at stake here is
something more far-reaching. This Treaty will set the legal rules that will
govern the distribution of information on the Internet. The current draft
Treaty would grant exclusive, 50-year intellectual property rights to
distributors of information that apply in parallel with copyright protections,
even when transmitters have had no role in creating the content being
transmitted. Although it's not entirely clear, the new South African proposal
[PDF] and the "Non-Paper" [PDF] on elements for a new treaty also seem to
contemplate intellectual property rights for broadcasters and cablecasters.
This move raises the same set of public policy concerns brought up by the
existing draft Treaty, which threatens to stifle innovation and the creative
freedom of anyone working with audio or visual content in the Internet
environment.
Granting broadcasters and cablecasters intellectual property rights that apply
independently of copyright in the programs being broadcast, together with
legally enforceable technological protection measures, raises concerns for
access to public domain works. These measures would add complexity to copyright
clearance regimes for creators of podcasts and documentary films, and interfere
with consumers’ ability to make home recordings permitted under national
copyright laws. Granting broadcasters and cablecasters exclusive rights to
authorize retransmissions of broadcasts over the Internet will harm competition
and innovation by allowing broadcasters and cablecasters to control the types
of devices that can receive transmissions. It will also create new liability
risks for Internet intermediaries that retransmit information on the Internet.
On top of the problems posed by the current draft Treaty, there’s now a move to
expand the scope of the Treaty to webcasting. The recent South African proposal
[PDF] and the new Non-Paper [PDF] both advocate the need to account for
"technological developments" and propose a "technology-neutral" approach. This
sounds innocuous, but should be understood in the context of the history of the
WIPO negotiations. "Technology-neutral" is code for extending new rights to
transmissions via the Internet. This is a brazen effort to re-open a
long-standing agreement that the Treaty would only give rights to "traditional"
broadcasters and cablecasters. Many countries objected to expanding the Treaty
to Internet broadcasters because of the harm it could cause to other Internet
communications. This move is also inconsistent with the 2007 mandate given by
the WIPO General Assembly—to finalize a treaty for broadcasting "in the
traditional sense."
The key issue here is the scope of the treaty. Broadcasters claim that they
need a new treaty to deal with "signal piracy." No one disputes that signal
piracy is a serious issue that needs to be addressed. The disagreement is how
to address this problem in a way that does not cause significant harm to
citizens’ freedom of expression, and all the other stakeholders in the Internet
economy. No empirical evidence has been presented that demonstrates what exact
harm is not already being addressed by the existing copyright regime and
remedies in national laws, and why broadcasters need intellectual property
rights to deal with signal theft.
We continue to believe the preferable model for addressing these issues is the
narrower signal-based approach in the Brussels Satellite Convention. But
broadcasters continue to push for intellectual property rights that would
overlap with copyright. This would trigger unintended consequences for freedom
of expression and stakeholders in the Internet economy at a time when the
future of broadcasting is already unclear.
Giving broadcasters an unprecedented set of legal privileges is a sure-fire way
to damage speech and innovation on the global Internet. If "signal piracy" is
the concern, then a narrow, signal-focused approach is what is called for, not
a global replication of the existing copyright regime.
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