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WIPO Broadcasters Treaty

WIPO Broadcasters Treaty

The WIPO Broadcasting Treaty (officially, the WIPO Treaty on the Protection of Broadcasting Organizations) is a proposal within the World Intellectual Property Organization to give broadcasters intellectual property rights in their signals, in addition to the copyrights held by the creators of the works. Public Knowledge opposes the treaty, as it would create numerous conflicts with existing copyright law and policy in the US, as well as creating an additional hurdle for any users of broadcast content.

Background

The World Intellectual Property Organization is a UN agency that creates international treaties governing intellectual property. Existing WIPO treaties cover patents, copyrights, and particular rights for performers and recorded music.

Over the years, the Broadcasting Treaty has gone through several iterations, but it was originally created with an aim to granting broadcasters a property right in signals. It’s been called an update to the Rome Convention, a 1961 treaty between various countries (though, interestingly, not the United States) that was designed to protect broadcasters from piracy. The WIPO treaty being discussed now has been framed as an “update” to the Rome Convention, so it applies to technologies that weren’t included in 1961, like cable rebroadcasting, satellite rebroadcasting, and Internet rebroadcasting.

The focus on updating the treaty to consider new technology means that drafts of the treaty also contain requirements for protecting “technological protection measures” (TPMs). This would create laws like the DMCA, which would make circumventing DRM on broadcasts illegal. The treaty would also require protections for “rights management information.” One example of this would be the broadcast flag, where the flag itself isn’t DRM, but is a tag on the content that makes it easier to apply DRM to it. The treaty would make stripping this flag off of signal illegal.

Public Knowledge’s Position on the Broadcast Treaty

For most of its existence, the Broadcast treaty was framed as a “rights-based” treaty, which would require governments to give broadcasters property rights in their transmissions. Public Knowledge opposes such a treaty for a number of different reasons. Not only does the treaty grant a property right to broadcasters never before recognized by US law, it also threatens the rights that both creators and consumers have had in their uses of copyrighted works. The treaty would give broadcasters the ability to prevent even copyright holders from accessing and using broadcasts made of their own works. The treaty also does not require countries to balance the rights of broadcasters with the rights of users in the same way that copyright laws do (through doctrines like fair use).

As such, the treaty will have a number of negative consequences for copyright holders, Internet service providers, technology companies and consumers. These effects could be mitigated if the treaty is changed to address signal theft, which is purportedly the main reason broadcasters have pushed for the treaty. A number of organizations have presented WIPO with an alternative treaty that would narrowly focus on signal theft and avoid the unintended consequences of the current draft.

Here are some of the major problems with the rights-based treaty:

  • No Demonstrated Need for the Treaty
    Despite all of the problems the treaty creates, treaty proponents have been unable to demonstrate the need for a new property right for broadcasters. Signal theft, the supposed reason for the treaty, can be addressed by signing a treaty that simply prohibits intentional misappropriation and theft of broadcasters’ signals. Such a treaty would be consistent with US law, unlike the treaty’s current creation of a property right never before recognized within domestic copyright law. Nor are additional property rights necessary in order to spur development of the broadcast industry. The US broadcast industry is one of the most robust in the world, belying the claim that broadcasters need more exclusive rights.

  • The Treaty is Inconsistent with US Law
    US law already protects broadcasters by prohibiting signal theft. Furthermore, existing copyright laws can and have been used to prevent signal theft, while allowing for fair uses of the works. The treaty would upset the balance struck by these existing US laws by imposing upon the US a property rights regime that was developed for a different copyright system. Although treaty proponents point to the 1961 Rome Convention as precedent for granting broadcasters property rights, the US and 99 other countries have never signed the Rome Convention. If the US delegation signs the broadcast treaty, they will have bound the US to laws that elected lawmakers have rejected in the past.

  • Rights of Copyright Owners will be Harmed
    Broadcasters often do not own the content they distribute. The television shows and movies that are broadcast are owned by those who produce them - copyright owners. Today, in order to use a copyrighted work, users only need permission from the copyright owner. Giving broadcasters a 50-year exclusive right in the content they broadcast would force users to acquire permission and/or licenses from broadcasters in addition to copyright owners. Broadcasters will not only be able to claim a share of the limited pool of licensing funds reserved for copyright owners, but will also have the power to determine the conditions under which a work can be used. This would seriously diminish the rights of copyright owners.

  • Consumers will Face New Liability for Legal Uses
    In contrast to existing copyright law, the treaty does not provide for consumers’ fair use of broadcasts. While the treaty allows countries to grant fair use rights to consumers, the default language of the treaty would let broadcasters prohibit consumers from using broadcast content, even if the uses were perfectly legal under copyright law. Broadcasters could even claim a right in their broadcasts of works that have already entered the public domain. Without major changes, the treaty will upset the balance that copyright law strikes between rights-holders and the public good.

  • Broadcasters Could Gain a Perpetual Right in Broadcasts
    The treaty states that broadcasters would have a property right in a broadcast for 50 years. However, the treaty does not specify whether that 50-year term runs only from the first time a program is broadcast, or any time the program is broadcast. Without a firm deadline for the end of the broadcast protection, a broadcaster could automatically renew its property right in a program simply by rebroadcasting it. This would lead to the property right lasting indefinitely.

  • Inclusion of Webcasting will Stifle the Flow of Information on the Internet
    Some have proposed extending the 50-year exclusive right to webcasting. Under the proposed definition of webcasting, just about anyone who streams video and audio over the Internet could be considered a webcaster. Thus, this provision would be a recipe for litigation and chaos, and would ultimately stifle the free flow of information on the Internet. Moreover, one of the reasons broadcasters claim they need a right in broadcasts is that they invest a lot of money in facilities and equipment. Webcasters don’t face anything even approaching these same costs, and therefore don’t need the same protection.

  • ISP Liability Will be Greatly Increased
    The draft treaty provisions raise the possibility that intermediaries such as Internet Service Providers (ISPs) and search engines will be held liable for their customers’ infringing acts. Under current copyright law, ISPs are exempted from such liability under certain conditions. However, the treaty contains no such exemptions. Therefore, even if an ISP were exempt from copyright liability because of its user’s actions, it would still face liability under the treaty.

  • Mandatory Technological Protection Measures Will Erode Consumer Rights
    The draft treaty also contains a provision that requires governments to protect technological protection measures (TPMs) incorporated into broadcast signals. This will open the door to regulations like the broadcast flag, in which government requires all consumer electronics and computer devices to be compatible with the TPM. Not only does it allow broadcasters to decide what devices the viewer has to use to receive the broadcast, it also gives them power to prefer certain device manufacturers over others.

  • Proposals to Fix Orphan Works Problem Will Be Diluted
    In January 2006, the Copyright Office issued recommendations to fix the problem of “orphan works” — copyrighted works whose rights holder cannot be found. Congress is currently considering codifying the recommendations, which seek to encourage educators, artists, writers and others to use orphan works by limiting their liability if they engage in a diligent search for the copyright holder. If new, IP-like rights are layered on top of orphan works, artists will have to go through yet another clearance process, and the benefits of an orphan works solution will be diluted. Also, creating a new right will inevitably create new orphan works. The problem is exacerbated because video and filmmakers who use broadcast content are perhaps the biggest users of orphan works.

Timeline

Additional Resources