The US Copyright Office and the Patent and Trademark Office today held a roundtable discussion to hear from various industry and public interest organizations before the WIPO meeting in Geneva later this month. Like last September’s roundtable, the discussion was fairly informal, with each speaker given two minutes to speak, and the chance to rebut counter-arguments only after everyone in the room had a chance to talk.
Manon Ress at CPTech has a more detailed blow-by-blow account of the meeting; I’ll try and summarize the main points here.
Ann Chaitovitz of the USPTO opened the discussion by noting that the WIPO General Assembly had called for a narrower signal-based treaty, and that the US delegation was interested in hearing the attendees’ opinions on that, as well as particular concerns about the current draft of the treaty. Basically, a signal theft treaty would require countries to prohibit illicit retransmission of broadcasts, while an exclusive rights-based treaty would grant broadcasters ownership of their signals—in most drafts, even after the broadcast signal had been recorded by a user.
Unlike the last US roundtable, participants weren’t lined up as either proponents or advocates of the treaty, which helped to highlight the fact that this debate wasn’t a case of industry versus public interest, nor even of one industry versus another. Instead, it seemed that the National Association of Broadcasters stood relatively alone in pushing for a treaty that would grant broadcasters an exclusive property-like right in their signals. Arrayed against them were technology and communications companies and industry associations, as well as public interest organizations. The RIAA also supported a signal-theft approach to the treaty, noting that broadcasters shouldn’t have veto power over the rights of copyright holders. The MPAA seemed a bit more on the fence, though Fritz Attaway, the MPAA’s General Counsel, said that they supported a treaty “focused more on signal theft, and less on exclusive rights.” He did, however, seem to indicate that the MPAA would be ok with a treaty either way.
The arguments for a signal theft- versus a broadcast right-based treaty were largely the same as they have been for a while. Broadcasters claimed that a new property right wouldn’t create the problems that the other groups predicted and challenged others to provide evidence that it would. Proponents of a signal theft treaty pointed to a recent report on the health of European broadcasting indicating a number of different problems. They also argued that, since a property-rights treaty would change the landscape of US law, the burden should be on the broadcasters to show that the changes were necessary. They argued that they were not, since the US broadcasting industry was strong, and that existing copyright and communications laws worked to shut down pirate broadcast stations quickly and effectively.
Technology and communications companies also stressed that adding a broadcast right would expose them to greater liability. Currently, the DMCA protects ISPs from being liable for users violating copyright over their pipes—the idea is that ISPs shouldn’t have to police every bit that travels their networks. A broadcast right wouldn’t necessarily contain this same immunity, putting ISPs at risk for suit by broadcasters, even if copyright owners didn’t have the ability to sue.
A couple of arguments raised probably deserve a little more in-depth discussion. First, some broadcasters argued that in many countries, sports and news programs weren’t protected by copyright, and that this was a reason that the treaty was needed. However, parties on both sides of the debate noted that, at least in Europe, though countries that don’t protect sports and news via copyright law protect them through a broadcast right. The US, instead, protects them through copyright. Broadcasters claimed that some countries might not have protections under either regime, but did not offer specific examples.
Another discussion centered on whether a proposed property right was antithetical to existing US law and policy. Gigi Sohn emphasized that the US, unlike the EU, does not recognize an exclusive property right for broadcasters in their broadcasts. She called the efforts to create a broadcast right for the US through WIPO an attempt to “import legislation” and “legislate overseas what couldn’t be done domestically.” Ben Ivins argued that the US has an exclusive right for broadcasters, under 47 U.S.C. § 325. There was some debate as to whether that section of the Communications Act in fact granted an exclusive right in broadcasts in the same way that a broadcast rights treaty would, or whether the prohibition in that section is better characterized as an anti signal theft provision. As for the treaty “importing” laws to the US, Ivins later did note that “if the US had [broadcaster rights] provisions, there would be no need for a treaty.”
Beyond the more basic argument over whether the treaty should be organized around signal theft or property rights, there was a debate on whether the treaty should require countries to build in limitations and exceptions to the law, such as exceptions for fair use, news reporting, or scholarly research. Parties who favored mandatory limits wanted to prevent broadcasters from being able to assert rights that even copyright holders couldn’t, and didn’t want to create new liabilities for users who were currently violating no laws by making fair use of works, using public domain works, and so on. Some opponents of mandatory limitations worried that there would be endless debate over which limitations were necessary, though one solution suggested was simply that each country could determine its own limitations, or could have the limitations mirror their copyright limitations. NPR, (a member of NAB, but represented separately at the meeting by Neil Jackson), pointed out that they viewed such limitations on broadcast rights and copyright as a human rights issue, necessary for free speech and the exchange of news and ideas. Ben Ivins said that requiring such limitations might actually lead to the suppression of speech in countries such as China, but failed to state how limitations laws designed to prevent communication would accomplish this.
Yet another point of conflict was about technological protection measures (TPMs), such as DRM or a broadcast flag. The current version of the treaty requires countries to pass laws that would make circumvention of these measures illegal. This, public interest and technology companies argued, created the risk that legitimate users could be liable for uses that would be legal under copyright law, like moving media from one device to another within a home network. When Ben Ivins of the NAB said that such worries were the result of “imaginations run wild,” Sarah Deutsch of Verizon noted that Cablevision had already been sued for providing a TiVo-like service remotely, and that similar suits over broadcast rights wouldn’t be hard to imagine.
Ann Chaitovitz brought the meeting to a close, stating that the US hadn’t seen the latest version of the treaty as a viable basis for a diplomatic conference, and that they would work to narrow the differences in the text. Although Jamie Love of CPTech had earlier suggested that the US delegation introduce a new, signal-based draft treaty to WIPO, Chaitovitz noted that the US “doesn’t always propose new drafts.” She then said that the delegation would take the various opinions into account, and introduced Mike Keplinger, who recently had moved from the PTO to work at WIPO. Keplinger again repeated that without consensus, there could not be a Diplomatic Conference to finalize the treaty. While recognizing that instruments like the Rome Convention (which grants broadcasters more rights than US law) would have to be considered, he noted that the broadcast treaty need not expand it, so long as it didn’t come into conflict with it. He concluded by stressing that a narrower treaty, with a signal theft approach, was the goal for now.
All in all, the meeting seemed to go rather well, showing that, while not all of the groups present were convinced of the need for a treaty in the first place, only a few players would object to a narrower signal theft treaty. It only remains to be seen whether a suitable signal theft treaty can be put on the table in a couple of weeks in Geneva.
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