US Government Roundtable on the WIPO Broadcast Treaty - May 9

The US delegation is holding another roundtable on the WIPO Broadcast Treaty next month to discuss the latest draft of the treaty and the next round of negotiations. As others have noted, it's open to the public, so long as you RSVP to the Copyright office by May 5th. The official announcement of the roundtable is here.

For those who are interested in attending, and even for those following along at home, here is the latest, unofficial draft of the treaty (it's called a "non-paper" due to its lack of official status). And you can find the US government's response to that draft here. These documents are likely to be the particular focus of the meeting, so here's my take on them.

This latest draft of the treaty looks a little nicer than earlier versions, since it tries to accommodate countries (like the US) that don't have Rome Convention-style property rights in broadcasts. But it's very, very far from ideal. It's clear that it was still drafted as a property rights treaty (with some exceptions thrown in). That means that it doesn't fit with US law, or even with the requirement handed down by the WIPO General Assembly that the treaty be "signal-based."

The US government's response points out some of these problems, but there's still a host of other issues that aren't resolved by its suggestions.

Issue 1: Scope of the Treaty: Property Right, or Signal-Based?

The fundamental question--whether broadcasters will get a new property-like right in broadcasts, or whether they will have protection against signal theft--still isn't answered clearly in the US government's suggested changes. For example, the draft treaty says the following for Article 8, "Protection of Broadcasts:"

(1) Broadcasting organizations shall enjoy the exclusive right of authorizing:
(i) the simultaneous or deferred retransmission of their broadcasts by any means;

(ii) the fixation of their broadcasts; and

(iii) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts.

(2) Contracting Parties may, instead of the exclusive rights of authorizing provided for in paragraph (1), establish adequate and effective legal protection for the broadcasting organizations against unauthorized retransmission by any means, against unauthorized fixation, and against unauthorized reproduction of their broadcasts.

The US suggests the following language:

(1) Broadcasting organizations shall enjoy the exclusive right of authorizing the simultaneous or deferred retransmission of their broadcasts by any means.

(2) Contracting Parties may, instead of the exclusive rights of authorizing provided for in paragraph (1), establish adequate and effective legal protection for the broadcasting organizations against unauthorized retransmission by any means.

As you can see, the US suggestion leaves in the general rule that broadcasters get a property right in their transmissions, although paragraph 2 says that some countries (presumably, with the US among them) can establish some other means of protecting broadcasts.

But even this potential alternative creates several problems. First of all, the default "protection" still is a property right, and the way it's phrased here, it looks like that could be the standard by which "adequate and effective" protections are measured.

Issue 2: Exceptions and Limitations: Fair Use, First Sale, and Other Key Protections

Paragraph 2 also says that countries have to prevent "unauthorized retransmissions." This goes beyond protecting broadcasters against signal theft. After all (to make a comparison to copyright for a second), when I quote a paragraph from an article, I'm making an unauthorized copy. It's perfectly legal, and morally and economically unobjectionable, but the copyright owner hasn't authorized me to make that copy. By the same token, if I were to "rebroadcast" a signal from my living room TV to a laptop in my bedroom (say, through a Slingbox), I also wouldn't have authorization. By the current language of the treaty, I'd be in violation, even though this really isn't the sort of behavior that WIPO should be trying to ban.

Even worse, the latest draft of the treaty could ban "unauthorized transmissions" that copyright law would call fair use. This is because the treaty is requiring a separate legal framework for broadcasts beyond copyright law. Copyright law has exiting "exceptions and limitations" built in to it, such as the doctrines of fair use and first sale, that balance the IP rights of creators with the need to keep information flowing freely. Article 12 of the treaty draft, as suggested by the Chair, doesn't require such exceptions and limitations--it merely permits them, if individual countries implement them into law. The US government leaves largely untouched the recommendations by the Chair, only removing a paragraph that listed potential examples of limitations and exceptions.

Issue 3: Technological Protection Measures: DRM and Broadcast Flags

Another major problem for public interest tech advocates is the fact that the treaty requires legal protections for "technological protection measures" (TPMs for short) like DRM or a broadcast flag. This leads us down the same troublesome path as the anticircumvention provisions of the DMCA. The draft treaty uses the following language in Article 10, "Protection of Encryption and Information Relevant for Protection":

Contracting Parties shall provide adequate and effective legal protection against unauthorized
(i) decryption of an encrypted broadcast;

(ii) manufacture, importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast; and

(iii) removal or alteration of any electronic information relevant for the application of the protection of the broadcasting organizations.

The US, however, suggests using the language from the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Those treaties used the following language:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by [rightsholders] in connection with the exercise of their rights under this Treaty [] and that restrict acts, in respect of their works, which are not authorized by the [rightsholders] concerned or permitted by law.

This language is probably a bit better than the language proposed, but it's the same language that got us the DMCA, which goes beyond the WIPO Copyright treaty's requirements by banning circumvention, even when it leads to acts that are permitted by law.

Issue 4: Enforcement: Backdoor to Property Rights?

In some areas, the US goes beyond what the Chair suggested. For instance, in Article 11, the US government suggests that countries that sign the treaty need more than one of the suggested enforcement mechanisms recommended by the Chair. Here's the draft treaty's Article 11:

The means by which Contracting Parties shall provide adequate and effective protection under the provisions of Article 8(2), 9 and 10 shall be a matter of the legislation of each Contracting Party, and shall include one or more of the following:
(i) protection by means of the grant of a copyright or other specific right, such as a right related to copyright;

(ii) protection by means of the law relating to unfair competition, or misappropriation;

(iii) protection by means of a right of prohibition, or of providing for a prohibition, or of adequate measures to prevent unauthorized acts;

(iv) protection by means of penal sanctions.

The US recommends changing this by requiring that countries use at least two of the listed enforcement actions. The US also recommends that the treaty require countries to give broadcasters a private right of action--the right to sue rebroadcasters directly. The trouble with this is that once you start to give people the right to sue others, it starts to look a lot like a property right. A simple ban on retransmission could be enforced (as it is in the US today) through administrative action, or through prosecution by the authorities. Providing for a private right of action seems contrary to the idea of a signal-based treaty that both the US and the WIPO General Assembly have supported. It creates the same problems for end-users of content that a property right would, placing another layer of legal restrictions on a work that would have to be cleared.