The Broadcast Treaty vs. Broadcast Law


The Broadcast Treaty has been on the agenda at WIPO for a long time. In the past few weeks it has become more of a live issue, with new proposals for language and new efforts to move it forward.

It remains a troubling idea for many of the reasons PK and others have identified over the years. Fundamentally, giving broadcasters rights to content just because they’ve broadcast it is a bad idea. Intellectual property rights should go to authors or inventors, not middlemen. Creating new kinds of “middleman rights” could increase the complexity of dealing with content exponentially. It could give broadcasters the right to prevent recording shows for later viewing, or even effectively remove works from the public domain. This is not to say that there are not real problems affecting broadcasters. But all of them the treaty proponents point to can be addressed under the law as it stands today. You don’t need a new treaty to go after people who are already breaking the law.

It’s true that there is a concept called “related rights.” With related rights, non-authors that are somehow involved with content might get certain legal protections. In the US these are used very sparingly. For instance, in the US broadcasters already have certain “retransmission” rights—cable systems cannot just carry broadcast stations willy nilly. This is a complex, highly regulated area of the law that tries to balance the interests of viewers, cable systems, broadcasters, and content creators.

The important thing about quasi-IP related rights in the US is that they are very targeted, and often subject to complex compromises between different industries. But most treaty proposals create very broad new rights, and these can be incompatible with US law. They could also make it difficult to reform US law in the future.

For example, look at 47 USC § 325(b)—too long to quote here—which covers the retransmission of broadcast signals by cable and satellite systems. It gives broadcasters rights while also creating exceptions to those rights. But if you thought that the statute is complex, see how the FCC actually implements it in its regulations. Browse through 47 CFR §§ 76.55 through 76.66 for an example of how complex an area of law this is. There’s an entire copyright component to this, too: 17 U.S.C. § 111, which is another area of the law that is a delicate compromise between competing interests.

The broadcast treaty could streamroll all of this. For example, the recent South African proposal would give broadcasters “the right to authorize … [t]he communication of their programs and/or the program signals to the public, by any means, including the making available to the public of their programs in such a way that members of the public may access them from a place and at a time individually chosen by them….” Such broad language is inconsistent with US law as it stands and would interfere with ongoing attempts to reform the retransmission consent system. For example, PK and others want the FCC to add provisions for “interim carriage” to keep viewers from being blacked out during commercial disputes, and to prevent broadcasters from threatening to yank their stations right before high-profile programs like the World Series or the Oscars.

The US delegation to WIPO has a lot of copyright experts but not a lot of media law experts. And WIPO itself is heavily lobbied by broadcasters who would benefit from the treaty but not as much from the companies who might be directly harmed or from consumer groups. As a result, the negative copyright consequences of the treaty have gotten much more attention than the incompatibility with US broadcast law. Nevertheless the potential for a treaty to derail retransmission consent reform in the US has woken up a lot of players. Consequently, some familiar names like the American Cable Association, Time Warner Cable, USTelecom, and the Consumer Electronics Association have joined Public Knowledge as well as domestic and international consumer groups and NGOs, companies, and trade associations in dissenting from the alleged “consensus” that the world needs a new treaty for middlemen rights. Here’s a link to the statement. While it’s understandable that WIPO wants to stay relevant in a world where rich countries simply bypass it with instruments like ACTA, it should not do so by encouraging the push for an unnecessary and potentially damaging treaty.

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