Ken Freed /
WIPO Treaty Has Cloudy Future
A decision on an international treaty that awards broadcasters copyright control over their signals has been deferred until 2007, and even then the treaty may never happen.
The 183 member nations of the World Intellectual Property Organization, the United Nations special agency responsible for intellectual property treaties, voted Oct. 2 at the 42nd WIPO General Assembly in Geneva for the Standing Committee on Copyrights and Related Rights to hold two additional negotiation sessions in 2007 to iron out disputes over the proposed WIPO Broadcast Treaty.
If the SCCR sessions in January and June 2007 produce general agreement on the treaty terms among the member nations, a formal WIPO Diplomatic Conference will convene next November in Geneva to finalize the draft treaty. If no clear agreement emerges from the two SCCR negotiating sessions, there may not be a Diplomatic Conference, at least not in 2007.
NEW LAYER OF PROTECTION
Proponents of the WIPO Broadcast Treaty contend international action is needed to protect broadcasters from cross-border signal theft, asserting that broadcasters deserve copyright protection on the signals they transmit. They say the proposed treaty would update the 1961 Rome Convention on signal protection to address changes in broadcast technology that make piracy a greater problem then ever before.
Treaty opponents point out that the U.S. is not a signatory to the Rome Convention, so its terms should not apply to U.S. broadcasters. Further, opponents claim, the proposed rules would unfairly override the rights of TV content creators without actually stopping signal theft. They charge that the treaty artificially creates a new layer of copyright protection to justify creating a new source of revenue for broadcasters.
The Oct. 2 decision was a setback for treaty backers because the WIPO General Assembly rejected a proposal by the SCCR chairman for "silent approval" of a plan to convene a 2007 Diplomatic Conference, despite stiff opposition to the treaty, including demands by the heavily lobbied U.S. delegation for an easy escape clause.
Without a formal Diplomatic Conference to finalize the treaty, it cannot be offered for ratification by WIPO member nations, which means it would not be enacted.
An additional setback for proponents was that Webcasting and simulcasting were dropped from the treaty, which would have placed Internet transmission under the same rules as over-the-air transmission. Cablecasters are still included in the proposed treaty, however.
The six-point plan approved by the WIPO General Assembly declares, "The scope of the treaty will be confined to the protection of broadcasting and cablecasting organizations in the traditional sense."
At the root of the debate is the Revised Draft Basic Proposal, called "Document SCCR/15/2," submitted to the WIPO General Assembly by the standing copyright committee. The January and June 2007 meeting of the SCCR are tasked in the Oct. 2 agreement to base all discussions on this existing document.
"It is understood that the sessions of the SCCR should aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal," reads point 4, adding, "The Diplomatic Conference will be convened if such agreement is achieved. If no such agreement is achieved, all further discussions will be based on Document SCCR/15/2."
"While proponents of the Broadcast Treaty hail this as a victory," said Robin Gross, executive director of IP Justice, "the General Assembly's refusal to rubber-stamp the decision of the SCCR Chairman is the real victory at WIPO. The two-letter word 'if' in the decision to convene a Diplomatic Conference makes an enormous difference in the outcome. A Diplomatic Conference is now contingent upon member States reaching consensus where there are currently great differences, such as the inclusion of anti-circumvention measures in the treaty and outlawing Internet retransmissions of programs."
Gross continued, "Another important achievement is the General Assembly's decision to narrow the scope of the treaty to a 'signal' based approach, something that a majority of member states and NGOs had called for in the SCCR meetings. The SCCR Chair's draft proposal instead would create eight brand new intellectual property rights for broadcast companies. Member States will now have to define key terms, including the term 'signal' in the next draft."
Broadcasters have an urgent stake in seeing the draft proposal approved next year, said Jane Mago, senior vice president and general counsel for the National Association of Broadcasters (NAB). "Broadcast signals are being used in an unauthorized way, such as retransmitting a sports signal from Florida across the Caribbean," she said.
Such unauthorized retransmissions violate the copyright of the programmer, so why not leave enforcement to the content copyright holder? Mago replies that programmers can take action against violators, "but that does not provide any protection for the broadcaster who loses advertising revenues" that should have been paid if the total audience is larger. "Advertising is how we make our money," she said. "This is how we conduct our business."
Mago stressed that the treaty would not cover recorded broadcasts shared among friends, as some critics have claimed.
"Our concern is unauthorized use. If USA Today provides newspapers to a hotel for free distribution to hotel guests, but the hotel sets up a stand in the lobby to sell those same papers for 25 cents, when the papers are sold on the street for 50 cents, that's obviously an unauthorized use."
Asked for an example of such unauthorized use in the broadcast space, Mago cited the case iCraveTV.com, which redistributed live U.S. broadcasts from its Canadian Web site. The service was shut down in February 2000 after only 62 days of operation through a copyright lawsuit filed by the Motion Picture Association of America.
"What iCrave did was legal under Canadian law," Mago said, "but international law was unclear. This is why we need a worldwide treaty."
The iCrave case was a clear-cut signal theft and copyright violation, agreed Gigi Sohn, president and cofounder of Public Knowledge in Washington D.C. "But iCrave was stopped with existing international laws, so why do broadcasters need an additional layer of copyright protection on top of what already exists? Since they haven't cited any other gross violations cases beyond iCrave to justify their position, I think the proposed treaty is a solution in search of a problem."
"I believe broadcasters want a legal basis to charge for retransmission of their free broadcasts, so they have another revenue stream beyond advertising," said James Burger, an attorney at the Dow Lohnes law firm in Washington D.C., which represents Hewlett Packard, Dell, TiVo and other digital companies opposing the WIPO Broadcast Treaty.
Burger said the proposed treaty could have a direct financial impact on cablecasters, who now "must carry" local broadcast signals without having to pay for them. "But cable representatives have not shown up at any of the SCCR meetings, so far as I know. This surprises me, since I'd think cable would be more outspoken about anything that would plainly give broadcasters additional leverage in retransmission consent negotiations."
"We need to be able to serve our audiences without fear of our signals being stolen," countered Mago at NAB. "We do not put out broadcasts for them to be taken without authorization, and existing international copyright laws just are not enough protection."