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The Danger of New Post-Fixation Rights in the WIPO Broadcasting Treaty

DEEPLINKS BLOG
December 9, 2014

The Danger of New Post-Fixation Rights in the WIPO Broadcasting Treaty

The World Intellectual Property Organization (WIPO) has been working towards the development of a Treaty on the Protection of Broadcasting Organizations since 1998; about three times as long as the Trans-Pacific Partnership negotiations have taken so far, but with far less to show for it. Part of the reason for the delay has been a fundamental lack of clarity about what the whole exercise is actually about.

The often-stated motivation for the treaty is to add to broadcasters' legal armory to combat the piracy of broadcast signals. Although they can already bring a lawsuit for infringement of the copyright content being broadcast (which is how Internet TV streaming provider Aereo was brought down this year), they point out that some broadcast signals, such as sports coverage, may not attract copyright protection.

EFF Back at WIPO

For all of the time that we've been covering this issue, we haven't opposed a narrow treaty that would address this specific problem of the piracy of traditional broadcast signals. But broadcasters want more. The latest draft of the treaty also attempts to control post-fixation uses of broadcast signals—in other words, to provide broadcasters with rights to control uses of content that has been recorded from a broadcast.

The problems with this should be obvious. Since these post-fixation rules would apply regardless of whether the content was in the public domain or whether a “fair use” argument applies, it could impact the work of journalists, archivists, and creators who could otherwise legally gain access to source content through broadcasts.

The draft also includes worrisome protections that would prohibit DRM on broadcasts from being circumvented, which could outlaw the use of open source video software such as VLC and MythTV to watch or time-shift televisions broadcasts, and would restrict future technological innovation. These provisions would effectively nullify the effect of any exceptions and limitations to the exclusive rights of broadcasters that the treaty may end up adopting.

Although the current state of negotiations would only provide rights to “traditional” broadcasters (and, probably, cablecasters), many delegations, including most vociferously Europe, argue that it should extend to non-traditional activities of those broadcasters, such as Internet simulcasting and even online catch-up TV services. We worry that this will stifle innovative reuses of these services, such as services that might repackage Internet streams in different formats, or create fair use archives.

That's why at WIPO this week, we again urged member states to restrict the treaty to dealing with the narrow and discrete problem of piracy of traditional broadcast transmissions, rather than opening up a Pandora's box by including Internet transmissions and post-fixation rights. Here's the complete text of the statement we delivered:

This year marks the tenth anniversary of EFF's involvement in discussions over a WIPO treaty for the protection of broadcasting organizations. During all that time our position has been constant: that any such treaty should be limited to addressing the unauthorized simultaneous and near simultaneous retransmission of traditional broadcast signals to the public, without assigning any new exclusive rights in the content of those signals.

We also note that it would be possible to include a right to prohibit the transmission of pre-broadcast signals within a signal-based approach, and without assigning any new exclusive rights.

Although this has notionally been accepted in the past, when WIPO members agreed at the 2007 General Assembly to follow a signal-based approach, current discussions on post-fixation rights have back-tracked from this commitment, and it is that, more than anything else, that has led these negotiations to become so protracted.

Creating new exclusive rights in post-broadcast fixations would impede access to public domain material and material over which copyright limitations and exceptions may apply. This is because such material may not be readily available other than from broadcasts, such as in the case of broadcasts of sport or news events.

It would also impede the use of technological innovations that add value to broadcasts, especially if the treaty also curtailed the use of circumvention devices. This could affect consumer technologies such as digital video recorders, streaming media players, and new innovations that we cannot even envisage yet, especially those running on free and open source hardware and software.

EFF urges WIPO members to be disciplined in their adherence to a narrow signal-based approach, as we see this as the only way that a treaty for the protection of broadcasting organizations can be concluded in 2015, or at all.

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