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How the WIPO Broadcasting Treaty Will Lock Up Online Video

DEEPLINKS BLOG
June 1, 2018

How the WIPO Broadcasting Treaty Will Lock Up Online Video

The World Intellectual Property Organization (WIPO) is no longer the only game in town when it comes to international copyright negotiations. Today, trade negotiations such as the North American Free Trade Agreement (NAFTA) are also used to haggle over copyright rules. But the  advantage of WIPO is that its negotiations are much more transparent and accessible to public interest groups such as EFF, which is why we have returned to WIPO’s headquarters in Geneva this week, about one year after our last visit.

But over the last few meetings of WIPO’s Standing Committee on Copyright and Related Rights (SCCR), the organization’s transparency advantage over trade negotiations has been rapidly diminishing. Although organizations like EFF can still attend meetings and deliver statements, the current chair of the SCCR, Daren Tang from Singapore, has been much more inclined than his predecessor to pull the negotiators into closed negotiation sessions, and to prohibit further reporting upon them.

So unfortunately, we can’t tell you as much as we would like to about the direction of WIPO’s ongoing negotiations over a new Broadcasting Treaty, which would provide broadcasting organizations with a new layer of exclusive copyright-like monopoly powers to limit the reuse of material that they broadcast. But one thing we can tell you, based on a publicly available document [PDF], is that Argentina has provided new suggestions for how to treat one of those most confounding issues in this draft treaty: deferred transmissions.

In the roughly fourteen years that we’ve been covering these treaty negotiations, EFF has been willing to accept a narrow instrument that would prevent the unauthorized interception and simultaneous retransmission of program-carrying signals that broadcasters transmit by satellite or cable (often referred to as “signal piracy”). But for most of those advocating for the Broadcasting Treaty, this isn’t enough: they would also like protection for Internet-based transmissions, and for retransmissions that aren’t simultaneous—that is, deferred transmissions. These are the demands that make the treaty so dangerous.

Argentina’s paper addresses the latter point: it contends that broadcasters should have an exclusive right to provide the deferred transmission of broadcasts, in the form of online repeats, online catch-up services, and online highlights of sporting events. In fact it goes further than that by saying that the treaty should even protect online content that wasn’t part of the original broadcast, but is “closely related” to it, such as parallel sports events, extra news footage, previews, interviews, and behind-the-scenes footage.

The biggest problem with allowing deferred transmission to be covered at all is that it means considering how long transmissions should be protected for. If the treaty were confined to the core issue of the unauthorized retransmission of broadcasts, something like a 24 hour period of protection might seem to make sense—yet the draft text proposes that protection should last for 50 years.

Considering that this term of protection would apply to broadcast content whether or not it is protected by copyright, this either creates a burdensome new layer of exclusive rights over copyright works, or creates new lengthy monopoly rights over content that is in the public domain or has been freely licensed. In either case, the result will be to make it more difficult and expensive to license content for use online, and to entrench the power of legacy broadcasters to the detriment of those who could otherwise make innovative new uses of broadcast content.

We wish that there was more we could tell you about the progress of the negotiations this week—but due to the Chair’s policy of favoring informal negotiations, all we can do is point to the interim result of those negotiations; a new draft version of the treaty text released by the Chair. In addition to incorporating Argentina’s proposals, the latest draft exhibits more flexibility about the term of protection (allowing that this could be 20 or some other term of years). It also removes an earlier proposal for limitations and exceptions to the broadcasters’ rights, and for now no replacement for that proposal is offered.

This week EFF spoke up against the dangerous direction of the treaty negotiations during the opening session, and joined with 10 other civil society organizations in a joint letter [PDF] expressing our grave concerns about the direction in which the treaty negotiations are going. The letter, which addresses the deferred transmission question along with a number of other issues, reads in part:

If the treaty extends to materials streamed on demand to individuals, there is no longer a special case for broadcasters. Millions of entities and persons stream content on demand, without a special broadcaster right, often over platforms like YouTube. It’s absurd to create a special right for streaming works on demand over the Internet, just because the company doing the streaming is a broadcast company and the work was once broadcast.

With the current state of the text, our concerns over the direction of the negotiations stand, and we will continue to take a firm position against the deviation of the Broadcasting Treaty away from its original and narrow signal-based focus.

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