As we noted last June, the World Intellectual Property Organization (WIPO) Broadcast Treaty—which is a restrictive copyright treaty that aims to create and extend rights to signals of broadcasters and webcasters, and possibly creating serious problems for freedom of expression —is back. Although it has been revamped, it still incorporates the two most controversial proposals from the original treaty text. As concluded by an analysis comissioned by UNESCO back in 2006:
"[T]he Draft Broadcasting Treaty would give broadcasters and cablecasters (and possibly webcasters) broad rights which in parallel with technological measures and ambiguity as to protected subject-matter could prevent or restrict the flow of information with respect to materials which may not be protected by copyright, such as news of the day, or which are in the public domain, because their term of protection has expired or in relation to materials created by third parties who do not wish to prevent dissemination of the latter. Thus, the Draft Treaty may undermine the balance between the economic interests of broadcasting and cablecasting organizations and freedom of expression values." 1
The last WIPO meeting in July solidified the course of the negotiations, proceeding on the basis of a single draft text released on July 24th called the “chair’s non-paper” [pdf]. The treaty will apply to “traditional broadcasters”, but what that actually means is still a source of disagreement. Japan, for instance, wants "traditional broadcasters" to include TV and radio but not webcasts. Japan says these proposals are supported by Brazil and India. However, the US position reaches back to 2005, and pushes for a “technologically neutral” approach, which would expand the definition of traditional broadcasting to include cablecasters and webcasters.
Here’s what the US delegate said during the WIPO discussions reafirming US expansive agenda for the Treaty:
“In our view, a treaty that does not provide protection against signal theft using new forms of technology would not be worth concluding in the 21 the century. Any treaty should be technologically neutral in the sense the piracy is accomplished. This is a different question from which entities are covered by the treaty. The latter is an issue of subject matter protection while the former is an issue of scope of rights. Those delegates that are not yet ready to go beyond protection for traditional broadcasters may nevertheless find it important to protect their traditional broadcasters against unscrupulous actors who stream their signal over the Internet.”2
To be clear, this approach would basically cover any kind of broadcasting, from cable, satellite, and web. It means that a vast new set of rights, unsupported by empirical study, would simply be created out of thin air to regulate broadcast content. We live in a world where we rely on empirical studies of cause and effect to make pragmatic, sound policy: such as to estimate environmental impacts on buildings, to project business returns on products, and even to design ad campaigns. It’s deeply irresponsible to not do the same with digital policymaking. There needs to be a non-partisan panel to review the overall “environmental” impact of a new explosion of broadcasting rights on the digital commons and the web.
All countries, except India, showed support for the chair’s non-paper as the basis for work moving forward. The remaining countries believe that the coming rounds of negotiations will clean up the text to ensure it is not applicable to webcasters. India, on the other hand, saw such profound problems with the text that it said it could not agree to work with it even as a foundation for future negotiations.
As in the past, EFF prepared a statement [see pdf linked below] for the WIPO meeting, when the floor is opened for accredited organizations to speak. However, it is important to note that the meeting chair cut our time short and we were forced to summarize the full statement during the presentation. Other organizations have expressed similar concerns to EFF's concerns.
During the last hours of the meeting, the WIPO Committee pursued discussions that led to the adoption of a single text titled “Working document for a treaty on the protection of broadcasting organizations” (which has not been published as of today)3. This working document will constitute the basis of further discussions to be undertaken in November in Geneva, which WIPO hopes will conclude with a consensus document to be signed as a treaty early 2013. If WIPO convenes this conference it is because members have reached a decision and a new treaty may be born.
This procedural detail is a really important one — despite there being no international consensus, WIPO is pushing for a treaty to be signed quickly. This is actually a cruel trend in other WIPO negotiations. In the past, it has seemed like the WIPO bureaucracy has pushed for a conclusion of treaties just because they have been in negotiation for a long period of time. For example, another long-running negotiation led to the adoption of a treaty about performance rights that was opposed by many.
We urge country Members to say no to the WIPO Broadcasting treaty—as they have said in the past. We continue to believe the preferable model for addressing these issues is the narrower signal-based approach in the Brussels Satellite Convention.
Giving broadcasters an unprecedented set of legal privileges is a sure-fire way to damage speech and innovation on the global Internet. Granting broadcasters, cablecasters and webcasters exclusive rights to authorize retransmissions of broadcasts over the Internet will allow them to block competition and innovation by allowing them to control the types of devices that can receive transmissions, and it will create new liability risks for Internet intermediaries that retransmit information on the Internet. If "signal piracy" is the concern, then a narrow, signal-focused approach is what is needed, not a global replication of the existing copyright regime.
EFF has opposed the draft WIPO Broadcasting Treaty since 2004 because it grants broadcasters and cablecasters intellectual property rights in their signals, in addition to the copyrights held by the creators of the works and that apply independent of copyright. It also requires countries to create overly broad laws prohibiting circumvention of technological protection measures. Taken together, this will allow broadcasters to restrict access to public domain works, add complexity to copyright clearance regimes for creators of podcasts and documentary films, and interfere with consumers’ ability to make in-home recordings permitted under national copyright law. It will also harm competition and innovation by allowing broadcasters and cablecasters to control the types of devices that can receive transmissions, and create new liability risks for intermediaries that retransmit information on the Internet.
In 2005-2006 we reached out to Intel, Google, Verizon, AT& T and US Telecom about our concerns with the proposed IP rights based treaty, and helped build a public interest – tech sector coalition with over 40 members that resulted in the US delegation to WIPO withdrawing its support for the current IP rights-based treaty. In previous years, EFF, with a hand from Cory Doctorow, organized and delivered two petitions signed by over 2000 podcasters from around the world.
In 2007, the treaty stalled at WIPO as the result of mounting concern about the impact of the treaty. However, it is now moving forward again. A new with “elements of a proposed treaty” and were tabled at the June 2011 WIPO Standing Committee on Copyright and Related Rights meeting. It called for the scope of the treaty to be expanded, to cover webcasting, which raises a number of concerns for Internet policy.
The renewed interest in the Broadcasting Treaty has been spurred both by complaints from incumbent broadcasting organizations, and a campaign from the WIPO Secretariat to conclude the Treaty after more than 12 years of negotiations with no consensus. The Secretariat commissioned three studies, organized several regional seminars, and in April held an informal consultation, which led to the creation of a new document with "elements" for a treaty. Meanwhile a new treaty proposal from South Africa was submitted, and sports broadcasters have been lobbying hard for a treaty in Geneva.
- 1. The Draft WIPO Broadcasting Treaty and its impact on Freedom of Expression. Commissioned by UNESCO and prepared by Patricia Akester. e-Copyright Bulletin. April – June 2006. Available at http://unesdoc.unesco.org/images/0014/001464/146498e.pdf
- 2. Quoted from the live transcript at the following URL which is no longer available: http://www.streamtext.net/player?Event=WIPO
- 3. This is contained in document SCCR/24/10.