CONSUMER GROUPS URGED TO HEED U.S. ACTION ON BROADCAST FLAG

From an industry perspective, implementation of broadcast flag technology in Europe has to come quickly because it will be rolled out in the U.S. next year, Murray said. The issue is beginning to be discussed in Europe, as affected industries try to negotiate a standard-setting process, said Gwen Hinze, an attorney with the Electronic Frontier Foundation. She said there also was a move to put similar language in the World Intellectual Property Organization (WIPO) treaty now under discussion to update broadcasting rights for the digital age.

But a WIPO official said broadcast flag per se didn’t figure in any treaty on protecting broadcasting “at this point.” It’s true a broadcast flag-like measure could be implemented by any member state that acceded to any treaty ultimately developed, but the 18 or so technical protection measures (TPMs) floated by various stakeholders didn’t contain the broadcast flag, said Richard Owens, head of WIPO’s copyright, e-commerce, technology & management div. At the last meeting of the Standing Committee on Copyright & Related Rights (SCCR), one member made a presentation on what was happening with broadcast flag in the U.S., he said. Owens told us the technology seemed very “U.S.-based,” and he said he sensed SCCR members took a negative view of it, although that could be because it was a new technology. But Hinze warned that broadcast flag was just one form of TPM, meaning it still could pop up under the 2 existing WIPO copyright treaties.

Not surprisingly, the European Commission’s (EC’s) controversial proposal for an intellectual property rights (IPR) enforcement directive came in for its share of criticism at the meeting. European consumer advocates don’t like “spreading gloom and despondency” but that’s what they feel when they see lawmakers swallowing, without the least skepticism, rightsholders’ claims of doom, said Jim Murray, of the European Consumers’ Organisation. The 2001 copyright directive severely restricted rights consumers had enjoyed in the analog environment, he said, and then along came what he called the EC’s “bad” proposal for stiffer IPR enforcement. Although the EC always has pooh-poohed consumers’ requests for such Draconian powers in the name of consumer protection, he said, the European Parliament now appeared to have bought the idea that the EC should be able to force member states to do what they otherwise wouldn’t have done. Consumers “believe in copyright” and in fair pay for creators, Murray said, but they're not getting equal treatment in Europe.

The directive’s original objective -- to fight commercial counterfeiters and large-scale infringers -- is good, but as currently drafted it “criminalizes the consumer,” said Verizon Vp-Assoc. Gen. Counsel Sarah Deutsch. If adopted as is, it will spark “U.S.-style warfare” against parents, youngsters and other Internet users, similar to what RIAA has done under the Digital Millennium Copyright Act, she said. Several provisions give ISPs heartburn, she said, particularly Art. 9, which would give content owners the right to obtain information about ISP customers who allegedly were infringing on music online. Deutsch said European lawmakers must learn from the mistakes in the U.S. to ensure a proper balance among users, content owners and intermediaries.

An EC official said the directive had been misunderstood. It simply aims to harmonize enforcement laws in European Union member states and accession countries, said Rogier Wezenbeek, of the Directorate-Gen. Internal Market. The idea wasn’t to introduce new substantive law but to create a level playing field, he said. One of the most contentious issues is the proposal’s scope, Wezenbeek said. The EC wants it to cover only commercial infringements or those causing significant harm, not to punish large numbers of people using peer-to-peer networks for small downloads. However, the EP Legal Affairs Committee broadened it to include all infringements, whether or not for commercial gain.

The directive was praised by Bertrand Moullier, dir.- gen. of the International Federation of Film Producers Assns. Movie studios aren’t technophobes, he said, and they embrace broadband technologies “with relish.” But as piracy of unreleased movies grows, he said, the industry needs remedies that are nowhere near in place yet. The IPR directive as amended by the EP strikes the right balance, Moullier said. The EC’s version’ appeared to legitimize a whole range of small piracies, he said.

Several speakers urged consumer groups to stop focusing on copyright law as the basis for dealing with issues such as fair use and to turn instead to other legal arguments. Consumers should look to the world of consumer protection law, said Bernt Hugenholz, a U. of Amsterdam law prof.

Don’t automatically buy the argument that IP agreements are made to protect copyright, said Michelle Childs, head of policy research for Consumers Assn. (U.K.). In some cases they are being used to protect old business models related to competition and fair trade, she said.