Broadcasters Demand Foes Prove Harm from New Protections
Foes of a broadcasting treaty proposed by the World Intellectual Property Organization (WIPO)(CD Sept 8 p5, Sept 6 p6) utterly fail to show how more copyright protection for broadcasters would hurt them, U.S. broadcasters said. ISPs, telcos and nongovernmental bodies keep saying “horrible things are going to happen” if broadcast rights are updated, NAB Senior Assoc. Gen. Counsel Ben Ivins told us. He urged them to “show me your pain” by citing specific examples of where the sort of protections contemplated by the treaty have caused “bad stuff.”
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It’s not clear what foes want other than a bare-bones theft-of-signal piracy treaty, Ivins said. Broadcasters are seeking more substantive rights to bring broadcasts in line with authors’ and phonograms’ rights updated in recent years by WIPO treaties -- and with rights a substantial number of nations have granted for years with no ill effect, he said: In Europe, Japan and elsewhere, transmission, fixation and reproduction of broadcast signals are protected, with no evidence of harm, he said. At minimum, the treaty could serve as a bid to harmonize protections at the international level, Ivins said.
Opponents are trying to mire the talks in discussion, Ivins said. Many complaints focus on the claim that because the treaty lacks particular provisions -- such as “safe harbor” protection for ISPs and limitations and exceptions to copyright such as fair use -- it’s harmful, he said. Its technical protection provisions also are mischaracterized, Ivins said. Opponents claim they would mandate encryption when they really only will require national laws penalizing circumvention.
Broadcasters don’t want ISPs held liable when a 3rd party shares their signals on its service. And while the draft doesn’t specifically list copyright limitations and exceptions, it’s likely that any that apply to content also will apply to broadcast signals, Ivins said. He blasted the U.S. for “arrogance” in its belief that other nations should adopt its provisions on fair use and other exceptions. There’s no reason other nations should accept them, he said.
The “hue and cry” over the treaty is an internal U.S. squabble, Ivins said. Verizon, AT&T and others think the treaty will cause “massive upheavals” at home; NAB doesn’t agree, he said. Whether similar feuding is occurring in “Guatemala and Burkina Faso, I'm just not sure,” he said.
For broadcasters, the treaty is about 2 simple principles, Ivins said. An organization whose signal another wants to use should have the right to authorize and consent to retransmission. And broadcasters should be able to bar or control authorization of someone who thinks it’s “neat to take our signal and make it available to 100,000 of his closest friends,” he said.
Aside from what broadcasters see as nonissues, there has been “real debate” at WIPO about tensions between the rights- based treaty and lack of harmonization of exceptions and limitations at the international level, Ivins said. WIPO is mulling the issue, he said, and Chile has asked for a study on the feasibility of standardizing copyright exceptions. But it’s “unfair” to try to resolve this in the treaty negotiations because it’s unclear if exceptions and limitations might apply to signals but not to content. The argument that this difficult question has to be resolved in the negotiations is nothing more than “an effort to kill” the treaty, he said.
The big unknowns at the SCCR meeting are accord on a diplomatic conference regarding the treaty -- and whether, when the Gen. Assembly meets at the end of Sept., it will schedule one for 2007. The stakes are high, Ivins said. At the last SCCR meeting, in May, the U.S. brokered a deal to split consideration of webcasting protections from the broadcast treaty if 3 conditions were met (CD May 8 p9). One was that the General Assembly set a 2007 diplomatic conference. If it doesn’t, Ivins said, it “would be a blow to this effort.”
There’s “very broad consensus” on behalf of a treaty, said RIAA Exec. Vp Neil Turkewitz. But no one except NAB wants one that hands full-blown intellectual property interests exclusively to broadcasters. RIAA’s beef is that the treaty could end up protecting content already guarded by copyright law, because a broadcast that’s fixed becomes content. The only gap in the international copyright system is in signal protection, Turkewitz said. why create a separate broadcast interest in content, he asked.
The meeting’s outcome is unclear, since WIPO has so many levels, Turkewitz told us. Rather than focus on treaty talks, some delegates may politick to preserve negotiating positions for other forums, which he termed “unfortunate.” The key question is whether all parties will have the creativity and flexibility to “produce an agreement that makes sense.” RIAA wants the treaty to move forward but doubts an agreement will be reached, Turkewitz said. The SCCR meets Sept. 11-13 in Geneva.