Retransmission Protections Could Kill WIPO Broadcast Treaty, Groups Say

Liedes’ document, for the 2nd and last SCCR special session (June 18-22), aims for enough agreement on the terms of the broadcasting treaty for a diplomatic conference, set tentatively for July 11-Aug. 1, to proceed. It tries to “lend full recognition” to a signal-based approach, Liedes wrote. Broadcasters had “made a very serious point that cannot be omitted,” he said: unless the treaty is based on some “elementary and absolutely necessary rights, the process should be abandoned.”

As a result, the draft includes specific related-rights- type rights in 2 instances where signal protection matters most -- retransmission and deferred transmission by any means to the public of fixed broadcasts -- Liedes wrote: “This represents the narrowest meaningful protection for broadcasting organizations.” The draft covers broadcasters and cablecasters, but not 3rd parties that merely retransmit programs to broadcasters, on-demand transmissions or those over computer networks.

Giving broadcasting companies exclusive rights over retransmission and deferred transmissions amounts to granting “an exclusive right of control over the broadcast,” said Sherwin Siy, dir. of Public Knowledge’s global knowledge initiative. Liedes’ comment that the treaty should be abandoned if not based on basic rights is a “clear signal that this is a rights-based treaty,” he said.

In his “non-paper,” Liedes “tries to make some concessions about fixations, but it’s really a case of one step forward, several steps back,” said Siy. Other problem areas -- DMCA-like encryption protection, and inadequate or missing fair use provisions -- haven’t changed, he said.

The paper defines broadcast, cablecast and broadcasting, but not cablecasting organizations, said Thiru Balasubramaniam, Knowledge Ecology International (KEI) (formerly Consumer Project on Technology) Geneva representative. That could raise questions about whether such a body simply would be a “Comcast-like” entity or an “industrial behemoth like News Corp. or AOL Time Warner, who are also content owners,” he said.

Liedes’ remarks to the contrary, the “very dangerous non-paper” is “designed to give intellectual property rights for broadcasting content” and to extend those rights to the Internet, said KEI Information Society Projects Dir. Manon Ress. “Outrageous” rights, such as post-fixation and reproduction, seem to have been stricken, but exclusive retransmission and deferred retransmission rights amount to the same thing, she said. The draft implicates consumers’ rights and doesn’t address ISP liability, Ress said. And Liedes has watered down developing countries’ proposals on limitations and exceptions to the rights, she said.

ISPs dislike the text, said Verizon Vp-Assoc. Gen. Counsel Sarah Deutsch. It’s still rights-based and those granted, though fewer than before, can be imposed atop copyright law and have “unintended consequences,” she said. U.S. firms have been convicted of violating the public performance right even when they sent transmissions directly to a home or hotel room, Deutsch said. The non-paper’s language would let broadcasters and cablecasters argue that retransmitting their signals in such cases requires payment, she said. And the text sets no limit on the exclusive rights granted to broad- and cablecasters, she said.

A 2nd big concern is ISP liability for retransmission, Deutsch said. Service providers are in the business of retransmitting others’ signals, and the treaty is silent on their liability, meaning they may face infringement claims around the world, she said.

An expanded technological protection measure (TPM) and “decryption” provision would ban PCs and outlaw circumvention of TPMs and decryption of encrypted broadcasts even if a user simply wants to make a fair use home copy of TV programming already paid for, Gwen Hinze, Electronic Frontier Foundation international affairs dir., said: “There’s no good news here for consumers or the innovation industry.”

“While NAB remains very concerned about the extent to which the set of exclusive rights for broadcasters in their signals that were included in virtually every country’s original proposal have eroded as this process has gone on,” the latest non-paper appears to be “heading in the right direction by restoring at least some of those rights,” said NAB Senior Assoc. Gen. Counsel Ben Ivins.

Objections to the non-paper may arise more from the fact that certain words are “touchstones of controversy” than on their meaning, said RIAA Exec. Vp Neil Turkewitz. The WIPO General Assembly requires agreement on the treaty before a diplomatic conference can occur, Siy said: “It’s hard to see how there can be agreement on this text.” At next month’s SCCR meeting, there’s likely to “a continuation of the vigorous debate as to what ’signal-based’ actually means,” he said.

The draft poses peril because “few delegations can politically oppose a treaty altogether -- most got a little of what they wanted out of the previous draft -- and few can at this stage ‘abandon’ work on the treaty,” said Ress. But if Liedes thinks a pure signal-theft treaty isn’t possible, she said, “maybe the whole thing will go down in flames.”

American players meet with the U.S. govt. Tues., then will see what happens in Geneva, said Deutsch. It’s “a very tough process to make guesses about,” Turkewitz said.