Dugie Standeford

Debate on the actual language of a treaty updating broadcasting copyright protections begins in July, World Intellectual Property Organization (WIPO) Copyright Law Division Director Michele Woods told us Friday. The April 10-12 meeting of the Standing Committee on Copyright and Related Rights (SCCR) gave delegations the opportunity to discuss issues in depth, and the July meeting is likely to focus on the three core matters of who will benefit from the treaty, what the object of protection will be, and what rights broadcasting organizations will be granted, she said. NAB and the European Broadcasting Union (EBU) said progress was made at the “intersessional” meeting, including a growing consensus that signal protection must be extended to the Internet, but the Computer & Communications Industry Association (CCIA) said agreement on any issue is as far away as ever.

The U.S. Thursday floated an approach to broadcasting protection that focused on “true signal piracy, real-time transmission of the signal to the public without authorization,” according to World Intellectual Property Organization closed captioning of the meeting of the Standing Committee on Copyright and Related Rights, as blogged by Knowledge Ecology International Geneva Representative Thiru Balasubramaniam (http://xrl.us/boun4u). Considering that the issue of protection for broadcasting organizations has been under discussion for nearly 20 years; and that many stakeholders are concerned about creating extra layers of safeguards requiring more clearance of rights; and that the WIPO General Assembly in 2007 called for a signal-based approach, “the only realistic way to achieve results without years of additional debate would be to find a compromise based on a core of common agreement,” the U.S. said. It should be possible to coalesce around a simpler, more targeted approach that addresses the core problems of broadcasters today, including true signal piracy that takes place during real-time, unauthorized transmission, it said. This would be technology-neutral in the sense that it wouldn’t matter what platform is used for the act of piracy, it said. The proposal has several advantages, it said. This is an area where WIPO members already have considerable consensus and can move quickly. It could avoid the concerns voiced about additional layers of protection for content, and remove the need to address “other contentious or difficult issues such as term of protection or exceptions,” it said. The U.S. statement brought a cheer from Thompson Coburn partner James Burger, who represents tech companies. It expressed “what I believe supports the traditional and effective U.S. system protecting broadcasters: forbidding signal theft by real-time over-the-air retransmission of broadcast,” he told us. The approach also supports innovation and the consumer electronics/technology industries by not overlaying yet another set of copyright-like rights, he said. Burger reiterated his view (CD April 11 p13) that “copyright makes no sense for broadcast transmission” because a transmission can’t be “fixed.” The view of the European Broadcasting Union and all other broadcasters is that online services, insofar as they're provided by broadcasters and related to their offline services, should be included, because those services already arrive via the remote control on a TV screen, EBU Head of Intellectual Property Heijo Ruijsenaars told us. In an interview posted on WIPO’s website (http://xrl.us/boun6f), EBU Director-General Ingrid Deltenre said those who oppose updating broadcasters’ rights “would not appear to grasp why broadcasters need protection in the first place nor the nature of the protection that currently exists.” To safeguard and build on their sizeable investment, broadcasters must have the proper means to authorize or prohibit use of signals in upstream and downstream markets, she said. The broadcast signal must be shielded from the moment it’s created as a pre-broadcast signal through to its primary use to broadcast or retransmit programming and against unlawful secondary exploitation, she said. She dismissed claims that giving broadcasters new rights would hamper freedom of expression and innovation in consumer devices, or spark problems for ISPs or Creative Commons licensees. The committee meeting ends Friday.

Talks on a possible treaty to protect copyrighted broadcast signals resumed Wednesday in the World Intellectual Property Organization Standing Committee on Copyright and Related Rights (SCCR). The April 10-12 “intersessional” meeting will consider a March 6 working document (http://xrl.us/bot7g8). Treaty negotiations appeared to have been blocked in 2007 by “fundamental differences over the purposes and scope” of the pact, but in recent years the U.S. Copyright Office asked for the issue to be put back on the agenda, Knowledge Ecology International (KEI) Director James Love wrote April 10. WIPO is seeking a conclusion, and several countries, including South Africa, Mexico and Japan, are working actively for a new treaty, he said in blog post (http://xrl.us/bot7mr). The discussion on what KEI dubbed the “zombie agenda” appears likely to be plagued by the same controversies that stalled the treaty years ago, including whether it includes webcasting.

The decision by Germany’s telecom regulator to raise the rent for unbundled local loops (ULL) from the main distribution frame to the street cabinet by $0.62 a month will cause investors to lose millions, the VATM (German Competitive Carriers Association) said Thursday. The incentives set by the Federal Network Agency (BNetzA) to encourage broadband rollout aren’t enough, the organization said in a translated statement. Deutsche Telekom will receive millions of euros for its own broadband expansion in the already well-supplied and competitive regions where access to the ULL is especially important, it said. For the average customer, and the federal government’s ambitious broadband targets, “this is a very black day,” said VATM President Peer Knauer. Monthly rental fees for DT rivals for access to the last mile will go from 10.08 to 10.19 euros (14 cents). The price increase for the more than nine million rented ULL connections at the main distribution frame isn’t balanced by the marginal price reduction for the 140,000 local loops leased at the street cabinet level, VATM said. BNetzA’s decision will hurt competition and infrastructure investors, and is an “inexplicable U-turn away” from giving investors planning security, Knauer said. The regulator’s reasoning is hard to understand, VATM said. Instead of using real costs as a basis, as VATM advocates, BNetzA based its order on “fictional replacement costs of old copper wires” that were written off long ago and other miscalculations, it said. An economically reasonable ULL price would fall at least 30 percent below the current charges, it said. The decision holds “dire consequences” for any further broadband investment, it said. DT has already announced that it will focus on buildout in cities, for which it receives additional millions in revenue, it said. Companies that only invest in fiber deployment into the home without renting a local loop only profit in theory, it said. In practice, cable operators set the lowest price, so artificially high resale products, as approved by BNetzA, no longer protect against imminent price collapse and trigger no new investment, it said. The VATM urged the regulator to create an investment-friendly environment, stop focusing on “individual showpieces, beacons and town centers,” and help citizens outside metropolitan areas. Customers shouldn’t have to foot the bill for higher loop prices through taxes that fund those projects and universal service obligations that will pass the higher charges on to them, VATM said. It urged the regulator to start a dialogue with market players on a modern investment scheme. This is the first ULL price rise in 14 years, a DT spokesman told us. “This is a good and important signal for further investment in high-speed infrastructure.”

The publishing, telecom and other sectors oppose new top-level domains (TLDs) that are generic but not brands, they said in comments that were still being filed Tuesday in an Internet Corporation for Assigned Names and Numbers consultation that ended March 7 (http://xrl.us/bon3i4). Requests by Amazon and Google for generic names such as .book, .music and .cloud generated significant opposition. Other comments said ICANN should stay out of determining what a “closed generic” TLD is, and let antitrust regulators resolve any competition problems that might arise and refrain from stymieing innovation.

Microsoft’s failure for 14 months to honor its antitrust commitment to offer a browser choice screen prompted the European Commission Wednesday to impose a fine of 561 million euros ($730 million). The “very serious infringement” is the first time a company has violated legally binding conditions in an antitrust case, Competition Commissioner Joaquín Almunia said at a news briefing. The compliance failure will lead to heightened monitoring requirements in the future, he said. Microsoft declined to comment but we're told an appeal is considered unlikely. One antitrust attorney called the fine-setting process precedential. The company’s promise to give users a choice of browsers followed an EC antitrust investigation into the tying of Windows and Internet Explorer. Microsoft offered in 2009 to provide a screen allowing users to select their preferred browser, and the EC made that offer legally binding until 2014, it said. Wednesday’s decision found that the software maker had failed to roll out the browser choice screen with Windows 7 Service Pack 1 from May 2011 to July 2012. Fifteen million Europeans Windows users didn’t see the screen during that time, and Microsoft acknowledged that the screen wasn’t displayed then, the EC said. When the failure to comply was discovered in July 2012, the EC began a probe. Regardless of whether it was intentional or not, the breach “calls for a sanction,” Almunia said. Commitments are an important tool in the EU antitrust enforcement system, and the Article 9 decision used in this case can be a good way to resolve competition concerns quickly since they avoid long proceedings, he said. Article 9 lets the EC conclude an antitrust investigation by making legally binding commitments offered by the company, rather than Article 7, a longer process used to prohibit behavior and impose fines. The EC keeps track of compliance in some Article 9 cases by appointing a monitoring trustee who reports back to it, he said. Those trustees are generally not from the companies who made the competition commitments but in this case, for reasons Almunia said he can’t explain, Microsoft served as the trustee. He said the trustee was “magnificent.” Almunia has asked the competition directorate to be “extremely careful” from now on about how it designs the monitoring provisions of commitment agreements, he said. Asked whether this case might prompt changes to Article 9, Almunia said he’s not considering amending the measure, only the way it’s executed. The EC will be more precise in defining the responsibilities of the trustee and will pay better attention to the reports it files, he said. He'll send a clear message to possible candidates for Article 9 decisions to be very strict about how they monitor compliance with their commitment and how they set up their internal control mechanisms to prevent breaches. Because this was a breach of commitments rather than an antitrust violation, the EC isn’t bound by its fining guidelines, Almunia said. The penalty took into account the gravity of the noncompliance as well as Microsoft’s cooperation, he said. The amount represents 1 percent of the company’s annual revenues. “I hope this decision will make companies think twice before they even think of intentionally breaching their obligations or even of neglecting their duty to ensure strict compliance,” he said. EC antitrust fines always carry a deterrence component, Jones Day (Brussels) competition partner Bernard Amory told us. If the EC hadn’t set a serious fine, it would have lost credibility, he said. Fining guidelines don’t apply to breaches of commitments, leaving no guidance on how to assess penalties in such cases, he said. “This is a precedent in that respect.”

Until there’s agreement on what cyberthreats are and on what cybersecurity policies or rules are intended to protect against, there’s no need for sweeping treaties, said European Internet Services Providers Association (EuroISPA) President Malcolm Hutty Wednesday. Cybersecurity must safeguard “that which you value,” and that differs widely among governments and other stakeholders, he said at a panel at the U.N. Educational, Scientific and Cultural Organization’s First World Summit on the Information Society+10 review meeting in Paris. Panelists agreed that many questions remain open, but expanding global dialogue on cybersecurity is a good first step.

It’s too early to say whether “graduated response” mechanisms are better for fighting copyright violations than regulation, speakers said Wednesday at a panel at the UNESCO First World Summit on the Information Society+10 review meeting in Paris. Speakers representing ISPs, access advocates, the World Wide Web Consortium and the U.S. government disagreed on the necessity for, and potential benefits of, industry self-regulation against digital infringement, but all agreed any solution must involve all stakeholders, be subject to the rule of law, be transparent and accountable, and respect the Internet’s openness and architecture.

EU efforts to toughen data privacy protections are being watered down by lawmakers under intense pressure from U.S. Internet companies, public interest groups said Wednesday. Their comments followed a vote in the European Parliament Industry Committee on a report responding to the European Commission proposal for a data protection regulation to replace the existing law. One issue is whether companies should be allowed to process pseudonymous data without obtaining data subjects’ consent. The proposal to require such consent has already been defeated in the Internal Market and Consumer Protection (IMCO) Committee and also failed in the Industry committee (ITRE), due, some groups say, to lobbying efforts such as a Yahoo document leaked Wednesday.

There’s “huge interest” in adult content on mobile phones, SGM Media CEO Andy Wullmer told us. Earlier this month, he bought Mobile.xxx from ICM Registry for $160,000 and plans to dedicate the site to offering the first all-encompassing .xxx destination for mobile devices, the registry said. SGM (SexGoesMobile) offers only legal adult content, and owns all the rights to the material, Wullmer said. But since all the products use direct telephone billing through the phone provider, it never shows hardcore content, he said. In most European countries SGM shows only softcore video material, which falls under the Pan European Game Information rating “16” -- applied to content where the depiction of sexual activity “looks the same as would be expected in real life” (http://xrl.us/bn9dgo) -- while in most Asian and Arabic nations it shows only glamour video and images, he said. In the U.S., there’s only a dating platform which requires user registration and a credit card for age verification. The experience of SexGoesMobile.com, SGM’s best-known product, shows an enormous interest in accessing adult material on mobile, he said: Mobile phones are still very private spaces, unlike a PC at home. SGM is seeing more than 30,000 sales a day through its global affiliates, he said. In addition, a trawl through Google Mobile Search and keywords shows that sex and porn are the most often used search terms, he said. “With the newest generation of smartphones and the fast distribution worldwide the market is already big and growing very fast,” he said. Asked whether and how the registry will ensure that adult content is segregated on mobile.xxx, CEO Stuart Lawley said: “We don’t.” All the .xxx suffix does is indicate the likelihood of the kind of content to be found on an underlying website, he told us. All active .xxx sites are owned by validated members of the worldwide adult entertainment industry, he said. Sale of mobile.xxx hasn’t triggered any complaints or concerns, unlike the turmoil the .xxx top-level domain (TLD) created, he said. Asked how the TLD is doing, Lawley said, “Just fine.” Domain name registration renewals “came out in line with expectations so .xxx performance in comparison with other newly introduced TLDs compares very favorably.”