This Tuesday, the Chair of the WIPO committee deliberating the broadcast treaty released its latest draft. To put it mildly, it's not an improvement over its immediate predecessor, as problematic as that was.
For those of you just tuning in to this odd little corner of the ongoing IP debate, here's a quick summary. The World Intellectual Property Organization is debating a new treaty that will extend an IP right to broadcasters, on top of existing copyright laws. (The same international process was used to create the WIPO Copyright Treaty, which in turn spawned the DMCA.) The broadcast treaty creates a host of problems in addition to the circumvention issue, though. Here's some previous posts on the topic.
The most central problem is located in Article 7. If you compare this to the previous draft</a., you can see that the Chair now won't let countries do anything less than provide an exclusive right in the broadcasts.
Broadcasting organizations shall enjoy the exclusive right of authorizing the retransmission of their broadcasts, and the deferred transmission by any means to the public of their fixed broadcasts.
He tries to compromise this move towards more powerful broadcasters' rights by removing language that would have granted broadcasters additional exclusive rights in making fixations and reproductions.
This is one step forward, several steps back. It might even be a step forward on a train moving rapidly in reverse. It requires all signing countries to implement a new property right, which is not in line with current US law. (Current retransmission laws are far, far narrower than a “real” IP right.)
And despite removing talk about fixations, applying this new right to “deferred” retransmissions means that laws under this treaty will overlap with copyright laws, especially since this treaty will apply to Internet transmissions of broadcasts. (Retransmissions “by any means” will include retransmissions over the Internet.) After all, if someone's made an illegal fixation of a program that's been broadcast, they're violating copyright law already. So if you're going to move that recording of your favorite TV show to your PC via a Slingbox, you're in violation of the treaty terms, even if it's OK under copyright law. The repercussions for this sort of a ban cover the field from distance education to goofy YouTube videos.
Then there are the problems that have been left unaddressed from previous versions, like a “limitations and exceptions” clause that is wholly optional–in other words, it doesn't protect fair use; and an encryption protection clause that can be applied so broadly as to ban personal computers and other consumer devices, just so long as they are “capable” of decryption.
Finally, there's no term limit on the right granted by the treaty. Previous versions suggested 20 years, or even 50. Without specifying any term limit at all, there is the potential for a new intellectual property right with an indefinite term, or one patching countries' existing terms of copyright. In the US, that's considerably longer than even previous suggestions: copyright has a term of the author's life plus 70 years, or 95 years from publication.
As for the treaty's chances of moving forward, it's hard to make predictions. But it's interesting to note a couple of things. First, the General Assembly last year required this committee to agree on a signal-based approach before it can move towards finalizing it.
However, in the introduction to the new draft, the Chair makes what almost sounds like an ultimatum:
If the Treaty is not based on some elementary and absolutely necessary rights, the process should be abandoned. Therefore the non-paper now includes, as the main operative part of protection, specific related-rights-type rights in two instances where the protection of a signal is most relevant, namely retransmission and deferred transmission.
This doesn't look like a rights-based treaty to me. And as for the committee coming to a consensus? A number of countries (including India, Brazil, Egypt, Indonesia, and Iran) were already concerned that the last draft wasn't a true signal protection treaty (i.e. one limited to preventing signal theft). Those same countries are going to have even bigger objections to this draft. Also, Canada has long pushed for a clause in the treaty that would allow member nations to opt out of parts of it; this latest draft contains no such clause. The US delegation also has repeatedly stated concerns about a rights-based treaty, and some senators didn't like the way the last draft was going, either.
We'll hopefully be able to hear more about the US delegation's views on this version next week at the roundtable meeting. We'll provide you with highlights from that when it happens.
The introduction to this draft of the treaty ended with the following “Final Note:”
The task of the preparation of a new non-paper has been complex because the opinions and comments expressed by the delegations diverge greatly, and in many cases point to opposite directions.
Well, that's something I think we can all agree on. We'll have to see if that can be resolved at the next WIPO meeting in June.