The WIPO Treaty on the Protection of Broadcasting Organizations is a proposal at the World Intellectual Property Organization to give broadcasters a new kind of intellectual property right in their signals. This new kind of intellectual property right would be layered on top of the copyrights held by the creators of the works the broadcasters are showing.
Proponents say they need this treaty to prevent “signal piracy”. However, signal piracy is often already an infringement of the copyright to the works being broadcast, so enforcement of existing copyright laws, not the creation of a new species of intellectual property, is a better approach to dealing with such issues. Additionally, the treaty goes well beyond regulating unauthorized rebroadcasters or Internet streams by creating rights to control “fixations” of broadcasts that only apply after an individual has received and recorded a signal locally—in other words, the treaty amounts a challenge to the long-established principle that people are entitled to record broadcast programming and watch it later.
This is a land grab by broadcasters that has the potential to slow, or even stop, the innovations that allow citizens to enjoy media on multiple devices at multiple times and places. In article 9 of the draft, the treaty even attempts to give broadcasters property rights over content (which they did not even create!) that is carried by the signal. This would mean that even if a user recorded a public domain movie from over the air, the broadcaster would still have rights over it, simply for having broadcast it. It should go without saying that users of artistic works—whether they are broadcasters or viewers—do not traditionally get intellectual property rights in the works they use. Intellectual property rights go to creators, not middlemen, and not end users.
Public interest groups can find no compelling policy basis for a new international instrument on the protection of broadcasting organizations, because piracy of broadcast signals is already dealt with under existing laws and treaties, such as the Brussels Convention. The proposed treaty is precisely the kind of unbalanced policy that PK has opposed for years: it creates new IP rights that could harm the exercise of fair use, exceptions and limitations, access to knowledge, and freedom of expression.
Broadcasters’ organizations have contended that the treaty would respect author, performer, and producers’ rights. “All the right holders in the broadcast content automatically benefit from the broadcasters’ ability to take effective action against pirates,” says a document jointly written by several broadcasting organizations. “At the same time, content right holders are not refrained in exercising their own rights against third parties.”
The statement encapsulates much of what is wrong with intellectual property rights maximalism. The broadcasters are allowed to free ride on the rights of others, and new conditions of judicial standing allow for an explosion of property claims by everyone against everyone. This is not the kind of policy we need in a world of digital networks and technologies that make it easier to create and distribute knowledge and culture.
Why this is relevant for US?
As we argued in the past, intellectual property rights should go to authors or inventors, not middlemen. Creating new kinds of “middleman rights” could increase the complexity of dealing with content exponentially. It could give broadcasters the right to prevent recording shows for later viewing, or even effectively remove works from the public domain.
It is important to remember that in the US, a very delicate compromise between competing interests was developed into a very complex set of laws and regulations, including 47 USC § 325(b), 47 CFR §§ 76.55 through 76.66, 17 U.S.C. § 111. The broadcast treaty could outweigh all of these and an overreaching treaty could make it difficult to reform US law in the future. For a detailed analysis, still valid, see How The Wipo Broadcast Treaty Conflicts With American Media Policy.
This treaty can also have chilling effects on the current debate and solutions of the Aereo case. Under the proposed Broadcasting Treaty, as of its current version, broadcasters could shut down innovative services like Aereo. As recently explained in the Electronic Frontier Foundation (EFF) and Public Knowledge joint brief filing: “Aereo simply provides an antenna for viewers to privately transmit free over-the-air broadcast television signals. It does nothing more than make it easier for viewers to access already free broadcast service. Aereo's technology follows the letter of the law, and the lower court's decision upholding Aereo's legality fits with Congress's intent that copyright owners should have the right to license their content to cable and satellite TV providers, but not the right to control private, personal transmission by individuals.”
Aereo’s activities would be in direct violation of the Broadcast draft treaty’s proposed regulations and broadcast organizations proposed new rights. That’s not balanced. That’s not in the interest of us as private citizens. And it’s not in the interest of the creators. A vast expansion of property rights in this case serves only the broadcasters pushing for the treaty.
What is coming next?
Several WIPO member states, including the EU, Russia and South Africa called for a diplomatic conference on this treaty in 2015. But as reported by TACD, when the time came to adopt conclusions and the next steps for WIPO concerning the Broadcast Treaty on May 2nd, the member states were unable to reach any degree of minimum consensus, and meeting adjourned with no agreement on how to proceed on the Broadcast Treaty. For now, we can only hope the few groups pushing this unnecessary new treaty are not getting what they want. We will continue to watch.
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