In the cliché-driven world of policymaking, wonks often repeat that new efforts should be “technology neutral.” Like most clichés this is true in a trivial and vague kind of way. Of course different technologies, to the extent they do the same general things, should be treated the same. (And of course to the extent they do different things they should be treated differently.) It’s hard to know what “technology neutral” really means except as applied to a specific case.
One case where a “technology neutral” approach (at first glance) makes a lot of sense is the WIPO broadcasting treaty. This is an ongoing, irritating attempted land-grab by broadcasters that would grant them rights over content simply because they have broadcast it. A lot of people have questioned why broadcasters should get this special treatment on technological neutrality grounds. But to put into context exactly why technology neutrality is a tricky concept here it’s necessary to review the overall problems with the proposed treaty.
The Broadcast Treaty As Copyfraud
Imagine if you wanted to license a use of part of a book, and to do so you needed the permission, not only of the author, but of the store you bought the book from. This would be unfair to authors as well as you. This is what some broadcasters want in the broadcast treaty–not just a narrow protection against the wholesale retransmission of their signals (which broadcasters in the U.S. already have), but a claim on the downstream uses of content they have broadcast.
Intermediaries who work with someone else’s content often make unwarranted claims over it. Jason Mazzone writes about this in his excellent new book “Copyfraud and Other Abuses of Intellectual Property Law.” Here’s an example I found on the web recently–someone who typed in Harold Bloom’s Western Canon list writes, “The content of this page may belong to the author. The transcription, however, is the result of my research and hard work. It may not be reposted on any Web site, newsgroup, mailing list, or other publicly available electronic format. Please link to this page instead.” But no matter how much hard work people do in making works available to the public–whether it’s scanning a public domain photograph or broadcasting a TV show–this hard work alone is not enough to grant any legal rights. In many cases it may be the right, ethical thing to do to give credit to a person who has worked hard to make something available, but being impolite is not and should not be illegal. Regardless, the ethical claim that an intermediary has over a work is far less than the ethical and legal claims of an author. The broadcast treaty would go much further than your typical copyfraud, though, since it would actually grant new legal rights in content to organizations that are not necessarily authors.
Some broadcasters have come forward with stories about instances of signal piracy they are powerless to stop. This seems quite odd–broadcast signal piracy is almost always also copyright infringement and already illegal. Broadcasters very often create their own content and can enforce those copyrights directly, and exclusive licensees of content can often bring suit to enforce their license–there’s no need to create some new legal principle to put a stop to this. That said, if there is a real problem with signal piracy and other countries want to adopt something like the U.S.’s already-existing retransmission consent rules, or otherwise make tweaks to their law that make it easier for broadcasters to put a stop to wholesale retransmissions of their signals, then they should go ahead and do it.
But of course, broadcasters don’t just want to put a stop to illegal retransmissions; they want to increase their control in a number of dimensions. This is why they claim they need rights in programs themselves. They point to Internet piracy of TV shows (something a retransmission-based approach would not cover) and make the ludicrous claim that copyright holders (often the broadcasters themselves, remember) have no incentive to fight it. (And again, if a broadcaster is the exclusive licensee of some foreign content in its country, it may already have standing to enforce that license in the name of the actual rightsholder.) In short, there are existing mechanisms to fight content infringement and none of them require granting new pseudo-copyrights to broadcasters.
The Technology Neutral Bind
Here’s the problem with technology neutrality in the broadcast treaty context. Of course it makes no sense to extend new rights to broadcasting, a 20th-century technology that’s on its way out in much of the world. This would give it even more special legal privileges than it already enjoys. A lot of countries and NGOs have made a similar point at WIPO (in a less inflammatory way). Why should broadcasters get new rights unavailable to their more modern competitors, such as cable, streaming sites, podcasters, and so on?
At the same time, even ignoring the technical difficulties (what is a “signal” on the Internet?) you don’t exactly fix the problems with an overbroad and unnecessary treaty by expanding its scope to include, for example, Internet video streaming sites. Put it this way: A law that said all laptops have to be painted bright pink would be a bad idea. But it would be no saving grace to say, in the name of technology neutrality, that the law should be extended to tablets and smartphones. Whatever the opposite of technology neutrality is (technology partisanship?) can be a way to limit the damage a bad idea can do.
There’s a further problem–other “beneficiaries” of a treaty aren’t clamoring for increased protection. Many in the cable industry in the US, for instance, don’t need the protections the treaty would provide to combat theft of service, and in fact realize that the treaty would put them at a disadvantage with regard to newly-empowered broadcasters. (The US already has a complicated system of permissions and licenses for the cable retransmission of broadcast signals that accounts for the interests of broadcast stations as well as content creators and viewers–a broadcast treaty could seriously upset this system.)
So with the Broadcast Treaty (as it is normally put forth) you have an interesting situation: an idea that is so bad that it might be better to just limit the damage than expand it to cover new media. That the analysis tends this way of course shows the absurdity of the entire enterprise. Neither a narrower treaty, or even better, no treaty at all leads you to the unwholesome dilemma of having to choose between granting technology-specific special favors to one medium or enacting an unwarranted expansion of rights to all media. If the discussions at WIPO actually focused on doing what the WIPO General Assembly said they would focus on–signal protection–a lot of this problem falls away. (Though the question of what are “signals,” and whether only traditional media have them, would still need to be resolved.)
For now the fight to be had is in ensuring that no treaty is adopted without the evidence to support it, and to keep the discussion, if it needs to take place at all, on the topic of signal protection and not content protection. The broadcast treaty has tireless advocates and the idea seems to come back every few years, so it’s important to remember how misguided it is.