Very little new ground was broken at today's USPTO's WIPO Broadcast Treaty roundtable at the agency's beautiful headquarters in Alexandria, Virginia. A full list of attendees can be found here. Of course I am biased, but I would say that the opponents of the current treaty got the better of the proponents. The proponents, led by NAB Senior Associate General Counsel Ben Ivins essentially justified the need for a 50 year IP right in broadcast signals on the basis that broadcasters “invest” in their signals and that because 83 countries (but not the US and 99 other countries) have signed on to the Rome Convention that gives broadcasters a 20 year intellectual property-like right in their signals, the US should have it too. Other than the iCrave TV example wherein a Canadian webcaster retransmitted signals from US broadcast stations (it was sued out of existence by copyright holders), the proponents could come up with not one example of why they need a 50 year IP right, as opposed to protection against signal theft. Most of the arguments on the proponent's side came down to “we need the treaty to be competitive” (with whom?) and that it is “important” to the industry.
The motion picture studios, which had heretofore remained neutral, came out as a proponent of the treaty. Fritz Attaway, MPAA's general counsel, incorrectly said that the treaty would have no effect on copyright holders (it would layer another set of rights on top of theirs). The Digital Media Association (DiMA), which represents webcasters like Yahoo and Real Networks, again made their pitch for regulatory parity, regardless of the scope of the treaty.
Weighing in on the treaty proponents' side but not really a proponent was Neil Turkewitz of the Recording Industry Association of America. RIAA, like many of the opponents of the treaty, supports only one that would address signal theft (or as he put it, “misappropriation”). He also noted the irony of broadcasters seeking exclusive rights for content that they do not license. He was referring, of course, to the fact that broadcasters are exempt from paying the recording labels a public performance royalty. RIAA is hoping that any implementing legislation for this treaty will repeal this exemption.
Then it was the opponents' time to speak. Speaker after speaker, starting with Jeff Lawrence from Intel, and including representatives of technology, telecom and consumer electronics companies and public interest groups, hit hard on the core points included in the statement we released today – broadcasters have not shown that there is a need for this treaty; this treaty would change US law, which is Congress' job, not the US delegation's job; any limitations and exceptions should be mandatory, and not permissive; online service providers would be subject to liability, etc. Jamie Love of CPTech and Gwen Hinze of EFF also talked about the possible inclusion of webcasting in the treaty (it is not included in the latest draft). Jamie was eloquent as usual, suggesting that perhaps the treaty should only protect sports broadcasts, since that is one of the recurring rationales for the treaty, but he made two points I really liked: 1) Do webcasters really want parity with broadcasters, given the myriad of regulations (including content regulations) that broadcasters are subject to; and 2) that the Internet has become hothouse of democracy because it has not been regulated in this way – and that broadcasting and cablecasting in particular have been forever changed because of the commentary and criticism of such that one sees on You Tube and the like.
Given a chance to rebut, Ben Ivins said that rather than the burden being on those seeking the treaty to justify it, the burden was on the opponents to show how the 20 year exclusive rights in the 83 countries that have them have hurt others. He then said that the “retransmission consent” law which gives broadcasters the right to demand compensation from cablecasters is the US precedent that justifies this treaty. Of course, retransmission consent is nothing of the sort, as it simply mandates a contractual relationship between broadcasters and cablecasters, and (as he conveniently did not mention), is integrally interconnected to the “must carry” law, which forces cablecasters to carry local broadcast signals. Ben then accused those of us who think that the US delegation should not be making US laws overseas of essentially being xenophobes who are pushing the US view of broadcasting and copyright on the rest of the world. Funny, I thought the US delegation usually pushes the US view of the world in trade and WIPO negotiations.
The proponents of the treaty utterly failed to address the two points that I (and others) raised: 1) what is the problem that this treaty addresses? and 2) Why shouldn't they be seeking relief from Congress rather than WIPO?
The big question now is where the US delegation will go from here. When asked that question, delegation head Jule Sigall essentially demurred. But time is running out – the WIPO Standing Committee on Copyrights and Related Rights meets again next week.