Summary
The World Intellectual Property Organization (WIPO) Broadcast Treaty had a long journey of two decades of negotiation on the WIPO table. U.S. delegates proposed a most recent draft at the Standing Committee of Copyright (SCCR 38) in 2019, and the last SCCR 41 Agenda asks for comments on possible next steps for the Broadcast Treaty. IP Justice joins other international coalitions to call for two critical steps. One step is to urge delegates to reject the proposed Broadcast Treaty. The treaty sought to prevent signal piracy but instead harm the rights of the creative communities, the public and generate economic rights for broadcasting companies that never existed in copyrights before. This treaty will inhibit access to knowledge by granting control over reuses of information to third-party intermediaries. The second step is to address the deficient Limitations and Exceptions provision if the broadcast treaty is adopted. IP Justice urges the WIPO SCCR 42 to prioritize establishing an internationally binding instrument to protect public interests and incorporate online uses and cross-border uses for libraries, archives, museums, education, research, and people with disabilities in the provision.
Context and Importance of the Problem
The Broadcast Treaty extends copyright-like rights protection for broadcasting companies from the 1961 Rome Convention’s 20 years to 50 years. These giant technology firms are primarily based in the United States. They create global platforms for entertainment and music content, including Amazon Prime, Netflix, Hulu, YouTube, Google/YouTube TV, Hulu TV, Yahoo, Twitter, Sling TV, Facebook, Spotify, Apple Music, Google Play Music, and Pandora. Owning a single broadcast station would qualify for the broadcaster categorization. Broadcasters would have the right to protect the content of their media transmissions and their broadcasts from reproduction, retransmission, and public usages. All copyright protections would endure for 50 years. This length is detrimental to libraries and educational entities. If the broadcast treaty is adopted, exceptions to broadcast rights are essential for digital preservation, online education, and research. Exceptions are needed to enable broadcasts to provide services to benefit the public. For example, one broadcaster might need to quote content created by another to circulate news or healthcare information.
Many WIPO members did not join the Rome Convention. Granting Broadcasters economic copyrights creates potential abuse of power for broadcasters to limit access to copyrighted materials and selectively give permission absent uniform protocol. The treaty Paragraph 2 includes a “presumption that in the absence of proof to the contrary the broadcasting organization is authorized to enforce those rights against the unauthorized retransmission.”. Additionally, the treaty harms the traditional rights of copyright holders by giving broadcasters the power to determine the conditions (and exact a licensing fee) under which a work could be used. Broadcasters could “privatize” public material.
-What rights does the Broadcast Treaty undermines
-What the Broadcast Treaty failed to protect.
Critique of Policy Option and Difficulties
One problem with the treaty is the extended length. “If the treaty were really about protecting broadcasters from rampant piracy and not about creating new layers of rights for them, the Chair’s text would not contain terms of protection with options for 20, 50, or more years of protection.”
The second problem with this treaty is the inhibition of technology innovation. Broadcasters pushed for all means of transmission protection. These restrictions affect internet transmissions. Broadcasters want provisions similar to the WIPO Internet treaties that would make encryption and “tagging” illegal. This allows control on who can view what on which equipment. For example, blocking legal uses of TV broadcasts, such as recording programs for personal or educational benefits, disincentivizes technological innovation in internet distribution.
The third problem is difficulties in reaching an international consensus over the treaty. The treaty claimed that they need to prevent signal piracy. However, WIPO refused to adopt signal piracy-specific treaties. There are other reasons why countries could not settle on the objection of broadcast protection. “1. The conceptual and practical difficulty of distinguishing between signal protection and content protection.
- There is very different legal treatment among the Member States, involving different bodies of law (those are primarily but not solely communications law and copyright/related rights law)
- Shifting ground beneath us due to the rapidly changing use of technology by both broadcasting organizations and pirates.”
Another problem with this treaty is the U.S. as a home base for these beneficiary companies. However, the treaty grants them international economic copyrights that control access to information globally, taking advantage of and unfairly impedes communities that need access to these same materials for education. This treaty seeks to impose upon international users an American legal hegemony in intellectual property ownership and exploit other countries’ freedom to information by profiting from content that they simply broadcast.
Solutions
I suggest several solutions to prevent signal theft for broadcasting companies while preserving public access to copyrighted materials on broadcasting mediums.
First, Congress should exercise greater oversight over U.S. participation in the WIPO negotiations. Currently, Congress has several ongoing antitrust litigations over broadcasting companies and should consider the broadcast treaty as evidence.
Second, use the current existing copyright framework to resolve signal piracy issues rather than granting new economic rights to broadcasting companies.
Third, NFT on Ethereum is a possible solution.
Fourth, limiting US broadcasting companies to regional protection, but not outside of the US.
Appendices
- Analysis of WIPO SCCR 41 Agenda, BROADCAST TREATY, Sean Flynn | Jun 28, 2021, | Limitations and Exceptions, Multilateral Fora, WIPO, Infojustice.org.
- ALA American Library Association
- New US ‘Compromise’ Proposal On Broadcasting Treaty At WIPO Stirs Fresh Negotiations. 27/11/2018 BY WILLIAM NEW, INTELLECTUAL PROPERTY WATCH
- Protection of Broadcasting Organizations-Background Brief