Technology and Broadcast Groups Debate Merits of Draft WIPO Broadcast Treaty

September 7, 2006. Representatives of several technology and communications companies and groups held a news conference by teleconference on September 7 to discuss their opposition to the World Intellectual Property Organization's (WIPO) draft broadcast treaty. They also released a statement on September 5. Broadcasters released a statement and letter in rebuttal.

The WIPO's Standing Committee on Copyright and Related Rights will meet on September 11-13, 2006, in Geneva, Switzerland, to consider, among other things, a document [108 pages in PDF] titled "Revised Draft Basic Proposal for the WIPO Treaty on the Protection of Broadcasting Organizations". The WIPO General Assembly may take up the treaty later in the month.

Opposition to the Broadcast Treaty. Representatives of Public Knowledge, Computer and Communications Industry Association (CCIA), Internet Society, Consumer Electronics Association (CEA), Consumer Project on Technology (CPT), Dell, Hewlett Packard, Intel, Tivo, and Verizon participated in the news conference.

These opponents argued first that there is no need for the treaty. They stated that there has been only one significant case, which involved iCraveTV, and that in that case the broadcasters were able to shut down the offending operation. The CEA's Michael Petricone said that "iCrave was sued into oblivion".

(Back in January of 2000 broadcasters, movie studios, television networks, the NFL and the NBA filed lawsuits in U.S. District Court (WDPenn) to enjoin the unauthorized use of copyrighted material by Also, on June 15, 2000, the House Judiciary Committee's Subcommittee on Courts and Intellectual Property held an oversight hearing titled "Copyrighted Webcast Programming on the Internet." See, prepared testimony of Marybeth Peters, the Registrar of Copyrights.)

The opponents also argued that the draft treaty would create new intellectual property rights. Matthew Schruers of the CCIA argued that a signal theft approach is appropriate, but that new IP rights, such as protection of digital rights management (DRM) technologies, is not.

Schruers also argued that while the U.S. Supreme Court opinion in the Feist case does not accord copyright protection to collections of data, the sweat of the brow doctrine is recognized in Europe. He argued that the draft treaty is a bad idea because it could result in extending protection to databases.

This argument rests on the debatable assumption that the Feist opinion is wise from a policy perspective.

The opponents also took issue with the procedural approach of broadcasters. There is already the 1961 treaty titled "International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations". It is also known as the Rome Convention.

The U.S. is not a party. Opponents of the draft treaty argue that U.S. broadcasting is different from European broadcasting. The former is commercial, while the latter includes many government funded operations. Petricone argued that the U.S. broadcasters are now trying to "import large chunks of European law". He argued that the appropriate procedure would be to seek legislation from the U.S. Congress.

(The United Kingdom, France, Germany, Spain, Italy and other European nations are contracting parties to the Rome Convention. So is Japan and many other nations. However, the U.S., the People's Republic of China, and many other nations have not joined.)

The opponents also argued that the technology protection measures would result in the necessity of obtaining more permissions, and payment of more fees. They argue that this would increase prices for consumers, and inhibit new and innovative technologies.

Verizon's Sarah Deutsch also argued that the draft treaty would create liability problems for internet service providers in every country. She said that broadcasters want to "extract payments" from new businesses.

In addition, on September 5, an expanded collection of opponents of the draft treaty released a statement [2 pages in PDF] in opposition.

This statement adds that "The current treaty draft includes protection for Internet simulcasts made by traditional broadcasters and cablecasters, but otherwise excludes computer networks from its scope."

Support for the Broadcast Treaty. In response, the National Association of Broadcasters (NAB) issued a release in which it stated that "representatives of a number of organizations have issued highly inaccurate statements in opposition to a proposed" WIPO treaty.

The NAB wrote that "The reality is that broadcaster rights at the international level have not been updated for over 45 years, and this treaty is of critical importance to the preservation of free, over-the-air broadcasting both in the U.S. and abroad."

The NAB also wrote a letter [3 pages in PDF] on September 7 to Jon Dudas, head of the U.S. Patent and Trademark Office (USPTO), and a substantially identical letter [PDF] to Marybeth Peters, head of the Copyright Office (CO), which respond to the criticisms of the proposed treaty by the opposition groups and companies.

The NAB wrote that the opposition groups and companies are "wrong to suggest that there is no justification for the treaty. The need to modernize the rights of broadcasters in their signal is clear and pressing. Broadcasters' rights at the international level have not been updated for over 45 years and broadcasters are being harmed. For example, several years ago, a Canadian internet service provider began retransmitting U.S. broadcast signals over the internet. While various program providers brought a copyright infringement suit, no remedy was available for U.S. stations based upon the retransmission of their signals. Copyright holders have also sued Caribbean cable systems for the retransmission of Florida stations carrying their programming. Again, the Florida stations are being harmed, but they have no remedy under international law to require foreign cable systems to obtain authorization to retransmit their signals."

The NAB letters also state that the opposition groups are "wrong to suggest that these problems can be addressed by an approach focused only on signal theft. That focus misses the mark because without an international recognition of substantive rights in broadcast signals, foreign satellite cable and internet providers can expropriate U.S. broadcast signals. Broadcasters need to have the right to prohibit and to authorize use of their signals. U.S. broadcasters have had such protection in the form of retransmission consent rights with respect to carriage of their signals by U.S. cable systems and satellite carriers since 1992, but no such right currently exists with respect to carriage of their signals to non-U.S. cable and satellite providers."

The NAB letters also state that the "alleged threats to software developers, device and equipment manufacturers, and the public are similarly unfounded. Any final version of this treaty will include a section on the limitations and exceptions that permits countries to adopt limits and exceptions to rights created under the treaty. The same language is included in almost every other international intellectual property treaty. The limitations and exceptions provision would allow the U.S. to adopt fair use, private home copying, use by libraries and schools, safe harbor provisions, home and personal networking provisions and all other limitations on and exceptions to the rights of copyright and related rights holders."

Draft Treaty's Provision on Technology Protection Measures. Article 19 of the draft treaty includes the following language regarding "Technological Measures": "Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organizations in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their broadcasts, that are not authorized by the broadcasting organizations concerned or are not permitted by law."

Article 19 also provides that "Contracting Parties may provide that the circumvention of an imposed effective technological measure, used by a broadcasting organization, to obtain access to a broadcast for the purpose of non-infringing use of that broadcast shall not constitute an infringement of the measures implemented by virtue of this article."

It also provides that "In particular, effective legal remedies shall be provided against those who: (i) decrypt an encrypted program-carrying signal; (ii) receive and distribute or communicate to the public an encrypted program-carrying signal that has been decrypted without the express authorization of the broadcasting organization that emitted it; (iii) participate in the manufacture, importation, sale or any other act that makes available a device or system capable of decrypting or helping to decrypt an encrypted program-carrying signal."