Copyright Office and USPTO to Hold Roundtable on Draft WIPO Broadcast Treaty

April 12, 2007. The Copyright Office (CO) and the U.S. Patent and Trademark Office (USPTO) announced that they will hold a public roundtable discussion of the World Intellectual Property Organization's (WIPO) Standing Committee on Copyright and Related Rights (SCCR) proposed draft Treaty on the Protection of the Rights of Broadcasting Organizations.

This event will be held on Wednesday, May 9, 2007, at 2:00 PM, at the Library of Congress. The deadline to request to attend or participate is 5:00 PM on Friday, May 4, 2007. See, notice in the Federal Register, April 12, 2007, Vol. 72, No. 70, at Pages 18493-18494.

The latest draft of this proposed treaty is contained in the WIPO's March 8, 2007, paper [MS Word] titled "Draft Non-paper on the WIPO Treaty on the Protection of Broadcasting Organizations".

The treaty would require member nations to create a new class of intellectual property rights for "broadcasting organizations" in their broadcast signals, and other things. It would require nations to create several exclusive rights in broadcast signals (with a 20 year term of protection), to create certain unspecified rights prior to broadcast, to create bans on circumvention efforts, and to ban the making or importing of devices that circumvent.

The rights would in many ways be analogous to copyright. However, there is no requirement that the entity obtaining the rights create or license the works that are broadcast. Moreover, there is no registration requirement.

Article 3 provides, in part, that "The provisions of this Treaty shall not provide any protection in respect of ... any transmissions over computer networks (transmissions using the Internet Protocol, ``webcasting´´, or ``netcasting´´)." (Parentheses in original.)

Perhaps the most significant provisions of this latest draft are found in Articles 8, 9, and 10, which impose requirements on member nations.

Article 8(1) provides in full that "Broadcasting organizations shall enjoy the exclusive right of authorizing:
  (i)  the simultaneous or deferred retransmission of their broadcasts by any means;
  (ii) the fixation of their broadcasts; and
  (iii) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts."

This article requires nations to create at least three types of rights: retransmission, fixation, and reproduction. (Article 8(2) allows nations a second alternative. However, it too requires nations to create retransmission, fixation, and reproduction rights.)

Article 9 then requires a fourth right. It provides, in full, that "Broadcasting organizations shall enjoy adequate and effective legal protection against any acts referred to in Articles 8 and 10 of this Treaty in relation to their signals prior to broadcasting."

To the extent that this extends exclusive rights to things that do not exist, the meaning of this article is uncertain. The draft defines "broadcast" as "an electronically generated signal transmitted by wireless means and carrying assembled and scheduled programs for the reception by the general public". That is, does this article require protection against retransmission of signals that have not been transmitted in the first place? Does it require fixation rights in that which has not been fixed? Does it ban reproduction of that which has not been produced? Does it ban decryption of that which has not been encrypted? Article 9 has a certain Alice in Wonderland quality.

Perhaps this is in some way analogous to copyright statutes that allow holders of certain works, such as new movies, to bring legal actions prior to the completion of the copyright registration process. However, there is no requirement under the draft treaty that broadcasters register the signals in which they will obtain exclusive rights.

Article 10 then creates a fifth, sixth and seventh right. It requires nations to provide "adequate and effective legal protection against unauthorized
  (i) decryption of an encrypted broadcast;
  (ii) manufacture, importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast; and
  (iii) removal or alteration of any electronic information relevant for the application of the protection of the broadcasting organizations."

The draft, at Article 11, allows, but does not require, nations to create private rights of action for violations of Article 10.

What Article 10(iii) means would be open to interpretation. For example, it could be analogous to protection of the integrity of copyright management information. (See, 17 U.S.C. § 1202.)

Providing "protection against ... decryption of an encrypted broadcast" is broad. Like Article 8(1), Article 10, contains no requirement that the broadcast organization own the copyright in the underlying content. It contains no requirement that decryption be for the purpose of rebroadcast or retransmission. It contains no fair use exception. It contains no educational or library use exception. It allows no exception for blocking ads or removing obscenity or violence in home or school viewing of broadcast signals.

Article 12 of the draft treaty provides that nations may "provide for the same kinds of limitations or exceptions with regard to the protection of broadcasting organizations as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works, and the protection of related rights." While U.S. national legislation creates numerous exceptions to the exclusive rights of copyright (see, 17 U.S.C. §§ 107 through 122), U.S. national legislation creates no exceptions to the ban on circumvention (see, 17 U.S.C. § 1201). The draft treaty is clear that no nation would be required to create any exceptions. Moreover, Article 10 of the draft may be construed in a manner that would prohibit the U.S. from creating exceptions to the Article 10 requirements, regarding circumvention, on the grounds that the U.S. copyright statute now contains no exceptions to the ban on circumvention.

In addition, the language of Article 10 would put broadcasters in the position to regulate, and license, the design of consumer electronic devices. Yet, not only do broadcasters need not create or hold copyrights in the content contained in the broadcast signals for which they obtain protection, they need not invent, or hold patent rights in, the technologies that they would regulate or license.

The U.S. Constitution provides that the "Congress shall have the Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

This clause authorizes the Congress to pass laws that incent creation by enabling creators to exclude others from copying their works, or practicing their inventions, in order to enable them to collect rents from the licensing of their works or inventions. Yet, this draft treaty would require the Congress to create a panoply of rights in entities that have created nothing and invented nothing. Moreover, the collection of rights in the draft treaty goes beyond protecting signals from broadcast retransmission, and viewing of subscription services by non-paying free riders. The draft treaty would work a transfer of some rents from creators of content and inventors of technologies to broadcasters of signals. It would thereby reduce the incentives for creators to create, and inventors to invent.

Of course, the Congress has the power to create intellectual property rights under other authorities. For example, trademark protection rests upon the commerce clause rather than the authors and inventors clause.

The WIPO set a deadline of March 28, 2007, for nations to submit comments on the draft treaty.

15 nations submitted comments. See, WIPO web pages with hyperlinks to these comments. See especially, comment [14 pages in PDF] filed by the U.S., comment [2 pages in PDF] submitted by Japan, comment [13 pages in PDF] submitted by India, comment [1 pages in PDF] submitted by the People's Republic of China, and comment submitted by the European Union [4 pages in PDF].

The WIPO Standing Committee on Copyright and Related Rights (SCCR) may issue another paper, also titled "Non-paper", on May 1, 2007, that takes into account the above comments.

The WIPO's SCCR will meet again on June 18 through 22, 2007, in Geneva, Switzerland.