[A2k] WIPO Broadcasting Treaty - EFF briefing paper on TPMs and Tech Mandates

[Gwen Hinze]

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[ Picked text/plain from multipart/alternative ]
Distributed this morning, in response to yesterday's TPM discussion
at WIPO's 14th SCCR.

Will be posted as pdf on EFF Broadcasting Treaty page shortly.

Since no attachments permitted on A2K list, here's a cut and paste of text.

Gwen Hinze
International Affairs Director
Electronic Frontier Foundation
Email: gwen@eff.org


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TPMS AND TECHNOLOGY MANDATE LAWS
14th Session of WIPO Standing Committee on Copyright and Related Rights,
May 1-5, 2006

What does Article 14 say?

"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."

Does Article 14 contain an obligation to mandate for the broadcasters
to use technological measures?

No. It imposes an obligation on signatory countries where
technological measures are used by broadcasters and by cablecasters
(mutatis mutandis under Art.3). Signatory countries then have an
obligation to "provide adequate legal protection and effective legal
remedies" against circumvention of those measures. If the treaty is
extended to webcasters, signatories would be required to provide
legal measures for technological measures used by webcasters (under
Appendix Article 3's mutatis mutandis clause). As far as we know, no
one has ever made the claim that Article 14 mandates the use of
technological measures by broadcasters.

What is required to comply with Article 14?

Paragraph 14.03 of the Explanatory notes in SCCR/14/2 states: "In
order to comply with the obligations of this Article the Contracting
Parties may choose appropriate remedies according to their own legal
traditions."

The language in Article 14 is the same as that used in respect of
copyright owner TPMs in Article 11 of the WCT and Article 18 of the
WPPT. In the United States, these obligations were implemented
through the Digital Millennium Copyright Act of 1998, which inserted
sections 1201-1204 in to the U.S. Copyright statute, and in the
Europe Community, by Article 6 of the Information Society Directive
(Directive 2001/29/EC of the European Parliament and of the Council
on the Harmonisation of Certain Aspects of Copyright and Related
Rights in the Information Society).  As noted by several delegations
in the discussion on May 4, despite the scope of discretion left to
Member States by this language, in practice, a number of global
political pressures, including the use of bilateral free trade
agreements, has effectively required countries to converge around
these two main models of implementing these obligations in relation
to copyright owner TPMs. The same factors are likely to lead to
convergence in implementing the broadcaster TPM and Rights Management
obligations in Articles 14 and 15 of the Treaty through laws banning
the circumvention of broadcaster, cablecaster and potentially
webcaster TPMs on transmissions, and regulation of tools,
technologies and devices that can be used to circumvent.

Technology Mandate Laws
Broadcaster TPMs are different in certain key respects from copyright
owner TPMs. To be effective, broadcaster TPMs require regulation of
the devices which broadcast signals can be received. Broadcaster TPM
regimes require devices to detect and respond to the broadcaster TPM.
In the U.S., broadcasters sought a further law, in addition to the
DMCA, to provide adequate legal protection for the U.S Broadcast Flag
TPM, the Federal Communications Commission's Broadcast Flag
regulation.   The U.S. Broadcast Flag regulation is a Technology
Mandate law. In basic terms, Technology Mandate laws and regimes do
two things (1) they require manufacturers to design devices to detect
and respond to TPMs and (2) they seek to ban all devices that don't
do so from the marketplace, by various means. In the United States,
the FCC regulation and implementing rules would have had the effect
of precluding free and open source software technologies.

Broadcaster TPM technology mandate laws are also under discussion
outside of the United States. In March 2005, a representative of the
North American Broadcasters Association announced that the European
Digital Video Broadcasting standards-specifying body intended to use
the technological protection measure provisions in the Broadcasting
Treaty to obtain national technology mandate laws for the DVB CPCM
digital rights management standard in digital television technology
in all countries using DVB broadcast standards (which include Europe,
parts of Asia, Latin America and Australia).

What's wrong with Technology Mandates?
Imposing government mandate on emerging broadcast technologies (such
as digital television and radio) is detrimental for innovation and
competition policy, as U.S. corporations like Intel Corporation have
noted.
These mandates will also restrict private, non-commercial uses of
broadcasting content that are reserved to the public, researchers,
archivists and educators under existing national laws. For instance,
a legally-backed technological measure could restrict in-home
recording of broadcast television for personal, non-commercial use,
or "time-shifting," which in United States' law is recognized as
lawful fair use and not copyright infringement.
Absent any evidence that non-commercial uses pose any substantial
harm to broadcasters, the imposition of a technology mandate regime
is premature.

Why is the Broadcaster TPM regime different from the copyright TPM
regime established in the WCT and WPPT?
A broadcaster technological protection measure regime is likely to
have more far-reaching consequences on technological innovation and
information distribution than the parallel copyright rightsholder
technological protection measure regime under Article 11 of the WIPO
Copyright Treaty and Article 18 of the WIPO Performances and
Phonograms Treaty for three reasons.

(1) "No mandate" precluded: The 1996 treaties leave room for "no
mandate" type provisions in national implementation law. That means
that consumer electronics, telecommunications devices and computing
products do not have to be designed to detect and respond to
particular technological measures.  These types of provisions are
necessary to minimize a) anti-competitive uses of technological
measures backed by legal sanctions and b) attempts by rightsholders
to use technological measures to ban or lever control over
technologies that interoperate with their copyrighted works that
would otherwise stifle technological innovation.
Unlike the rightsholder regime, a broadcaster technological measure
regime leaves no space for a "no mandate" safeguard. A broadcast in a
particular country must meet that nation's broadcasting standard (for
instance, PAL or NTSC format). Any technology designed to receive
broadcasts in that country must necessarily interoperate with that
nation's broadcast signal. If the broadcast signal incorporates a
technological measure, all devices must respond to it. While a device
could be designed to ignore a technological measure, it will not be
able to receive the signal broadcast in that country. As a result,
device manufacturers must comply with design mandate laws to sell
their devices in the market.

(2) Global Standardization: A broadcaster technological measure
regime is likely to erode Member States' national sovereignty in
technology regulation. Electronics are strongly standardized across
international borders. In practice, this means that governmental
mandates imposed in a few large electronics markets will become the
de facto requirements for all Member States, regardless of variations
in national implementation laws.

(3) Broadcaster TPM regimes apply beyond Copyright: Since the
Broadcast Treaty creates rights that are intended to apply in
addition to, and independently of, copyright, broadcaster,
cablecaster, and potentially webcaster, TPMs could be used to
restrict access to information that is in the public domain, not
copyrightable or has been permissively licensed (for instance by a
Creative Commons license) by a rightsholder.



Contact for further information:
Gwen Hinze
International Affairs Director
Email: gwen@eff.org