[A2k] eCommerce Times on Broadcast Treaty

[Robin Gross]

"Broadcasters argue they need the additional rights to fight piracy of
their services. Civil liberties groups, developing nations and
technology organizations maintain those additional rights will stifle
technological innovation, freedom of expression and access to knowledge."

http://www.ecommercetimes.com/story/53106.html

*International Broadcast Rights Treaty Inches Forward*
   By John P. Mello Jr.
  E-Commerce Times
  09/20/06 4:00 AM PT
 **
            A proposed treaty that would expand the rights of
broadcasters over what they deliver to consumers cleared a significant
hurdle last week at a meeting of an international copyright panel.

The panel -- the Standing Committee on Copyrights and Related Rights
(SCCR) of the World Intellectual Property Organization
<http://www.wipo.int/portal/index.html.en> (WIPO) -- approved the
calling of a diplomatic conference to hammer out a final version of the
controversial treaty.

The diplomatic conference is the near-final step before the treaty
becomes part of international law. The SCCR's action, however, must be
approved by WIPO's General Assembly later this month before the
conference, scheduled for July 2007, can convene.


    Surprise Move

Some observers were surprised by the SCC's move in the final moments of
its session for this year.

"I was surprised on one level because it did seem to diverge from WIPO's
policy of consensus -- of not moving forward unless all the countries
are on the same page, Attorney Robin D. Gross, executive director of San
Francisco-based IP Justice, told the E-Commerce Times.

"There was an obvious lack of consensus, and most of the substantive
issues are still wide open and really haven't been dealt with," she
maintained.

At issue is whether intellectual property rights that -- up until now --
have been granted solely to content creators should be extended to the
deliverers of the content.


    Fighting Piracy With IP

Broadcasters argue they need the additional rights to fight piracy of
their services. Civil liberties groups, developing nations and
technology organizations maintain those additional rights will stifle
technological innovation, freedom of expression and access to knowledge.

"This broadcast treaty would allow the broadcasting organizations to go
after individuals and entities that are involved in piracy with new
technologies <http://www.ecommercetimes.com/story/53106.html#>," Kristin
J. Achterhof, a partner and intellectual property attorney with Katten
Muchin Rosenman in Chicago, told the E-Commerce Times.

"The existing treaties don't go far enough to provide the remedies that
the broadcasting organizations need, particularly in connection with
signal piracy problems," she added. "These pirates can put out the
content to the public before the broadcasters can do it."


    New Revenue Stream

However, critics of the treaty argue that existing law gives
broadcasters the tools they need to fight signal theft. The new rights
broadcasters are seeking in the treaty aren't about signal theft, but
about something else.

"It's another whole new revenue stream for them," Gross asserted. "It's
new economic rights. It's a new opportunity
<http://www.ecommercetimes.com/story/53106.html#> for broadcast
companies to charge other companies downstream for accessing content.

"The broadcasters haven't shown why the current system is inadequate and
why they need this new entirely unprecedented intellectual property
right," Achterhof declared.


    Traditional Methods Sufficient

Historically, the purpose of intellectual property rights is not to deal
with theft, explained Jeff Lawrence, director of digital home and
content policy for computer HP Multifunction printers - get a free
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<http://www.ecommercetimes.com/perl/search.pl?query=Intel&scope=network>.

"If I'm a DVD distributor and someone steals those DVDs from me, it's a
problem. But we don't give me an intellectual property rights on the
DVDs -- we rely on traditional notions of theft," he told the E-Commerce
Times.

"It will be problematic if we start to use intellectual property rights
to solve every business problem that arises out there, rather than using
traditional notions of theft or unfair business practices," Lawrence
maintained.


    Webcasting Excluded

While there were many treaty detractors unhappy with its expansion of
rights, one group believes the proposal doesn't go far enough. Lee
Knife, general counsel for the Washington-based Digital Media
Association told the E-Commerce Times his organization was disappointed
that the rights provided to broadcasters in the treaty weren't extended
to Webcasters.

"It is our understanding that the document that will go to the General
Assembly will explicitly say it does not include Webcasting -- that
Webcasting should be considered separately," he said. "We would prefer
to have Webcasting included in the treaty proposal."

Because parliamentary tactics were used to advance the treaty over the
objections of many of the SCCR's members, some opponents believe it may
be rejected by the General Assembly.

"I would be surprised if the General Assembly went along with it," IP
Justice's Gross contended. "The General Assembly delegates will be
looking at things from a much broader perspective."