[A2k] Tech Daily: Lawmakers Move Into Broadcasting Debate

[Thiru Balasubramaniam]

Lawmakers Move Into Broadcasting Debate
    by Winter Casey

         Senators wrote the director of the U.S. Patent and Trademark
Office
    last week with concerns that some of the possible changes to the
    proposed World Intellectual Property Organization broadcasting treaty
    would go against U.S. law.
         Some proposals "would needlessly create a new layer of rights
that
    would disrupt U.S. copyright law," according to the letter sent
Thursday
    by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and the
    panel's ranking Republican Arlen Specter of Pennsylvania. "The terms
of
    the revised draft broadcasting treaty appear to be inconsistent with
    United States law."
         The letter was sent to Marybeth Peters, register of copyrights
at
    the Library of Congress, and Jon Dudas, director of the U.S. Patent
and
    Trademark Office. A broadcasting treaty has been under discussion for
    many years.
         The revised "treaty appears to grant broadcasters extensive new,
    exclusive rights in their transmissions for a term of at least 20
years,
    regardless of whether they have a right in the content they are
    transmitting. While we support the need to protect against signal
theft
    of broadcast transmissions, the treaty appears to go beyond this
purpose
    and grant broadcasters a right in their transmissions similar to a
    content holder's copyright," the lawmakers wrote.
         They said the rights that would be granted by the proposed
treaty
    "could limit legitimate, fair use of the content and would add an
    unnecessary layer of uncertainty in consumer use. The revised draft
may
    also have the effect of restricting the rights of the underlying
content
    owners and have implications, perhaps unintended, for intermediary
    liability."
         The lawmakers urged Dudas and Peters to call for a treaty that
    would be significantly narrower in scope and only allow broadcasters
to
    protect their signals.
         Art Brodsky, communications director at Public Knowledge, said
his
    group hopes "the [Bush] administration follows the wise advice of the
    senators." And Sarah Deutsch, associate general counsel of Verizon,
and
    Jim Burger, an intellectual property and technology lawyer with the
Dow
    Lohnes law firm, said while they believe the U.S. delegation is on
the
    right track, they favor the senators' points.
         Deutsch said "we would support a narrowly crafted treaty
designed
    to protect signal theft." Her company is concerned with a treaty that
    she said could prevent the legitimate movement of signals within the
    home or in devices or services.
         She added that Verizon is concerned that under the current
version
    home networking services could be restricted or consumers would be
    forced to pay additional fees in order to watch programs at different
    times or in different places.
         Burger said "many U.S. technology companies are concerned that
the
    provisions of last year's proposed draft, which are still at issue,
    extend control over the way their devices -- software, hardware
chips --
    work. They would call the legality into question of personal video
    recorder or digital video records, home networks, and require IT
    products to respond to any technical protection measure imposed by
the
    content owners."
         Dell spokeswoman Colleen Ryan said her company is supporting an
    effort "to focus on signal protection versus the expansion of
    copyright-like liability."
         The National Association of Broadcasters has argued 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."
         And Fritz Attaway, Washington general counsel for the Motion
    Picture Association of America, said even though his group "would
agree
    with having a narrower treaty," he does not believe the proposals
would
    have an impact on legitimate users or would be a threat to Internet
    service providers.
         Attaway also said "the perceived threats of this treaty are
grossly
    overblown and no one has ever come up with any evidence justifying
the
    concerns that have been raised." He added that the proposals would
not
    prevent the legitimate movement of signals.
         Still, Burger said the draft would give European broadcasters
more
    rights then they currently have under the Rome Convention, which
    protects the "performances of performers, phonograms of producers of
    phonograms and broadcasts of broadcasting organizations."
         Attaway said "broadcasters from most western European countries
    have the right to authorize or prohibit the use of their signals,
which
    is exactly what this treaty would provide if the broad rights being
    advocated by broadcasters are adopted," but this system has worked
    successfully in other parts of the world.
         "The biggest problem for the treaty is the fact that many
    developing countries are trying to use this treaty as leverage for
other
    areas such as the WTO to get better trade rules," Attaway added.
         While some critics question the need for the treaty at all,
Deutsch
    said it could be scrapped altogether if more agreement is not reached
    during the next meeting.
         The WIPO Standing Committee on Copyright and Related Rights is
    scheduled to meet to discuss the treaty in June. This potentially
could
    result in a more agreeable draft, which could then be considered in a
    diplomatic conference this fall.


---------------------------------
Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
voice +41.22.791.6727
fax +41.22.723.2988
mobile +41 76 508 0997
thiru@keionline.org