[A2k] EFF Statement to WIPO SCCR 19 on Broadcasting Treaty

[Gwen Hinze]

As delivered this morning.

STATEMENT OF THE ELECTRONIC FRONTIER FOUNDATION TO 19th SESSION OF
WIPO STANDING COMMITTEE ON COPYRIGHT AND RELATED RIGHTS

December 14-18, 2009

Mr. Chair, thank you for the opportunity to present the views of the
Electronic Frontier Foundation and its 13,000 members. EFF is a
signatory to the joint statements of civil society and industry
opposing a rights-based Broadcasting treaty distributed at many
previous sessions of this Committee. Today we wish to highlight
several concerns with that proposed treaty.

1. The Treaty is not limited to Signal Protection

SCCR/15/2 would give broadcasters and cablecasters intellectual
property rights over the use of transmissions after fixation of
signals, rather than providing measures against intentional theft of
broadcasters=92 signals. Therefore it is not a =93signal-based approach=94
that meets the 2006 WIPO General Assembly=92s mandate. Protection of
signals does not require the creation of intellectual property rights.
Thus, we were heartened by the constructive interventions of the
United States yesterday, and Canada at our last session on the need to
look at alternative signal-based models such as the Brussels Satellite
Convention.

2. The Treaty Will Restrict Citizens=92 Freedom of Expression and the
Free Flow of Information on the Internet

As a recent UNESCO report noted, granting broadcasters and
cablecasters intellectual property rights that apply independent of
copyright together with legally enforced technological protection
measures (TPMs) would allow broadcasters to restrict access to public
domain works, and to prohibit the use of material that would be
permitted under national copyright law, even where they have no role
in its creation. This is likely to endanger education, research, user-
generated content and Creative Commons licensed content on the Internet.

Granting incumbent broadcasters and cablecasters rights over Internet
retransmissions is likely to add unnecessary complexity to copyright
clearance regimes and harm new forms of citizen broadcasting on the
Internet, such as podcasting, at a time when it is not clear what the
future of broadcasting will be. We note the critical role of citizen
journalism on the Internet, as compared to traditional broadcasting,
in disseminating information about world events in Iran this year, and
the recent US Presidential campaign. Member States will recall that
over 1500 podcasters from around the world sent an open letter to the
Second Special SCCR Session in June 2007, expressing their concerns
about the treaty.

Any treaty should include mandatory exceptions equivalent in scope to
those in the Rome Convention and TRIPs Agreement to protect currently
lawful activity. While Article 14 of the TRIPs Agreement permits
signatories to recognize non-exclusive broadcasting rights, it does
not condition creation of exceptions to those rights on satisfaction
of the three-step text. We see no justification for doing so in the
treaty

3. The Treaty Will Harm Innovation and Lawful Consumer Activity

Consumers can currently time-shift and retransmit lawfully acquired
television programming within their home under many countries=92
copyright laws. The treaty threatens these rights. Creating a layer of
rights that is independent of copyright would give broadcasters the
right to restrict how broadcasts, cablecasts and Internet
transmissions can be used in a consumer=92s home, overriding lawful
consumer activity. Broadcasters and cablecasters would be able to
exert control over broadcast-receiving devices such as the TiVo
digital video recorder and the Slingbox, and prevent the development
of innovative new consumer technologies and home networking devices.

Article 19 is likely to require technology mandate laws where
broadcasters use TPMs. Government-mandated TPMs harm innovation
because they require technology companies to seek permission from
broadcasters before releasing innovative technologies to market. The
treaty also creates new liability risks for intermediaries that
transmit information on the Internet, and manufacturers of
technologies that might be used by others to infringe broadcasters=92
and cablecasters=92 new rights, such as Internet video search engines.

4. Absence of Empirical Evidence to Justify a Rights-based Treaty

Finally, we remain unconvinced about the need for a rights-based
treaty. We look forward to the presentation of the study that has been
commissioned by the International Bureau. We note that Member States
seem no closer to agreement on the basic justification for and key
elements of the treaty despite over 10 years of negotiations. Everyone
agrees that signal piracy is wrong. That is why it=92s illegal in many
countries. Broadcasters claim to need a treaty to remove unauthorized
television content on the Internet. However, this can be done using
existing national copyright laws, as demonstrated by the daily
requests made by television networks to remove unauthorized content
from video hosting websites like YouTube.

We respectfully urge Member States to consider the impact of a rights-
based treaty on consumers, citizen broadcasting on the Internet,
competition and innovation, and not just protection of broadcasters=92
and cablecasters=92 analog business models in your deliberations.

Thank you for your consideration.


--
Gwen Hinze
International Policy Director
Electronic Frontier Foundation
email:gwen@eff.org
Tel.: + 1 415 436 9333 x110

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