[Ecommerce] out-law.com on treaty under fire

Fri Jun 11 07:47:02 2004

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News Broadcasting rights: proposed treaty under fire

09/06/2004

The UN=92s World Intellectual Property Organisation is this week mulling a
proposed treaty to protect the rights of broadcasters in the works that
they transmit. But civil rights groups have criticised the proposals as
overly broad and based on =91bad science=92.

WIPO=92s Standing Committee on Copyrights and Related Rights meets in
Geneva this week to debate a consolidated text of proposals for the
Treaty on the Protection of Broadcasting Organisations.

Work on the proposals has been continuing since 1998 and does not yet
amount to a draft Treaty. But the proposals submitted so far have been
stirring controversy.

One of the main criticisms, according to civil liberties group IP
Justice, is that the proposed text would create copyright protection
over broadcast signals for 50 years =96 more than twice the length of
protection currently permitted under the Rome Convention, which allows
countries to give broadcasting corporations 20 years of exclusive rights.

"Unless broadcasting companies plan on transmitting their signals to
Jupiter, a 50-year term makes even less sense because signals only exist
for the short time they take to travel through the air to reach their
point of reception," said Robin Gross, Executive Director of IP Justice.

The science behind the proposal is also flawed, says the group, which
will be participating as an observer at the meeting.

The proposal grants broadcasting companies a slew of new rights based on
the "fixation" of a broadcast signal. However, IP Justice argues that
broadcast signals exist only in the air and dissolve upon contact with
matter (i.e. reception), and therefore cannot, as a matter of simple
physics, become "fixed" as much of the treaty presumes.

IP Justice is also concerned about clauses contained in the text that,
like the US Digital Millennium Copyright Act, would prohibit the
circumvention of technological restrictions controlling broadcast
signals, even if the underlying programming is in the public domain.

One proposal outlaws any device that could help someone to decrypt an
encrypted signal without permission, but is broad enough to include
banning personal computers and technical information about signals
technology, says IP Justice. It would also require all media devices to
obey use-restrictions that are encoded into the programming by the
broadcaster, further trampling on consumer's fair use rights under
copyright law.

According to Gross, the Treaty represents "a 'back-door' attempt to
extend copyright protections indefinitely, by permitting companies to
broadcast public domain material and then control the public's use of
the underlying public domain programming=94.

In addition, all retransmissions of broadcast media, including through
the internet, would also be regulated by this proposal.

Gross concludes:

"The WIPO Broadcasting Treaty endangers freedom of expression on the
internet since it would regulate consumers' ordinary on-line activity
and treat citizens who disseminate media through the internet as if they
were commercial broadcasters committing piracy".

These concerns were echoed yesterday by consumer group European Digital
Rights (EDRi), in a statement presented to the WIPO meeting.

EDRi urged delegates not to use the Treaty to create a new layer of
rights, which would potentially conflict with existing copyright
protection, but rather to create a =91signal centric=92 Treaty.

Any broadcast rights created, said EDRI, should not remove transmitted
works from the public domain if they are currently publicly accessible.
Nor should those rights be protected for 50 years rather than the
current 20 year period.

Finally, said EDRi, the Treaty should not extend to cover webcasting. If
necessary, a separate instrument could be created in the future to deal
with this developing technology.

See: Consolidated text for a Treaty on the Protection of Broadcasting
Organisations (89-page PDF)