[Ecommerce] Michael Geist: Little Public Broadcast of Dangerous Broadcast Treaty

[Manon Ress]

Little Public Broadcast of Dangerous Broadcast Treaty

Appeared in the Toronto Star on September 11, 2006 as Leaders Weirdly
Silent on Sweeping Broadcast Treaty
http://www.michaelgeist.ca/content/view/1425/159/

Government negotiators and broadcast officials descend on Geneva this
week to continue negotiations on a treaty that few people have heard
about, yet one which may have damaging long-term consequences for
consumers, technology companies, telecommunications providers, and
the Internet.

The World Intellectual Property Organization's Broadcast Treaty began
several years ago as an initiative to address signal theft after
broadcasters expressed concern that the international legal framework
did little to protect against the theft or misuse of their television
and radio signals.

While the content of most broadcasts is protected by copyright,
broadcasters do not always hold that copyright. Movie studios,
television production companies or sports leagues typically retain
the copyright in original television programming, while broadcasters
pay for the exclusive right to transmit the programs.  Broadcasters
use the programs to attract an audience and generate advertising
revenues.

If the programs are stolen - for example, the signals retransmitted
by another party without permission, sold as an unauthorized DVD or
performed publicly without the requisite license - the copyright
owner may assert their rights, but in some countries the broadcasters
are left with limited ability to protect their interests.

What started as an attempt to address this relatively narrow issue
has since mushroomed into a massive treaty that would grant
broadcasters in some countries many new rights.  These include an
exclusive right of retransmission for over-the-air television signals
(retransmission involves capturing a broadcast signal and
rebroadcasting it without permission of the copyright holder or the
original broadcaster) and more than doubling the term of protection
for broadcasts to 50 years from the current twenty-year term.
Moreover, exceptions and limitations to these rights, a hallmark of a
balanced policy approach, would be optional for countries that adopt
the treaty.

The Canadian delegation, comprised of policy officials from Canadian
Heritage and Industry Canada, has raised questions about the adverse
consequences of certain provisions.  During the last major round of
talks in the spring, it wondered aloud whether the treaty would
create a danger that some broadcasts might never fall into the public
domain, effectively creating a perpetual broadcasting right.

The impact of the treaty on individuals and creators could be
dramatic, potentially making it more difficult to record television
shows for viewing at a later time, locking up content that is
otherwise in the public domain, and necessitating that film makers
obtain twice as many consents for the re-use of broadcast clips.

The potential cost of the new rights is also significant, with
Canadian broadcast distributors, including the major
telecommunications companies that have begun offering high-definition
television services, fearing that the new retransmission right alone
could result in more than a half billion dollars in new royalty
payments flowing out of Canada to U.S. broadcasters.

The proposed treaty has faced mounting international criticism,
particularly after attempts by several U.S. Internet companies to
extend it to Internet webcasting.  When it became apparent in the
spring that including webcasters within the treaty would result in a
stalemate given many countries reluctance to expand the treaty beyond
conventional broadcasting, negotiators agreed to move the webcast
issue to a separate track. Despite that compromise, delegations have
sought to bring the Internet back into the picture, with the U.S.
recently raising the prospect of adding "netcasting," while the
European Union has focused on "simulcasting."

With the prospect of a diplomatic conference looming (a diplomatic
conference is the last stage in the treaty-making process and a sure
sign that agreement may be imminent), a coalition of critics of the
proposed treaty, which include technology giants (Dell, HP, Intel,
and Sony), telecommunications companies (AT&T, Verizon), library
associations, and civil rights groups, went on the offensive last
week.  The coalition outlined a series of concerns, most notably
arguing that the treaty is a solution in search of a problem.

The broadcasting industry has thrived in recent years with an
explosion of new services and revenue streams.  In Canada, the market
places premium value on the industry with the sale of broadcasting
companies fetching billions of dollars.  Given this success, the
coalition observed that there does not appear to be any compelling
need to provide the industry with a basket of additional rights.

In addition to the treaty's substantive shortcomings, the manner in
which it has evolved is also cause for concern.  For the past few
years, negotiators and lobbyists have quietly been working toward the
treaty with minimal public input or consultation.  The U.S. Patent
and Trademark Office conducted an open afternoon session last Tuesday
in Washington that enabled approximately 40 supporters and critics to
air their views, however, the meeting could not be recorded and no
immediate broader consultation is planned.

The Canadian approach has been even more secretive.  While the USPTO
was conducting its meeting, Canadian government officials held a
closed conference call with a select group of stakeholders to update
them on the current status of the treaty negotiations.  Canada has
not conducted any public consultations on the treaty nor issued any
public statements articulating a definitive Canadian position.

In fact, with few exceptions such as the concern involving the public
domain, the Canadian delegation has remained stubbornly silent during
the treaty deliberations, seemingly content to allow other countries
to determine the shape and scope of a treaty that could ultimately
have significant consequences for all Canadians.

Treaty negotiations began long before Prime Minister Harper assumed
office, yet the continuation of non-transparent international treaty
making seems to run counter to his government's commitment to greater
accountability.  Moreover, given the potential harm to Canadian
industry, it is surprising that Industry Minister Maxime Bernier has
not been a more vocal opponent of the treaty.

Over the next month, U.S. and Canadian broadcasters will unveil a
slate of new television programs, hopeful that a handful will emerge
as the next Desperate Housewives, Seinfeld, or American Idol.
Programs that fail to quickly find an audience, face the prospect of
cancellation.  In this regard, the broadcast industry clearly
understands the need to cut its losses by putting an end to programs
that are not working.  Unfortunately, the same cannot be said for
those negotiating the unnecessary and potentially harmful WIPO
Broadcast Treaty.

Michael Geist holds the Canada Research Chair in Internet and E-
commerce Law at the University of Ottawa, Faculty of Law. He can
reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.



************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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