[Ecommerce] BBC: Switch off sought for TV treaty

[Thiru Balasubramaniam]

http://news.bbc.co.uk/go/pr/fr/-/2/hi/technology/5346154.stm

Switch off sought for TV treaty

*Internet law professor Michael Geist warns about a an impending treaty
that could change what we watch and how we watch it on TV. *

This week Geneva is hosting the continuing 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 Organisation's Broadcast Treaty began
several years ago as an initiative to address signal theft. It came out
of broadcaster's concerns 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.
Broadcasters pay for the exclusive right to transmit the programs.
Private broadcasters use the programs to attract an audience and
generate advertising revenues.

* Stolen stream *

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 re-transmission for over-the-air
television signals. It also more than doubles the term of protection for
broadcasts to 50 years from the current 20-year term.

Some countries have begun to raise questions about the adverse
consequences of certain provisions.

During the last major round of talks in the spring, the Canadian
delegation 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.

Others have pointed out that the exceptions and limitations to the new
treaty rights, a hallmark of a balanced policy approach, would be
optional for countries that adopt the treaty.

* Costly proposal *

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.

For example, Canadian broadcast distributors, including the major
telecommunications companies that have begun offering HDTV, fear 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 US internet companies to extend
it to 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, that issue was
moved to a separate track.

Despite that compromise, delegations have sought to bring the internet
back into the picture, with the US recently raising the prospect of
adding "netcasting," while the European Union has focused on
"simulcasting".

With the prospect of a diplomatic conference looming (the final stage in
the treaty-making process and a sure sign that agreement may be
imminent), a coalition of critics of the proposed treaty, which included
Dell, HP, Intel, Sony, AT&T and Verizon as well as 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.

* Secret meeting *

The broadcasting industry has thrived in recent years with an explosion
of new services and revenue streams. 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
US 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.

Other countries have 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.

Broadcasters regularly unveil new television programs, hopeful that a
handful will emerge as the next Seinfeld or The Office. 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. /