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IP
Justice Report Eleventh Session, Geneva, 7 – 9 June 2004 “Excessive Rights for Broadcasting
Corporations By IP Justice Executive Director Robin Gross (robin@ipjustice.org) Contents of Chairman's Consolidated Text
Article 1 – Relation to Other Conventions of TreatiesArticle 1 states that this treaty shall not derogate from existing obligations under international treaties. Alternative B to Article 1 is the better approach since it contains a “non-prejudice clause” modeled on the Rome Convention and the WIPO Performances and Phonograms Treaty (WPPT). Importantly, it includes a “no-connection and non-prejudice clause” concerning any other treaties, making it a free-standing treaty, with its substance not linked to any other treaty. Article 2 - DefinitionsArticle 2 contains definitions of the key terms used in the instrument. (a) “Broadcasting” means the wireless transmission to the public of sounds and/or images, including transmissions via satellite or other radio waves that propagate freely in space. Under the definition, no transmissions via wire are considered “broadcasting. The wireless transmission of encrypted signals is considered “broadcasting” where the means for decrypting are provided to the public by the broadcasting organization or with its consent. “Transmissions over computer networks” are specifically excluded from the definition of “broadcasting” in order to make clear that computer network transmissions, even when transmitted by wireless means, are not intended to qualify as “broadcasting”. Note that Alternative C below, would however, extend the treaty to include Internet transmissions of audio and video as “webcasting”. Importantly, the Text's definition for “retransmission” includes all redistributions of broadcasted audio and/or video by any means including Internet transmissions, broadening the scope of the treaty immensely, despite the seemingly narrow definition of broadcasting and without regard to whether webcasting is ultimately included within the treaty. An even broader definition for the term “broadcasting” was proposed by the European Community and others that would have included not only wireless transmissions, but also transmissions via wire, “including by cable or satellite”. The Consolidated Text chose the narrower definition for “broadcasting” but then added the term “cablecasting” to the instrument, which includes transmissions by wire, including cable. By providing separate definitions for “broadcasting” and “cablecasting”, the treaty's scope is widened exactly the same as if it had adopted the broader definition of “broadcasting”. (b) “Broadcasting organization” is defined as (i) a legal entity that (ii) takes the initiative and (iii) has the responsibility for the transmission and (iv) the “assembly and scheduling of the content of the transmission”. This definition was proposed by the United States, Egypt, and Kenya. The stated object of regulation in the new instrument is the broadcast, that is, “the program-carrying signal constituting the transmission”. (c) “Cablecasting” is confined to transmissions by wire. Under the Consolidated Text's definition, no wireless transmissions, including by satellite, are considered “cablecasting.” The transmission by wire of encrypted signals is considered “cablecasting” where the means for decrypting are provided to the public by the cablecasting organization or with its consent. “Transmissions over computer networks” are specifically excluded from the definition of “cablecasting” as well under the Consolidated Text. Note however, that Alternative C (described more fully below) would extend the treaty to include Internet transmissions of audio and video as “webcasting”. (d) “Retransmission” is defined dangerously broad in the Chairman's Consolidated Text. It embraces all forms of retransmissions by any means, including by wire or wirelessly, or a combination thereof. The open-ended definition covers re-broadcasting and re-transmission by wire or cable, and even over computer networks. This includes simultaneously sharing television programs and broadcasted music using Peer-2-Peer (P2P) file-sharing software. Including the retransmission of information over computer networks within the definition of retransmission dramatically enlarges the scope of the treaty's application. It extends the treaty's application far outside the realm of traditional broadcasting and into the activity and lives of ordinary consumers. Such a broad definition far exceeds existing international treaty obligations and threatens to chill freedom of expression by treating ordinary consumers as dangerous outlaws. The definition is confined to simultaneous retransmissions only, but protection extends to subsequent retransmissions since non-simultaneous transmissions only take place from a fixation of the original transmission and such retransmissions are considered new transmissions that are covered under the text. (e) “Communication to the public” means making the transmissions audible and/or visible in places accessible to the public. It includes the reception of a signal and projection of its program to the public, such as in a café, hotel lobby, fairground, on a screen at a cinema, or a radio or television set, or in other places open to the public. The Consolidated Text's explanatory notes claim that this definition refers to public performances, where an audience is present in the place where the performance takes place. However, the text's proposed definition is unclear and arguably broad enough to include transmissions made via the Internet from one home to another, since the Internet is a “place accessible to the public”. (f) “Fixation” is broadly defined as the embodiment of sounds and/or images using whatever means and whatever medium. The definition does not qualify or quantify the duration of the life of the embodiment necessary to be considered a “fixation”. And there are no conditions regarding the requisite permanence or stability of the embodiment. The definition of fixation is particularly problematic because it assumes that a broadcast signal can be “fixed”, when actually, broadcast signals dissolve when they reach solid matter, and thus, cannot, as a law of simple physics, become “fixed”. The Chairman's crucial misunderstanding about the nature of the technology is one of the biggest problems with the Consolidated Text, since so many new rights are predicated upon this erroneous notion. (g) “Webcasting” is broadly defined as the making accessible to the public of transmissions of sounds and/or images by wire or wireless means over a computer network at substantially the same time. Proposed by the United States, this definition is included in the Consolidated Text as Alternative C due to the enormous opposition by most countries to include webcasting within the scope of a broadcasting treaty. The United States continues to pressure other countries to adopt this alternative however. Such a broad definition would extend the treaty's application to include virtually all Internet transmissions of music and video programming. Such an extension threatens freedom of expression and stifles the growth of the public domain by creating enormous barriers to an otherwise robust exchange of creativity and knowledge. No other international treaties require countries' to regulate webcasting in the manner proposed by the United States in this WIPO Broadcasting Treaty. Alternative C attempts to create substantive law on a new issue for which there is no agreement in the international community and should be deleted altogether. Article 3 – Scope of ApplicationArticle 3 sets the parameters for the treaty's scope and has been the most hotly debated issue before the Standing Committee. Paragraph (1) of Article 3 provides for the treaty's application to the area of broadcasting. Paragraph (2) extends the treaty's application to cablecasting as well. Article 3's Paragraph (3) is where the controversial issue of webcasting is being played out in the treaty. Two alternatives are proposed for Paragraph (3) that would extend its scope beyond traditional broadcasting and cablecasting and into the new frontier of cyberspace. Proposed by the European Community, Alternative E would extend the rights of broadcasting organizations to the simultaneous and unchanged webcasting of their own broadcasts (“simulcasting”). Under this proposal, Internet transmissions of television programs, movies, and music that are unedited and made accessible online at the same time as the authorized transmission would fall within the scope of this treaty. The second option for Paragraph (3) to Article 3 of the Consolidated Text was proposed by the United States and is much broader in scope. Alternative F proposes to give to webcasting organizations the same rights that are afforded to broadcasting and cablecasting organizations. Creating a whole new set of rights for webcasting organizations goes far beyond the original scope of this treaty and would stifle innovation and free expression. Alternative G in Paragraph 3 recognizes the lack of support in the international community to extend this treaty into webcasting activities, which are beyond the traditional areas of broadcasting and cablecasting, and thus proposes that no such provision be adopted. Alternative G should be adopted and the issue of webcasting should be taken up in a separate instrument (if at all). Paragraph (4) to Article 3 would exclude certain transmissions from the treaty's scope. It excludes retransmission in theory, but since retransmissions are considered new transmissions covered by the treaty, the exclusion is of little practical significance. It also excludes any transmissions where the time of transmission and place of reception may be individually chosen by members of the public. This means that all on-demand and interactive transmissions are excluded from the scope of this treaty. The proposed definition of webcasting does not cover these transmissions either. Article 4 – Beneficiaries of ProtectionArticle 4 establishes that rights are granted to broadcasting organizations that are nationals of other countries that are also signatories to this treaty. National treatment is thus afforded based on whether the broadcasting organization is situated in another Contracting Party Nation, or if the broadcasts are transmitted from another Contracting Party Nation. Alternative H would allow signatories to set as a condition for protection that the headquarters of the broadcaster and the transmitter be situated in the same country, thus providing some limitation to foreign control over the domestic use of broadcasts. Article 5 – National TreatmentArticle 5 sets forth provisions concerning national treatment and the Consolidated Text provides two alternatives. Alternative J limits the obligation to accord national treatment to only those exclusive rights specifically granted in the Broadcasting Treaty, following the approach of the WPPT. Alternative K, proposed by the United States and Egypt, would create broad rights for nationals that they “do now or may hereafter grant” besides the rights specifically granted in the treaty. The broad and speculative nature of Alternative K, makes Alternative J more appealing for Article 5. Article 6 – Right of RetransmissionArticle 6 provides broadcasting organizations with an exclusive right to authorize the retransmission by any means of their broadcasts. The phrase “by any means” creates a dangerously broad grant of control over all retransmissions, including rebroadcasting and retransmission by wire, cable, or even over computer networks. This grant is broad enough to include a consumer who is sending a public domain movie through the Internet for non-commercial purposes. By including the redistribution through the Internet of broadcast media, the proposal goes well beyond its stated goal of applying to broadcasting organizations and regulates an enormous breadth of ordinary consumer activity, endangering freedom of expression on the Internet. And this grant would give the traditional broadcasting industry a competitive advantage over webcasters and other “new-media” retransmitters who discover new and innovative ways of providing entertainment to consumers but will be prevented from doing so because this broad grant forecloses all future means of redistribution that is yet to be discovered. Article 6 also provides broadcasting organizations with higher levels of protection over broadcasts than the law gives to the actual creators of the content being broadcast. Canada proposed a reservation to Article 6 out of concern that it creates “a situation where the level of protection of broadcasts would exceed the rights of the rightsholders of the content being broadcast.” Article 7 – Right of CommunicationArticle 7 provides two competing alternatives to create an exclusive right of communication to the public for broadcasting organizations. In either alternative, the right of communication applies to broadcasts made in places accessible to the public for a fee. Alternative L would recognize this exclusive right in an unconditional way. Alternative M provides for the possibility of limits based on domestic law or by reservation of applicability. A right of communication is broader than the rights granted to copyright holders under US copyright law, which only regulates public distributions and public performances. Granting a right of communication clearly impacts freedom of expression rights by preventing the communication of an expressed idea. Article 8 – Right of FixationArticle 8 grants broadcasting organizations the exclusive right of authorizing the fixation of their broadcasts. This is an unnecessary and superfluous grant since broadcasting organizations that already own the content may fix the broadcast as they wish. Those who did not create the program are not deserving of a separate right of fixation for their signals. In many places throughout the proposal including Article 8, the Consolidated Text blurs the distinction between copyright protection over the content of a broadcast and a right of fixation over a broadcast signal. It proposes to grant copyright-like protections to a broadcast signal, something outside the scope of copyright protection since it lacks originality and creativity. The fixation of a signal in and of itself is meaningless, valueless. It is always the content of the signal that is the object of protection under intellectual property laws. Granting a new right to fix a signal expands the rights given to broadcasters in an unprecedented way. A right of fixation must be excluded from any treaty designed to protect broadcast signals, and not creative works themselves. Importantly, broadcast signals exist in the air and "dissolve" upon reception, so they cannot be “fixed” as contemplated by the Consolidated Text. As a result, much of this treaty proposal is predicated upon a fundamental misunderstanding of the technology and the laws of physics, and thus will only lead to greater problems in the future unless corrected now. Article 9 – Right of ReproductionArticle 9 creates a new right of reproduction for broadcasting organizations over the reproductions of fixations of their broadcasts. For the same reasons described above for rejecting Article 8's right of fixation, Article 9's right of reproduction should be deleted from a treaty intended to protect broadcast signals rather than the programs. Such a right, even if deserving and technologically possible (which it is not as explained above), is outside the scope of copyright protection. Rather, a “signals-centric” approach, such as that provided for by the Satellites Convention is the better approach to protecting the legitimate rights of broadcasting organizations to recoup their investment in programming. Article 9 provides two alternatives that prohibit copies of a broadcast's fixation. Alternative N would grant the right of fixation as an unqualified intellectual property-type exclusive right for direct or indirect fixations. Alternative O goes even further and gives broadcasting organizations the “right to prohibit” copies of programs and the “right of authorizing” copies even if they were lawfully made under a recognized limitation to the broadcaster's exclusive right. By breaking from the Satellites Convention's “signals-centric” approach, both alternatives to create a new right of reproduction for broadcasting organizations should be rejected from the proposal. Article 10 – Right of DistributionArticle 10 provides broadcasting organizations with a new right regarding the distribution of originals or copies of fixations of their broadcasts and reproductions of their broadcasts. Once again, the Consolidated Text departs from the Satellites Convention's “signal-centric” approach and attempts to create copyright-like protections for items that do not qualify as creative works, such as broadcast signals. And also again, this article is erroneously predicated upon “bad science” since it erroneously presumes that a broadcast signal can be fixed, when it cannot. Article 10 offers to two alternatives. Alternative P would grant broadcasting organizations the exclusive right to make available to the public originals and copies of fixations of their broadcasts. Paragraph (2) embodies copyright law's traditional “First Sale Legal Doctrine” which terminates an author's right to control distribution of a work after its first sale to the public. This paragraph leaves it up to countries to determine the conditions for exhaustion of the right of distribution after the first sale or other transfer of ownership of the broadcast's fixation. Alternative Q reflects proposals by the United States and Egypt to grant to broadcasting organizations the right to prohibit the distribution of their broadcasts and additionally a new right to prohibit the importation of reproductions of unauthorized fixations of their broadcasts. None of the traditional limitations to rightsholders' right to control distribution, such as the “First Sale Rule” are provided for by this Alternative. The delegates should delete Article 10 for reasons described above, or at the very least, reject Alternative Q. Article 11 – Right of Transmission Following FixationArticle 11 grants broadcasting organizations the exclusive right to authorize the transmission of their broadcasts following its fixation. This broad right of authorizing transmissions covers all transmissions, including broadcasting, cablecasting and webcasting, following a broadcast's fixation. Together with the definition for retransmission in Article 2d, this new right drastically broadens the scope of the treaty's application since any copy of a broadcast that is distributed over the Internet (including through P2P file-sharing networks) would be prohibited. As explained above, this Article also takes the wrong approach by attempting to provide copyright-like rights to the fixation of broadcast signals, something outside the scope of copyright's protection and because it is contrary to the laws of physics in that it presumes that a broadcast signal can be fixed at all. Accordingly, Article 11 also grants improper rights and should be deleted in its entirety. Article 12 – Right of Making Available of Fixed BroadcastsArticle 12 provides broadcasting organizations with rights concerning making available to the public, by wire or wireless means, of their fixed broadcasts such that members of the public may access them from a place and at a time individually chosen by them. Article 12 would prevent someone from storing broadcasted programs on a computer that is accessible via a network, including a “shared directory” of a P2P software program. Even if no distribution is ever made of this broadcast, a person is still liable to the broadcasting organization under this proposal, simply for storing the file in such a manner. The two alternatives offered in the Consolidated Text take a slightly different approach. Alternative R gives broadcasting organizations an “exclusive right of authorizing the making available to the public of their broadcasts from fixations.” Alternative S would grant broadcasting organizations the “right to prohibit the making available to the public of their broadcasts from unauthorized fixations.” Article 12 allows broadcasting organizations to prevent other rightsholders (such the performers of the underlying program) from making their performances available for viewing. Article 12 creates a new right to control material that is already adequately protected under copyright, increasing the public's burden to use programming. Furthermore, as explained above, this new right makes little sense since a broadcast signal cannot physically become “fixed” as contemplated by this article. Article 13 - Protection in Relation to Signals Prior to BroadcastingArticle 13 requires countries to grant “adequate and effective legal protection” against the theft of “pre-broadcast signals”. Pre-broadcast signals are signals that are not intended for direct reception by the public by the broadcasting organization and is often footage that is not included in the final programming. Although there has been no showing for the need to create a new and separate right over “B-roll” footage, the Consolidated Text permits countries to grant this new right to both the receiving broadcasting organization and/or the transmitting broadcasting organization. Hence in addition to permission from the actual creator of a program, a person would also need to pay for licenses from two separate broadcasting organizations to use the content, taking the level of “protection” to an insane and unprecedented level. Since this Article proposes to create this separate and distinct right without any showing of its need on either end of the transmission, this Article should be deleted in its entirety. Article 14 – Limitations and ExceptionsArticle 14 sets forth the limitations of and exceptions to the rights of broadcasting organizations under this treaty. Paragraph (1) was based on Rome Convention principles, and permits signatories to provide for the same kinds of limitations and exceptions for broadcasts that their national law provides for under copyright. These domestic law limitations and exceptions to the rights of broadcasting organizations are confined by Paragraph (2) however, which contains a three-step test that was originally established in the Berne Convention. Countries must confine any national law limitations and exceptions to “certain special cases which do not conflict with a normal exploitation of the broadcast and do not unreasonably prejudice the legitimate interests of the broadcasting organization”. The United States and Egypt proposed Alternative T or Paragraph (3) to Article 14 that would allow countries to maintain national law limitations and exceptions concerning noncommercial broadcasts only if they were in force by the date of the treaty's diplomatic conference. Article 14 must permit a broad range of limitations and exceptions to the rights of broadcasting organizations that adequately take into account the legitimate interests of consumers, artists, webcasters, and other members of the public. The ability for countries to shape their national laws as suits their needs should not be narrowly confined or boxed in by over-reaching international instruments such as this treaty. Rather, there must be adequate breathing space to account for all the new uses and possibilities that technology creates and the legitimate interests of third parties in the creation of limitations and exceptions to exclusive rights. And better protection for noncommercial broadcasting organizations should be included in the proposal to permit the recognition of future limitations and exceptions as their need arises. Article 15 – Term of ProtectionArticle 15 sets forth the term of protection to be granted to broadcasting organizations as 50 years from the end of the year in which the broadcast took place. This is a substantial increase from countries' existing international obligations under the Rome Convention, which allows countries to grant a term of 20 years of protection for broadcasts. Singapore proposed a period of protection of 20 years computed from the year in which the broadcast first took place, but this was not provided as an alternative in the Consolidated Text. A term of 50 years far surpasses the amount of time after which a broadcasting organization recoups its investment in a program. Indeed, a 50-year term far exceeds the marketable life span for the vast majority of broadcasts. While artists and performers have been granted terms of 50 years or more in the past, they are the creators. This is an important distinction. Broadcasting organizations are several layers removed from the creation of programs; they only transmit the programs, and thus do not need the same level of economic incentive as creators are granted under copyright. Even the current international standard for broadcasting organizations under the Rome Convention of a 20-year term far exceeds the amount of time needed for broadcasting organizations to recoup their investment in a broadcast. Granting excessive protection, turns copyright law's principles on their head, restricting the amount of creativity and knowledge accessible to the public. The burden should be on those wishing to increase the term of protection to demonstrate that the increase is in the public interest. No attempt has been made in this case to justify the Consolidated Text's proposal to more than double the current international standard for a broadcasting organization's term of protection. Delegates should reject this massive “land grab” by broadcasting organizations to extend the term of protection well beyond a reasonable period. Article 15 should limit the term of protection to only that period of time that is necessary for a broadcasting organization to recoup its investment in the program and no more. Article 16 – Obligations Concerning Technological MeasuresArticle 16 requires countries to pass anti-circumvention laws, similar to the United States' controversial Digital Millennium Copyright Act (DMCA), which forbids bypassing restrictions on DVDs, CDs, eBooks and other entertainment. This treaty proposes to similarly grant to broadcasting organizations the right to prevent anyone from bypassing technological restrictions placed on broadcast signals. Perhaps among the most dangerous provisions in the entire treaty proposal, is Alternative V, which outlaws broadcast decryption activities. Subparagraph (2)(i) proposes to specifically forbid the decryption of an encrypted program-carrying signal. This unqualified ban on decryption would interfere with a wide range of legitimate decryption activities. It bans certain cryptography research, important computer security testing, and a whole host of other socially beneficial activities, including engaging in fair use of broadcasted programming. Subparagraph 2(ii) broadly outlaws receiving and communicating an encrypted broadcast to the public that has been decrypted without the express authorization of the broadcasting organization that emitted it. It mandates that countries accommodate a broadcast flag that would require all entertainment receiving devices to obey encoded technological restrictions controlling the use of the broadcast. Controversial and unpopular with consumers, broadcast flags are used to prevent people from lawfully recording television programming and engaging in private uses of media. This provision threatens to interfere with education, research and other noncommercial uses of broadcast programming. Consumers can be prevented from exercising their fair use rights to “time-shift” television programs or “space-shift” music and other entertainment as they have in the past. Trampling on consumers' traditional rights, this provision would give broadcasting organizations enormous control over an individual's personal experience of entertainment and information. Subparagraph 2(iii) of Alternative V goes the furthest and would forbid any participation in the manufacture, importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast or that could help another to decrypt a broadcast. This sweeping ban on technology is so broad that it would outlaw personal computers, since computers are devices capable of decrypting an encrypted broadcast. It would also outlaw much computer software, technical papers, and other speech and information that could help another to bypass a broadcast's technical restrictions. Proposed by Switzerland, subparagraph 2(iii) additionally prohibits the publication of results of computer security testing, speech about certain cryptographic systems, and other speech that describes the workings of signals technology, chilling freedom of expression and weakening the public's security in such systems. Similar anti-circumvention measures in the US DMCA of 1998 have already been shown to chill freedom of expression, stifle scientific research, prevent competition and chokehold technological innovation, both in the US as well as abroad. Alternative W recognizes the danger to civil liberties and innovation presented by Alternative V and thus provides for “no such provision”. Article 16's obligations concerning technological measures should be rejected in their entirety since they have been shown to be ineffective in helping artists and particularly dangerous to the public where similar laws have been enforced. Article 17 – Obligations Concerning Rights Management InformationArticle 17 is also similar to provisions found in the US DMCA and dangerous for the same reasons given for Article 16. Article 17 would ban the removal or alteration of any electronic rights management information in the broadcast or signal.&nbs |