WIPO Broadcast Treaty Could Hurt Home Networking, ISPs, Groups Say
A diverse array of telcos and public interest groups savaged the World Intellectual Property Organization (WIPO) broadcast treaty in a statement Tues. Industry and activists earlier had separately pressed Congress to review the treaty negotiations, warning that new wholesale intellectual property rights (IPR) were being invented for broadcasters, “cablecasters” and possibly webcasters (CD June 12 p12). The latest letter, given to the Copyright Office (CO) and Patent & Trademark Office (PTO), comes ahead of a WIPO Standing Committee on Copyright & Related Rights meeting next week to discuss the treaty. CO and PTO also met with critics Tues.
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The U.S. delegation tried to smooth over disagreements by proposing an extension of broadcast signal piracy protection to “netcasting,” as opposed to “webcasting,” referring to “prerecorded, scheduled programming” sent simultaneously to end users over a computer network (CD Aug 7 p7). Critics at that time said the language would create legal uncertainty and overly expansive rights for online programming. “We don’t know where the U.S. delegation is coming out” on the concerns raised after the proposed compromise, Jim Burger, an attorney for the telcos and activists, told us.
It’s far from clear that a new broadcasting treaty “is necessary at all,” said the letter, signed by AT&T, Verizon, the U.S. Internet Industry Assn., Intel, TiVo, Electronic Frontier Foundation, Computer & Communications Industry Assn., CEA, CTIA, USTelecom and others. The U.S. approach to protecting transmissions -- stopping “signal theft” -- “works pretty effectively,” Burger said. The idea that a 50-year term for IPR is applicable to retransmission and fixation, not just signals, as is being discussed, “gives us serious concern,” he said.
Broadcasting interests have said they simply want to collect revenue for retransmission from countries like Canada and Mexico, but the broadcasting treaty “goes way beyond that,” Burger said: “It looks like copyright [protections]” but the language is unclear. Copyright law, for all its nuances, is pretty basic in the U.S., enshrined in the Betamax decision and affirmed in decisions supporting the legality of using TiVo services, for example, he said. The treaty seems to suggest that device manufacturers would have to get permission from broadcasters to build devices that could interact with transmissions, Burger said: “All these parades of horribles [such as TiVo’s effect on broadcast revenues] turned out not to be so.”
Home and personal networking could be controlled by “casters” under the treaty, a provision “without precedent” that would interfere with broadband rollout and devices that make home networking easier, the letter said. Fixations, transmissions or retransmissions across a home or personal network should be excluded from the treaty, the letter said. Also, the treaty’s proposed protections for technological protection measures (TPMs) is “inappropriate in connection with this treaty.”
“Network intermediaries” would face the threat of liability for infringement of the broad rights in the treaty, the letter said. At the moment only broadcasters have exceptions from liability in the treaty, and intermediaries such as ISPs would be protected only by existing national laws on copyright, not from violations of new rights in the treaty, the letter said. Actions taken “in the normal course of business” or by customers should not trigger intermediary liability, the groups said.
The Digital Millennium Copyright Act makes clear that ISPs and other intermediaries are safe from infringement claims so long as they follow a process for taking down copyrighted material, which would conflict with the proposals in the treaty, Burger said. Copyrighted works need to be original, not “compilations” like broadcast programming, to be protected under U.S. law, so the treaty would raise constitutional issues, he said.