Broadcast Treaty ‘Non-Paper’ Wrong in ‘Approach,’ Not ‘Level,’ Critics Say

The non-paper is a “backdoor to everything that we've been concerned about all along,” Jonathan Band said for the Library Copyright Alliance. The treaty is framed in “exclusive rights” instead of “prohibitions,” which are more appropriate for a treaty conceived as addressing “signal theft,” he said. Especially worrisome is the vague notion of rights over “deferred transmissions” -- penalizing retransmission for a potentially unlimited period after original airing, he said: It could cover “2 hours or 2 years” under the draft. Using the term “near- contemporaneous” would at least “narrow the range of the problems,” Band said.

Dell, Intel and TiVo are “prepared to support” a treaty but not the current draft, counsel David Wittenstein said. There’s no balance between broadcasters and consumers’ interest, he said, citing a prohibition against making devices that could decrypt encrypted signals: “Virtually any computer is capable of decrypting” broadcasts. Network providers could be liable for direct or secondary infringement; though the non-paper promises to limit liability, “the text itself appears to belie it.” U.S. law would interpret the draft as penalizing transfers within a home network, considering such transmission a “public performance,” said Verizon Assoc. Gen. Counsel Sarah Deutsch. The notion of broadcast “rights” supersedes U.S. law, which provides “remedies” for signal theft and under which retransmission consent is a “statutory scheme,” she added. The notion of “exclusive rights” for signals will harm the professional sports leagues as copyright owners; their content is fixed only within a signal and not a file or CD, said Bob Garrett, representing the MLB, NFL and NBA.

Ivins told critics they were subtly changing the stated focus of the treaty from “signal-based” to “signal theft,” and noted that at least 20 countries had proposed “a full panoply of exclusive rights” for broadcasts at the start, but the language is “beginning to turn it around in the right direction.” Europe is going on 10 years of stronger rights for broadcasts with little of the harm predicted by critics, Ivins said. He has often asked which ISPs are being “sued daily based on these regimes, and I still await an answer,” Ivins said: The “parade of horribles” has never been detailed, and “life seems to have survived without” the changes that critics demand.

A concern is the lack of a “making available” penalty, which would punish those that make available “an uplink to broadcast signals” without actively transmitting, Ivins said: “That strikes us as… a huge gap.” He said he failed to see the “semantical nuance” of Band’s proposal for limiting deferred transmission’s scope. He asked how it’s less damaging to broadcasters if their transmissions are rebroadcast without authorization 3 hours after airing. Websites already record and upload prime-time broadcasts from the earliest time zone where they're seen so anyone worldwide can view them, and changing the “deferred” language would provide less protection than under U.S. law, he said.

Without a “meaningful” fair-use exemption, “we believe we're better off without a treaty,” said NPR Gen. Counsel Neal Jackson. Under U.S. law, NPR couldn’t use audio from the Don Imus’ racial slur incident, and the draft as written would “essentially send [the U.S. restriction] around the world,” preventing NPR from using audio from a govt. broadcast in Zimbabwe, for example, he said.

Most of the issues identified by broadcasters relate to enforcement and don’t justify creating a new right, said Jamie Love of Knowledge Ecology International, formerly the Consumer Project on Technology. He called the move for stronger broadcast protections “a public relations gambit” that content owners themselves don’t want but are being pushed on by “the middleman” -- cable, satellite and by extension the RIAA and MPAA. U.S. negotiators are really to blame for compromising, Love said: “The differences between the Americans and the Europeans are minimal at this point.”

There’s internal conflict in the draft language: The section prohibiting protections for broadcasts on the Internet is refuted by a later section that seems to provide for Internet rights as long as online transmission follows a broadcast, Love said: “It’s confusing to the average person.” David Sohn of the Center for Democracy & Technology said the Internet provisions in the draft meant “double the complication and double the legal hurdles” for users who record broadcasts and want to post them online as fair use: “Video is fast becoming a key medium for individual expression and for political discourse.” Deferred transmission should also be narrowly defined in the treaty if kept, given the speed of public discourse on the Internet, Sohn said.

The onus is on broadcasters to show how their concerns aren’t taken care of by copyright and other current law, said USTelecom Dir.-Policy Development Kevin Rupy. The Senate Judiciary Committee raised similar concerns over treaty language, he said: “I don’t think it’s incumbent upon us to fully provide a list” of wrongs flowing against network providers, device makers and consumers as Ivins demands.

On the eve of the roundtable, more than 30 public interest and industry representatives urged the U.S. govt. to oppose the latest version. In filings, commenters said the “non-paper” by SCCR makes progress but is “fundamentally flawed.” The paper’s approach to signal piracy “focuses on infringement of an intellectual property [IP] right,” which the group calls “deeply problematic.” They want the focus to be on “prohibiting particular actions, done for particular purposes, by identifiable actors.” The rights-based approach would put telecom intermediaries, ISPs, device makers and audiences of broadcast and cable programs at risk of direct and secondary infringement liability, and doesn’t fit U.S. law, signers said. A 2nd problem is the document’s call for global laws regulating the “making available” of devices that can decode encrypted broadcasts. This, the group said, would “presumably require wholesale regulation of general purpose computers and other devices,” hurting tech companies badly. If the U.S. believes the system promoted in the “non-paper” fits American law, it should clarify which provisions are redundant and what legislative changes are needed, said the group, which includes the American Library Assn., AT&T, the Center for Democracy & Technology, CEA, the Electronic Frontier Foundation, Creative Commons, the Media Access Project, the Internet Society, Tivo and USTelecom.