ITEM: Members of the World Intellectual Property Organization (WIPO) have reportedly revived efforts to develop a Broadcast Treaty designed to give broadcasting companies a way to fight cross-border signal piracy. The catch: details regarding Internet broadcasts and time-shifted content could remain sticking points in getting a treaty approved.
The WIPO has been trying for years to hammer out a broadcast treaty that would give broadcasters more legal standing internationally to go after pay-TV companies who add broadcaster channels to their service bouquet without paying the broadcaster for them. The solution favored by the broadcast sector is to copyright the actual signal.
“There is no international legal protection for a broadcast stream as a separate work,” says John Medeiros, deputy CEO and Regulatory Affairs director at Asia-Pacific pay-TV industry association CASBAA, which has been calling for a WIPO broadcast treaty for years. “What that means in practice is that in Asia-Pacific there are broadcasters that have no right to protect the product that they’re distributing, whether they’re free-to-air or pay-TV.”
As long as broadcast signals have no intellectual property protection, Medeiros says, the only recourse a broadcaster has to prevent a cable operator from illegally using its signal is to contact the copyright owners of the content running over the signal.
“We ran into that several years ago in the Philippines,” Medeiros tells telecomasia.net. “Cable companies were wholly pirating bouquets of broadcast material, and we had to go all the way back to Hollywood studios and European companies to get them to initiate legal action in the Philippines.”
The Broadcast Treaty has been in WIPO limbo since 2007 due to disagreement over a number of issues, such as whether webcasting should be included, and whether the treaty should take the rights-based approach championed by broadcasters or a narrower signal-based approach that criminalizes signal theft without giving broadcasters extra copyright powers that could complicate existing areas of copyright law such as fair use and public domain that are already getting murky in the digital age.
However, according to the Electronic Frontier Foundation, WIPO member states recently agreed to revive treaty talks in November, with the goal of creating a new draft and asking WIPO member states to schedule an intergovernmental Diplomatic Conference in 2012 to adopt it.
The snag, the EFF claims, is that many of the controversial bits that stalled the treaty negotiations are apparently still in place, such as a provision that extends broadcaster copyright of a signal to include reproduction and retransmission, which takes its copyright power beyond the fixed point of reception (say, your DVR).
There’s also the general question of where internet webcasting fits into all this, which is tricky because opinions differ over who counts as a “broadcaster” on the internet, and the rise of OTT video in the last few years has complicated that discussion even more than it already was in 2007. Opponents claim that applying a rights-based broadcasting regime to the web would be disastrously stifling to content innovation.
The webcasting question was reportedly moved to a separate track in 2007 in order to develop it as a separate issue from the broadcast treaty, but the EFF seems to feel efforts are afoot to bring webcasting back into the overall treaty discussion.
When I asked John Medeiros of CASBAA about earlier criticisms of the treaty, he described it as a matter of priorities – which, for CASBAA, means getting signal piracy under control. “None of us know whether the final WIPO treaty will include webcasting in the end. But from CASBAA’s perspective, that’s not the biggest problem for us. We have much bigger problems, and we’d like the treaty to address those,” he says.
He added that in terms of rights-based issues outside of the direct issue of signal theft, “it is impossible to know how a treaty might affect such detailed rights matters until the negotiating process has actually taken off.”
Either way, there’s going to be a lot of lobbying, arguing and hyperbole over the issue once details of the latest draft come to light.
Meanwhile, since I’m really only scratching the surface of the debate, here’s some additional resources if you want to know more:
For arguments against the rights-based approach, visit these pages from the EFF and Public Knowledge.