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Broadcasting rights: proposed treaty under fire

The UN's World Intellectual Property Organisation is this week mulling a proposed treaty to protect the rights of broadcasters in the works that they transmit. But civil rights groups have criticised the proposals as overly broad and based on 'bad science'.09 Jun 2004

WIPO's Standing Committee on Copyrights and Related Rights meets in Geneva this week to debate a consolidated text of proposals for the Treaty on the Protection of Broadcasting Organisations.

Work on the proposals has been continuing since 1998 and does not yet amount to a draft Treaty. But the proposals submitted so far have been stirring controversy.

One of the main criticisms, according to civil liberties group IP Justice, is that the proposed text would create copyright protection over broadcast signals for 50 years – more than twice the length of protection currently permitted under the Rome Convention, which allows countries to give broadcasting corporations 20 years of exclusive rights.

"Unless broadcasting companies plan on transmitting their signals to Jupiter, a 50-year term makes even less sense because signals only exist for the short time they take to travel through the air to reach their point of reception," said Robin Gross, Executive Director of IP Justice.

The science behind the proposal is also flawed, says the group, which will be participating as an observer at the meeting.

The proposal grants broadcasting companies a slew of new rights based on the "fixation" of a broadcast signal. However, IP Justice argues that broadcast signals exist only in the air and dissolve upon contact with matter (i.e. reception), and therefore cannot, as a matter of simple physics, become "fixed" as much of the treaty presumes.

IP Justice is also concerned about clauses contained in the text that, like the US Digital Millennium Copyright Act, would prohibit the circumvention of technological restrictions controlling broadcast signals, even if the underlying programming is in the public domain.

One proposal outlaws any device that could help someone to decrypt an encrypted signal without permission, but is broad enough to include banning personal computers and technical information about signals technology, says IP Justice. It would also require all media devices to obey use-restrictions that are encoded into the programming by the broadcaster, further trampling on consumer's fair use rights under copyright law.

According to Gross, the Treaty represents "a 'back-door' attempt to extend copyright protections indefinitely, by permitting companies to broadcast public domain material and then control the public's use of the underlying public domain programming".

In addition, all retransmissions of broadcast media, including through the internet, would also be regulated by this proposal.

Gross concludes:

"The WIPO Broadcasting Treaty endangers freedom of expression on the internet since it would regulate consumers' ordinary on-line activity and treat citizens who disseminate media through the internet as if they were commercial broadcasters committing piracy".

These concerns were echoed yesterday by consumer group European Digital Rights (EDRi), in a statement presented to the WIPO meeting.

EDRi urged delegates not to use the Treaty to create a new layer of rights, which would potentially conflict with existing copyright protection, but rather to create a 'signal centric' Treaty.

Any broadcast rights created, said EDRI, should not remove transmitted works from the public domain if they are currently publicly accessible. Nor should those rights be protected for 50 years rather than the current 20 year period.

Finally, said EDRi, the Treaty should not extend to cover webcasting. If necessary, a separate instrument could be created in the future to deal with this developing technology.