By Drew Clark for Intellectual Property Watch
WASHINGTON, DC - Practically no one participating in a recent government forum here liked the proposed broadcaster protection treaty under negotiation at the World Intellectual Property Organization (WIPO) in Geneva.

Computer companies didn’t like it; telephone companies didn’t like it; the National Football League didn’t like it; consumer groups didn’t like it. Even a major broadcaster, National Public Radio (NPR), was opposed. “Unless and until we can get something that gives us our appropriate level of fair use rights, we would rather not see a treaty at all,” said NPR general counsel Neil Jackson.

That left Ben Ivins, senior associate general counsel at the National Association of Broadcasters, largely alone to support a proposed treaty on the protection of broadcasting organisations, which is scheduled to come before WIPO’s Standing Committee on Copyright and Related Rights (SCCR) from 18 to 22 June.

It will be the second “special session” of SCCR to consider last year’s directive from WIPO’s General Assembly for member country negotiators to narrow their differences and to progress toward a broadcaster protection treaty (IPW, Broadcasting, 23 January 2007). If the June meeting is successful at producing a consensus draft version of a broadcast treaty, the measure is expected to go to a full diplomatic convention in November.

At the 9 May forum, [reporter’s transcript here] which took place at the Copyright Office in the Library of Congress, Ivins called the committee’s current draft, or chair’s non-paper, a move “in the right direction.”

Ivins said that more than 20 countries support “a full panoply of exclusive rights” for broadcasters. Referring to WIPO Performance and Phonograms Treaty of 1996, which granted copyright-style protections for performers and sound recording companies, Ivins said, “The WPPT is the proper paradigm. We see no reason to, other than with minor differences, to deviate from that paradigm.”

“To many who have suggested that a parade of horribles would occur” with US ratification of such a treaty, Ivins said he had asked critics “to provide concrete examples of what [horrible things have] actually occurred in regimes around the world that have much more rights” for broadcasters.

But in the United States, Ivins’ is a minority view. The other companies with representatives who spoke on behalf of the treaty were News Corp., Time Warner and a European telecommunications and copyright industry consultant.

“As someone who represents a content company, my company does not oppose the treaty,” said David Fares, vice president of e-commerce policy for News Corp. Although Fares said that “copyright should be able to solve all the problems” faced by broadcasters, he added: “it doesn’t allow the broadcaster to seek damages for the piracy of their signal, therefore, they cannot recoup their investment.”

The United States is not a signatory to the 1961 Rome Convention, which granted exclusive rights in signals to broadcasters. Such signals are not eligible for copyright-style protection in the US, although the underlying content of broadcasts is protected by copyright.

The balance of US industry and civil society interests are against Ivins’ position. In particular, most oppose the “exclusive rights” approach embodied in the current draft non-paper. They also said that the non-paper fails to adopt the narrower approach - one of banning signal theft - that the WIPO General Assembly appeared to endorse at the conclusion of its September-October 2006 meeting.

Referring to the current non-paper, David Wittenstein, an attorney at Dow Lohnes representing Dell, Intel and TiVo, said, “Article 9 prohibits anyone from making or importing anything that is capable of decrypting a broadcast.” The text of Article 9 requires treaty signatories to “provide adequate and effective legal protection against unauthorised” measures to unscramble broadcast signals.

Those electronic companies are concerned that the treaty would impact their ability to make in-home networking devices. “Virtually everything is capable of decrypting broadcasts. Surely it is not necessary to regulate computers to protect broadcasts.”

“We also share the concerns about adding a new layer of rights,” said Bob Garrett, an attorney at Arnold & Porter representing the NFL and other major leagues. “Those concerns are particularly applicable to those of us in sports.” Garrett said that national and international sports leagues were particularly concerned that the treaty appears to impair their ability to contract with broadcasters to retain the exclusive copyrights to sports programming.

“We are disappointed that the government is not defending US legal traditions,” said James Love, director of Knowledge Ecology International. Love said the US government had changed its position on the treaty, first supporting an Internet-based approach that include webcasting (dubbed “Rome plus”), then opposing the treaty last year after webcasting was excluded.

Referring to the US government’s comment on a draft version of the non-paper, Love said, “now we are seeing a position that moves closer to the Rome paradigm.” Such a new position, Love said, goes beyond US law and “grant[s] a copyright to packaging and third-party marketing.”

“US Telecom has long maintained that the appropriate approach to this treaty is the signal theft approach,” said Kevin Rupy, speaking on behalf of the association, which represents AT&T, Verizon and other carriers.

“None of the concerns that we have raised at previous [forums] have been removed, or even addressed by the non-paper,” said Gwen Hinze, international affairs director of the Electronic Frontier Foundation.

Hinze said the exclusive rights framework is inappropriate and conflicts with US law. She asked for an analysis by the US government about how the treaty, if adopted, could be embodied in US law. Hinze also raised concerns about Article 9 of the draft, as well as its interaction with Article 3 (scope of protection) and Article 7 (the exclusive right to retransmission of broadcasts).

But the key voices in the room, the officials representing the US government, were largely mute - at least insofar as revealing their negotiating position. A spokeswoman for the US delegation said that the government’s position had not been finalised.

Still, the government came in for some criticism. “We are strongly disappointed in the government’s turn-around,” said Ed Mierzwinski, consumer program director for US Public Interest Research Group.

That prompted a sharp reply from David Carson, the associate register for policy and international affairs, Library of Congress, and the chair of the meeting. “This was not drafted by us,” Carson said, referring to the non-paper.

“The relationship between this treaty and US law has not been resolved,” replied Mierzwinski. “We hope that the non-paper results in a non-treaty.” Carson probed treaty critics and opponents on two questions: whether the draft treaty could be squared with US law, and what other alternatives were there to the language in Article 9.

Sarah Deutsch, associate general counsel for Verizon, disputed Ivins’ assertion that “retransmission consent” in the US was a form of broadcast signal protection. Under the Cable Television Consumer Protection and Competition Act of 1992, cable companies must either carry broadcasters’ signal or, at the election of the broadcaster, negotiate to pay the broadcaster.

“Retransmission consent is not an exclusive right to authorise, but a statutory scheme that Congress proposed to give access to local signals,” said Deutsch. Adopting the treaty as currently proposed would require the US to add an entire new section to its copyright law, she said.

Ivins conceded that some changes in US law would be necessary. “It might require some need to extend the right [of retransmission consent] beyond [cable companies]. To the extent that the student from MIT [Massachusetts Institute of Technology] thinks it is neat to retransmit to the rest of the world, that is the type of activity that we would seek to use this protection to deal with.”

Among the other companies and organizations that signed a 9 May statement against the current treaty were AMD, AT&T, Creative Commons, Free Press, Google, Hewlett Packard, Panasonic Corporation of North America, Public Knowledge and several musicians’ and library groups, including the American Library Association, the International Music Managers Forum and the US Music Managers Forum.

Drew Clark may be reached at drew@drewclark.com.