WIPO Broadcasting Treaty Unfit For Needs, Might Jeopardize Access To Culture, Scholar Says

World Intellectual Property Organization delegates have been negotiating a treaty aimed at protecting broadcasting organisations against signal piracy without success for the last two decades but has started to show signs of movement at the UN agency. A seminar held by a civil society group last week explored the potential implications of such a treaty on access to culture. At the event, a well-known copyright specialist argued that the current draft treaty being discussed, intended to update a 1961 treaty, does not take into consideration changes that took place since then, and in particular the transformation of broadcasting in the digital age.

The seminar held on 3-4 October in Geneva by Knowledge Ecology International featured Bernt Hugenholtz, professor of intellectual property law and former director of the Institute for Information Law of the University of Amsterdam. He described “three general weaknesses” in the current draft treaty text [pdf] discussed in the WIPO Standing Committee on Copyright and Related Rights (SCCR): economic, conceptual, and pragmatic.

Broadcasting organisations are currently protected under the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. Broadcasters, Hugenholtz said, are asking for additional rights to protect them from signal piracy in the digital age, which was not envisaged in 1961.

IP rights do not come naturally with conducting business, and most entrepreneurial activities do not give rise to IP rights, even if the business requires substantial investments, according to Hugenholtz.

Since IP rights are an exception to freedom of competition, he said, they “should be well justified economically or otherwise.” The rationale of granting IP rights to broadcasting organisations rely on two conditions, he said. The first is that intangible informational goods are produced that can be reproduced as zero or marginal costs, and the second is that producers of goods have substantially invested in the production of the goods.

Technical Costs of Distributing Audiovisual Drop off a Cliff

In the Rome Convention, this is exactly why neighbouring rights for phonogram producers and broadcasting organisations were justified, he said. Both industries, at the time, required huge up-front investments and both were vulnerable to piracy. From the emergence of broadcasting in the 1930s, the industry required massive investments for a number of things such as the production, recording, broadcasting studios, and transmission infrastructures. “It was a very expensive operation,” he said.

However, with the proliferation of low-cost and high-quality digital recording technologies, the technical costs of radio and television production costs “dramatically” fell, and with the broadband internet, the costs of distributing audiovisual content are approaching zero, he said.

In 2018, “all you need to be in broadcasting is a smartphone, a microphone, a headset, and a broadband internet connection with access to a radio or a television streaming channel,” according to Hugenholtz. He went on citing the numerous video channels on the internet, such as YouTube, and the social medial and “countless” radio stations and podcasts available online.

Many of those low-budget or no-budget broadcasts reach a sizeable audience and make substantial amounts of money without the incentive of broadcasters rights, he said.

This is the paradox of IP protection in the digital environment where the ease of piracy and unauthorised uses have vastly increased online, but the technical cost of broadcasting and distribution have dropped dramatically.

Broadcasters would argue that the cost of production and purchasing of online content has risen, such as premium coverage of Champion League sports, or expensive TV series, but the argument is “unsound,” he said. Neighbouring rights for broadcasters reward the investment in producing and distributing broadcast signals, not for producing or acquiring audiovisual content as such, which is the domain of copyright, he said.

He also regretted that the voice of economists in the broadcasting treaty discussions “remains largely unheard.”

“Granting IP rights for no sound reason can have serious negative consequences both for the economy and society at large,” he said, adding that it could risk impeding the right of expression and access to culture.

Conceptual Conundrum: What is Broadcasting

Another issue with the draft treaty text, according to Hugenholtz, is that properly defining what is broadcasting “has proven to be highly problematic.” It is however crucial that it be precisely defined, he said.

At the time of the Rome Convention, it was fairly easy to define broadcasting. Article 3(f) says that broadcasting “means the transmission by wireless means for public reception of sounds or of images and sounds.”

In the digital environment, broadcasting has become a fluid notion, he said.

The draft treaty text excludes transmission over a computer network, but this is a denial of the current situation, he said. The reality is that the internet and the computer network “has become an essential part of the transmission infrastructure of most if not all broadcasting operations.”

Traditional broadcasting may become extinct, in many parts of the world, as it is in Norway and soon in Belgium, shortly after a broadcasting treaty is adopted, he said.

If computer networks are included, that may give exclusive powerful rights to any intermediary that electronically disseminates audiovisual content, he said, adding that the treaty in that case might be inventing a right that will fall into the hands of companies such as Google, Apple, and Netflix.

The choice is thus reduced to between a traditional, old-fashioned definition of broadcasting that might be too narrow, or one that is far too broad, he said.