CO and USPTO Hold Roundtable on Proposed WIPO Broadcast Treaty

May 9, 2007. The Copyright Office (CO) and the U.S. Patent and Trademark Office (USPTO) jointly held a public roundtable discussion regarding the World Intellectual Property Organization's (WIPO) Standing Committee on Copyright and Related Rights (SCCR) negotiations on a proposed Treaty on the Protection of the Rights of Broadcasting Organizations.

The CO and USPTO are tasked with representing the U.S. position in WIPO negotiations. This roundtable, like other fora, demonstrate that there is no common position. Rather, broadcasters seek a treaty that would require the U.S. to legislate an intellectual property like right, with strict liability, and without exceptions, such as fair use, while many other effected sectors oppose a treaty altogether, or seek a treaty that would merely require the U.S. to create a signal theft like remedy, with a mental state requirement, and defenses.

These is no consensus on fair use as a defense, including a mental state requirement, banning circumvention, or secondary liability of carriers, equipment makers, and internet companies.

Representatives of sports leagues, libraries, technology companies, and telecommunications carriers either opposed or criticized the treaty. Representatives of broadcasters advocated a broadcast treaty.

On May 1, 2007, the WIPO published in its web site its latest draft [10 pages in PDF] of its broadcast treaty. This draft is backdated April 20, 2007, and titled "Non-paper on the WIPO Treaty on the Protection of Broadcasting Organizations". It supersedes the WIPO's March 8, 2007, draft [MS Word]. For a summary of the March 8 draft, see story titled "Copyright Office and USPTO to Hold Roundtable on Draft WIPO Broadcast Treaty" in TLJ Daily E-Mail Alert No. 1,564, April 11, 2007.

Two of the key provisions of the May 1 draft treaty are Article 7, which creates a new exclusive right that is in the nature of an intellectual property right, and Article 9, which prevents circumvention of technology protect measures (TPMs).

The latest version of Article 7 provides that "Broadcasting organizations shall enjoy the exclusive right of authorizing the retransmission of their broadcasts, and the deferred transmission by any means to the public of their fixed broadcasts."

The latest version of Article 9 provides that,

"Contracting Parties shall provide adequate and effective legal protection against unauthorized
  1. decryption of an encrypted broadcast, or circumvention of any technological protection measure having the same effect as encryption;
    (i) manufacture, importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast; and
    (ii) removal or alteration of any electronic rights management information used for the application of the protection of the broadcasting organizations."

Representatives of broadcasters attended the event to argue for a broadcast treaty. Ben Ivins spoke on behalf of the National Association of Broadcasters (NAB). Although, Neal Jackson of National Public Radio (NPR) took an opposing view.

The opposition expressed by the sports leagues is unique among the critics of the proposed treaty. Their lead representative at the roundtable, Robert Garrett of the Washington DC office of the law firm of Arnold & Porter, said that the proposed treaty potentially interferes with the sports leagues' ability to exploit their copyrights.

He said that the proposed treaty would create a "new layer of rights" for broadcasters of sports programming, while preempting existing contracts between broadcasters and sports leagues. He added that parties should be able to transfer rights by agreement.

David Sohn of the Center for Democracy and Technology (CDT) stated that the CDT is concerned about the effect that the proposed treaty would have upon expression on the internet. He pointed out that even if someone gets permission to retransmit a broadcast of a copyrighted work from the copyright holder, the broadcaster could still withhold permission. He continued that broadcasts contain political discourse. He argued that the proposed treaty would enable broadcasters to serve as gatekeepers of political discussion on the internet.

Doug Comer of Intel argued that the proposed treaty is "impossibly imbalanced". He said that rather than creating an exclusive right, the treaty should merely provide a remedial right that is based upon the concept of signal theft.

The Electronic Frontier Foundation's (EFF) Gwen Hinze participated by teleconference. She argued against the proposed treaty on the grounds that it is inconsistent with fair use and that it restricts public access to information.

She also argued that it will render some consumer devices illegal. She stated for example, that the proposed treaty would prevent a consumer from saving a broadcast program to an iPod, and then later watching the program on the iPod. She added that the treaty would prevent consumers' retransmissions within their own homes.

Hinze also stated that the proposed treaty would expose equipment manufacturers to potential secondary liability. She argued that broadcasters would use their new exclusive rights to control what devices are used by consumers.

The Computer and Communications Industry Association's (CCIA) Matt Schruers argued that the proposed treaty would require the U.S. to create an intellectual property right in broadcast signals, but that the Constitution, as interpreted by the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340 (1991), provides that originality is a prerequisite for protection.

The treaty would require protection of broadcasters' signals even when broadcasters have created nothing, and licensed no copyrighted content.

Sherwin Siy of the Public Knowledge focused his criticism of the treaty on the requirement that member nations enact legal protections of technology protection measures (TPMs).

The NAB's Ivins focused his defense of the draft treaty on Section 7's creation of an exclusive right, rather than on Section 9's ban on circumvention of TPMs.

US Telecom's Kevin Rupy argued that "theft of content is a bad thing", but that the proposed treaty takes an "IP based right" approach, which is the wrong approach. Instead, he said that "the appropriate approach for this treaty is the signal theft approach".

The CO's David Carson and the USPTO's Paul Salmon presided. Carson moderated. Carson noted early in the roundtable that "this was not drafted by us".

Carson attempted to obtain clarity from the roundtable participants on the difference between a remedial or signal theft approach, and Section 7's retransmission of broadcasts approach. The participants were not specific.

However, the CCIA's Schruers said that a signal theft based approach would have a mental state element, while an intellectual property based approach would have strict liability. He also said that the signals theft approach would contemplate enforcement by state action.

The NPR's Jackson argued that any private right of action must have defenses, especially fair use.

The NAB's Ivins said that a private right of action was an absolute necessity. He said that "if you don't have a private right, it is useless".

The CO's Carson asked the NAB's Ivins if he could accept a willfulness or scienter requirement. Ivins rejected these, stating that they are criminal law concepts.

A representative of European broadcasters also spoke in opposition to any willfulness requirement. He said that broadcasters seek a private proprietary right.