WIPO Broadcast Treaty Resurrected

WIPO appears to have resurrected negotiations over its broadcast treaty, which would grant broadcasters a new property right in content they transmit. This treaty has been contentious in the past for obligating signatories to provide a completely unnecessary, redundant and at the same time over-expansive right to guaranteeing broadcasters over the broadcasting of content. This may seriously impact on individuals, particularly as it will be applied to online retransmission:

Granting broadcasters and cablecasters exclusive rights to authorize retransmissions of broadcasts over the Internet will harm competition and innovation by allowing broadcasters and cablecasters to control the types of devices that can receive transmissions. It will also create new liability risks for Internet intermediaries that retransmit information on the Internet.

The treaty is aimed at addressing concerns over ‘signal theft’ — the unauthorized re-transmission of a cable show or sporting event. Under this IP regime, broadcasters will gain rights in their transmissions It is not at all clear why this treaty is even needed, as ‘signal theft’ seems to already be an infringement of various existing copyright protections. As some have noted, the treaty is “a solution in search of a problem.”

Assuming for the moment that there may be justification for protection against signal theft at the international level, the WIPO treaties have, over the years, devolved from an attempt to address that narrow issue into a free for all that could grant broadcasters a sweeping set of rights. It has gotten to the point where broadcasters may be granted even more expansive rights than those granted to actual content creators!

In a related set of concerns, the treaty seems to envision an entirely new IP regime for broadcasting signals, meaning that these signals will have their own conditions, limitations, and scope. This will lead to real complications for anyone attempting to reuse a signal legitimately, who will need to sort out overlapping sets of rights. The Canadian delegation aptly noted this drawback with respect to a previous iteration of the treaty:

Many proposals, especially in respect of rights over authorized fixations of broadcasts, would provide new categories of protection and grant different levels of protection to the same content, depending upon the circumstances under which the fixation was made, for example in a studio or from a broadcast. This distinction would appear to be arbitrary and could be confusing to users. (para. 84)

This appears in direct conflict to our SCC’s recent decisions against fragmented, complicated and overlapping rights regimes.

The treaty will also conflict with our SCC’s recent and repeated affirmations of user rights such as fair dealing form an integral and inseparable component of any balanced copyright framework. While the WIPO treaty permits signatories to adopt certain limitations to the rights it mandates for broadcasters, there is no obligation to adopt these, making the treaty yet another unbalanced international instrument that pushes towards convergence at the highest mark for rights holders while offering users little in return.

As the rights envisioned in the treaty will apply to online ‘retransmissions’, they can have serious impact for online interactions. As one commentator explains:

The treaty’s broad rights of control over Internet retransmissions of broadcast and cablecast programming are likely to harm user-generated content and the free flow of information on the Internet. For instance, a YouTube parody video created from clips of recorded television programming that would be non-infringing fair use under U.S. copyright law might not be permitted under the Broadcasting Treaty. The treaty could also undermine permissive licensing regimes such as creative commons licenses. For instance, a broadcaster who transmits a Creative Commons-licensed video or podcast could obtain the right to bar subsequent transmissions, even if the author intended to make it available for broad dissemination.

G. Hinze, “The WIPO Broadcasting Treaty: Why Granting Intellectual Property Rights to Information Distributors Will Harm Innovation and the Free Flow of Information on the Internet”, (2009) 8 CTLR 171, p. 173

In addition, the distinct set of rights that the may impose yet another barrier in attempts to move towards online video distribution systems — an area where innovators already face “considerable challenges from existing program distributors and program suppliers who are trying to maintain their existing business models.” In Canada, this has already translated into services such as Pandora blocking access “due to copyright considerations.” Another layer of rights to clear will only make such matters worse, even as distributor capacity to restrict competing distribution models reaches new heights by an increasingly converged and concentrated media landscape (Bell Canada’s impending acquisition of Astral, the last remaining independent broadcaster).

All in all, the treaty seems like a big step in the wrong direction and an excuse to dramatically expand broadcaster’s rights in an attempt to address an issue that may not even be an issue. Even acknowledging that there may be room for protection against signal theft at the international level, there are readily available models already in existence that can be used to create a tailored and balanced solution to the issue. Instead of opting for these, WIPO seems poised on granting broadcasters an excessive and undesirable set of rights.

Process wise, the fact that rights holders are able to exploit WIPO to move forward such an expansion of their rights is yet another example of the importance of strong procedural and democratic safeguards in international Internet policy-making. In this respect, WIPO is quite the closed venue. Draft provisions are rarely made public (unless leaked), civil society presence and input is tolerated, but the venue lacks comprehensive integration of civil society directly into the policy-making process that is a hallmark of other Internet governance bodies such as the OECD. Even as another UN-based agency with weak civil society presence, the International Telecommunications Union (ITU), moves forward to expand its regulatory oversight of Internet policy issues, the WIPO broadcast treaty prove once again that bad governance makes for bad policy outcomes.