Broadcast Treaty Is Baaaaaack: Plan To Create Yet Another Copyright-Like Right For Hollywood
from the and-here-we-go-again dept
Every few years the proposal for a “broadcast treaty” comes up again. The idea is to give a new copyright-like right to broadcasters. So, for example, should NBC broadcast a public domain film, like George Romero’s Night of the Living Dead, it could then effectively claim a copyright-like control over it, so that you couldn’t record it and make use of it yourself. If that seems like a really dumb idea to you, welcome to the club. You’re not alone. Basically, everyone who isn’t tied to a broadcaster thinks it’s a terrible idea. Even Mr. Mythbuster Adam Savage spoke out against the idea two years ago when it last came around.
Indeed, it does seem to come around every few years like clockwork, as Hollywood pushes WIPO to put together a treaty creating broadcast rights. For a brief while, driven by some more enlightened folks within the Obama administration, the US government had pushed back against such a treaty, but nearly all of those people have long since left the administration, replaced by longterm entertainment industry folks and copyright maximalists. So it was little surprise last year when the US suddenly announced that it now supported a broadcast treaty. That announcement came from Shira Perlmutter, a former entertainment industry lobbyist, now ‘Director of International Affairs’ at the USPTO.
For that reason, the broadcast treaty, after years of going nowhere, should be watched quite carefully. Negotiations at WIPO have just gotten underway, and the entertainment industry has a “large presence” at the negotiations, while there is just one group, KEI, representing consumer interests directly (CCIA is also there representing the tech industry, and has a strong history of pushing back against bogus expansions of IP law, including the broadcast treaty). However, as Jamie Love, from KEI has noted, no one on the other side seems willing to explain why a broadcast treaty is even needed in the first place:
This is a frustrating negotiation for all sorts of reasons, but I’ll start with the most basic concerns. It has been extremely difficult to get broadcaster treaty supporters to explain why a treaty is needed, in a world where content is already protected under several copyright and related rights treaties. At the last two SCCR meetings KEI was unable to get a single lobbyist for the broadcast treaty to make a public video interview setting out the case for the treaty, or even to answer basic questions about their objectives. We don’t know if the rationale is related to piracy or to create a set of new economic rights for people who broadcast (and do not create) content. And, we don’t understand why copyright does not already provide mechanisms to address piracy, when it occurs.
There are alleged gaps in copyright protection for works, but other than vague assertions that sporting events are not protected in some countries (which ones?) and some poorly articulated claims that broadcast owners don’t have standing to litigate piracy, the “gaps” argument is hard to follow — even though people are genuinely open minded, and would consider fixes to problems if they could be explained.
Some broadcasters say they don’t care about the creation of new economic rights, with others clearly do. But what are these rights, and who gets them? There are proposals to create rights for giant corporations that own “channels” of content, like HBO, ESPN, the Disney Channel, etc, and these new rights would divert revenue from copyright owners to distributors. Since the ownership of distribution of video is much more concentrated than is ownership of video content, this would have distributional impacts that are not well understood. Also, there is likely to be redistribution of incomes out of some countries to a handful of large content distributors, and the impact of this cross country redistribution is not well understood.
As is unfortunately typical for WIPO, the negotiations are being led by faith-based reasoning that this is “needed,” but without any data or factual basis to back it up.
WIPO could try to sort our these empirical and policy issues so people could better evaluate the proposals, but so far there has been zero economic analysis, and lots of talking about non-issues, such the interventions that seem to suggest that infringement of copyrighted material that is broadcast is somehow not an infringement without the treaty (Really, where?)
We’ve discussed many times how ridiculous it is that these kinds of things are “created” in these kinds of negotiations, and then foisted upon various country governments. There is absolutely no reason to create this new treaty other than to give yet another unnecessary gift to broadcasters, and to take away from the public and the public domain.