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.

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Comments on “Broadcast Treaty Is Baaaaaack: Plan To Create Yet Another Copyright-Like Right For Hollywood”

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Ninja (profile) says:

no one on the other side seems willing to explain why a broadcast treaty is even needed in the first place

I’d be ashamed to say I just wanted a lot of money for little work out of pure greed that blatantly too. Considering they still have any shame left to feel and it’s not just to avoid a very negative public reaction that would really put them in trouble.

ltlw0lf (profile) says:

Re: Re:

I’d be ashamed to say I just wanted a lot of money for little work out of pure greed that blatantly too.

There is nothing wrong with this attitude. Greed is what makes capitalism work. The fact that anyone can make a lot of money keeps us waking up in the morning, eager to go out and to a good job to earn it. If you manage to find a way to make a lot of money with little work, you have done a great job. We all aspire to be able to get the most benefit for the least amount of work…that is human nature.

The problem is when you institutionalize the process by creating laws that favor one group at the detriment of all others. That is how crony-capitalism works. Now you can do the absolute minimum and most terrible job, and I have no recourse. Normally I could just take my money and go elsewhere, but in this system, it is the first person to get there who wins.

What will be interesting is if they lose the battle at this. What happens if some no-name broadcaster comes along and starts pumping out all sorts of public domain works, and then starts beating up the majors with this law. Should be interesting. Gotta go, going to do some research on getting a broadcasters license.

John Fenderson (profile) says:

Re: Re: Re:

There is nothing wrong with this attitude.

I disagree. I think there’s everything wrong with this attitude. Greed is the second most dangerous and corrosive of human emotions, right behind fear.

It may be what makes capitalism work, but that doesn’t make it a good thing. Capitalism is an attempt to blunt the bad effects of greed by turning it to positive use. An attempt that, in my opinion, has largely failed.

The fact that anyone can make a lot of money keeps us waking up in the morning, eager to go out and to a good job to earn it.

Who’s “us”? I’m certainly not in that group, nor are most of the people I know — especially not the entrepreneurs I know.

We all aspire to be able to get the most benefit for the least amount of work…that is human nature.

True, but you seem to be thinking that “benefit” is synonymous with “making money”. It is not.

ltlw0lf (profile) says:

Re: Re: Re: Re:

We can agree to disagree on the other stuff. Sure, greed is bad enough that it fits into the “7 deadly sins” and capitalism tries to make that into a positive. But I don’t know of any other practical system that has been as successful. Sure, on paper, some of the other systems may work better, but human nature prevents them from working so well.

True, but you seem to be thinking that “benefit” is synonymous with “making money”. It is not.

Nope, I meant benefit, not making money. There are other benefits to doing my job. It could be making money, it could be ego, it could be networking, it could be any positive value. Not everything is done, even in capitalism, for the sake of money. No matter what we are working for, we want to expend the least amount of energy doing it.

Richard (profile) says:

Re: Re: Re:2 Re:

Capitalism is not really a system so much as the lack of a system.

It amounts to the statement that – left to their own devices – on average the mass of positive thinking and energetic people will tend to do useful things.

The motivation is not money, in fact attempts to engineer a financial incentive into the system (such as copyright, patents and “performance related pay”) usually backfire.

Of course without a system there is no guarantee that all the necessary bases wil be covered – which is why you have to have public provision for security, law and order and (in sensible places) health, education water and sewerage infrastucture, power, roads and public transport

Ninja (profile) says:

Re: Re: Re: Re:

The fact that anyone can make a lot of money keeps us waking up in the morning, eager to go out and to a good job to earn it.

Who’s “us”? I’m certainly not in that group, nor are most of the people I know — especially not the entrepreneurs I know.

I couldn’t agree more. I’m not eager to go out early in the morning to make tons of money. I just want enough to have a decent life and my current wages are actually enough. My main issue is that I’m in a metropolis and I don’t like it but it’s substantially harder to find jobs in the countryside. In any case money is just one thing that is needed for my greater goal that is to enjoy the people I love, enjoy culture and do what we are doing here.

I too wish to open a business. Not for the money but rather to provide a good service and do something I really like. I have plenty of ideas but so far I lack the financial resources to do so. As for the profits? I’ll reinvest them on the business itself and on the well-being of myself and my employees (that includes giving them financial bonuses). I don’t feel the slightest need of having luxury cars, beach houses or staying in super-expensive luxury hotels.

Duke (profile) says:

Broadcast Treaty already exists

As mentioned in the IP Watch article, there already is a Broadcast copyright – it’s in Article 13 of the 1961 Rome Convention. Some 91 countries already have this right, but it seems the US never signed up.

By my reading, this “updated” treaty is wanted (a) to get the US on board, and (b) because the Rome Convention only applies to “wireless” broadcasts (although the Treaty, as usual, sets a minimum standard and some countries, including the UK, have used a broader definition).

Broadcast copyright has been under scrutiny in the UK and EU recently with a few high-profile cases, some involving the streaming of sports events – where there is no underlying copyright, so a broadcast right is “needed” to prevent “evil pirate sites” from streaming the broadcasts for free online, and some involving sites (mainly one called “TVChatchUp”) which re-transmit normal terrestrial broadcasts on the Internet.

Whether or not this right (or the rest of copyright) is needed is another matter, though…

Jay (profile) says:

Unlocking the copyright battle...

Odd… The faith based reasoning seems to be working in having us move the battle to the terms that the maximalists want anyway. The terms should be how to expand the public and consumer’s rights where they can be allowed to utilize technology in innovative manners.

But what they’re doing is putting the efforts onto the others (KEI and CCIA) to defend their onslaughts of expanding and dissecting the public’s rights.

So why can’t both organizations push back by pushing into the territory of what the public can do?

As a human being, you have the right to:

Fair Use laws that defend your tinkering.

The ability to “unlock” your technology after a certain amount of years.

The ability to discuss news and information without reprisal.

Your day in court without a long stay in jail.

While I could go on, the point is clear that the maximalists have the public defenders on defensive and it’s only going to get worse from there. It just seems that the point of this is to commit to a compromise where the public is worse off and it’s going to continually get worse from there as copyright has since 1978.

Anonymous Coward says:

Re: Re: Re:

I’m going to be laughing about that one for days. What kind of a person desperately claims that a former President of the United States may have committed a federal crime, but then doesn’t even sketch out even a semblance of an argument to back it up? Mikey!! Go Techdirt!! The CFAA is so scary!! Just being on Colbert makes you a felon!! OMG!!!!!!!!!!!!!

John Doe says:

Without this treaty there will be no public domain broadcasts

Since copyright is aimed at incentivizing people to produce, we can assume that without this treaty nobody will broadcast public domain content. But since there will be no more public domain content due to the term of copyright being infinity minus a day, I don’t see how this treaty will hurt?


Duke (profile) says:

Re: Re: Re: Re:

It doesn’t make much sense. The main argument is that broadcasters provide a service (compiling, producing and distributing their broadcast) and are sometimes paid for doing so by those receiving the service. If there is no broadcast copyright then anyone who received the service would be free to re-broadcast it (subject to any contract) for free.

So cable and satellite broadcasters not wanting to lose their little monopolies; in Europe (where this originated, I think), it’s mainly over sports events etc., where broadcasters make significant sums (and pay out significant amounts) for exclusive broadcast rights, which become almost worthless when there’s no broadcast copyright.

jameshogg says:

Copyright is an enemy to everybody's fruits of labour.

This is why I shall never put any arts I produce into the public domain. Who knows who will laugh at its purpose and legally jump around to buy it out again, and be able to lock me, the artist, out and away from the ability to copy and derive from my own works… never mind any subsequent derivative artists.

I shall obtain my incentives for my services through IndieGoGo and Kickstarter, then use a CC Licence and/or give irrevocable permission for everybody to copy my work however they like (I would still have authorship/plagiarism/defamation protection: these are concepts that have nothing to do with copyright but, unfortunately, they cannot be enforced separately and require copyright law for such enforcement, which makes me hate copyright law even more).

The only way I can trust that my work will stay in the public domain, and that my rights are protected, is if there is no copyright law to begin with. And not only that, but the fruits of labour of derivative artists will be protected, too.

Just remember: every time your fruits of labour is blocked by copyright, your rights to life, liberty and property get compromised. We, the orginal AND deviant artists, have crowdfunding. Both these groups can exist without the utopia that is copyright.

Copyright destroys the rights of a derivative artist to his life, liberty and property. Never forget it.

Ima Fish (profile) says:

It’s coming back, in part, because of cases similar to the Aereo case.

But, more so than that, having a monopoly is not enough. They want absolute control of everything. This treaty will ensure that.

If you try to put up any public domain show or movie on the web, they’ll sue you claiming they have broadcast rights. You’ll have to hire an attorney and prove you did not violate those rights. So instead you’ll settle. And eventually no one will post public domain content.

This will be a huge cash cow.

Anonymous Coward says:

What counts as a “broadcaster”, anyway? …Well, I suppose the most likely answer is “whoever funded these politicians’ campaigns”, but I still wonder how the term will actually be defined by law.
I could see the treaty backfiring on the legacy players if, for example, YouTube would be considered a “broadcaster”, and subsequently no longer compelled to take down any of their videos.

gorehound (profile) says:

The thing is we here on Techdirt have an Understanding of Copyright and also the Internet than the 90% plus of other Citizens whom for this Comment I will call Sheep.
Whether you are for or against Copyright I think I still said it nicely.
And each side uses the tools it knows like Social Networks to “Educate” our friends, families, our fans ( if you are an Artist like me).
I know I do my best and won’t ever give up fighting.I stand on the Side which has long hated what is nowadays called the MAFIAA.My hate of them goes back to the Mid-70’s.I always liked to read a lot and learned of what these kind of guys have pulled or tried to pull ever since the old Player Pianos.
By 1976 I was an Avid Punk Rocker.My two Main Reasons for sticking in that Mode have been both Political and as a Fight Against the Big Studios.
I hated those Studios then and I am thinking I hate them even more now.
If only we could wake up those Sheep.That move would be the Death of what I hate the most next to Government.

jameshogg says:

Re: Re:

They said release ‘Remote Control’ but we didn’t want it on the label
They said, “Fly to Amsterdam”, the people laughed but the press went mad
Someone’s really smart
Complete control, that’s a laugh
On the last tour my mates couldn’t get in
I’d open up the back door but they’d get run out again
And at every hotel we was met by the law, come for the party, come to make sure
Have we done something wrong?
Complete control, even over this song

You?re my guitar hero

They said we’d be artistically free when we signed that bit of paper
They meant let’s make a lotsa money and worry about it later
I’ll never understand
Complete control, lemme see your other hand
I don?t trust you, so why should you trust me?
All over the news spread fast
They?re dirty, they’re filthy, they ain’t gonna last
This is Joe Public (Control) speaking
I’m controlled in the body (We always hate control), controlled in the mind
This is the top rockers (Control)
With your zone in the price you whore, comes to me (C, O, N, control)
Total, see you all in control
Total (Parent, control), see you all in control

We?ve got the rock ?n? roll ?????????? (C, O, N, control)
That means you
I kick it, I fight it, I gotta get up at it (C, O, N, control)
I gotta kick it


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