Category Archives: WIPO

WIPO Broadcast Treaty Panned at Copyright Office Forum

By Drew Clark

WASHINGTON, May 18, 2007 – Practically no one participating in a recent government forum here liked the proposed broadcaster protection treaty under negotiation at the World Intellectual Property Organization (WIPO) in Geneva.

Computer companies didn’t like it; telephone companies didn’t like it; the National Football League didn’t like it; consumer groups didn’t like it. Even a major broadcaster, National Public Radio (NPR), was opposed. “Unless and until we can get something that gives us our appropriate level of fair use rights, we would rather not see a treaty at all,” said NPR general counsel Neil Jackson.

That left Ben Ivins, senior associate general counsel at the National Association of Broadcasters, largely alone to support a proposed treaty on the protection of broadcasting organisations, which is scheduled to come before WIPO’s Standing Committee on Copyright and Related Rights (SCCR) from June 18 to June 22.

It will be the second “special session” of SCCR to consider last year’s directive from WIPO’s General Assembly for member country negotiators to narrow their differences and to progress toward a broadcaster protection treaty. If the June meeting is successful at producing a consensus draft version of a broadcast treaty, the measure is expected to go to a full diplomatic convention in November.

At the May 9 forum, which took place at the Copyright Office in the Library of Congress, Ivins called the committee’s current draft, or chair’s non-paper, a move “in the right direction.”

Ivins said that more than 20 countries support “a full panoply of exclusive rights” for broadcasters. Referring to WIPO Performance and Phonograms Treaty of 1996, which granted copyright-style protections for performers and sound recording companies, Ivins said, “The WPPT is the proper paradigm. We see no reason to, other than with minor differences, to deviate from that paradigm.”

“To many who have suggested that a parade of horribles would occur” with US ratification of such a treaty, Ivins said he had asked critics “to provide concrete examples of what [horrible things have] actually occurred in regimes around the world that have much more rights” for broadcasters.

But in the United States, Ivins’ is a minority view. The other companies with representatives who spoke on behalf of the treaty were News Corp., Time Warner and a European telecommunications and copyright industry consultant.

“As someone who represents a content company, my company does not oppose the treaty,” said David Fares, vice president of e-commerce policy for News Corp. Although Fares said that “copyright should be able to solve all the problems” faced by broadcasters, he added: “it doesn’t allow the broadcaster to seek damages for the piracy of their signal, therefore, they cannot recoup their investment.”

The United States is not a signatory to the 1961 Rome Convention, which granted exclusive rights in signals to broadcasters. Such signals are not eligible for copyright-style protection in the US, although the underlying content of broadcasts is protected by copyright.

The balance of U.S. industry and civil society interests are against Ivins’ position. In particular, most oppose the “exclusive rights” approach embodied in the current draft non-paper. They also said that the non-paper fails to adopt the narrower approach – one of banning signal theft – that the WIPO General Assembly appeared to endorse at the conclusion of its September-October 2006 meeting.

Referring to the current non-paper, David Wittenstein, an attorney at Dow Lohnes representing Dell, Intel and TiVo, said, “Article 9 prohibits anyone from making or importing anything that is capable of decrypting a broadcast.” The text of Article 9 requires treaty signatories to “provide adequate and effective legal protection against unauthorised” measures to unscramble broadcast signals.

Those electronic companies are concerned that the treaty would impact their ability to make in-home networking devices. “Virtually everything is capable of decrypting broadcasts. Surely it is not necessary to regulate computers to protect broadcasts.”

“We also share the concerns about adding a new layer of rights,” said Bob Garrett, an attorney at Arnold & Porter representing the NFL and other major leagues. “Those concerns are particularly applicable to those of us in sports.” Garrett said that national and international sports leagues were particularly concerned that the treaty appears to impair their ability to contract with broadcasters to retain the exclusive copyrights to sports programming.

“We are disappointed that the government is not defending US legal traditions,” said James Love, director of Knowledge Ecology International. Love said the US government had changed its position on the treaty, first supporting an Internet-based approach that include webcasting (dubbed “Rome plus”), then opposing the treaty last year after webcasting was excluded.

Referring to the US government’s comment on a draft version of the non-paper, Love said, “now we are seeing a position that moves closer to the Rome paradigm.” Such a new position, Love said, goes beyond US law and “grant[s] a copyright to packaging and third-party marketing.”

“US Telecom has long maintained that the appropriate approach to this treaty is the signal theft approach,” said Kevin Rupy, speaking on behalf of the association, which represents AT&T, Verizon and other carriers.

“None of the concerns that we have raised at previous [forums] have been removed, or even addressed by the non-paper,” said Gwen Hinze, international affairs director of the Electronic Frontier Foundation.

Hinze said the exclusive rights framework is inappropriate and conflicts with US law. She asked for an analysis by the US government about how the treaty, if adopted, could be embodied in U.S. law. Hinze also raised concerns about Article 9 of the draft, as well as its interaction with Article 3 (scope of protection) and Article 7 (the exclusive right to retransmission of broadcasts).

But the key voices in the room, the officials representing the U.S. government, were largely mute – at least insofar as revealing their negotiating position. A spokeswoman for the U.S. delegation said that the government’s position had not been finalised.

Still, the government came in for some criticism. “We are strongly disappointed in the government’s turn-around,” said Ed Mierzwinski, consumer program director for U.S. Public Interest Research Group.

That prompted a sharp reply from David Carson, the associate register for policy and international affairs, Library of Congress, and the chair of the meeting. “This was not drafted by us,” Carson said, referring to the non-paper.

“The relationship between this treaty and U.S. law has not been resolved,” replied Mierzwinski. “We hope that the non-paper results in a non-treaty.” Carson probed treaty critics and opponents on two questions: whether the draft treaty could be squared with U.S. law, and what other alternatives were there to the language in Article 9.

Sarah Deutsch, associate general counsel for Verizon, disputed Ivins’ assertion that “retransmission consent” in the U.S. was a form of broadcast signal protection. Under the Cable Television Consumer Protection and Competition Act of 1992, cable companies must either carry broadcasters’ signal or, at the election of the broadcaster, negotiate to pay the broadcaster.

“Retransmission consent is not an exclusive right to authorise, but a statutory scheme that Congress proposed to give access to local signals,” said Deutsch. Adopting the treaty as currently proposed would require the U.S. to add an entire new section to its copyright law, she said.

Ivins conceded that some changes in U.S. law would be necessary. “It might require some need to extend the right [of retransmission consent] beyond [cable companies]. To the extent that the student from MIT thinks it is neat to retransmit to the rest of the world, that is the type of activity that we would seek to use this protection to deal with.”

Among the other companies and organizations that signed a 9 May statement against the current treaty were AMD, AT&T, Creative Commons, Free Press, Google, Hewlett Packard, Panasonic Corporation of North America, Public Knowledge and several musicians’ and library groups, including the American Library Association, the International Music Managers Forum and the U.S. Music Managers Forum.

This story also appeared in Intellectual Property Watch

Transcript of May 9 WIPO Roundtable

Discussion About the World Intellectual Property Organization’s Treaty on the Protection of Broadcasting Organizations at the U.S. Copyright Office, May 9, 2007

Note: The following is my attempt at transcribing the public meeting about the position that the United States should take at the June 2007 meeting, in Geneva, Switzerland, of WIPO’s Standing Committee on Copyright and Related Rights, which is considering a draft version of the broadcast protection treaty. The basis for negotiations is described as the non-paper. Member states have posted their comments on a prior version of the non-paper here.

Omitted words are noted by ellipses (…). Identification or other commentary is included in brackets [ ]. Italics are added for emphasis are my own.

ALTHOUGH I HAVE DONE MY BEST TO TRANSCRIBE THE CONTENT OF THIS MEETING, I MAKE NO WARRANTIES OR REPRESENTATIONS THAT EVERYTHING HEREINAFTER WRITTEN WAS EXACTLY STATED AS TRANSCRIBED. THERE MAY WELL BE OTHER OMITTED WORDS NOT INDICATED BY ELLIPSES. NOT FOR QUOTATION.

If I misidentified the name, title, or best biography page of any of the participants for any portion of the following transcript, please e-mail me at drew@drewclark.com. Please do not send e-mail about misspellings.

-Drew Clark

Participants:

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:
Jonathan Band [attorney]:
David Wittenstein [attorney at Dow Lohnes]:
Sarah Deutsch [Vice President and Associated General Counsel, Verizon Communications]:
Bob Garrett [attorney, Arnold and Porter]:
Ben Ivins [Senior Associate General Counsel, National Association of Broadcasters]:
Neil Jackson [General Counsel, National Public Radio]:
Greg Lewis [Assistant General Counsel, National Public Radio]:
Jamie Love [Director, Knowledge Ecology International]:
Ed Mierzwinski [Consumer Program Director, US PIRG]:
Kevin Rupy [Director of Policy Development, U.S. Telecom Association]:
Matt Schruers
[Senior Counsel for Litigation & Legislative Affairs, CCIA]:
David Sohn [Staff Counsel, Center for Democracy and Technology]:
Sherwin Siy [Staff Attorney, Public Knowledge]:
Doug Comer [Director of Legal Affairs, Intel]:
Gwen Hinze [International Affairs Director, Electronic Frontier Foundation]
:
David Fares [Vice President, E-Commerce Policy, News Corporation]:
Bradley Silver [Counsel, Intellectual Property, Time Warner]:
Manon Ress [Director, Information Society Projects, Knowledge Ecology International]:
Marvin Berenson [Broadcast Music Inc.]:
Tom Rivers [UK Copyright and Media Consultant]:

[For cross-reference purposes, Public Knowledge has posted a list of participants at a prior Copyright Office/Patent and Trademark Office meeting on the same subject.]

Dialogue:

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

[David is the Associate Register for Policy and International Affairs at the U.S. Copyright Office. He appears to be responsible for coordinating the U.S. position on the draft treaty.]

In June, there will be a meeting of the standing committee, with a view toward seeing if we are prepared to go to a treaty in the fall.

The non-paper is the basis….

So the questions that we pose all focus on that basis.

The first issue we would like to hear your view are the actual rights, the rights in Article 7 [of the non-paper].

Broadcasting organization shall have the exclusive right of the retransmission, and the preferred, of any means by their fixed.

Does this article offer an appropriate level of protection?

If not, would it be improved, if clarified, that deferred only apply to contemporary, or near-contemporaneous.

And if not, why not?

Jonathan Band [attorney]:

I’m speaking for the Library Copyright Alliance.

I don’t understand why this needs to be formulated an exclusive right….

Why do the words exclusive rights need to be included?

The inclusion of those words is going to trigger a lot of concern.

Particularly because this is supposed to be signal-based, or signal rights.

With regard to scope, defining what deferred transmission would be appropriate.

Deferred could be two hours, two weeks, two years.

Especially, if it could be two years, that assumes reproduction rights.

If we make clear that near-contemporaneous is hours…, that would narrow the range of the objections.

David Wittenstein [attorney at Dow Lohnes]:

[David noted that he was standing in for Jim Burger, another attorney at Dow Lohnes]

[He noted that he is represented Dell, Intel and Tivo. He notes that Doug Comer, also of Intel, is in the room, and that Brad Bittle, also of Intel, is on the phone.]

[He begins to read a brief statement.]

Gwen Hinze [International Affairs Director, Electronic Frontier Foundation]:

[Speaking on the phone.]

Would it be possible to move the telephone closer?

David Wittenstein [attorney at Dow Lohnes]:

We appreciate the opportunity to be here for Dell, Intel and Tivo.

Prepared to support signal theft, but this has to be done without stifling fair use and innovation. The non-paper doesn’t address this.

Not so much, whether it would have the right level of protection, but the right approach to protection.

The treaty should protect certain specified actions for certain specified purposes.

The rights-based model: that is unnecessary.

Threatens fair use rights, and innovation.

It would create a new set of intellectual property rights that would create real and practical problems for device manufacturers.

Article 9 prohibits anyone form making or important anything that is capable of decrypting a broadcast.

Virtually everything is capable of decrypting broadcasts.

Surely it is not necessary to regulate computers to protect broadcasts.

[Discussion of fair use.]

Unnecessary and illustrative of the overreach….

Direct and secondary liability for ISP, network, and end-users of broadcast and cable….

The treaty needs to have exceptions for intermediaries, personal and home networks, and other fully defensible activities.

We urge the Patent and Trademark Office and Copyright Office to remain committed to goal of a treaty narrowed to the theft of signals.

Sarah Deutsch [Vice President and Associated General Counsel, Verizon Communications]:

I echo the comments of the prior couple of speakers.

My question is how this intellectual property right to authorize fits into U.S. law.

I don’t know whether we are going to hear form the government speakers on this.

Signal theft is not in intellectual property, and not an exclusive right to authorize; rather, it is a theft of the signal.

Retransmission consent is not an exclusive right to authorize, but is a statutory scheme that Congress proposed, to give access to local signals.

Actually, that scheme says that broadcasters can grant [cable operators a choice] between retransmission consent and must-carry.

If the broadcaster chooses must-carry, they receive no compensation, but assured channel position.

If [the broadcaster] choose retransmission consent, they give up carriage and channel position, but agree to a good faith negotiation.

It is not an exclusive intellectual property (IP) right.

It is there to ensure that the public has access to programming.

I am concerned about how this IP right to authorize would translate into U.S. law.

The other question is, how far does that right extend?

In the non-papers introductory notes, they state ….

U.S. case law, would likely interpret “to the public” different.

The recent case against Cablevision [over central-server] digital video recorders…..

In [a recent case involving Yahoo], the public performance right has been extended to the home, or to the hotel room.

We are also concerned [about] the exclusive right to authorize….

We remain concerned that because this is a new IP right, it carries with it, all of these liability issues.

[Deutsch said that she believes the treaty should be about] signal theft, and not an IP right.

Bob Garrett [attorney, Arnold and Porter]:

[He said he is speaking for the professional sports leagues, including the National Football lead, and he mentions representatives from Major League Baseball and the National Basketball Association.]

We share some of the concerns of just about everybody.

We understand the notion of exclusive rights, and why that is important to the broadcasters, and why that is much more important than [missing word] protection.

We also share the concerns about adding a new layer of rights.

Those concerns are particularly applicable to those of us in sports.

Our sports are only in telecast. [I understand him to mean that sports leagues’ rights only exist in television because of the lack of other viable distribution channels, as the following portion makes clearer.]

The only place a sports telecast exists is in the broadcast signal, or pre-broadcast signals.

When one authorizes broadcasters to have exclusive rights, that interferes with our ability to exploit our rights as exclusive copyright owners.

The broadcasters can always go an exploit the signal, but [that is] not true for us.

The concern, was nicely echoed by the Copyright Office, in the last draft on article 6.

Want to make sure that the contract law is not impaired in any way by this treaty.

We certainly share those concerns.

The problem is that there is nothing in the treaty that deals with those concerns.

What we are asking the delegation to do – is to implement the comments they have made – but we are flexible at looking at the language.

We don’t want to use language that creates new problems.

We want to make sure that when we negotiate with broadcasters, we want to make sure that they [the negotiations] are not impacted by this treaty.

These concerns are shared by sports leagues around the world.

Sports rights owners association.

60 around the world.

They also share our concern.

Ben Ivins [Senior Associate General Counsel, National Association of Broadcasters]:

Where to begin….

The current chairman’s draft is beginning to turn it around in the right direction, just a brief reminder from where we started.

Probably 20-30 countries provided full text, with a full panopoly of exclusive rights.

There is considerable support [for this approach.]

The WPPT is the proper paradigm.

We see no reason to, other than with minor differences, to deviate from that paradigm.

There has been a big of loose language, replace signal-based treaty, with a signal theft threat.

My recollection [of the agreement] was a signal-based, and don’t recall it being limited to signal theft.

….whether signal-based [can be made] consistent with exclusive rights – we think it can.

We have devolved to the chairman’s earlier paper, which countries would have the option of not making exclusive rights.

So that when you went through the morass of all of those problems, countries be given an option.

We would have to go to the ministry of justice and ask them to arrest the cable operator.

At that point, we and other broadcaster groups took the position that a bad treaty was worse than no treaty at all.

That position was reflected in the Introductory note, in paragraph 6.

The current draft is a step back in the right direction.

One of the biggest issues for us, is the absence of some example of a making available right.

Mr. Garrett’s group – if you are saying that an entity to avoid liability by making available an uplink to broadcast signal, and no liability because that entity is not transmitting or retransmitting a signal.

On the question of, would it be improved, if this was defined to be contemporaneous or near-contemporaneous.

A deferred as contemporaneous is contemporaneous.

If deferring it by a couple of hours, or a few hours, in some sense, that creates as much as it solves.

If saying to a pirate – if retransmit it, that is piracy.

If wait a few hours, and retransmit it, that is OK.

That makes a mockery….

A number of sites that are benefit from time delays.

If broadcast from New York, [you can] deliver it prime time into another county.

If you wait a few hours, that is permitted under international law.

That is a disaster, and less than applicable under U.S. law.

To many who have suggested that a parade of horribles would occur.

Asked to provide concrete examples, of what has actually occurred in regimes around the world, that have much more rights.

Than here

Fixation rights

Rome Countries

Europe for 10 years, 8 years.

Many companies in South America have had these rights.

Where is the harm to home networks.

What service providers are being sued daily?

To the extent that U.S. law not provide authorization under IP rights.

It is not in the copyright law, it is in the communications law, that says, we have the express authority, that the MC distributor must obtain the express authority to retransmit the signal.

If that isn’t express authority, I don’t know what is.

To Mr. Garrett’s concern, we have retransmission consent in this country, and know of no concern that he has addressed arising.

He has had to deal with regimes around the world, and not sure what the conflict is.

By contract, the broadcaster gives the sports authority, the commission of baseball or the

NFL ownership [rights over] this, and you can’t do anything without him.

That has been effective for decades.

Point out that exclusive rights [are in] WPPT [and] WCT [but] not in Berne

And we seem to have survived with out.

Neil Jackson [General Counsel, National Public Radio]:

Greg Lewis [Assistant General Counsel, National Public Radio]

NPR’s position in this matter is the same position as it was the last time for a roundtable.

Without some sort of meaningful fair use exceptions, we believe we are better out without a treaty than we are with a treaty.

We recognize that the committee chairman has worked hard, to consider the various interests, but it still does not satisfy us.

There are a few changes that would bring us to the point that we would be satisfied.

Our concern is that there is essentially no right to use any material that is broadcast as part of any news operations that we may undertake.

We certainly don’t cite the U.S. law as a good example: Section 325.

[He referred to the inability to get audiotape about Don Imus’ recent racially-tinged remarks for news stories on NPR.]

We were unable to bring audio to this, because the audio was not available under Section 325; there was no fair use.

This would send it around the world.

If Robert Mugabe is still in Zimbabwe, we could not retransmit that under these standards

It is a serious matter, a serious provision that applies to electronic news-gathering operations.

It would extend to the U.S the same provisions [that currently apply] to cablecasting.

We are able to rebroadcast cable materials, but we also observe fair use provisions, or get explicit permissions form them.

Unless and until we can get something that gives us our appropriate level of fair use (FU) rights, we would rather not see a treaty at all.

Ben Ivins [Senior Associate General Counsel, National Association of Broadcasters]:

The NABA was going to attend, their delegate had a death in the family, but they will forward views to you [David Carson].

Neil Jackson [General Counsel, National Public Radio]:

We are also a member of the NABA.

Jamie Love [Director, Knowledge Ecology International]:

We are a non-profit that represents consumers and the public.

We have been following the broadcast treaty negotiations for a number of years.

We note that there have been a number of examples of distributing material without permission of the copyright laws.

Those can be solved, and are solved, by following U.S. legal traditions.

Instead of looking at enforcing copyright laws as a public relations gambit for something that is not subject to copyright protections, which is this treaty.

Article 7.

This is about bargaining between the creative communities on the one hand and the people who package and market content.

The General Assembly in the fall of 2006….

Our first reaction was that this is Orwellian — the discussion of a signal-based approach.

In the discussions we watch, was focusing more on the prohibitions of piracy that you find in the Brussels satellite Convention. Now signals-based means rights-based. The world changed, but means Rome plus.

We watched the U.S. position go back and forth.

U.S. support Rome plus

We have watched the U.S. oppose Rome plus.

And now we are seeing a position that move closer to the Rome paradigm.

We are disappointed that the government is not defending U.S. legal traditions.

Not to grant a copyright to packaging and third party marketing.

The board of directors of the MPAA and the RIAA [is supportive of this.]

There are people that are between the creative communities, and the people that receive it on the other end.

This is about the middlemen.

Article 7 extends.

[The phrase] “by other means”… [is] almost impossible to figure out where this stops.

These are minimum rights, and countries can rely on Article 4, a version that goes beyond the minimum.

This is absent the U.S. proposal [?]

Incentives to gravitate toward the stronger system of rights.

That was the argument by the U.S. to extend the copyright form 50 to 70 years, because we not honoring.

You can see the same dynamic in the Article 4

In this draft

Creative communications

Innovation

Consumer use

[suffer, while]

Packagers gain.

Article 3 – the treaty does not extend to the internet – it doesn’t follow through, when you get to Article 7

Once you broadcast a work, you pick up these rights in Article 7.

If you broadcast on the Internet, don’t pick up [rights].

Cable

TV

Radio, you do pick up the rights.

If transmitted to the public, do pick them up.

Last year, we agreed it would not extend to the Internet, but it is back now.

This is the European position.

[Now, based on recent comments,] the differences of position between Europeans and Americans is minimal.

Ed Mierzwinski [Consumer Program Director, US PIRG]:

US PIRG is state, consumer and environmental group.

A saying in Washington: “Everything said, but not said by me.”

Associate with Jamie Love of KEI.

The broad civil society coalition that oppose the treaty.

The breadth and width and depth of this coalition.

From the corporations – many of them that don’t agree with us much at all.

That strongly oppose going forward with an IP-based approach, no matter what it is called, to this treaty

Creators, and consumers on the other, are strongly opposed.

Like KEI, strongly disappointed in the government’s turn-around.

Now you appear to have reversed yourself.

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

This was not drafted by us. [Carson is apparently referring to the non-paper.]

Ed Mierzwinski [Consumer Program Director, US PIRG]:

The relationship between this treaty and U.S. law has not been resolved.

We hope that the non-paper results in a non-treaty.

Kevin Rupy [Director of Policy Development, U.S. Telecom Association]:

Echo some of the comments, stated by our other members of our industry and civil society coalition.

US Telecom has long maintained that the appropriate approach to this treaty is the signal theft approach.

We believe that that is the most appropriate manner in which to address this issue, in terms of piracy of content.

That is a bad thing, for the sports leagues, and for copyright holders.

Where we are today, with the non-paper.

We are of the view that it is not consistent with U.S. law, certainly the FU issues that have been raised.

As Sarah raised.

If adopted in its currentn text, would be in conflict with

Tilte 47

Title 17

Not in concord with the general assembly, which was a signal theft approach.

This IP-based right, discussed for some time, was viewed by many in the room as not the appropriate way to address this problem.

When we talk about some of these issues, we have heard about deferr3ed transmission

2 days

2 hours

2 weeks

2 months.

That is why a signal theft is mnore appropriate

Prohibiting particular actions, for particular purposes, by particular purposes – the bad actors.

That is the appropriate manner to address this issue.

David Wittenstein [attorney at Dow Lohnes]:

We shouldn’t be talking about the correct level of IP rights, but the correct approach.

We maintain that signal theft is the right approach.

Some commentns that were made.

Insofar as this p arade of horribles

Any re3quiremetn that we are opposed to this treaty.

Several major concerns, with this treaty

Those concerns we echoed by members of the senate juiciary committee

I don’t think it is incumbent upon us to fully provide this list

For those of us who are proponents of the treaty, it is (not) to figure out how they are address

The U.S. broadcast industry is trhivingn

Matt Schruers [Senior Counsel for Litigation & Legislative Affairs, CCIA]:

Signed on to a written statement.

I can provide that, and to others.

Having said that, I would only add that the level versus approach question is really what I would submit should be the focus.

I think the deferred contemporaneous (point by Ben Ivins makes sense.)

Not what level, but how we should we approach …

Public Knowledge Guy:

The approach used in the latest non-paper, is contrary to the mandate of the GA, and the U.S.

A rights based, and not a signal thef.

My understanding of what was proposed by the GA.

In terms of the effects of cutting back on the scope of length of deferred rights??

Yes, it could be an improvement.

Any additional ones are problematic, and the more scale back, the better.

The distincntion in terms of time can be arbitrary.

When you have FU exceptions to copyright.

You don’t have a penalty box, where you have to wait down the time.

In terms of the harsm

We have layed out examnples.

There are already examples of existing problems.

How legitimate rights that have been recognized in the U.S. can be abused when overzealously prosecuted.

As opposed to comparing it to other countries, with different industry structure

And different legal structures, on civil procedures.

David Sohn [Staff Counsel, Center for Democracy and Technology]:

The intersection off technology and civil liberties.

Share a lot of the concerns that have been expressed

On article 7, we don’t think there is any improvement on that,.

..

Online video has become a key vehicle to political expression.

..

Sherwin Siy [Staff Attorney, Public Knowledge]:

Certainly a narrow right is better, but one of the things about the internet is the speed with which it allows things to bubble up.

The exclusive rights are still bubling up.

It is not clear why activites that aren’t signal theft should be covered by the tready.

Doug Comer [Director of Legal Affairs, Intel]:

IT, other, creative, and other

Our experience, in trying to bring a ubiquitous and full experience to the consumer.

Intel’s commitment to make sure that we maintain this system of balance.

Not only the protections that empower the creative community, but give reasonable rights to the consumer to use fair use rights.

In that context, absolute rights are almost inherently contradictory to reasonable consumer right

Because this treaty language does not strike that balance.

Even if assume this was the directive of the GA, it in no way strikes that balance.

Our hosts, to look at, how can the advanced notions, that have been the strength of the U.S. policy.

Largely, U.S. IP statutes have been a guideline to the world.

The fact that the treaty text is so impossible (to digest)

Is undermining of the experience of the consumer.

From our industry standpoint, that is critical.

As an observation

An appropriation postion from our point of view.

And the paragraph.

And to provide leadership from the rest of the world.

Article 7

Jack Valenti, may he rest in pice.

Copyright should last forever, minus a day.

This reflects that.

Gwen Hinze [International Affairs Director, Electronic Frontier Foundation]:

Want to join in thanking the U.S. delegation

Alternative signal-theft based approach.

One of the signatories, on the joint.

Creative community, and we join with the other organization, to not support he GSA non-paper.

Today, like to make three points:

EFF believes that an excvlusive rights-based treaty is conceptually inapproapriate, and (conflicts) with U.S> law

Copyright law

Communication law

Access to infermeriotn

Venue rights in article 7 for telecommucniaotn industry

Software developer

Manufactors and innovators

And local devices, like SLingbox.

Non of the concerns that we have raised at previsous have been removed, or even addressed by the non-paper.

2,

To reiterous our request for any analysis by the PTO, about how this treaty would be empboied in US law

In title 17

Or title 47

3

Three points about article 9

The problem, this is two disticnct notion

A, unauthorized access – to recvie

B, TPM, that are involved through devides, and ot interact, after lawful interception

Article 3 problems

1, article 9 is likely to require technology mandate laws, over a broad range, radio, tv, records, and set-top boxes, and computers.

For encrypted contnent – for TPM for having the same effect as “encryption”

The 1201 c 3, that were broadly, require legal protection ofr broadcast flag, for signals, for unauthorized, such as TK…

Broadcast flag regulation

In addition, paragraph 2 of article 9, may require broadcast flag that may not be protected under the DMCA

As a back-door attemnpt, a back-dfoor attempt for broadcast flag regulations

2, the detrimental article 9 and article 7 on local uses.

The combination will all bcasters and cablecasters, to (bar) a record/transmit in the home

Could use authorized

With TPM

To control retransmission of content, once it has been lawfully received

To exert control of devices that can receive tranmsision

Conversely, will be able to ban devices they do not authrorize

Consumers will be barred from currently legal practices of recording and transmitting under FU

3, the overbreadth of article 9

In will prohibit the making available of a device circumvent, for anny reasons

Even for a FU home recording

Unlike the two regime

The 1998 TPM

And the making available

And the DMCA

Article 9 – no restriction on the range

Para 1, on computers, and multiple purpose

Para 2, no knowledge, even braoder

Would appeara to ban practice of transcoding lwawfully received.

This is an exceptionally common practice

Could ban lead home recording of recoring

To a video ipod

A trans-contingental device

Reiterate concerns with conceptual framework.

Treaty propoentns provide no evidence for the creation of IP in transmitted material

The creation of these broad rights, will harm consumers ability to make recorder.

Only a treaty focused on the intentional theft of signals

Not to support the paper in June.

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

That is the end of the initial submission

It is 3:20, and this first topic, was the most time consuming one.

Anything anyone wants to say, now is the time to do so.

David Fares [Vice President, E-Commerce Policy, News Corporation]:

David:

Four quick points

Conent companies oppose the treaty

As someone who represents a content company

My company fdoes not oppose the treaty

Copyright should be able to sole all the problems

While important, it doesn’t allow the broadcaster to seek damages for the piracy of their signal

QED, they cannot recoup their invewtmetn

*

The allegation that FU not addressed.

Article TK does allow

*

There has been some discussion.

By any means.

A growing phenomenon

Our channels are pirated and streamed on peer-to-peer sites

If one week later, why would anyone want to subscribe, if they can get that one week later.

By any means

When a cablecast or broadcast, it is piracy, whether another cable network, or over the n

Bob Garrett [attorney, Arnold and Porter]:

Ben mentioned that we have had retransmission concent, sicne the passage of the 1992 cable act.

Contract notwithstanding

That is right, a fair assessment

But it has ignored, in the 1992 cable act

Seeking in this treaty and legislation

Nothing in 325 impairs any existing or future contract

After the 1992 cable act, bcvasters took the positon that 325 retransmnisison rights were inalienable

Urged FCC to preemnpt any contract that would not allow them to exercise those right

Opposed by the sports leages

FCC resisted, but it did so by relying on that language that we are trying to get in the treaty

We are trying to avoid that problem

2, Ben also mentioned that what we are seeking is not found in any

Bern

WPPT

WIPO Copyright Treaty

All recognize that economic rights can be transferred.

The economic rights, can be transferred to content owerns.

We don’t want this treaty or imnplementing legislation to override any agreement, as the broadcasters had agreed

Jonathan Band [attorney]:

To continue to pick on Ben.

If the first transmission

2 hours

2 days

That would be a clear signal, that anything beyond that would be permitted

This is an international treaty.

Any country is free to implement.

Just b/c it is not within the scope of protection does not mean OK, just that it is not in this treaty

Matt Schruers [Senior Counsel for Litigation & Legislative Affairs, CCIA]:

That applies with equal weight to exception.

The WIPO copyright allowed for FU, but ha the mandate that led to the DMCA

The sorry history is that it does not provide for FU

It is clear that saying, we provide for limitations and exceptions, does not secure consumers FU rights.

It has to be on the national level

Particulary in stats that don’t havv ethe pro-consumer transtions that we find in some aspects of U.S> copyright law

Ben Ivins:

Has anyone in this room sought a FU to the RC provisions in Sec. 325.

Why?

Absene FU, there are going to be horrible things that are going to happen.

Did anyone ask for FU with RC was implemented

NPR:

I have asked you to support it legislatively, and you said no.

Ben:

You haven’t provided me with any concrete example

NPR:

I have presented you with some today.

Ben:

My point is, this treaty, or the absence of this treaty, hasn’t stoped 50-60 coutnries ffrom adopting rights that far exceed the rights in this treaty right now, and live goes on.

What I am asking for is specific examples of things that have gone wrong

An ISP has been sued by a broadcaster, because they have not obtainer permission.

Doug Comer:

By content

..

It is not about signal

It is an attempt to create a whole new exclusive right. It is apparent form the language you support

Kevin Rupy [Director of Policy Development, U.S. Telecom Association]:

The RC are contractual between a broadcasters and a video distributor

With FU, it is an individual consumer.

Ben Ivins [Senior Associate General Counsel, National Association of Broadcasters]:

To Garretts, in the WPPT, on economic rights, happy.

I would be happy to provide it

[Unsure of speaker?]:

More exception to current law.

Broadcasters wish to find exception

Freedom of Expression

Copyright law

There is a mechanism for finding an excepiotn

If one takes the non-rights approach, there is the danger that there will be no exception

The inability to retransmit a broadcast signal irregardlees, will remain.

Sarah Deutsch [Vice President and Associated General Counsel, Verizon Communications]:

There would be an inability to steal or misapprorpaite a signal

An act, or an intent.

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

What changes, if any, required to current U.S. law, if the treaty, based on April 20 text?

Sarah Deutsch [Vice President and Associated General Counsel, Verizon Communications]:

I don’t see any way how and IP, and a broad right to authorize retransmission

We would need to create an IP right, in title 17, or elsewhere

This raised concern for other parts of the treaty

Expeditious

Deterrent

Signal theft is expeditious

Or a remedy

We have a huge battle coming up with domestic law.

It seems to go on forever.

Here we have a right that ostensibly lasts forever.

Ben Ivins [Senior Associate General Counsel, National Association of Broadcasters]:

It might require some need to extend the right beyond MVPS.

To the extent that the student from MIT thinks it is neat to retransmit to the rest of the world, but is not a MVPD.

That is the activity that we would seek to use this protection ot deal with.

Broadcasters have no interest in doing anything to individual dealing with the privacy of signals in their home.

Massively exploit our signals without our concent

Or massively create an impediment ot the way we do business.

There is no RC-provision in domestic law, for TV stations.

There would have to be, to the extent that RC is domestic, and this is a reciprocal problem, to foreign signals.

It only applies to domestic signals.

Finally, a provision for, by any means.

I am not sure what that is deisgned to accomplish

On the term of protection, nothing in 325 that limits that now in U.S. law.

Kevin Rupy [Director of Policy Development, U.S. Telecom Association]:

As far as re-write of the law, I will leave that to copyright and FU.

But as everyone in the room agrees, you are certainly going ot have to see a major re-write of the RC laws.

No term in 325.

The must-carry in RC laws relates to the carriage of the signal.

The contemporary carriage of the signals.

The broadcaster broadcasters,a nd MVPD transmits.

What we are talking about, is this seeminlyly infinite term for some IP right.

CCIA guy:

We were hoping you could tell us.

There is a lot of uncertainty about this.

The area of play in terms of how it would be addressed in U.S. law.

The C-word to IP.

There are constitutional implicatiosn for rights, that are non-origianl.

We can cite the Feist decision up and down

To create an IP right, originality is required.

Whatever implementation this treaty is goinig to see, it would need to be consistent with the court.

Doug Comer:

Article 9:

A reasonable and appropriate

Adequate and

For the most part, general purpose computer

There is not a scheme in place for the design.

This is something that the content committee has been seeking for some time, in terms of “analog hole” legislation

It is approrpaite interprestation that it would be required

Jonathan Band [attorney]:

Not only would it be required.

What we would require.

Speaking for the library community.

It would be very important, if you ahvve this in Article 7, important that all the exceptions and limitation in copryigth law carriecd forward.

Article 10 is permissive on that.

We would have to have a prolonged legislation fight on each and every exception.

To replace May with “shall” so that it is clear, that all the exceptions and limitations “shall” carry over, as opposed to “may” carry.

The 1976 art

Martin knows that history

An endless legislative battle, every single.

Ben Ivins [Senior Associate General Counsel, National Association of Broadcasters]:

The vast majority

98-99 percnet, you would not no battle at all

Shall versus may

That is a subject that reasonable minds to get down.

Might have to concede to Mr. Jackson, that the may to shall, not have to deal with Mr. Jackson.

These are negotiations.

Greg Lewis [Assistant General Counsel, National Public Radio]:

That is an encouragement for us to join NAB.

Topic 3 ??

WPPT is the proper paradigm.

This is far broader, the m..

We need to amend the WPPT andf CPT to be consistent.

To the extent that WPPT is a proper paradigm

The same limits

David Carson:

If article 9 is not the proper approach

What about an approach

Take the language of the WPPT and put it in this traty

Jonathan Band [attorney]:

I didn’t particularly like WPPT

Ben

9 or WPPT in a new york minute

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

An improvement, but a lot more improvement than that.

Ben Ivins [Senior Associate General Counsel, National Association of Broadcasters]:

I reserve the balance of my time

Bradley Silver [Counsel, Intellectual Property, Time Warner]:

..

To provide two regimes to deal with TPM, one to protect the rights of the broadcasters, and one to protect the content owner, is to invite (abuses).

Encryption is the current default.

We would prefer to see something along the lines of the WPPT

Sherwin Siy [Staff Attorney, Public Knowledge]:

A lot of overbroad.

WCT

And WPPT

There are enough problems with them

It is especially galling to me how acts which aren’t violative of IP rights, can still be prevented form the use of the TPM.

Whoever providers the TPM gets to determine what people have,.

This can do away with existing limitations.

That has happened in implemented WCT

Doug Comer [Director of Legal Affairs, Intel]:

If article 7

As it is, the whole…

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

Anything else we haven’t covered.

Sherwin Siy [Staff Attorney, Public Knowledge]:

I have noted concensus that a bad treaty is worse than none at all.

Not a lot of concensus on what constitutes a bad treaty

Matt Schruers [Senior Counsel for Litigation & Legislative Affairs, CCIA]:

The point that Jonathan made about may versus shall.

Highlights a lot of the problems we have encountered with TPM.

In almost 10 years of DMCA litigation

Requiring that symmetry here would go a long way

Setting aside exclusive protection

It is a small step

If the U.S. delegation were to advocate that same, it would be very helpd

Kevin Rupy [Director of Policy Development, U.S. Telecom Association]:

Our only remaining issue, is we talk about this rights-based approach jfor this treaty.

From US Telecom’s perspective, it raises the perspective of direct and secondary liability.

We have been, and remain concerned about that.

From our largest members to our smallest members.

Manon Ress [Director, Information Society Projects, Knowledge Ecology International]:

I am not talkinga bout what is in the draft.

A lot of people on 9 and 7

What is not in the draft

Notes from the chair, note number 9

Brazil

Indian

Chile

Iran

Will find it acceptable..

Cultural diversity..

Can be taken out

The only hope for these things to be taken out, is if the treaty was a signal theft approach, and now it is going to be back on the table

What makes the U.S. think that it would be acceptable to these countries?

What is going to be the positon of the U.S. delegation?

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

I imagine what some would do.

Jonathan Band [attorney]:

I made my point earlier, with May/shall.

Doug Comer [Director of Legal Affairs, Intel]:

I have a number of concerns about the pre-amble.

There is not an attempt.

It is not about signal theft, or competitive effect.

Articulate a situation.

So, there is a broader point.

This direction is not consistent at all with the general sentiment that was expressed, as regards signal theft.

Bob Garrett [attorney, Arnold and Porter]:

Very brief point.

The major justification, objective, to deal with the growing problem, of sports telecasts

Over the interent

The sports leagues, here in the U.S., and overseas

Are generally supportive of a treaty that achieves that objective, but not at the expense of the contracts we have with our broadcast partners

As we looka t the treaty today, it does threated to upset that balance we have neogtiaotns.

Without that, we have problems with that treaty.

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

People who talk about objections to exclusive rights

A signal theft, or a remedial rights approach

What that approach involves

Because the distinction may sound clear

Doug Comer [Director of Legal Affairs, Intel]:

A lot of this discssuion goes back to, is there any demonstrated need for this treaty

We don’t see that.

Is it theft of signals

In cetain geographic regions

The only thing that we have seen, rational, and related to something, and of a consuerm interst

Signal theft

And afford a remedy, to the tortuous act of theft of signal

That is the only scope we think it is to address.

Rather than treating it is a body of rights

In U.S. law…

Signal theft, and protection against signal theft, and that focuses on that.

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

Retranmnsision of signal

Almost aarticle 7

Doug Comer [Director of Legal Affairs, Intel]:

Retranmssion of a program.

Ben Ivins [Senior Associate General Counsel, National Association of Broadcasters]:

It says nothing about program

Jonathan Band [attorney]:

exclusive right

If you take out “exclusive rights”

And deferred retranmsision

It starts looking a lot more like signal theft

Doug Comer [Director of Legal Affairs, Intel]:

Broadcast means an electronic generated signal…

It is an attempt to capture all of the economic v alueo f the content, onlyu some of which is owned by the broadcasters as opposed to the copyright owern

It is not about trying …

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

What would a signal theft [type treaty look like?]

Matt Schruers [Senior Counsel for Litigation & Legislative Affairs, CCIA]:

Some of the previous versions

A subset of signers of today’s statement

Has suggested….

Not economic, strict liability

Like section 106 right

An economic riht that is good against the world, an excvlusive right that we think of

Prohibition of signal theft has additional elements

Volition

And willfulness

State ones – misapropriateioni for a specific purpose – avoid payment

Willful content…, for pupose

An exlucive right

Doug Comer [Director of Legal Affairs, Intel]:

By law enfrocment

Matt Schruers [Senior Counsel for Litigation & Legislative Affairs, CCIA]:

Private rights makes it more like like an exclusvive right

Doug Comer [Director of Legal Affairs, Intel]:

Whether it wouedl recognize the FU of content.

Does not require..

There is a whole structure

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

There is an objection to giving a broadcaster a right to going to court, to get a remdy

Jonathan Band [attorney]:

In U.S. law, should it be..

As opposed to, in this treaty, what should the minimum standard

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

I’m not hearing anyone clear state a view. Does anyone object to broadcasters going to court to stop someone from engaging in “signal theft.”?

Objection to going to court, to provide some private remedy, so that they are not dependent upon the good graces of the state

Ben Ivins [Senior Associate General Counsel, National Association of Broadcasters]:

Especially when India

Marvin Berenson [Broadcast Music Inc.]:

If you don’t have a private right, it is worthless, the government is not going to want to get involved in these suits.

Neil Jackson [General Counsel, National Public Radio]:

I will put on my hat and surpress Ben.

Our copyrights provide a private right of action.

But there are a lot of other rights, that people can assert in defense, including FU defenses.

As someone who does have to deal with signal piracy.

NPR is opposed to signal theft.

Mens rea, larcenous theft.

I would personally say, that wherever there was a meainful set of rights, meaningful

Never support a private right of action, unless there was fully equivalent FU right

I am hearing people speak out against a private right of action

Doug Comer [Director of Legal Affairs, Intel]:

Imnproperly defined, a private reight of action

Is inappropriate

He is poirnitn out the minimum.

This is not that

David Carson [Associate Register for Policy and International Affairs, Library of Congress]:

What about some willfulness or scienter requiremtn?

Ben Ivins [Senior Associate General Counsel, National Association of Broadcasters]:

No, because if reverting back to no right, except prohibit.

Pure signal theft, without substantive rights is not something we are interested in.

Not any right to authorize, absent any willful misappropriation

Willful, wanton, that strikes me as criminal, mens rea, types of things

Any more than under U.S> law, any cable system that willfully retransmits without the authorization, violated U.S> law

It doesnn’t say that.

There is not that requirement

Just to clear up a few points

The suggestion that the definition of a broadcast

Caryringt a schedule, represents the entire value of the content in the signal

From my lips to gods ear, it should be so.

That it represents the value

The reason assembled an scheduled was in there – some bounds on what a broadcaster is.

Someone is putting up the videotape

Doug Comer [Director of Legal Affairs, Intel]:

Fair Use…

Ben Ivins [Senior Associate General Counsel, National Association of Broadcasters]:

That is absolutely not wehre the language came form

The debates on RC, that took place.

Where all manner of people in congress

Where there should be a RC right

And the notion that a Canadian cable system

May be $500 million floating around, in RC fees, should not have to recognize this right, but all U.S. cable and satellite systems should

Or Mexican or caribben system

Is not in the best interst of fthe U.S and US broadcast, and U.S economy.

A final point, on this treaty does not reflect U.S> values.

Be careful you are being very presumptious.

All reflect U.S. values, there is nothing to prevent a number of totalitarian regime

If you retransmit anything into country, into our country, you will go to jail for 20 years

If you get our fair use, you get our language, on.

Neil Jackson [General Counsel, National Public Radio]:

We have trouble with PRC form time to time.

But less trouble with the PRC on this treaty

Ben Ivins [Senior Associate General Counsel, National Association of Broadcasters]:

Trying doing this stuff on the Olympics.

Marvin Berenson [Broadcast Music Inc.]:

It is in the context of this obligation..

That is a wholly different situation, with an exclusive right

The definition off FU.

That is all

Tom Rivers [UK Copyright and Media Consultant]:

Observe, the association of national television in Eureope:

I want to addrs the question that David raised about willfulness,.

In the U.K., copyright legislation, which incidentally gives protection to broadcasters in their broad

Since 1956.

There is no requirmetn on the P to show willfulness in relation to an infringement of his copyright.

On the other hand, the Q of willfulness or innocence, is very material when it comes to damages.

The element, is that the remedy that is most useful, and which is conventionally thought of as the most effective of private proprietary right, is the right to an injunction.

And the right to an injunction depends upon the showing that there was an infrignemtn.

Simple that there was an infringement on the private proprietary right.

That is not a direct answer to your question

I would not regard introducing an element of wilfullness to be what I am looking for

Associaotn of Internation broadcasts

Whichj is indeed, private proprityary irghts.

-END-

Will the United States Oppose the WIPO Broadcaster Treaty?

Will the United States Oppose the WIPO Broadcaster Treaty?

What is the position of the United States government on a proposed treaty, currently before the World Intellectual Property Organization, that would create a copyright-style protection for television broadcasts?

That is the key question that observers want answers for at the public roundtable discussion that will be held today, from 2 p.m. to 4 p.m., at the Copyright Office in the Library of Congress. The proposed treaty has been rife with controversy from the beginning. One reason is that it is being promoted as an update to the 1961 Treaty of Rome, which the U.S. never ratified.

During negotiations last year at WIPO in Geneva, the U.S. was the most significant government to promote extending the broadcaster treaty to cover webcasters. But the rest of the world balked at that. Failing that modification, the U.S. expressed dissatisfaction with the end-result.

In a column on the subject last September, I quoted PTO officials as follows:

“The U.S. does not believe that [the current treaty] provides a proper basis for going to a diplomatic conference, and intervened to say as much,” PTO spokeswoman Brigid Quinn said September 15. “The U.S. has always envisioned this treaty as one to provide the necessary protections for broadcast signals in the digital age.” As a result, she said, “there is no consensus and alternatives on at least half of the issues.”