The Broadcast Treaty and Its Implications for Signal Piracy in North America

• Author: Marlee Miller
• Position: Degree from Loyola University New Orleans in 2005
• Pages: 10

Marlee Miller,is a native of Lafayette, LA. She received her bachelor's degree from Loyola University New Orleans in 2005. Currently, she is a third year law student at American University Washington College of Law. While in law school, she interned in the Policy Division of Media Bureau and in the Office of Commissioner Jonathan Adelstein, both at the Federal Communications Commission. After graduation, Marlee will be working in communications law at Leventhal, Senter & Lerman in Washington, DC.

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I Introduction

Copyright laws grant authors the right to control specific uses of their work and the right be compensated for those uses. However, not all creative works receive copyright protection. In the United States, to the extent that broadcasters create their own original programming, they receive copyright protection.¹ Nonetheless, the broadcasters do not have the right to control all uses of the content sent through their signals.² To remedy this problem, the U.S. established a compulsory licensing scheme, requiring cable and satellite operators who transmit a broadcaster's content through their cable systems to pay that broadcaster the statutory fee.³

The advent of digital technologies has increased the quantity and the variety of information available to the public, as well as the speed the public can access that information. Such increases in digital technology have made it possible for pirates to steal broadcasters' signals and to make the information encoded in those signals available on the Internet, either simultaneously to the broadcast of the signal (referred to as "simulcasting") or at anytime upon the user's request (referred to as "on-demand transmissions", "webcasting", or "netcasting").⁴ Signal piracy is a problem for broadcasters because once the signal is transmitted to the public, it is difficult for broadcasters to control their signal and the content of that signal.⁵

Currently, the World Intellectual Property Organization ("WIPO")⁶ is trying to update broadcasters' rights against signal pirates. The WIPO Standing Committee on Copyrights and Related Rights ("SCCR") recently held conventions in Geneva, Switzerland to discuss with its members the possibility of drafting and ratifying a treaty for broadcasters.⁷ This article examines specific provisions of the proposed Broadcast Treaty, provides information about the current status of the Treaty, and discusses how the Broadcast Treaty could help U.S. broadcasters combat signal piracy.

II International Broadcast Treaties Pre-dating the WIPO

The proposed Broadcast Treaty is not the first treaty related to international broadcast issues. One of the first international treaties to deal with broadcast issues, in the form of obligations, was the Berne Convention for the Protection of Literary and Artistic Works (1948 Brussels Text).⁸ It required that broadcasters abide by copyright law and obtain authorization from and pay the authors of the copyrighted works they air.⁹

The first treaty to focus specifically on broadcasters' rights and other related rights was the Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations ("Rome Convention"), passed in 1961.¹⁰ The Rome Convention established a regime for protecting "neighboring" or "related" rights, which are "rights neighboring on copyright."¹¹

The Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS"), signed in 1994, provided a means for broadcasters to enforce their intellectual property rights without expanding broadcasters' rights.¹² In 1996, WIPO adopted the Performers and Phonograms Treaty ("WPPT"), which expanded the definition of broadcasting to include both satellite transmissions and encrypted signals.¹³

None of these treaties discuss matters relating to the theft of broadcasters' signals. In an effort to establish a more uniform signal theft regime, the General Assembly requested that the SCCR put together a treaty that would protect broadcast signals from signal theft.

III WIPO Broadcast Treaty

A Background of the Broadcast Treaty

There is much debate surrounding the Revised Basic Proposal of the Broadcast Treaty. Some argue that this proposed Treaty grants broadcasters too many rights, effectively creating a new arena of intellectual property solely for broadcasters.¹⁴ Most members of WIPO favor a signal-based approach rather than a rights-based approach for the Broadcast Treaty.¹⁵ The signal-based approach prohibits the unauthorized use of broadcast signals and grants broadcasters legal remedies if such an unauthorized use occurs. By comparison, proponents of the rights-based approach, who are mostly broadcasters, advocate the expansion of broadcasters' rights to include "the exclusive Page 35 right of authorizing the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts," regardless of whether the original signal was received legally.¹⁶ If the rightsbased approach were adopted, then those wishing to use material they legally receive through a broadcast signal may be required to receive permission from both the broadcaster and the copyright owner before they can use the content.¹⁷ Critics of the rightsbased approach argue that it would make it more expensive and time consuming for educators to use broadcasted material and would likely "restrict the entry of information into the public domain."¹⁸

Several countries, including the United States, have voiced their objections to the Revised Basic Proposal. ¹⁹ In response, the General Assembly decided to limit the scope of the Treaty to that which is necessary to protect broadcasters from signal theft.²⁰ In addition, the General Assembly mandated that the members clarify any outstanding issues, specifically the scope of the treaty, by the end of the second meeting, scheduled for June 2007.²¹ At the January 2007 Meeting, Chairman of the SCCR, Jukka Liedes, surprised everyone by presenting a series of "non-papers," titled such because they have no official authority, as an attempt to summarize areas of consensus on the Treaty.²² By circulating these non-papers, the Chairman hoped that instead of arguing over each detail of the Revised Basic Proposal, members could reach consensus on the more general provisions of the Treaty.²³ However, when the nonpapers were presented, the delegates were not prepared to discuss the non-papers and many had problems with the provisions.²⁴

In late June, the members met again to discuss the Treaty under a strict mandate to reach consensus on the Treaty provisions. ²⁵ In an attempt to achieve a consensus, the Chairman introduced another series of non-papers, which he said were based on his consultations with members about the Treaty.²⁶ These non-papers created much controversy and did not serve their intended purpose of encouraging consensus.²⁷ In fact, the June meeting was unsuccessful because no consensus was reached.²⁸ Members recommended that the General Assembly send the Treaty back to the SSCR's regular session for more discussion.²⁹ The General Assembly is slated to make its decision on the members' recommendation in late September/Early October of 2007.

B Provisions and Details of the Broadcast Treaty

The Revised Basic Proposal is over one-hundred pages in length and contains a long list of alternative options for each of the proposal's sections.³⁰ The Revised Basic Proposal recognizes piracy across and within borders as a problem and addresses it as one of its primary concerns.³¹

Article 6 of the Revised Basic Proposal explicitly states that the Treaty is to be signal-based rather than rights-based, providing that "[t]he protection granted under this Treaty extends only to signals used for the transmissions by the beneficiaries of the protection of this Treaty and not to works and other protected subject matter carried by such signals."³² It also excludes from protection a "rebroadcasting, retransmission by wire or cable, and retransmission over computer networks," or webcasting, by anyone other than the initial broadcaster.³³

Article 3 of the Chairman's most recent non-paper states explicitly that the Treaty protects "broadcasting organizations in respect to their broadcasts" and does "not give rise to any rights in the programs that are transmitted by broadcasting organizations."³⁴ Article 6 of the Revised Basic Proposal, Scope of Protection, is written in terms of what the Treaty does not protect, specifically, it does not protect "mere retransmissions, [or] any transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions), or any transmissions over computer networks (transmissions using the Internet Protocol, ?webcasting', or ?netcasting' )."³⁵

The Revised Basic Proposal also grants broadcasters certain exclusive rights: the right of retransmission (Article 9),³⁶ the right of public communication of their broadcast (if such communication is made accessible upon payment of an entrance fee) (Article 10),³⁷ the right of fixation (Article 11),³⁸ the right of reproduction (Article 12),³⁹ the right of distribution (Article 13),⁴⁰ the right to authorize transmission of their broadcast (Article 14),⁴¹ and the right to authorize the making available to the public the fixation of their broadcast (Article 15).⁴²

The last provision relevant to our discussion is Article 24, Provisions on Enforcement of Rights.⁴³ This Article requires that members "ensure that enforcement procedures are available under their law so as to permit...