January 4, 2007. Greg Piper in Communications Daily

Definitions Called Key

Where's the Harm? NAB Asks Critics of Rights in WIPO Treaty

Critics of the World Intellectual Property Organization's revision of its broadcasting treaty (CD Aug 4 p7)are finding monsters under the bed and erasing U.S. law in their warnings, an NAB official told opponents Wed.Speaking to a roundtable organized by the Copyright Office and Patent & Trademark Office, Ben Ivins, NAB senior assoc. gen. counsel, said "the imagination truly runs wild" in harms traced to the latest draft.

The WIPO Standing Committee on Copyright & Related Rights meets Jan. 17-19 to resolve issues inthe treaty, and is expected to take a
"signal-based" approach. Critics say the current draft blurs the line between"signal" and "content," granting noncreators new copyright-like rights. "Essentially what you're saying is this treaty should reach into the living room," said Jim Burger, attorney for HP, TiVo and others opposing the treaty's current language.

"We've yet to hear a sufficient basis for the need for this treaty," said USTelecom Dir.-Policy DevelopmentKevin Rupy, noting many members of that group are moving into video distribution. If WIPO really wants to devisea narrow "signal protection" treaty, "that is certainly the best approach to move forward with," he said. Rupy warned against including technological protection measures (TPMs) in the treaty, saying that could create "a significant hurdle for consumers to use this content within their homes." The do-no-harm theory should apply both to copyright and "the rest of our U.S. industry," Verizon Vp Sarah Deutsch said. Telcos, now improving and extending broadband services to mobile devices, have "serious concerns that by adopting a rights-based approach, you will be attaching new types of fees," she said. Desire for regulatory harmony with Europe, which generally observes the Rome Convention giving broadcasters more rights, should be tempered by an awareness that Europe has a "highly regulated regime" for broadcast and cable, Deutsch said.

WIPO's "exit strategy" from a broad treaty at odds with U.S. policy has reverted to "really complicated text" full of "poison pills," said
Consumer Project on Technology Dir. James Love. Without scrapping the list of exclusive rights for broadcasters and cablecasters, every
industry will clamor for its own "wish list," he said, calling for the U.S. to table the draft.

The draft's broad language creates an "unmanageable risk" of secondary liability for ISPs, device makers, software developers and other
intermediaries, said Electronic Frontier Foundation International Affairs Dir. Gwen Hinze. The draft hints at TPMs "directed toward
post-reception control," requiring something like the broadcast flag debated of late in Congress, she added. Intermediaries need "clearly
defined and limited" liability to support any treaty, said attorney Jim Halpert, who represents Internet companies.

The treaty affects "human rights" as well as intellectual property, NPR Gen. Counsel Neil Jackson said, calling the NAB member's WIPO interest "very narrow." With 18 bureaus around the world, NPR needs to be able to gather "news components" worldwide and with ease, so it wants any treaty to include "the equivalent of fair use," a U.S. concept, he said: "There's ample room for protection of First Amendment-style rights" in a signal-based approach. The treaty should "perhaps focus more on signal theft and less on exclusive rights" for broadcasters, but opponents have shown few "ill effects" in parts of the world that give broadcasters more rights, MPAA Exec. Vp Fritz Attaway said. If the treaty lacks provisions to guard against redistribution of broadcast and cable content over the Internet, "then this treaty is really rather meaningless," he said. If TPM language goes in, it should mirror language in other treaties to avoid misinterpretation, he added.

RIAA supports a signal-based approach, but the "mantra" that infringement is the only relevant subject for the treaty would make the
entire treaty "irrelevant," RIAA International Vp Neil Turkewitz said: "We simply can't start from the concept that copyright infringement is the beginning and end of this exercise." The crux of the treaty is "definitions," said Jonathan Band, attorney for the Library Copyright Alliance. The treaty should focus on exceptions and limitations on any created rights, he said: "If it's not copyright infringement, it shouldn't be signal theft." Computer & Communications Industry Assn. Senior Counsel Matthew Schruers said if the treaty turns into a "rights-manufacturing exercise," then "we haven't solved the problem. We've simply renamed it." The most exciting media developments involve small creators empowered by falling productions costs, Love said, citing the cellphone video of Saddam Hussein's execution -- among the Web's biggest New Year weekend draws. "There's so much going on with the technology. It's not really a great time to legislate based on a 1960s paradigm," he said. Would any RIAA members benefit from the current draft? he asked Turkewitz, voicing perplexity at RIAA's position. "I think that we agree" on the basics, that the treaty doesn't apply to signals once "fixed" in material form, Turkewitz replied. RIAA was the first to argue against a treaty that emphasized rights and distinguish between content and signal in a way "not dissimilar to yours," he told Love. 

NAB's Ivins clearly was bemused by the parade of horribles following his arcane article-by-article overview of NAB's positions on the current draft. Responding to warnings that technology is changing too fast to add rights into the treaty, Ivins predicted the
status quo would create "terrific technology and no content and no signals" to use that technology. Critics gave a "revisionist and
selective history of what's in U.S. law" regarding broadcasters'retransmission rights, he said, calling himself "dumbfounded" that
critics said the U.S. approach is purely "antipiracy." Where's the evidence that owners of home networks have been frustrated
in attempting to move legally acquired content among devices? Ivins asked. Who has been sued? "Yes, it's going to require a change in U.S.
law," he replied to those calling the treaty a divergence from domestic law. But "it's not antithetical to U.S. law." In fact, mandatory
exceptions and limitations in a treaty could open the door for hostile regimes like China to add
conditions on broadcasters, he said: "Be careful what you ask for." --

Greg Piper