KEI testimony on WIPO broadcasting treaty, to House Judiciary Subcommittee on Courts, Intellectual Property, and Internet

Testimony of James Packard Love
Hearing on: The Scope of Copyright Protection
January 14, 2014
Subcommittee on Courts, Intellectual Property, and the Internet

My 10 page written statement is here: /wp-content/uploads/JamesLove_Testimony.pdf

My 5 minute oral statement follows:

James Packard Love, Opening statement

Hearing on: The Scope of Copyright Protection
January 14, 2014
Subcommittee on Courts, Intellectual Property, and the Internet

Thank you for the opportunity to testify. I have been asked to talk about the rights of broadcasting organizations, including proposals for a new UN treaty that would establish a set of neighboring or related rights, for entities that distribute information that they did not create and do not own.

The UN agency responsible for the development of intellectual property right policy is known as the World Intellectual Property Organization, or W.I.P.O. WIPO for short.

Located in Geneva, WIPO has a Standing Committee on Copyright and Related Rights, known as the SCCR. Since 1998, the WIPO SCCR has been trying to obtain consensus of a new global treaty dealing with broadcasting organizations. Several WIPO member states have called for a diplomatic conference on this treaty in 2015.

There are major differences among countries regarding every important aspect of this treaty, as evident from the current working document, SCCR/24/10, and the new proposals tabled during negotiations in December 2013.

The WIPO treaty would create a new layer of rights that co-exist with copyright, benefiting the organizations that broadcast information. The broadcasters, and several WIPO members, such as Japan, and the member states of the European Union, are pressing for an agreement that would expand, considerably, the set of related rights that exist in a 1961 treaty, the Rome Convention, that the United States has not signed.

The 1961 Rome Convention created a system for related rights for performers, and producers of sound recordings, to supplement protections that authors have under the Berne Convention. In 1961, a decision was made to give broadcasting organizations a layer of rights, as a reward for their role as an “intermediary” between authors and audiences, essentially on a par with actors, singers, musicians and other performers. Many consider the 1961 Rome Convention a mistake, and the Broadcaster right as the weakest and least defensible type of related right, because it is provided by entities that play no role in the creation of the content itself.

The United States did not sign the Rome Convention, but does provide some broadcasting entities with limited retransmission rights, through communications regulation, including 47 USC 325.

At WIPO, several countries want to expand the Rome Convention beneficiaries, to include non-free subscriber channels provided by cable and satellite, such as TNT, the Hallmark Channel, ESPN, or the Discovery Channel, and the subscriber based satellite radio channels provided by XMSirus, and also give them rights in content they distribute, but did not create.

A growing number of countries want to extend the 1961 Rome system approach more broadly to the Internet, and expand the economic rights to the more broadly defined group of broadcasting entities, and provide for 50 years of exclusive rights in fixations.

At WIPO, USPTO has proposed a compromise, that would establish a new right, for broadcast, cable and satellite services, “to authorize the simultaneous or near-simultaneous retransmission of their broadcast or pre-broadcast signal over any medium,” including the Internet, but with no post fixation rights.

So far, no country has voiced support for the US proposal, and much more aggressive proposals from Japan and the European Union are being considered, that would provide new economic rights to broadcasting entities, for distributing information they did not create or own.

This is akin to giving Amazon or Barnes and Noble a layer of copyright in every book they sell, or making Google a part owner in every web page they locate in the Internet.

Free over the air broadcasters do face some unique challenges regarding the re-transmission of their signals, and the USPTO proposal at WIPO may be appropriate to address some of these challenges. Here, we have an open mind.

But for pay services, and webcasting, there is NO need to create a new intellectual property right dealing with re-transmissions. Copyright, theft of service laws and contracts are sufficient to address piracy.

For all broadcasting organizations, there is no economic justification for giving the distributor any rights in the underlying content.

It does not make sense, and it creates a number of grave risks for those who create works, and for the public.

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