UN Broadcast Treaty Negotiations Fail, Parties Agree to Disagree

In the field of international diplomacy, many measures appear designed to fail from the outset, and yet the parties involved with it go through the motions of trying to implement those measures, either in the interest of courtesy to fellow diplomats, or perhaps just to keep themselves busy.

To that end, talks toward the formation an international treaty on the intellectual property rights of broadcasters over the signals they transmit, broke down today as almost everyone involved predicted.

The subject at hand was the rights of broadcasters in the digital age. Historically, countries have recognized that broadcasters do have certain limited rights over what they transmit.

Anybody who's ever closely watched an NFL game on TV already knows the limitations of those rights: Individuals may not rebroadcast or retransmit images sent by a broadcaster and recorded, without express written consent of the owner of the content. Sometimes the content producer claims those rights, as is the case with sports leagues; in lieu of anybody making that claim, the broadcaster itself is considered the owner.

But that's just about the limit of it. You can record a game or a movie, and you can show it to your friends and family later. You can't charge them money for it, but you can invite as many people as you want.

Let's say you uploaded that recording to YouTube. That sounds like a "rebroadcast or retransmission," in one sense; others would argue that, technically speaking, it's neither. And since no one's being charged any money, it might even be fair use. Broadcasters vehemently disagree, and so do the producers of shows and events.

The trouble is, both are claiming exclusive rights to the same thing: TV networks would like the right to sue because they own the signal, while some would argue that they legally don't "own" anything over the public airwaves. Producers would like the right to sue because they originated the content; but a replay of an imperfect recording may not technically qualify as a retransmission, and therefore not a public performance under many of the world's copyright laws.

So that's the confusion which was brought to the table of the World Intellectual Property Organization of the UN last week. And apparently, that's where the confusion stayed.

Part of the reason it stayed there, apparently, was a realization that not all content is exclusively owned by its creator. Therefore, a broadcaster may not be able to claim exclusivity over its transmission, if its transmission is what's necessary to perpetuate its dissemination, especially if that's what its creator intended in the first place.

The problem of signal piracy worldwide remains. Today, some uncontrolled, self-proclaimed Internet "broadcasters" continue to acquire many Chinese, American, and European broadcast signals through cable systems, and retransmit them using P2P protocols on otherwise unused IP ports.

While language in the draft treaty might have given broadcasters means for legal recourse against signal pirates, the same language might have made matters much more difficult for both individuals and online publishers who disseminate material that was previously broadcast over the airwaves, under terms that some legal scholars argue constitutes fair use.

But a doctrine produced last year for UNESCO by Cambridge University Professor Patricia Akester (PDF available here) may have done at least as much, if not more, to sink the treaty than any IT coalition or rights advocacy group. In a professional assessment of the draft treaty's language, Prof. Akester outlined all treaties heretofore, since the beginning of the 20th century, which served as the foundation for international intellectual property law. She then demonstrated how the draft language may have spat into the wind of history.

"The treaty would give broadcasters and cablecasters (and possibly webcasters) broad rights which in parallel with technological measures, could prevent or restrict the flow of information with respect to materials which may not be protected by copyright, such as news of the day, or which are in the public domain, because their term of protection has expired, or in relation to materials created by third parties who do not wish to prevent dissemination of the latter," the professor wrote.

In other words, the treaty might have given broadcasters the right to employ DRM measures to protect all its over-the-air signals, including the news, and including material that happens to be protected by Creative Commons licenses.

Prof. Akester cited the Digital Millennium Copyright Act in the US - specifically (and also ironically) its exceptions, which she characterized as critical statements of what constitutes fair use under US law. She then demonstrated that the broadcast treaty would have contradicted the DMCA's exceptions, forcing them to either be considered illegal under international law or to be "grandfathered" in - in which case, what's the point of the treaty?

"Within the Draft Broadcasting Treaty there is no sign of recognition that the law may have unintended and undesirable effects in the context of obligations concerning technological measures for protection of broadcasts," she wrote. "There are no express exceptions for circumvention by authorized users for legitimate purposes, or to preserve access to materials which are not protected by copyright or are in the public domain. Hence members of the public may be prevented from carrying out legal acts."

The head of the US delegation told the Associated Press this morning, "It became clear that there was no agreement on any of the fundamental issues of the treaty." But then again, we knew that when we started.