[A2k] John Bergmayer: The Broadcast Treaty, Copyfraud, & Tech Neutrality

Manon Ress manon.ress at keionline.org
Fri Dec 9 14:24:21 PST 2011

The Broadcast Treaty, Copyfraud, & Tech Neutrality

By John Bergmayer | December 09, 2011

In the cliché-driven world of policymaking, wonks often repeat that
new efforts should be "technology neutral." Like most clichés this is
true in a trivial and vague kind of way. Of course different
technologies, to the extent they do the same general things, should be
treated the same. (And of course to the extent they do different
things they should be treated differently.) It's hard to know what
"technology neutral" really means except as applied to a specific

One case where a "technology neutral" approach (at first glance) makes
a lot of sense is the WIPO broadcasting treaty. This is an ongoing,
irritating attempted land-grab by broadcasters that would grant them
rights over content simply because they have broadcast it. A lot of
people have questioned why broadcasters should get this special
treatment on technological neutrality grounds. But to put into context
exactly why technology neutrality is a tricky concept here it's
necessary to review the overall problems with the proposed treaty.
The Broadcast Treaty As Copyfraud

Imagine if you wanted to license a use of part of a book, and to do so
you needed the permission, not only of the author, but of the store
you bought the book from. This would be unfair to authors as well as
you. This is what some broadcasters want in the broadcast treaty--not
just a narrow protection against the wholesale retransmission of their
signals (which broadcasters in the U.S. already have), but a claim on
the downstream uses of content they have broadcast.

Intermediaries who work with someone else's content often make
unwarranted claims over it. Jason Mazzone writes about this in his
excellent new book "Copyfraud and Other Abuses of Intellectual
Property Law." Here's an example I found on the web recently--someone
who typed in Harold Bloom's Western Canon list writes, "The content of
this page may belong to the author. The transcription, however, is the
result of my research and hard work. It may not be reposted on any Web
site, newsgroup, mailing list, or other publicly available electronic
format. Please link to this page instead." But no matter how much hard
work people do in making works available to the public--whether it's
scanning a public domain photograph or broadcasting a TV show--this
hard work alone is not enough to grant any legal rights. In many cases
it may be the right, ethical thing to do to give credit to a person
who has worked hard to make something available, but being impolite is
not and should not be illegal. Regardless, the ethical claim that an
intermediary has over a work is far less than the ethical and legal
claims of an author. The broadcast treaty would go much further than
your typical copyfraud, though, since it would actually grant new
legal rights in content to organizations that are not necessarily

Some broadcasters have come forward with stories about instances of
signal piracy they are powerless to stop. This seems quite
odd--broadcast signal piracy is almost always also copyright
infringement and already illegal. Broadcasters very often create their
own content and can enforce those copyrights directly, and exclusive
licensees of content can often bring suit to enforce their
license--there's no need to create some new legal principle to put a
stop to this. That said, if there is a real problem with signal piracy
and other countries want to adopt something like the U.S.'s
already-existing retransmission consent rules, or otherwise make
tweaks to their law that make it easier for broadcasters to put a stop
to wholesale retransmissions of their signals, then they should go
ahead and do it.

But of course, broadcasters don't just want to put a stop to illegal
retransmissions; they want to increase their control in a number of
dimensions. This is why they claim they need rights in programs
themselves. They point to Internet piracy of TV shows (something a
retransmission-based approach would not cover) and make the ludicrous
claim that copyright holders (often the broadcasters themselves,
remember) have no incentive to fight it. (And again, if a broadcaster
is the exclusive licensee of some foreign content in its country, it
may already have standing to enforce that license in the name of the
actual rightsholder.) In short, there are existing mechanisms to fight
content infringement and none of them require granting new
pseudo-copyrights to broadcasters.
The Technology Neutral Bind

Here's the problem with technology neutrality in the broadcast treaty
context. Of course it makes no sense to extend new rights to
broadcasting, a 20th-century technology that's on its way out in much
of the world. This would give it even more special legal privileges
than it already enjoys. A lot of countries and NGOs have made a
similar point at WIPO (in a less inflammatory way). Why should
broadcasters get new rights unavailable to their more modern
competitors, such as cable, streaming sites, podcasters, and so on?

At the same time, even ignoring the technical difficulties (what is a
"signal" on the Internet?) you don't exactly fix the problems with an
overbroad and unnecessary treaty by expanding its scope to include,
for example, Internet video streaming sites. Put it this way: A law
that said all laptops have to be painted bright pink would be a bad
idea. But it would be no saving grace to say, in the name of
technology neutrality, that the law should be extended to tablets and
smartphones. Whatever the opposite of technology neutrality is
(technology partisanship?) can be a way to limit the damage a bad idea
can do.

There's a further problem--other "beneficiaries" of a treaty aren't
clamoring for increased protection. Many in the cable industry in the
US, for instance, don't need the protections the treaty would provide
to combat theft of service, and in fact realize that the treaty would
put them at a disadvantage with regard to newly-empowered
broadcasters. (The US already has a complicated system of permissions
and licenses for the cable retransmission of broadcast signals that
accounts for the interests of broadcast stations as well as content
creators and viewers--a broadcast treaty could seriously upset this

So with the Broadcast Treaty (as it is normally put forth) you have an
interesting situation: an idea that is so bad that it might be better
to just limit the damage than expand it to cover new media. That the
analysis tends this way of course shows the absurdity of the entire
enterprise. Neither a narrower treaty, or even better, no treaty at
all leads you to the unwholesome dilemma of having to choose between
granting technology-specific special favors to one medium or enacting
an unwarranted expansion of rights to all media. If the discussions at
WIPO actually focused on doing what the WIPO General Assembly said
they would focus on--signal protection--a lot of this problem falls
away. (Though the question of what are "signals," and whether only
traditional media have them, would still need to be resolved.)

For now the fight to be had is in ensuring that no treaty is adopted
without the evidence to support it, and to keep the discussion, if it
needs to take place at all, on the topic of signal protection and not
content protection. The broadcast treaty has tireless advocates and
the idea seems to come back every few years, so it's important to
remember how misguided it is.

Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
manon.ress at keionline.org

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