Over recent months the Electronic Frontier Foundation (EFF) has been waging a campaign against the proposed new WIPO Broadcast Treaty, which would introduce a new 50 year 'broadcasting right' in addition to existing copyright and intellectual property laws.

The EFF believes that the new broadcast right would add an additional layer of legislation to an already crowded legal environment and restrict the development of online media. In the course of its campaign the EFF has signed up a range of high profile companies and individuals in support of their cause, including the likes of Internet Billionaire Mark Cuban, IT Publisher Tim O'Reilly and Elliot Noss of TuCows.

The proponents of the Broadcast Treaty believe that it will assist to secure the rights of television networks, radio stations and other media aggregators and will allow them to more effectively monetize their IP rights in an online world.

The development of the treaty, like any other international agreement is a complex process with a multitude of interested parties and competing agendas - in an effort to find some order amidst the chaos of the current discussions surrounding the treaty we spoke to the EFF's International Affairs Director, Gwen Hinze about the EFF's objections to the treaty.

[TDMW] Can you briefly outline the history of the WIPO Broadcast Treaty?

[GH] For the last eight years or so, discussions on "updating" broadcasters' rights have been underway at the World Intellectual Property Organization, a division of the United Nations. A 1961 treaty, the Rome Convention, gives broadcasters 20 year rights of control over recordings of their broadcasts in countries that have signed on to that treaty. Broadcasters are seeking a new treaty because the Rome Convention has not been adopted by many countries (only 83 of WIPO's 182 member countries have signed on; the U.S. has not) and because they want more coverage than the current treaty offers. The new treaty would expand coverage to include both broadcasters and cablecasters, and also expand their rights. Broadcasters and cablecasters would receive 50 year rights over their transmissions, and could enforce them with legally-sanctioned Technological Protection Measures, or Digital Rights Management.

In 2002, the U.S. proposed that the treaty should be extended to "webcasters". That's proven to be very controversial. Many other WIPO member countries rejected expanding the treaty to the Internet in meetings in 2004 and 2005. Negotiations almost came to a halt. Then, as a way forward, it was agreed at a WIPO meeting in May 2006 that the treaty would be split into two - a treaty dealing with standard broadcasting and cablecasting that would move on a "fast track", and a "slower track" treaty dealing with Internet transmissions, which would require more discussion. But that's now how it worked out. The current treaty draft continues to include the Internet, and hence, is being opposed by a number of countries.

[TDMW] Who are the key proponents of the treaty?

The North American Broadcasting Association and the European Broadcasting Union are the most vocal proponents. Several American webcasters, including Yahoo!, NewsCorp, and others represented by the Digital Media Association, are the main proponents of extending the treaty to Internet webcasters. At the same time, the treaty has been expressly rejected by a group of 20 major webcasters and technology companies, including Mark Cuban, the owner of HDNet, in a 2004 open letter to WIPO, available here.

[TDMW] What stage is the treaty currently at? Is there a timetable for adoption/resolution at the present time?

[GH] There's a draft treaty, available here. The next step is for it to be finalized and adopted at an intergovernmental Diplomatic Conference. The draft treaty moved one step closer to that last week, when the WIPO Copyright Committee agreed to recommend that WIPO's General Assembly should convene a Diplomatic Conference in July 2007 to adopt the treaty. The WIPO General Assembly is the annual gathering of all of WIPO's 182 member states. It's taking place next week, from September 25 - October 3. It will decide whether to convene the Conference, or given the significant number of countries that opposed the treaty going forward last week, whether to postpone the decision on a Diplomatic Conference and instead call for further meetings to try to find more agreement on the treaty text. Everything now turns on next week's vote.

[TDMW] What are the main driving factors behind their belief that a new 'broadcasting right' is necessary?

[GH] I can't speak for broadcasters, but here's what they've said. At a roundtable on September 5 with the U.S. Patent and Trademark Office, Ben Ivins, Senior Associate General Counsel at the North American Broadcasting Association, said that they were seeking a new treaty to deal with signal piracy. He mentioned the iCrave TV case, where a Canadian company received U.S. cable television and retransmitted it over the Internet. (iCrave TV was closed down by a lawsuit brought by U.S. rightsholders that owned the content being rebroadcast). In an interview in Congress Daily magazine in May this year, just before the World Cup, Mr. Ivins said that broadcasters need a treaty to protect their sports broadcasting rights.

EFF and many of those opposing the treaty believe that no adequate justification has been given for creating a new treaty and why every case cited cannot be adequately dealt with existing laws, including the copyright rights in the content being broadcast. We're united in our belief that signal theft is wrong and there's significant support for a treaty that is limited to signal protection. In America, and in many other countries around the world, that is already outlawed by "theft of services" laws. The problem is that the current treaty goes beyond signal protection and creates 50 year copyright-like rights over broadcasts, cablecasts, and potentially "netcasts", that are likely to stifle technological innovation, and restrict access to knowledge and freedom of expression online.

[TDMW] Given the gradual increase of non-linear broadcast transmissions do you feel that a right such as this will be necessary in the long term to protect the rights of broadcasters in the digital age?

[GH] EFF remains unconvinced of the need for this treaty. We are still waiting to see a situation that could not be handled under existing copyright law and the well understood national criminal laws banning theft of service. Everyone is in agreement that theft of paid programming should not be permitted, but addressing that - whether on the Internet or over existing transmission channels, requires a signal theft treaty, not a treaty that creates 50 year exclusive rights over recording and retransmissions. We've seen no evidence that broadcasters need new 50 year economic rights to stimulate their business. In fact, the growth of user-generated rich media content such as YouTube , MySpace and podcasting, all of which have flourished without 50 year exclusive rights, suggests that these sort of rights are not necessary to encourage creation and dissemination of creative works online.

[TDMW] Could you briefly explain how you believe that the broadcasting treaty will work/not work alongside the existing law of Copyright?

[GH] The treaty would create a new layer of rights that apply over, and in addition to, copyright. The treaty also requires signatory countries to provide legal protection for technological protection measures (TPMs) used by broadcasters. The new rights, backed by legally-enforced TPMs, would allow broadcasters and cablecasters to restrict access to transmitted information even where a work is the Public Domain, licensed under a Creative Commons licence, or where use would be permitted under national copyright law.

The treaty allows, but doesn't require, signatory countries to create exceptions that parallel those in national copyright law. So for end users, whether you'll be able to make use of transmitted material the same way then comes down to the political will of your national government, and the strength of domestic broadcasting lobbyists when national implementation legislation is debated in parliament.

[TDMW] What are the EFF's primary objections to the treaty?

[GH] EFF is particularly concerned about the treaty's combination of legally-enforced broadcaster technological protection measures, and overbroad rights. We think that will have four negative impacts:

(1) it will endanger consumers' existing rights to timeshift and retransmit television that they've lawfully received within the home;

(2) it will restrict the public's access to public domain works and other information that would be accessible under copyright law;

(3) It will stifle technological innovation in new home entertainment and Internet technologies, such as the next TiVo. The treaty includes broadcaster technological protection measure provisions that will require Broadcast Flag like technology mandate laws. This will allow broadcasters to control device design and hurt consumers by reducing device features and increasing the costs of design, which will be passed on to consumers.

(4) If the treaty's new rights were extended to the Internet, it will endanger the innovation environment that has made Internet user-generated phenomena like YouTube, podcasting and MySpace possible for two reasons: (A) it will add complexity to already complex rights clearance regimes and (B) it will imperil the technologies and devices that have made that world possible, by creating new secondary liability concerns for software developers and device manufactures and imposing technology mandates over device features. This is likely to affect a range of technologies from the affordable portable audio players and RSS web-syndication software that has made podcasting so successful, to video search engines that help locate content that others have created and made available online

[TDMW] You've received a lot of industry support for your campaign, but how receptive have national governments been to your lobbying efforts?

[GH] EFF is one of 40 signatories on a joint statement to WIPO opposing the treaty that was presented last week by a wide range of public interest groups, libraries, telecommunications companies such as AT & T, Verizon, consumer electronics companies including Intel, TiVo, Panasonic, Sony and Dell, and all major U.S. ICT industry groups including the Computer and Communications Industry Association, Consumer Electronics Association and US Telecom. We all have different areas of interest, but we're united in our belief that the treaty's rights-based approach is both unnecessary and dangerous.

A number of the issues listed in the joint statement - such as our concern that technological protection measures could block lawful access to information and public domain works, and the need for adequate exceptions and limitations - were also raised by many WIPO member countries in their statements at last week's meeting. Brazil and the Asia Group of countries have called for removal of the TPM provision, and South Africa, Chile and the African Group have expressed concern about its ability to restrict access to knowledge and public domain material. In addition, India, Iran, Indonesia, South Africa, Chile and Pakistan raised concerns about the treaty's inclusion of exclusive rights of control over Internet transmissions of broadcast and cablecast material.

[TDMW] Your recent campaign has enlisted Podcasters to protest against the treaty - but aren't Podcasters one of the groups that potentially stands to benefit from the treaty?

[GH] Last week EFF distributed an open letter at WIPO from over 200 podcasting organizations and podcasters, representing thousands of podcasters worldwide, so that their views could be heard alongside those of the well-financed lobbyists employed by the American commercial webcasters that are seeking webcasting rights. Podcasters started worrying about the treaty after WIPO organized an event in July called "From the Rome Convention to Podcasting".

Ironically, Podcasters do not get any benefit from the treaty, but they certainly stand to lose out from it. The treaty does not currently include "netcasting" over the Internet. Even if it did, individual podcasters appear to be excluded from the definition, and it's not at all clear that other corporate podcasters would qualify.

On the other hand it is very clear that podcasters stand to lose out in at least two ways if the treaty goes ahead. First, rights clearance would become more complex for podcasters. Podcasters already face significant hurdles getting copyright clearance due to underdeveloped licensing regimes and byzantine rules that did not foresee podcasting. Creating a new layer of rights that apply in addition to copyright is only going to increase that complexity.

Second, for the reasons I noted before, the treaty endangers the innovation environment that has made podcasting possible. The treaty's TPM provisions are likely to require technology mandates that will impede technological development. In addition, the treaty creates potential new secondary liability for software developers and device manufacturers that will also stifle innovation. If the treaty had been in force it's not clear that we would have seen the development of web syndication technologies like RSS or affordable portable audio players like iPods, which have made podcasting so successful.

Finally, as the treaty is currently drafted, it could allow subsequent transmitters to override the wishes of podcast creators, and make transmitted podcasts available on more restrictive terms than a podcaster intended.

[TDMW] There's obviously a lot of momentum to get this treaty signed, what steps do you think you need to take to derail the talks?

[GH] We're waiting to see what happens at the WIPO General Assembly next week. As last week's Copyright Committee meeting made clear, there's no consensus on the current treaty text. At least ten countries expressed concerns, including the U.S., and for different reasons, Brazil, India, Iran, South Africa and Chile. The Copyright Committee Chair was only able to bring the meeting to a close and get a recommendation to move forward by disallowing further debate and invoking a "silence as consent" procedure. The disagreements are real and very deep.

However, there's also a great deal of pressure to move the treaty forward because negotiations have been underway at WIPO for eight years. It's a dangerous environment, not conducive to policy discussions. Given the lack of consensus on the treaty's substance, we hope that the General Assembly will not vote to convene a 2007 conference and will instead require further meetings to investigate a signal-protection-based treaty that was supported by many countries last week.

U.S. industry and public interest groups have each asked the U.S. delegation to oppose the convening of a Diplomatic Conference next week given the substantial disagreements about the text. We expect consumers, public interest groups and industry in other countries have similarly expressed their concerns to their national representatives at WIPO.