“Contentious Issues in World Regulation of the Internet” 35th World Computer & Internet Law Meeting May Fairmont Hotel San Francisco, CA “Balancing Free Speech with Government Regulation: Proposed WIPO Broadcasting Treaty” By Robin Gross IP Justice Executive Director

United Nations Specialized Agency: IP Treaties Standing Committee on Copyrights and Related Rights (SCCR) 2005 WIPO General Assembly: “finalize negotiation” SCCR 14th Session 1-5 May 2006 (TODAY!) Fall 2006 WIPO General Assembly - Vote Diplomatic Conference by 2007 for Final Treaty Drafting World Intellectual Property Organization (WIPO)

“Update” Rome Convention 1961 (US not signatory to Rome Convention) Creates new rights for broadcast companies Sits on TOP of copyright holders rights WIPO Proposed Broadcasting Treaty

New Rights for Broadcasting Companies: Right of Retransmission (Article 6) Right of Fixation (Article 7) Right of Reproduction (Article 8) Right of Transmission Following Fixation (Article 9) Right of Making Available of Fixed Broadcasts (Article 10) Right over Pre-Broadcast Signals (Article 11) Right to outlaw circumvention of “digital locks” (Article 14) Right to outlaw removing rights management info (Article 15) Right to Internet Transmissions / Webcasting (Appendix) WIPO Proposed Broadcasting Treaty

Scope of Rights: -Protection for “signals” transmitted -“by any means, including rebroadcasting, retransmission by wire, and retransmission over computer networks” (Article 6) Applies to: - Traditional Broadcasting (Article 3); - Cablecasting (Article 3); -> Internet Transmissions / Webcasting ? (“Opt-In” Appendix US proposal) -> OUT as of TODAY But Article 6 includes “over computer networks ” WIPO Proposed Broadcasting Treaty

Term of Broadcasters’ Rights: -50 years (Article 13) -Re-Broadcast will earn another 50-year term -More than double current international standard of 20 year term under Rome Convention -Singapore proposed 20-year term, but rejected from draft text by Chair. WIPO Proposed Broadcasting Treaty

Controversial Treaty Provisions: 1.Webcasting & Internet transmissions (unprecedented rights in global treaty?); 2.Anti-circumvention rights for broadcasters unwise; 3. Term of rights too long; 4.Fewer exceptions & limitations to rights.

“Anti-Circumvention” Rights for Broadcasters? Article 14 Obligations Concerning Technological Measures Adequate legal protection and effective legal remedies against circumvention of technological measures used by broadcasting companies. - WIPO Copyright Treaty & Performances & Phonogram Treaty in But new anti-circumvention rights for broadcasting companies (in addition to copyright holder rights)

“Anti-Circumvention” Rights for Broadcasters? US Digital Millennium Copyright Act of 1998: 1. Outlaws bypassing digital locks - Few, limited, narrow exceptions 2. Outlaws all tools capable of bypassing locks DMCA - Controversial due to over-breadth in what it prohibits

“Anti-Circumvention” Rights for Broadcasters? Unintended Consequences of Anti-Circumvention Laws: Restricts lawful uses - private use, fair use, etc. Prevents works from entering public domain – stay locked up forever Outlaws “reverse-engineering” – no interoperability or “tinkering” Prevents freedom of expression about technical weaknesses Stifles scientific research and innovation – liability is too risky Impedes competition – creates monopolies on adjacent products

Rightsholders Alligned Against Treaty Association of European Performers’ Organisations European Group of Performers’ Collecting Societies International Bureau of Societies Administering the Rights of Mechanical Recording and Reproduction International Confederation of Societies of Authors and Composers European Federation of Producers Collecting Societies for Audiovisual Private Copying International Federation of Actors International Federation of Film Producers Associations International Federation of Musicians International Confederation of Music Publishers International Federation of Journalists International Federation of the Phonographic Industry Independent Film and Television Alliance Independent Music Companies Association Media, Entertainment and Arts Section of Union Network International

Statement from 15 Rightsholder Organizations: WIPO Broadcasting Treaty would, “give broadcasting organisations sweeping exclusive rights that are in most cases not even enjoyed by holders of rights in the transmitted content. … [S]uch and unbalanced standard of rights will create a situation where broadcasters alone dictate the rules and set the scene, in most cases in the absence of equivalent rights for holders of rights in the content.” - Joint Position of 15 right holders organizations on the proposed WIPO Broadcasting Treaty (November 2004)

Stifles Innovation and Competition “Intel opposes the WIPO Broadcasting Treaty. Proponents have not demonstrated that the benefits of creating new exclusive rights outweigh the burdens that these new rights impose.” - Statement of Intel Corp. concerning WIPO’s Proposed Treaty on the Protection of Broadcasting Organizations Burdens Listed by Intel: - Control of mobile device and digital home innovation. -Technical protection measure (TPM) provisions will become regulatory mandates that limit design freedom. - Liability risk for software developers, device makers, and ISPs. - Increased rights clearance complexity. - Harm to copyright owner interests and public interests.

Stifles Innovation and Competition “The creation of a new psuedo-copyright will slow down adoption and innovation in Internet markets by requiring all content-related businesses to negotiate yet another layer of license agreements before they can offer new products or services to the public.” - Open Letter to WIPO from Mark Cuban and 20 Technology Companies on Broadcasting Treaty

Harmful Impact of Broadcasting Treaty: In Summary: - Freedom of Expression Chilled - Rights Holder Interest Harmed - Innovation & Competition Stifled - Public Domain / Fair Use Rights Eliminated

What’s Next for Broadcasting Treaty? Another draft by August 1, 2006 (excluding webcasting) Another SCCR session before 2006 General Assembly Vote WIPO General Assembly 2006 (25 Sept. - 3 Oct.) Diplomatic Conference in 2007 ? New Broader WIPO “Internet Treaty” (incl. webcasting) to Follow

“Contentious Issues in World Regulation of the Internet” 35th World Computer & Internet Law Meeting May Fairmont Hotel San Francisco, CA “Balancing Free Speech with Government Regulation: Proposed WIPO Broadcasting Treaty” By Robin Gross IP Justice Executive Director