I'm in Geneva at a meeting of World Intellectual Property Organization (WIPO), where negotiators have one final day to finish a draft text for a new treaty on "broadcasting." The main demanders of the treaty are the owners of television stations, such as the U.S. based National Broadcasters Association (NBA) and the Association of Commercial Television in Europe (ACT), and their counterparts in Asia, Latin America and Africa. There is also a strong push for the treaty by companies like Time Warner, News Corp, Disney, and Vivendi, which aggregate programs into "channels." (See a partial list here).
The proposed treaty, which is opposed by a coalition of civil society NGOs and library groups, seeks to impose broad new intellectual property rights to companies that broadcast third party content over wireless or cable television networks.
Last evening, the United States delegation told negotiators that the new rights be must be extended to retransmissions [See update 2, below] of broadcasts to the public, "by any means." This wording is specifically intended to impose new liabilities on the reuse of program on the Internet.
Big losers in this negotiation so far are the growing number of web sites such as YouTube, Facebook, Myspace, etc, that feature access to clips from television programs, including political content such as presidential debates or news shows, that are recorded from television (including cable or satellite) and shown, often as excerpts, on the Internet.
The new intellectual property right is given to the companies that broadcast the content, not the owners of the copyright in the programs themselves. The broadcaster's new exclusive rights are modeled after (but expanded from) the 1961 Rome Convention's broadcaster's right -- a treaty the United States never signed. The owners of the TV or cable systems, or even the cable channels, like HBO, FX, TBS, the Discovery Channel, or Spike TV, can assert the right, and demand injunctions or fees when works are used on the Internet, even when the copyright owner itself does not take any action against the Internet use of the work, or the work is in the public domain under copyright law.
The U.S. delegation is taking positions that are contrary to U.S. law, opposed by many leading U.S, technology firms, like Intel, Dell Computers, A&T and Verizon, library and consumer rights groups (see details here and here) but also the positions of Senators Leahy and Specter, who have called on the U.S. negotiators to oppose the treaty, if it provided intellectual property rights to the broadcasters, for merely transmitting works.
Making matters worse, the U.S. government and the European Commission are taking a hard line against various proposals to include protections for measures that protect use for education, the need to promote access to knowledge and information and national educational and scientific objectives, or which give governments more flexibility to "curb anti-competitive practices, and to promote the public interest in sectors of vital importance to its socio-economic, scientific and technological development." The U.S. government is also opposing language acknowledging the right of governments to protect "cultural diversity."
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Update: Late last evening the U.S. Delegation proposed language in the negotiations to ensure that the new right "Does not give rise to any rights against the copyright owner of the program being transmitted or any entity acting with the permission of the copyright owner." If this helpful provision stays in, it will address the issue of broadcasters seeking rights from works licensed under creative commons licenses, as well as some other important cases.
Update 2: This is technical. The United States delegation says "U.S. did oppose deletion of "by any means" so that simultaneous retransmission of traditional broadcasts on the internet is covered .....but we never spoke on deferred retransmissions last night." However, in the texts that have been made public, the "by any means" applies to both cases. The negotiations are now being held in secret.