The World Intellectual Property Organization (WIPO) concluded a conference last month on copyrights, which addressed a number of current topics in international intellectual property rights. Some of the areas discussed included access to copyrighted works in libraries and schools, cooperation in film production and an important proposed WIPO treaty on broadcast rights to account for changes in broadcast technology.
Broadcast rights versus technological innovation
WIPO has been working on developing a treaty on broadcast rights for over a decade and there are a number of concerns at stake including piracy of traditional broadcast transmissions, Internet transmissions and post-fixation rights of re-broadcast transmissions.
There is widespread support for a treaty that includes the traditional broadcast rights, since those are easily managed and identifiable. Also, the use of technology is outstripping existing IP treaties and laws to protect broadcasters from innovative ways of using copyrighted material and transmissions.
The other two areas pose challenges of enforcement, and have the potential to interfere with various types of streaming and consumer access. For example, by including post-fixation rights, broadcasters would be able to limit access to material that was being recorded for later dissemination or viewing. This would include services that provide catch-up TV viewing, a growing area of consumer interest. Also, the simple act of recording a program for future viewing as with DVRs could be in violation of this type of provision, and could affect consumer use of those products. Another concern is that strict limitations on post-fixation rights would limit lawful access to materials by journalists and archivists, regardless of whether there was a fair use agreement or if the material was in the public domain.
Broadcast TV streaming over Internet
The streaming of TV over the internet is another area of conflict, as many argue that existing copyright protections are sufficient. This was demonstrated earlier this year when Aereo, a US company that was streaming broadcast television over the internet, was blocked from continuing to offer its services. The US Supreme Court ruled that the service, which offered consumers a small antenna that linked to Aereo’s service and the retransmitted broadcasts, was an infringement on the broadcasters’ intellectual property rights. Aereo avoided paying retransmission fees in this way, which resulted in the lawsuit where they lost their case before filing for bankruptcy.
In this case, domestic IP laws were sufficient to curtail the service, but it is not difficult to imagine a scenario where this type of rebroadcast could cross international borders, complicating litigation and enforcement. By including this type of retransmission in a WIPO treaty, there would be a basis for making complaints and alleviating any instances of infringement. There is especially strong support for including this area in a treaty from the European Union.
For now, the proposals are up for debate among broadcasters, NGOs, governments and other interested parties, and since this particular type of treaty has been in development for over 15 years there may not be a quick resolution. Any party involved in broadcasting, internet streaming or other post-fixation business may want to monitor developments with this treaty on broadcast rights in the near future.
