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Airwave Rights

Broadcasters in Canada, England, France, Germany, Japan and 77 other countries have the right to stop anyone from recording or retransmitting a broadcast without their consent. U.S. broadcasters have never had that right. But that may change soon.

For years the U.S. has refused to sign the Rome Convention, the 1961 international treaty that affords IP rights to "performers, producers of phonograms and broadcast organizations." But the U.S. recently indicated it would be willing to sign a revised version of the treaty--one that would greatly strengthen the broadcast right. The proposed treaty provides that the right would last for 50 years, instead of the current 20 years, and would not only include over-the-air broadcasts, but also satellite and cable broadcasts. Moreover, if the U.S. government has its way, the revised convention also will apply to Webcasts--audio or video streamed over the Internet.

Advocates for the treaty argue it's needed to stop piracy and encourage companies to invest in all types of broadcasting, including Webcasting. Critics, however, claim this protection is unnecessary to stop piracy or foster investment. They say it simply would add a new layer of IP rights that would complicate the licensing and use of any material that is broadcast or sent over the Internet. They also fear that the proposed treaty would strangle the free flow of information online.

"The effects it would have on the Web are so enormous, we don't know what they would be," says James Boyle, who teaches IP law at Duke University. "It is one of the worst pieces of IP legislation I've ever seen. It just takes the biscuit."

Copyright Overkill

At first blush, the broadcast and Webcast rights in the proposed treaty may seem a lot like copyright. But there are some significant differences.

For starters, the right would apply to every work that is broadcast or streamed on the Internet, even if the copyright on the work has expired. The broadcast right also can be asserted against the wishes of copyright owners. Suppose, for instance, a radio station Webcasts a hot song from a new group. The group may want to increase its fan-base by allowing listeners to record and make copies of the Webcast song. Under the treaty, though, the group would have to obtain the approval of the radio station before any copies could be made.

Another important difference between a U.S. copyright and the broadcast right: the broadcast right does not provide any fair-use exceptions. It can be fair use under copyright law, for instance, to reproduce a copyrighted work for purposes of criticism, news reporting or teaching. And it is fair use for consumers to record broadcast TV shows to watch later--that's what the Supreme Court held in its 1984 Betamax decision.

The proposed treaty doesn't mandate any fair use limits on the broadcast right, though it does allow individual countries to enact such limits if they wish.

Thus, one effect of the treaty might be to undermine the fair-use rights Betamax gave consumers.

"This treaty may affect how consumers watch TV, when they can watch desired programs and even whether they can legally skip commercials," says Denise Mroz, an IP attorney at Woodcock Washburn in Philadelphia.

Digital Piracy

The U.S. government may seem like an unlikely leader in the push for a new, stronger Rome Convention. After all, the U.S. has always refused to sign the convention, in part because American broadcasters didn't particularly need broadcast rights.

"The rights covered in Rome are pretty much covered by copyright, and the U.S. makes it easy for those rights to be transferred to corporate interests [such as broadcasters]," says Jessica Litman, a professor of copyright law at Wayne State University in Detroit. "In EU countries, many of those copyrights cannot be transferred."

As a result, broadcasters in the U.S. can use copyright law to protect themselves against pirates. Broadcasters in Europe, however, have a much tougher time. They have to find the authors of a broadcasted work and have the authors sue whomever is pirating that work.

However, broadcasters and other content providers in the U.S. now have a new incentive to support the treaty: digital rights management (DRM). These companies want to establish a legal regime requiring electronics makers and consumers to abide by DRM technology that restricts how consumers can use broadcast or Webcast content.

Movie and TV companies have been trying for years to establish a DRM regime for U.S. broadcasts, with little success. Most recently the FCC pushed for a "broadcast flag" system, which uses technology imbedded in broadcasts that controls whether users can copy the broadcast, how many times they can copy it and whether they can send those copies over the Internet. To ensure that users are obeying DRM limits, makers of TVs, VCRs, DVD players, TiVos and other electronic devices would be required to install chips in their products that can recognize and enforce the broadcast flag.The proposed treaty would go well beyond the broadcast flag.

"This treaty would allow companies to impose DRM on all content that is broadcast or sent over the Internet," Litman says.

Strong Support

Advocates for the proposed treaty say it's necessary to stop the piracy of movies, music and other content that is broadcast or Webcast to consumers. Unless the law provides a firm legal right to act against such broadcast piracy, individuals and companies will hesitate to invest in the broadcasting or Webcasting industries.

"Webcasters will have little incentive to create and invest further in their legitimate businesses...if they lack legal protections against theft and misuse of their signals," says Jonathan Potter, executive director of the Digital Media Association (DiMA), a trade group that represents 27 companies involved in online audio and video, including Microsoft Corp., Apple Computer Inc. and Yahoo! Inc.

Others, however, question whether this type of piracy is as rampant as advocates for the treaty claim it is.

"I haven't heard there was a big problem...so I'm a bit confused about why this treaty is necessary," Mroz says.

The U.S. has never had a broadcast right, but this hasn't seemed to hurt investment in broadcasting, Boyle argues. "Broadcast networks have flourished, so empirical evidence has shown that the right is not needed," he adds.

So far, the proposed treaty hasn't generated many vocal supporters.

"Other than the National Association of Broadcasters and DiMA, I haven't seen anyone in favor of this treaty," Mroz says.

But the treaty has friends in high places. The U.S. government, European Commission and WIPO's top official for copyright policy are all backing it. WIPO has scheduled international talks on the treaty in April and June, with an eye toward promulgating the treaty in 2007.

Prospects for the treaty may depend on how much public attention it receives.

"If the issue stays over in WIPO, among the bureaucrats, it could go through," Boyle says. "If this gets lots of publicity in the U.S., it will be defeated."

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[Sidebar]

An Unconstitutional Treaty?

Even if the U.S. signs onto a revised Rome Convention, the government may not be able to implement it. That's because the rights afforded by the treaty may violate the Constitution's limits on copyright law. Courts have repeatedly held that legislation cannot circumvent these limits under the guise of providing a new IP right.

Under the Constitution, copyright can protect only creative works. This is a problem for the broadcast right, since there is nothing particularly creative about broadcasting someone else's song or movie. Moreover, the Constitution extends copyright only to works that are fixed in a tangible medium. The broadcast right would protect a broadcast's radio waves, which aren't fixed.

"There's a strong argument that this broadcast right is unconstitutional," says James Boyle, a professor of IP law at Duke University.

He adds that creating the broadcast right by treaty, instead of federal statute, doesn't immunize it from the Constitution's limits. "You can't do that any more than you can make a treaty with Britain in which our defendants lose their right to have a jury trial," Boyle says.

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Steven Seidenberg

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