U.S. Compromise on WIPO Broadcasting Treaty Seen Not Requiring Major Copyright Law Changes
A U.S.-championed compromise on a long-anticipated World Intellectual Property Organization treaty updating broadcasters’ signal rights is unlikely to require major changes to U.S. copyright law, said lawyers for the NAB and Public Knowledge. WIPO’s Standing Committee on Copyright and Related Rights (SCCR) will continue deliberations on the broadcasting treaty at a April 28-May 2 meeting, building on progress it made during negotiations in December (WID Dec 23 p1).
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The December meeting ended with many countries appearing to be close to agreeing that the treaty would cover traditional broadcasting and cablecasting organizations, but not pure webcasters. The U.S. didn’t formally submit its compromise, which helped to define which entities would be covered by the treaty, but did take steps seen to advance treaty negotiations toward a diplomatic conference. If SCCR is able to continue to make progress at its April meeting and at a subsequent meeting in June, the U.N. General Assembly could vote in September to convene a diplomatic conference on the treaty that would occur some time in 2015, said Ben Ivins, NAB senior associate general counsel, at an FCBA event Monday.
The U.S. proposal fixed many of the problems in a proposal Mexico and South Africa submitted in 2012 by more narrowly defining the treaty’s scope to public retransmissions, but public interest groups like Public Knowledge continue to remain skeptical about the need for a new treaty protecting broadcasters’ right to a signal, said John Bergmeyer, PK senior staff attorney. Public Knowledge believes the U.S. can solve most of the issues a new treaty would address through existing U.S. copyright laws, he said. The U.S. proposal, if adopted, would focus the new WIPO broadcasting treaty in a way that would prevent the U.S. from having to “pick a side” in cases where U.S. copyright law is not already settled, such as the ongoing Aereo legal battle, Bergmeyer said. The Supreme Court is set to hear oral arguments April 22 on whether Aereo’s retransmission of TV broadcasts constitutes a public performance under U.S. copyright law. Multiple other cases in lower courts involving Aereo are on hold pending the Supreme Court case. “Aereo is a fiendishly complicated case and the statute is a mess, which is why it would not be appropriate for the U.S. to sign a treaty that determines what the outcome of Aereo must be."
A new WIPO broadcasting treaty could affect how the U.S. interprets what now constitutes a multichannel video programming distributor, though ongoing federal proceedings may settle that issue before a treaty goes into effect, Ivins said. The FCC is continuing to examine the MVPD definition issue, including whether over-the-top providers would fit into that category, he said. If the U.S.’s legal interpretation of MVPD changes, “the U.S. proposal would absolutely be something that would fit in,” Ivins said.