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 Top 10 Reasons to Reject the WIPO Committee Chairman's Consolidated Text for a Broadcasting Treaty
From www.IPJustice.org/WIPO

1.  Eliminates the public domain for audio and video programming.
The WIPO copyright committee's proposal for a Broadcasting Treaty (as drafted by the committee chairman) endangers the public domain for copyrighted materials.  It permits broadcasting corporations to “copyright” and control the public's use of programming that is already in the public domain (i.e., legally belongs to the public).  This creates a devastating effect on education and development, particularly in countries that can afford it the least.

2.  Based upon erroneous notions of science that defy the laws of physics.
The Chairman's Consolidated Text is predicated upon “bad science”.  Articles 8 – 12 establish rights for broadcasting corporations that are based upon the “fixation” of a broadcast signal.  However, a broadcast signal cannot as a matter of simple physics become “fixed”.  Broadcast signals exist in the air so it is impossible to “fix” a broadcast signal as the treaty supposes.

3.  Creates obligations for countries that drastically exceed current international standards.
The Consolidated Text requires nations to amend their domestic laws to create greater restrictions over broadcast media than current international treaty obligations require of countries.  For example, the Rome Convention permits countries to grant rights to broadcasting organizations -- but only for 20 years.  Article 15 of the Consolidated Text proposes to require all countries to create such rights for broadcasting organizations for a minimum of 50 years, more than double the current international standard, and outliving the economic life span of a broadcast and the time required to recoup any economic investment in the programming.

4.  Chills freedom of expression by outlawing the circumvention of technological restrictions similarly to U.S. Digital Millennium Copyright Act (DMCA).
Article 16 of the Consolidated Text forbids the decryption of broadcast signals, even if the programming is in the public domain or when its creator does not wish to suppress its distribution.  Alternative V outlaws a broad range of devices (including personal computers), software, and other technical information that could help a consumer to decrypt a broadcast signal.  Similar prohibitions in the US DMCA have been invoked to prevent the publication of scientific papers, prosecute reputable cryptographers, censor journalists, limit fair use rights, and prevent competition.

5.  Threatens to apply to webcasting and virtually all Internet transmissions of broadcast media.
Article 6 and Article 11 broadly forbid the transmission and retransmission of broadcast programming by any means, including over the Internet.  Alternative C would also extend the Broadcasting Treaty to webcasting activities, dramatically widening the scope of its application beyond traditional broadcasting.  By including Internet transmissions in its scope, the treaty goes beyond its stated objective and proposes to regulate an enormous breadth of ordinary consumer activity and endangers freedom of expression on the Internet.

6.  Forces developing countries to adhere to treaties that will harm their development.
Alternative AA in Article 24 requires nations to become signatories to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) in order to become a party to the Broadcasting Treaty.  Alternative CC in Article 26 requires nations to accede to or ratify these treaties to be eligible to sign on to the Broadcasting Treaty.  These provisions attempt to force nations to agree to treaties that many countries have intentionally rejected since they contain provisions that are dangerous to their citizens' civil liberty and the nation's overall economic development.  For example, many developing countries have specifically chosen not to ratify WCT and WPPT because they contain measures against the circumvention of technological restrictions that restrict freedom of expression and chokehold technological innovation.

7.  Grants copyright protection over “signals”, something that is neither creative nor original and outside the scope of copyright protection.
The Consolidated Text departs from the Satellites Convention's “signal centric” approach and attempts to set a dangerous precedent by granting copyright protection for things that do not qualify as creative works, such as broadcast signals.   Under both US Copyright law and the US Constitution, only creative works that are original are eligible for copyright protection.

8.  Freezes fair use and other limitations and exceptions to rightsholders' exclusive rights.
Article 14 confines any limitations and exceptions to the new rights of broadcasting corporations to only special cases that do not conflict with the broadcasters' exploitation of the broadcasts.  Alternative T would only allow countries to maintain their national law limitations and exceptions concerning noncommercial broadcasts if they were in force by the date of the treaty's diplomatic conference.

9.  Provides advantage to current entrenched broadcasting industry at expense of future innovators and non-traditional broadcasters.
Article 6 grants existing broadcasting corporations a new right of retransmission for broadcasts “by any means” including over the Internet.  This provides the traditional broadcasting industry with a competitive advantage over webcasters and other “new-media” retransmitters who discover new and innovative ways of providing entertainment to consumers but will be prevented from doing so because this broad grant forecloses all future means of redistribution that is yet to be discovered. 

10.  Gives broadcasting corporations greater rights than artists are granted over their own performances.
Article 6's right of retransmission provides broadcasting corporations with higher levels of protection over broadcasts than the law gives to the actual creators of the content being broadcast.  Canada proposed a reservation to it out of concern that it creates “a situation where the level of protection of broadcasts would exceed the rights of the rightsholders of the content being broadcast.”  Also, Article 12's right to make available allows broadcasting corporations to prevent other rightsholders (such the performers of the underlying program) from making their performances available for viewing.  

Find out more at www.IPJustice.org/WIPO

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