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Do broadcasters need more protection?

Wipo_logo The World Intellectual Property Organization is considering a new treaty that would provide copyright-like protection to radio stations, TV broadcasters, cable TV operators and satellite services. These groups, whose transmissions typically consist of programs already protected by copyright, want the power to control the recording and retransmission of their broadcasts. They also want international assurance that if they use technology to enforce those controls, it will be illegal to circumvent them.
The proposal is disturbing for several reasons, foremost among them the absence of a clear rationale. Unlike, say, a film or a book, a broadcast isn't in and of itself a creative act. The creativity is in the program being broadcast. (A DJ might argue with me, but until Apple starts charging 99 cents to read a playlist, I'm sticking to my position.) So why provide a second layer of intellectual property rights? Local broadcasters, cable companies and satellite operators should be able to stop people from stealing their signals or retransmitting them, but theft-of-services laws should be adequate to address those issues. (Read a dissent from the National Assn. of Broadcasters here.) Those companies aren't the ones who should be worried about unauthorized copying. If someone records "Law & Order" off of KNBC and sells bootlegs on the street, the victim isn't KNBC, it's the copyright holders, NBC Universal Television and Wolf Films. Oh sure, proponents of the broadcast flag argue that broadcasters need the ability to protect their suppliers' copyrights, or else the studios won't let them put "high value" content on the air. The main people making that argument, though, are MPAA lobbyists and studio executives. Hmmmmm.
The anti-circumvention provision of the treaty is troubling, too. It's a blanket rule, with no limits on the use of electronic locks. The only assurance it offers for home recording and home networks is this: that viewers who circumvent an electronic lock for a legal purpose, such as time-shifting or recording a program in the public domain, would not infringe the broadcaster's rights. That's a much less useful approach, from the viewer's standpoint, than requiring that any electronic locks on a broadcast allow legal uses. But the more useful approach is likely to be unacceptable to broadcasters, given that the technology used today isn't sophisticated enough to discern the viewer's intentions. When a viewer makes a copy, it's really hard to tell whether it's going to be kept for personal use or sold at the local flea market.
Finally, some WIPO delegates want to extend the treaty to online simulcasts, that is, transmissions that go simultaneously through the air or cable wire and the Internet. At least one group -- the U.S.-based Digital Media Assn. -- wants to include Webcasters as well. Such an expansion would make a bad proposal worse by giving local broadcasters a way to assert exclusive rights internationally.
The WIPO Standing Committee on Copyrights and Related Rights is scheduled to hammer out a final version of the treaty next week in Geneva, and the WIPO General Assembly could take it up a few weeks later. If the treaty is adopted by WIPO, it would still have to be ratified in the U.S. before it could take effect here. That makes Congress the last line of defense.

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Times editorial writer Jon Healey pens opinion pieces about a variety of business issues, and blogs about technologies that are changing the entertainment industry's business model.

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