With government negotiators and broadcast officials descending on Geneva this week to continue negotiations on the WIPO Broadcast Treaty, my weekly Law Bytes column (Toronto Star version, homepage version) examines a proposal that started as an attempt to address the narrow issue of signal theft and has today mushroomed into a massive treaty that would grant broadcasters in some countries many new rights.  Many people are questioning the impact of the treaty, which includes an exclusive retranmission right, an extension in the term of protection for broadcasts, and the decision to make the exceptions and limitations in the treaty optional.  Indeed, even the Canadian delegation has wondered aloud whether the treaty would create a danger that some broadcasts might never fall into the public domain, effectively creating a perpetual broadcasting right.

The impact of the treaty on individuals and creators could be dramatic, potentially making it more difficult to record television shows for viewing at a later time, locking up content that is otherwise in the public domain, and necessitating that film makers obtain twice as many consents for the re-use of broadcast clips. 

The potential cost of the new rights is also significant, with Canadian broadcast distributors, including the major telecommunications companies that have begun offering high-definition television services, fearing that the new retransmission right alone could result in more than a half billion dollars in new royalty payments flowing out of Canada to U.S. broadcasters. With the prospect of a diplomatic conference looming (a diplomatic conference is the last stage in the treaty-making process and a sure sign that agreement may be imminent), a coalition of critics of the proposed treaty, which include technology giants (Dell, HP, Intel, and Sony), telecommunications companies (AT&T, Verizon), library associations, and civil rights groups, went on the offensive last week.  The coalition outlined a series of concerns, most notably arguing that the treaty is a solution in search of a problem.

The broadcasting industry has thrived in recent years with an explosion of new services and revenue streams.  In Canada, the market places premium value on the industry with the sale of broadcasting companies fetching billions of dollars.  Given this success, the coalition observed that there does not appear to be any compelling need to provide the industry with a basket of additional rights.

In addition to the treaty's substantive shortcomings, the manner in which it has evolved is also cause for concern.  For the past few years, negotiators and lobbyists have quietly been working toward the treaty with minimal public input or consultation.  The U.S. Patent and Trademark Office conducted an open afternoon session last Tuesday in Washington that enabled approximately 40 supporters and critics to air their views, however, the meeting could not be recorded and no immediate broader consultation is planned.

The Canadian approach has been even more secretive.  While the USPTO was conducting its meeting, Canadian government officials held a closed conference call with a select group of stakeholders to update them on the current status of the treaty negotiations.  Canada has not conducted any public consultations on the treaty nor issued any public statements articulating a definitive Canadian position.

The column concludes by noting that over the next month, U.S. and Canadian broadcasters will unveil a slate of new television programs, hopeful that a handful will emerge as the next Desperate Housewives, Seinfeld, or American Idol.  Programs that fail to quickly find an audience, face the prospect of cancellation.  In this regard, the broadcast industry clearly understands the need to cut its losses by putting an end to programs that are not working.  Unfortunately, the same cannot be said for those negotiating the unnecessary and potentially harmful WIPO Broadcast Treaty.