Columns Archive

Little Public Broadcast of Dangerous Broadcast Treaty

Appeared in the Toronto Star on September 11, 2006 as Leaders Weirdly Silent on Sweeping Broadcast Treaty

Government negotiators and broadcast officials descend on Geneva this week to continue negotiations on a treaty that few people have heard about, yet one which may have damaging long-term consequences for consumers, technology companies, telecommunications providers, and the Internet.

The World Intellectual Property Organization's Broadcast Treaty began several years ago as an initiative to address signal theft after broadcasters expressed concern that the international legal framework did little to protect against the theft or misuse of their television and radio signals.  

While the content of most broadcasts is protected by copyright, broadcasters do not always hold that copyright. Movie studios, television production companies or sports leagues typically retain the copyright in original television programming, while broadcasters pay for the exclusive right to transmit the programs.  Broadcasters use the programs to attract an audience and generate advertising revenues.

If the programs are stolen – for example, the signals retransmitted by another party without permission, sold as an unauthorized DVD or performed publicly without the requisite license – the copyright owner may assert their rights, but in some countries the broadcasters are left with limited ability to protect their interests.

What started as an attempt to address this relatively narrow issue has since mushroomed into a massive treaty that would grant broadcasters in some countries many new rights.  These include an exclusive right of retransmission for over-the-air television signals (retransmission involves capturing a broadcast signal and rebroadcasting it without permission of the copyright holder or the original broadcaster) and more than doubling the term of protection for broadcasts to 50 years from the current twenty-year term.  Moreover, exceptions and limitations to these rights, a hallmark of a balanced policy approach, would be optional for countries that adopt the treaty.

The Canadian delegation, comprised of policy officials from Canadian Heritage and Industry Canada, has raised questions about the adverse consequences of certain provisions.  During the last major round of talks in the spring, it 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.

The proposed treaty has faced mounting international criticism, particularly after attempts by several U.S. Internet companies to extend it to Internet webcasting.  When it became apparent in the spring that including webcasters within the treaty would result in a stalemate given many countries reluctance to expand the treaty beyond conventional broadcasting, negotiators agreed to move the webcast issue to a separate track. Despite that compromise, delegations have sought to bring the Internet back into the picture, with the U.S. recently raising the prospect of adding "netcasting," while the European Union has focused on "simulcasting."

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.

In fact, with few exceptions such as the concern involving the public domain, the Canadian delegation has remained stubbornly silent during the treaty deliberations, seemingly content to allow other countries to determine the shape and scope of a treaty that could ultimately have significant consequences for all Canadians.

Treaty negotiations began long before Prime Minister Harper assumed office, yet the continuation of non-transparent international treaty making seems to run counter to his government's commitment to greater accountability.  Moreover, given the potential harm to Canadian industry, it is surprising that Industry Minister Maxime Bernier has not been a more vocal opponent of the treaty.

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.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at or online at


  1. Russell McOrmond says:

    Broadcasters have no legitimate copyrigh
    “the broadcasters are left with limited ability to protect their interests.”

    I am curious. What legitimate copyright interests do these broadcasters claim to have? Copyright is a temporary government created monopoly granted to creators for various public policy purposes, and while the creators can sell their exclusive rights, I see absolutely no public policy benefit to granting copyright to any non-creators. If they want to have the right to sue someone on behalf of the copyright holder, then they can negotiate that as part of their contracts. This has no place in copyright law at all.

    This type of nonsense policy, layering copyright on top of copyright, creates some of the same problems as we see in Patent law. While copyright is said to be an exclusive right to do something (IE: only the copyright holder can authorize certain things), patent law is the right to deny someone from doing something. With patent law you need to simultaneous permission from many different patent holders in order to manufacture something, and this is a disastrous legal land-mine that there is no benefit to duplicating in copyright.

  2. Michael Nelson says:

    Vice President, Policy, Internet Society
    The Internet Society has been one of the members of a broad coalition opposing the proposed WIPO treaty, especially the Webcasting provisions. Your op-ed frames the issue very, very well. There are just too many unanswered questions about the treaty: (1) How would this scale when tens of millions of people are posting videos on the Internet? (2) How will “broadcasting” and “Webcasting” be defined?, and most importantly of all, (3) Why is this treaty needed?

    In some ways, this proposed treaty is similar to the efforts to provide an intellectual property right to compilers of databases. In the US, merely compiling lists and data sets (e.g. phone books) does not entitle you to copyright the result data. In contrast, the EU decided in the mid-1990s to grant creators of databases a new form of intellectual propoerty in order to “foster the European database industry.” Now ten years later, no one can figure out how to enforce the EU law and the US database industry is thriving (without any EU-style “protection.”)

    Another excellent article on the WIPO treaty can be found at [ link ]
    Dr. Boyle has also written about the EU Database Directive ([ link ])

  3. Dean Whitbread says:

    Chair, UKPA
    UK Podcasters Association has been petitioning WIPO, collecting signatures for 4 months. Now campaigning with EFF, Open Rights Group UK, and the Irish and German Podcast Groups against the inclusion of web/net/podcasting.

    UKPA is going to continue to lobby the UK Government and bring pressure on WIPO via our elected representatives at national level to challenge what we consider to be autocratic and dangerous decisions that will affect all of us.

    Regards, D.

  4. Lawrence Kogan says:

    President, Institute for Trade, Standard
    If you think that the Broadcast Treaty is bad, wait to you see what is occurring at the World Health Organization concerning patents…

    During the past decade, Brazil has embarked on a global campaign, quietly assisted by certain socialist governments and extremists, to establish a new international economic order that threatens the constitutionally protected exclusive private intellectual property rights of U.S. citizens.

    See: [ link ]

    See also: [ link ]