Congress Speaks: Listen up U.S. Negotiators

Back in September, I did a post on a proposed WIPO broadcast treaty. One of the issues I discussed was a process one: the bypassing of Congressional input by the Administration (any Administration, by the way, not just the current one) agreeing to a treaty that requires changes in U.S. domestic law.

The proposed WIPO broadcast treaty had to date followed this track, and as it morphed at the end of last week into a full-blown draft instrument proposing not only a transmission right but a reproduction right, and a requirement of retroactive protection going back 20 years, I was prepared for the worst. Coincidentally, last week I had received an email from a friend in DC whose views I have always respected saying that I of all people should know that trade negotiators only negotiate after having received instructions from Congress. At the lunch we are having this upcoming Wednesday, I was going to good-naturedly ask him, in the case of the broadcast treaty, who in the Congress had given U.S. negotiators instructions for the meetings that had preceded the formulation of the draft, when those instructions were given, what the instructions were, and who had input about what the instructions were. I was pretty sure there had been none up prior to the issuance of the draft.

A letter sent last week by Senators Leahy and Specter to the Register of Copyrights and the PTO in response to the draft seems to make my point, but also to give me faith that the correct process and result will occur. Here is an article from Ars Technica on the letter and what has occurred so far:


For almost two years, the World Intellectual Property Organization (WIPO) has been hard at work drafting a broadcast treaty. Designed originally to limit signal theft from broadcasts, the scope of the treaty has at times narrowed and widened significantly throughout the process of drafting the treaty. The US Senate, which is tasked with the responsibility of approving treaties, has weighed in the Broadcast Treaty, encouraging the US delegation to work towards limiting the scope of the treaty.

In a letter sent to the Register of Copyrights and the director of the US Patent and Trademark Office, Sen. Patrick Leahy (D-VT), the chairman of the Senate Committee on the Judiciary, and Sen. Arlen Specter (R-PA), the ranking Republican member of the Committee expressed their concerns about the scope of the treaty. "The Revised Draft Broadcasting Treaty appears to grant broadcasters extensive new, exclusive rights in their transmissions for a term of at least 20 years, regardless of whether they have a right in the content they are transmitting," read the letter.

The Copyright Register and Director of the USPTO make up the US delegation to the WIPO, and the senators want them to work towards a treaty that is "significantly narrower in scope," one that would provide no more protection than that necessary to protect the signals of broadcasters. Sens. Leahy and Specter want them to advocate for the position when the next meeting of the Standing Committee in June.

The WIPO Broadcast Treaty is a complex beast. Originally, the treaty was just meant to cover signal theft—cases where a broadcast is retransmitted without authorization. As treaty discussions continued, broadcasters began pushing towards a rights-based approach, one that would allow them to specifically authorize and deny the use of their signal to others. Over the months of discussions, the treaty has changed many times, but there have been some consistent areas of concern.

One of those is public domain material, which could potentially be locked up by broadcasters just by showing it. By doing so, they could gain exclusive rights over the content. At one point, the treaty contained no provision for fair use—another significant problem with the treaty. In the US, one of the biggest concerns is that the Broadcast Treaty would be unconstitutional, as IP rights in the US are restricted to creative works and not extended to broadcasters.
Last October, the WIPO dropped the rights-based approach for the time being. With Sens. Leahy and Specter expressing their concern with the treaty—saying that it "would needlessly create a new layer of rights that would disrupt United States copyright law"—it appears that the rights-based approach is truly dead.

The article contains a number of inaccuracies. First, it suggests that the treaty was originally meant only to cover signal theft. In fact, it began as a rights-based document, as it was designed to update and expand the similarly rights-based 1961 Rome Convention. There were differences among, say the United States and Europe over the existence of post-fixation rights, but I think it clear that the approach was not at the time limited to signal theft. Part of the problem may be that "signal protection" appears to be a constructive ambiguity that means whatever one wants it to mean. The article also says "at one point" the treaty contained no provision for fair use. The usage of the past tense implies that the treaty contains such a provision now. It doesn't: Limitations and exceptions, as always, remain "optional," order to "preserve flexibility for member states."

As with almost all treaties, this one would likely apply only to foreign signals, but as a domestic, political matter, extending rights only to foreigners is unpalatable, and hence the importance of early Congressional involvement, since the formulation of domestic policy is Congress’s domain.