A Zombie Broadcasting Signal Treaty That Won’t Die But Should

November 21, 2024

With October come and gone, spooky season may be officially over, but there still is something spooky lurking and threatening to come back from the dead in the coming year. Rather than a ghost, this one is a zombie international treaty that could create new intellectual property rights in broadcast signals to purportedly protect them from piracy. But rather than harmless Halloween cosplay, this broadcasting signal treaty, if enacted and implemented at home and abroad, will allow broadcasters to play actual pirates, pillaging the digital ecosystem through unjustified rent-seeking for content they do not own and did not create.

And who will fall victim to this new scheme? Everyday consumers of internet content who may lose access to that content, creators who want and have authorized their works to be broadly distributed across the digital realm, libraries and archivists who collect and make available information and media, and countless others.

The treaty should not be enacted in its current form. If anything, it should be replaced entirely with a narrowly worded treaty that does not create new IP rights but appropriately targets the real issue: the piracy of broadcast signals of live events, like sports and awards shows.

What's the background here? This controversial treaty has been under debate for decades at the World Intellectual Property Organization in Geneva (WIPO, an agency created by the United Nations to shape international IP rights, including through international treaties). Under the U.S. Constitution's Supremacy Clause, treaties ratified by the United States are regarded as the "supreme law of the land," no different from a law established by Congress. And there is precedent for WIPO treaties leading to changes in U.S. copyright law, such as when the 1998 Digital Millennium Copyright Act implemented two separate WIPO treaties from 1996.

The notion of new IP rights for broadcasters in the signals broadcasted and carried by others first emerged before the WIPO in 1998 and has been pursued in the WIPO on and off for the last 26 years. The goal of the European broadcasters pushing this proposal over the years was to grant themselves a new layer of intellectual property rights, lasting forever, in "signals" for content they did not create, own, or license. And thankfully, every time the proposal has come up, it has been roundly rejected given the overbroad and superfluous nature of such rights and widespread opposition from academics, civil society groups, technology companies, copyright owners, and internet service providers (i.e., ISPs).

What would the broadcasting signal treaty mean in practice if enacted? Despite its name and claimed goal, the treaty is really focused on the internet - and specifically, giving broadcasters new rights to extort and extract payments from the distribution of content on the internet. If the goal was to stop piracy, a treaty focused on signal theft could have been successfully concluded years ago. The risks to the public and copyright owners are numerous, as detailed by Knowledge Ecology International's James Love in a recent article. Rather than address signal piracy, as drafted, the treaty would threaten the rights of copyright owners and performers, create more orphaned works, and stifle the free flow of information.

From the perspective of the communications industry, the treaty - like other flawed attempted expansions of IP rights - threatens the ability to expand broadband networks and provide affordable content for consumers online. ISPs already are under increasing attack by content owners that seek exorbitant billions of dollars in "damages" for the alleged actions of their broadband subscribers. To be clear, ISPs take claims of infringement seriously, and have long taken appropriate and reasonable measures to address allegations of infringement. But some content owners endeavor to create a draconian internet, where ISPs serve as the internet content police, taking websites down and kicking entire households offline based on mere allegations of infringement, even if meritless.

So what does this mean for the broadcasting signal treaty? Some broadcasters with this new right could threaten lawsuits and demand additional payment from ISPs for purported misappropriation of their new "signal" rights. The threat of additional potential crushing IP liability merely for providing connections to the internet could more directly undermine ISPs' investments in connecting the country, in stark contravention to longstanding bipartisan U.S. policy to get Americans online.

It also threatens to undermine the retransmission consent regime carefully calibrated by Congress and the FCC. Retransmission consent, adopted as part of the 1992 Cable Television Consumer Protection and Competition Act, requires cable operators and multichannel video programming distributors to obtain permission from commercial broadcasters before carrying their copyrighted programming. The broadcasters can negotiate for payment or other compensation for carriage, and while most deals are negotiated to work best for all parties, retransmission consent disputes can get ugly (see here, here, and here). What happens when you add a totally brand-new IP right for the signals of broadcasters? New leverage and opportunities to extort additional payments, the re-opening of existing contracts, increased uncertainty, and more disputes arising outside the FCC's requirements to negotiate retransmission consent in good faith.

Why is the broadcast signal treaty back from the dead? Fatigue is creating a pathway for this bad idea to become a new facet of international IP law. Stakeholders have fought this bad idea for decades, yet advocates for the proposal are taking advantage of weariness for yet another debate to position the treaty as a fait accompli for which the details should be negotiated, rather than question the need for the treaty in the first instance. The treaty has its best opportunity in a generation to move forward, starting with a meeting of the WIPO's Standing Committee on Copyright and Related Rights in April and then followed by the WIPO's General Assembly meeting in July.

What should happen instead? The treaty should not move forward, and - as they have in the past - the United States and other countries should strongly oppose it. The treaty does not actually target signal theft or piracy, which already is unlawful in virtually all - if not all - of the jurisdictions that participate in the WIPO.

In the event there is a legitimate problem to solve, for instance, broadcasters' protection from unauthorized streaming live events, such as sports and event shows, the WIPO could target that problem with a treaty narrowly focused on this issue. A treaty focused on live events could provide for new temporary IP rights in such content, sufficient to enable broadcasters to seek remedies quickly and more efficiently for pirated streams of the event.

This zombie treaty does not do that. Rather, without substantial changes, it deputizes broadcasters to turn pirate, affording them the right to privateer and plunder the internet seas through unnecessary, overbroad, and perpetual IP rights. The current form of the treaty should be handled the way zombies are treated in the movies: protecting the public by ensuring the zombies remain dead.

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