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August 27, 2002

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Europeans push WIPO Broadcast Treaty to create "fixation rights"

The European Community last year proposed to the World Intellectual Property Organization a new treaty "on the protection of the rights of broadcasting organizations" (see draft treaty text). This treaty would require national law to grant to broadcasters

  • "the exclusive right to authorise or prohibit the fixation of their broadcasts";
  • "the exclusive right to authorise or prohibit the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts";
  • "the exclusive right to authorise or prohibit the retransmission, by wire or wireless means, whether simultaneous or based on fixations, of their broadcasts";
  • and other rights, including the rights to control the exhibition and distribution of fixations (recordings) of broadcasts.

In addition, signatories to this treaty would be expected "to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organisations" to secure these new rights.

This treaty would undermine many of the public's rights under the copyright laws of most countries in the world. In the U.S., for example, it would eliminate the public's rights, established by law since 1984 (though already somewhat curtailed by legislation), to make recordings of broadcasts without the permission of a broadcaster. Indeed, the treaty text is a direct attack on home recording and the public's rights in recordings of broadcast programming.

The broadcast flag, currently a somewhat exotic regulatory proposal in the U.S., would be the norm in all countries which adopted this treaty, and they would be required by law to prevent "circumvention" of broadcast flag-like measures. (Some countries have already established, in principle, a right to prevent home recording. The U.S. very definitely has not done so.)

So far, this treaty has not been adopted by WIPO. The E.C. web site says that this treaty will be considered again by WIPO at its General Assembly in September of this year.

Posted by Seth Schoen at 07:44 PM