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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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April 07, 2004

The Broadcast Flag Treaty - Draft Available

Posted by Ernest Miller

Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].

This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.

Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.

Read on for a look at this monstrosity...


EFF's Consensus at Lawyerpoint, an anti-broadcast flag blog, reported on the origins of this treaty back in August 2002 (Europeans push WIPO Broadcast Treaty to create "fixation rights"). Last October James Love, director of the Consumer Project on Technology, wrote (with comments and suggestions from EFF's Cory Doctorow) an excellent analysis of an earlier draft of the treaty ([DMCA-Activists] On the Proposed WIPO XCasting Treaty). CPTech maintains a website tracking the treaty (The proposed WIPO Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations).

Sui Generis Copyright-like Protection for Broadcasts

The treaty would give (among others) the following rights to broadcasters, cablecasters and, if the US has its way, webcasters: fixation, reproduction and distribution. Of course, there is no limit on what is covered by the treaty, as long as it is "broadcast" and consists of "sounds or of images or of images and sounds" (although why they couldn't just say "images and/or sounds" is beyond me). In other words, broadcast of public domain works like Dawn of the Dead would be covered along with works for which the broadcaster owns the copyright. Heck, you could start a radio station that exclusively broadcast Creative Commons-licensed freely distributable works and keep anyone from recording your broadcast.

Why bother with copyright? Simply "broadcast," or in the US's version, "webcast" all your material. Instead of connecting to an FTP server to get video or music you would connect to an ongoing "webcast" of the media, so that way, the broadcaster can keep control of the media even if it isn't copyrightable.

Article 8
Right of Fixation
Broadcasting organizations shall enjoy the exclusive right of authorizing the fixation of their broadcasts.

No more VCR, DVD-R or TiVo for you. So much for time shifting. Goodbye Sony v. Universal, it was nice knowing you.

This is the mandated broadcast flag. If the broadcaster doesn't want you recording it, you don't have a right to.

Article 9

Right of Reproduction

Alternative N

Broadcasting organizations shall enjoy the exclusive right of authorizing the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts.

Alternative O

(1) Broadcasting organizations shall have the right to prohibit the reproduction of fixations of their broadcasts.

(2) Broadcasting organizations shall enjoy the exclusive right of authorizing the reproduction of their broadcasts from fixations made pursuant to Article 14 when such reproduction would not be permitted by that Article or otherwise made without their authorization.

More broadcast flag goodness. Even if you are allowed to record it, the broadcaster can control how you can reproduce it. That way, if you want to shift the latest Sopranos from the TiVo in the living room to your laptop to watch on the plane, the broadcaster can stop you.

The US and, for some reason, Egypt support alternative "O", which protects broadcasters from reproductions of unauthorized fixations.

Article 10

Right of Distribution

Alternative P

(1) Broadcasting organizations shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of fixations of their broadcasts, through sale or other transfer of ownership.

(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixation of the broadcast with the authorization of the broadcasting organization.

Alternative Q

Broadcasting organizations shall have the right to prohibit the distribution to the public and importation of reproductions of unauthorized fixations of their broadcasts.

In other words, no filesharing of broadcasts. Don't you dare make the fixation you made of ABC's broadcast of the President's State of the Union address (SotU) available on KaZaA.

Article 11

Right of Transmission following Fixation

Broadcasting organizations shall have the exclusive right of authorizing the transmission of their broadcasts following fixation of such broadcasts.

Don't webcast what you've saved previously. Not only can't you put your fixation of the SotU on KaZaA, you won't be able to webcast it either.

Now, governments can make the same exceptions to these broadcasting rights as they "provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works." But they don't have to. Nor is it clear to me, under recent copyright decisions, that the Constitution requires the US to do so.

Term of Protection and Formalities

Article 15
Term of Protection
The term of protection to be granted to broadcasting organizations under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which thebroadcasting took place.

Great. Copyright isn't long enough we have to provide protection for the broadcasts for fifty years in addition? So, forty years from now, when your grandchildren want to use a clip from television today to illustrate a report on the popular culture of their grandparent's era, they'll have to clear permissions with the television station that broadcast the clip (assuming we still have television stations then).

The previous treaty had a length of twenty years and, as we all know, broadcasters in countries that signed the treaty have suffered greatly from this length.

Article 18


The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.

No pesky registration requirements or anything. That way it is very difficult for people to know who owns the rights to what decades from now.

DMCA for Broadcast Flag

Article 16
Obligations concerning Technological Measures
(1) Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organizations in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their broadcasts, that are not authorized or are prohibited by the broadcasting organizations concerned or permitted by law.
Alternative V
(2) In particular, effective legal remedies shall be provided against those who:
(i) decrypt an encrypted program-carrying signal;
(ii) receive and distribute or communicate to the public an encrypted program-carrying signal that has been decrypted without the express authorization
of the broadcasting organization that emitted it;
(iii) participate in the manufacture, importation, sale or any other act that makes available a device or system capable of decrypting or helping to decrypt an encrypted program-carrying signal.
Alternative W
(2) [No such provision]

This is the equivalent of the passage in the WIPO Performances and Phonograms Treaty (WPPT) that the US used as one of the justifications for the passage of the DMCA. So, not only does this treaty require a broadcast flag, it will be illegal to circumvent it.

Article 17
Obligations concerning Rights Management Information
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute or import for distribution fixations of broadcasts, to retransmit or communicate to the public broadcasts, or to transmit or make available to the public fixed broadcasts, without authority, knowing that electronic rights management information has been without authority removed from or altered in the broadcast or the signal prior to broadcast.
(2) As used in this Article, “rights management information” means information which identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast, and any numbers or codes that represent such information, when any of these items of information is attached to or associated with 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) the making available of a fixed broadcast, or 5) a copy of a fixed broadcast being distributed to the public.

And don't try to make your copy of the broadcast of the State of the Union look like a legal, unbroadcast version.

Article 21

Provisions on Enforcement of Rights

(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.

(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights or violation of any prohibition covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.

Many people argued that the WPPT didn't require the US to pass the DMCA, as Congress concluded, because the US already adequately protected the rights of copyright owners. As the US doesn't protect any "broadcast" rights (other than some "theft of service" stuff), this provision would pretty much require a US Broadcast Flag DMCA law to be passed.


This is bad, bad, bad. What more can I really say?

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | Internet | Telecomm


1. Cardiff Man on April 7, 2004 07:59 PM writes...

Any business that requires this level of protection to stay in business is obsolete.

Permalink to Comment

2. anonymous on April 7, 2004 09:15 PM writes...

Here's the most important question: how can this be stopped?

Permalink to Comment

3. Unheard Voice on June 9, 2004 10:17 PM writes...

Who is behind this? These treaties are just insane and I don't know what to do about it. The people negotiating the treaty are so far removed from me and my interests it is not even funny. The Consitution is little help because Congress can enter any treaty they like. It's the perfect way to avoid enumerated powers issues (and a great place to point when voters complain: the Europeans made us do it). The really amazing part is that I have no way to influence them or vote different parties in. I don't see the logic. I don't understand the march towards controlling the flow of information. I didn't even know this was happening until today.

What's happened to democracy?

Permalink to Comment

4. Chris on June 29, 2004 08:09 PM writes...

Great, now that "Toy Story" has been broadcast, Disney needs ABC's permission to sell it in video or DVD format. And heaven help me if I want to put an ad on more than one television network.

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