Giving broadcasters a new exclusive right, as proposed in the WIPO broadcast treaty negotiations, would impair online free expression. It would raise new legal barriers to expressive activity that is legal today; greatly complicate the task of getting clearances; discourage fair use; exacerbate the orphan works problem; and chill otherwise lawful viral distribution of information. The United States should press WIPO to focus any treaty on prohibiting and punishing true signal piracy, rather than creating new economic rights.
At the June 2011 session of WIPOʼs Standing Committee on Copyright and Related Rights (SCCR), the SCCR Chairman and the South African delegation both issued documents continuing to insist that a WIPO treaty on broadcasting should create new exclusive rights, akin to copyright rights, for broadcasters. The effort to create new exclusive rights is rightfully controversial and is a major reason that negotiations on a WIPO Broadcast Treaty have been unsuccessful to date despite many years of negotiation. This CDT memo focuses on the ways that a new regime of exclusive rights for broadcasters would undermine online free expression.