Remote control

VCRs and hard-disk recorders have transformed the way we watch TV. But is the UN trying to send us back to the bad old days? Wendy Grossman reports

Remember the bad old days before VCRs, when if you wanted to see a television programme you had to stay in and watch it? Those days could be coming back in a new, higher-tech form. Almost unnoticed, the World Intellectual Property Organisation (Wipo), a specialist agency of the United Nations, is discussing an international treaty that could give broadcasters rights to determine whether their broadcasts may be reproduced, recorded, or distributed.

Remember the bad old days before VCRs, when if you wanted to see a television programme you had to stay in and watch it? Those days could be coming back in a new, higher-tech form. Almost unnoticed, the World Intellectual Property Organisation (Wipo), a specialist agency of the United Nations, is discussing an international treaty that could give broadcasters rights to determine whether their broadcasts may be reproduced, recorded, or distributed.

Wipo's Standing Committee on Copyright and Related Rights met in Geneva between 7 and 9 June to consider the treaty. The result: it could be only a matter of months before those inconvenient pre-videotape days draw nearer, instead of getting further away.

Why? The treaty provides for a "broadcasting right" separate from copyright or other forms of intellectual property protection. Broadcasters would have the right to control transmission, retransmission, distribution, and reproduction for a period of 50 years. That's different from current treaties, which grant broadcasters more limited rights, do not cover digital broadcasting, apply only to wireless transmission (which excludes cable), and provide for a term of 20 years.

The scenario above is, of course, not what the treaty's proponents say it will do. Lawrence Smith-Higgins, the UK Patent Office spokesman who covers copyrights, patents, and designs, says that the treaty merely extends existing broadcasting rights into the digital era. But what about the critics? "This is a lobby that is primarily outside the UK," he says. "We've had this approach and accords within the EU over many years of protecting broadcasts. Our experience is that in practice there are no such problems."

He also says that to claim that the treaty would bar recording is to confuse rights with enforcement. "There are exemptions and exclusions," he says. "Fair dealing allows members of the public to record programmes and watch those when convenient to do so. It used to be that you had to watch such things within a reasonable time, because it was termed 'video time-shifting', and the implication was that you couldn't keep it indefinitely and couldn't trade in it." But even that idea has lapsed, and as he says, "there have been no prosecutions, or most of the population of the UK would be guilty."

This is the sort of "reasonable man" argument that British law seems to specialise in. But, says Ian Brown, the executive director of the Foundation for Information Policy Research, "what's the point of having a swathe of laws that aren't enforced, or are enforced at the discretion of police or government as to whom they want to put in jail"? He would like to see the treaty limit the term of broadcasting rights to 20 years, and remove webcasting.

Furthermore, this isn't simply a British treaty, although the UK supports it. An international treaty may be enforced differently in the countries that it's going to apply to - and one of the countries in this case is the US. Americans do not take a "reasonable man" view of the law; they like to pick at every detail, knowing that if they don't someone else will. In the most recent negotiations over the broadcasting treaty, Wipo did invite non-governmental organisations such as the Electronic Frontier Foundation (EFF), FIPR, and artists' groups to make presentations. Many of these objected that the treaty gives broadcasters rights that impinge on existing rights, such as artists' copyright.

The objections are, therefore, more complicated than just a cultural clash over how seriously to take the more extreme provisions in the treaty. Cory Doctorow, the European Affairs Coordinator for the US-based EFF, says the digital age changes everything. "They say that they're just extending existing practice," he says, "but the digital age isn't the same."

Doctorow says that in its current form, the treaty would lay down restrictions that would ultimately determine how computers are made, because of the restrictions it incorporates on receivers - defined as "any device that can decrypt and show broadcast signals".

"It says that governments have to make laws saying how you can and cannot build those things," Doctorow comments. The old equivalent would be a law requiring that if you put a lock on something, it's illegal to break the lock and everybody has to build lock boxes. Continuing that analogy, it's illegal to break into someone's house and steal things, but it's not illegal to break into a lock box containing your own valuables when you've lost the key. The kinds of laws that are being proposed, and in some cases passed, today to protect intellectual property, are equivalent to banning the manufacture of hammers because they could be used to smash a lock.

The direct impact is likely to be unexpected and unpredictable failures. Even today, it's unnecessarily difficult to hook up a TV, a VCR, and a DVD player in that order because copy protection known as Macrovision inside the VCR deliberately degrades the signal from the DVD player. A DVD watched this way may go alternately light and dark or the colour rendering may vary; these are artefacts introduced by Macrovision to deter people from taping DVDs.

Even worse, we're beginning to see remote control overdevices that could be used to withdraw features even after you've bought them. A good example is the recent fuss over a feature included in the TiVo-like Replay recording device; it allowed users to send copies of recorded broadcasts over the internet. The recording industry went to court to demand that these features be disabled; in the future, the broadcasters could dispense with the courts, and just do it remotely using what is known as the "broadcast flag".

This is a technical mark in the broadcast signal that new VCRs, TVs, and other recording devices will have to be able to recognise so that a broadcaster can mark programmes to prevent their recording or copying. Under the US's Digital Millennium Copyright Act (DMCA), hacking the signal or the recording equipment to remove the flag or make the equipment ignore it is a crime. While the Wipo treaty does not create such a flag, it does include DMCA-like provisions to criminalise the circumvention of technological copy protection if it exists.

Because the US is such a large market for video equipment, manufacturers might "export" the broadcast flag by building it into devices they sell worldwide. Controversially, the US delegation is also insisting that webcasting be included in the treaty. Part of Doctorow's concern is that the people campaigning for the broadcast treaty are the same ones he's seen in the US push for the broadcast flag.

But the Wipo treaty is just part of a bigger trend toward locking away intellectual property rights. In the last few years, the EU has created a new proprietary right in databases; it has extended copyright terms to author's life plus 70 years; it has passed the EU Copyright Directive; and it is considering emulating the US and allowing software to be patented rather than copyrighted. All of these moves are happening with little public debate.

Partly, this is because until recently the means of creating and distributing any kind of intellectual property - movies, music, books, software, drugs - were so expensive that only businesses could engage in these activities. This in turn meant that the people affected by intellectual property law were a relatively small handful of specialists. Partly, of course, this is also because intellectual property law is so complex and abstruse that few now understand it - or want to.

However, cheap computers and the internet mean we are all potential creators and distributors, so we are all more directly affected by these legal trends than ever before.

Smith-Higgins, by way of trying to explain that broadcasting rights - which under the treaty will last 50 years - are less onerous than today's copyright terms brought up the example of the D-Day landings. The 60th anniversary was marked by programmes reshowing historical footage, which was possible because that footage is now in the public domain.

But this is part of the critics' point: the long-term trend is for more and more of our history and culture to be locked away so that it's either costly or unavailable. Similar footage of the Vietnam war would still be protected under the 50-year term - so if this all comes true, make sure you stay in when a programme you want to watch is broadcast.