UN Broadcasting Treaty May Restrict Speech 257
ashshy writes "A UN treaty under proposal could lead to unprecedented restrictions on free speech and fair use rights around the world. Ars Technica pulls together what you need to know from multiple sources." From the article: "The proposed broadcasting treaty would create entirely new global rights for broadcasting companies who have neither created nor own the programming. What's even more alarming is the proposal from the United States that the treaty regulate the Internet transmission of audio and video entertainment. It is dangerous and inappropriate for an unelected international treaty body to undertake the task of creating entirely new rights, which currently exist in no national law, such as webcasting rights and anti-circumvention laws related to broadcasting."
Don't like this, do something about it (Score:4, Informative)
https://secure.eff.org/site/Advocacy?JServSessionI dr011=kftdaz9nm1.app13b&cmd=display&page=UserActio n&id=163 [eff.org]
Re:Um, exactly. (Score:5, Informative)
Re:Um, exactly. (Score:3, Informative)
Right, and after that last sentence I'm not quite sure that the article submitter really understands how treaties work.
Every country handles treaties a little bit differently, but to my knowledge no country allows an international treaty to trump national sovereignty. In the US, for example, treaties must be ratified by both houses of congress and signed by the President to take effect. Thus, there is no danger of an "unelected international body" dictating anything. The supreme court can also overturn any ratified treaty, if it's challenged and is determined to be unconstitutional.
Most other countries that I know of deal with treaties similarly, in that they're basically handled like any other law. A treaty is sort of a master document that guides policy at the legislative level within each individual country. It is not a binding law unto itself, even if it is signed by the ambassadors or even leaders of any country. It still must be ratified by the signatory countries to be binding.
Just to get the other side's take... (Score:4, Informative)
Since 1997, the World Intellectual Property Organization (WIPO) has been considering a treaty that would modernize broadcaster protection provisions of the Rome Convention to account for digital broadcasting and the challenges of online networks. The focus has been to protect broadcasters against signal piracy, particularly related to the unauthorized commercial retransmission of signals captured over-the-air or intercepted from satellite transmissions. One example of this was in 1999, when a company called iCraveTV captured U.S. television stations' signals and retransmitted them over the Internet without permission or license. Though a Canadian company, iCraveTV had registered its domain name in the U.S. so a U.S. court was able to exercise jurisdiction and end this piracy.
The iCraveTV episode demonstrated the vulnerability of broadcasting to unauthorized retransmission over the Internet that reduces revenue to broadcasters and the copyright owners whose works are being transmitted. Given the risks of signal theft and the potential harm to the broadcast industry, the United States has supported enhancing legal protections for broadcasters by updating the rights addressed in the Rome Convention.
Stop blaming the UN! (Score:5, Informative)
Have you read the treaty? (Score:3, Informative)
The Bad: Looks like it would put an end to PVRs as we know them. I'm sure ABC would allow Comcast to rent you a PVR which enforces ABC's rebroadcast requirements. YUCK! So the article got that much right.
The not bad: The so called restrictions on the original content creators don't exist. Basically the treaty states FOX can state terms to Groening that if they are going to broadcast the Simpsons on their network it is going to have the broadcast flag and be restricted according to their policy. Groening could of course not agree to those terms and tell them to fly a kite. Fox may then come back to groening and say OK we won't do the broadcast flag. That my friends will never happen, because Groening wants FOX to get the add revenue (which is of course how they pay him). Even with the broadcast flag on every episode of the Simpsons there would be nothing preventing Groening from hosting a webcast of the show himself without the broadcast flag. That is unless his contract with FOX prevents him from doing so, which I think it already does anyway.
The unclear: The webcast amendment doesn't appear to read like Comcast can tack on a broadcast flag to a home movie my parents stream from my
So, for content creators the sky is not falling, but for PVR users it probably is. This isn't really anything new, just more of the same. I am not sure what to think about this actually. I don't think it's evil as some would like to suggest. If everyone skipped all commercials, networks would go out of business as we know them. That wouldn't cause an end to media, it would just transform the way we get it. Content would end up being sold pay-per-view for everything. We already seem to be starting that transition. So if you don't want to pay for everything, and are willing to live with ads to pay for some content, allowing things like the 'broadcast flag' may be the necessary evil. Just a thought.
** Names of companies and TV shows were pulled out of thin air for the purposes of illustration. Don't read anything this post as implying these particular companies are or aren't behind this treaty.
Here you go (Score:1, Informative)
Explains everything, just as you said.
Re:Um, exactly. (Score:3, Informative)
Scholarly debate notwithstanding, case law is really fairly clear that treaties are on a par with federal statute, and that both are subordinate to the Constitution in any case - see, e.g., Reid v. Covert, 354 US 1 (1957).
Re:Inappropriate? I'll tell you inappropriate (Score:2, Informative)
Re:Inappropriate? I'll tell you inappropriate (Score:2, Informative)
I think you should read the whole thing (Score:1, Informative)
First, treaty making powers of the government trump the Constitution. Don't believe me? Read it for yourself.
http://en.wikipedia.org/wiki/Supremacy_clause [wikipedia.org]
http://en.wikipedia.org/wiki/Missouri_v._Holland [wikipedia.org]
In the first link, I want you to pay special attention to a key sentence, one I am assuming you were unfamiliar with.
"Since the constitution states that a treaty has supremacy over "any thing in the Constitution or Laws of any state to the contrary notwithstanding," it has been argued that the potential for abuse is present"
Read that over, and you'll realize that in this case, the Constitutional argument may not fly. That sentence is about Article VI
"Article VI
All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. "
And it's been upheld.
The only legal argument that has ever gotten anywhere is one that says the Constitution and treaties are of equal validity. The best you can hope for is a tie in their importance, but there's simply no way to avoid the fact that treaties have tremendous power.
This has nothing to do with interstate commerce, and everything to do with treaty making power, that is enumerated as being above the Constitution.
It's not illegal. It's not unconstitutional.
But it does suck.
Re:You cannot create rights (Score:4, Informative)
Re:You cannot create rights (Score:2, Informative)
The purpose of laws then is to regulate conflicts between these rights, i. e. the right to swing my fist ends, where the other man's nose begins.
Re:If you say so (Score:3, Informative)
Basically, you're parsing the thing incorrectly.
Here's the clause:
Let's go through it line by line.
The supreme law of the land shall be: 1) this constitution, 2) the laws of the US made in pursuance thereof, and 3) treaties made under the authority of the US. State judges shall be bound by these three groups of laws. Nothing in state constitutions or state laws can change this.
Frankly, that's the only way that it makes any sense. The framers were not stupid, and would not have said that the federal Constitution is supreme, and then said that it's not.
But more importantly, you aren't even understanding what they said at all. When they say "the Constitution or Laws of any State" they mean just that: the state's constitution or the state's laws. In the federal constitution itself, the framers never used the term 'the Constitution' to refer to that document. Instead they always said either 'this Constitution' or 'the Constitution of the United States.' So if they meant what you think they meant, they would have kept the same style. They didn't, and that is a big clue. Also, it is not grammatical to say 'the Constitution' meaning the federal constitution, followed by 'or Laws of any State' without an article. If it were like you think, it would be 'the Constitution or the Laws of any State' and again, it is not, and this also indicates that you are wrong.
It's pretty sad that even when corrected by someone who'd know, you're still sticking to your wrong and uninformed opinion.
Re:Did anybody RTFA? (Score:3, Informative)
Re:Inappropriate? I'll tell you inappropriate (Score:3, Informative)
That's not even remotely accurate. Federal civil rights legislation is based on the 14th amendment:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The due process/equal protection clause is what pretty much all federal civil rights, voting, and criminal legislation is based on.