Today’s leak of the Trans Pacific Partnership Agreement intellectual property chapter includes a controversial provision aimed at preventing every country in the world from permitting internet television services like Aereo.
Provision QQ.G.ZZ, p. 38 states:
[US/SG/PE propose: CL/VN/MY/NZ/MX/CA/BN/JP oppose: No Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal [SG oppose: and, if any, of the signal].118]119
[ALTERNATE:120 FN attached to QQ.G.2: A Party may not limit this right in order to provide for a compulsory remuneration regime in cases where an over the air signal containing an audiovisual work is transmitted on the Internet.]
FN 118 For purposes of this Article and for greater certainty, retransmission within a Party’s territory over a closed, defined, subscriber network that is not accessible from outside the Party’s territory does not constitute retransmission on the Internet.
119 Negotiator’s Note: PE is considering the use of the work “emissions” in addition to “signals” as an alternative
Language similar to the first paragraph included other trade agreements was used in the U.S. Supreme Court to argue that the Aereo service allowing consumers to shift free to air television in their service area to internet devices violates copyright. See Law Professors File Brief in U.S. Supreme Court : International Law Supports Aereo. The TPP is now poised to internationalize a ban on Aereo-type, even when enabled through remuneration schemes.
The original intent of the FTA provision in other agreements was not to ban internet TV services, but rather deal with “the possible consequences of extra-territorial internet retransmission” from a provider subject to statutory licensing in one country to others where no remuneration scheme existed. AUSTRALIAN LAW REFORM COMMISSION, COPYRIGHT AND THE DIGITAL ECONOMY (ALRC REPORT 122) 393 para. 18.102 (2013). For example, Canadian company iCraveTV captured U.S. free-to-air signals in their service area and broadcast them over an open website “so as to enable any user, anywhere in the world, who visited the iCraveTV website to access that content.” David Brennan, Is IPTV an Internet Service Under Australian Broadcasting and Copyright Law? 60 TELECOMM. J. OF AUSTL. 26.1, 26.7-9 (2010). The service was thus broadcasting from a remunerated market to an unremunerated market.
Cable companies and satellite companies rebroadcast signals, but they license the content through a statutory license for specific areas served. They do not have the rights to serve the world. At the time of those early FTAs, there may have been no apparent means to hold internet transmissions to their territories. But it is not impossible now. Aereo had technology to limit the viewing of a free broadcast to the area of that broadcast. You could not live-view the programming from another city or country.
The original agreements foresaw that technology could solve this problem, removing the need for the regulation. The side letter between Australia and the US envisioned renegotiation of the provision if ‘‘it is the considered opinion of either party that there has been a significant change in the reliability, robustness, implementability and practical availability of technology to effectively limit the reception of Internet retransmissions to users located in a specific geographical market area.” Letter from Mark Vaile, Minister for Trade, to Robert Zoellick, United States Trade Representative (May 18, 2004); Letter from Robert Zoellick, United States Trade Representative, to Mark Vaile, Minister for Trade (May 18, 2004). The US-Korea FTA contains a similarly motivated definition (fn 15) that “retransmission within a Party’s territory over a closed, defined, subscriber network that is not accessible from outside the Party’s territory does not constitute retransmission on the Internet.” United States-Korea Free Trade Agreement, U.S.-S.Kor. Art. 18 n. 15, June 30, 2007, 46 I.L.M. 642.
The time where technology can solve the geographic distribution problem is here. And yet the TPP proposes to ban broadcasting licenses to enable Aereo’s business model in other countries. Indeed, the provision is directly contrary to the arguments that Aereo is making right now that it should be subject to cable licenses.
