The Social Costs of Property Rights in Broadcast (and Cable) Signals

Intellectual Property, Copyright and Trademark, Networks, the Internet, and Cloud Computing and Internet

Article Snapshot

Author(s)

Shyamkrishna Balganesh

Source

Berkeley Technology Law Journal, Vol. 22, pp. 1303-1385, 2008

Summary

This article evaluates the costs and benefits of granting full property rights to broadcasters’ transmission signals.

Policy Relevance

As the U.S. considers whether or not to sign the WIPO Broadcasting Treaty, policy makers should consider the historical reasons why full property rights have not been granted in the past and the alternative solutions which could solve the same problems while creating fewer new issues in the process.

Main Points

  • Since 1998, the U.S. has been pushing for the adoption of a new international treaty, the WIPO Broadcasting Treaty, which would grant broadcasters and cablecasters independent property rights in their transmission signals. This use of property law to protect the intangible product that is being broadcast has been criticized as unnecessary granting of exclusionary power to the broadcast companies.
     
  • This conflict has created extensive discussion about the costs and benefits of creating a new regime of broadcast rights. However, the debates have tended to ignore the reasons the U.S. has avoided such granting of power in the past.
     
  • Historically, the U.S. has granted broadcasters limited property rights over their broadcast material in the hope of creating a balanced and workable system. Under this system, broadcast and cable revenues have continued to rise; which calls for questioning of why a new system is currently needed.
     
  • The only justification for introducing a new regime of broadcaster rights stems from broadcasters’ desire to control the commercial webcasting to the same level of regulatory control that other avenues of broadcasting are subjected to. However, granting full property rights will substantially limit the way consumers can interact with media over the Internet.
     
  • The benefits of creating new and stronger property rights for broadcast companies could be achieved with far less cost by implementing a system that subjects new online providers to the same regulatory constraints governing broadcasters. This attempt to create a “level playing field” would satisfy the single persuasive justification for broadcast property rights while limiting broadcasters’ ability to constraint consumer involvement.
     
  • Ultimately, this analysis may become moot if the U.S. decides not to sign on to the WIPO Broadcasting Treaty. This has occurred in the past when the U.S. has refused to enter into the Kyoto Protocol as well as refusal to sign onto the Rome Charter.
     

 

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