() PSM going Global? Navigating the Transborder Rights Minefield Benjamin J Bates Professor, School of Journalism & Electronic Media University of Tennessee, Knoxville USA bjbates@utk edu Paper presen[.]
PSM going Global? -Navigating the Transborder Rights Minefield Benjamin J Bates Professor, School of Journalism & Electronic Media University of Tennessee, Knoxville USA bjbates@utk.edu Paper presented at the RIPE2014 conference, Tokyo, Japan, August 2014 Abstract: As broadband internet connections and mobile devices continue to boom, Public Service Media are considering transborder delivery options (DBS, Internet channels, streaming access options, social media, etc While the BBC has been very successful with its efforts in recent years, this paper will raise a cautionary note that PSM who are considering going transborder should include in their deliberations That’s the problematic nature, and uncertain future, of intellectual property rights (IP) – both across national borders and in the digital environment While various international agreements have extended IP rights coverage globally, it has done so by allowing nations to cater to historic and cultural traditions There is even greater variation in the conditions and practices governing audio/video content licensing In addition, the current IP approach is inherently problematic when applied in many online and digital contexts, and the WIPO is working on a new international treaty creating a new set of IP rights for Broadcasting This paper gives a background on the issue, and addresses the issues PSM may face in taking their signal and content global It basically advises PSM to consider what limits exist in their current program licenses, and the IP / licensing context in those nations it wishes to expand its virtual coverage to Or better yet, follow the BBC’s approach and create the content yourself, keeping all IP rights PSM going Global? -Navigating the Transborder Rights Minefield Public Service Media have had a long history of bringing content to audiences As Nissen (2006) summarized, the roots of public service broadcasting are based on responses to the limits of emerging broadcast systems: Spectrum scarcity; Public good nature (particularly the “free rider” problem); No existing international market for signals & content; and fear of their potential impact on public opinion In most countries, the solution seemed fairly obvious – establish a state-monopoly for broadcasting similar to the state PTT (Post, Telegraph, & Telephone) monopoly Under a situation of spectrum scarcity, a monopoly operator was better able to apply the limited spectrum to a mix of complementary services; could draw on state resources for funding (either directly from state coffers or through an imposed license fee (tax); and, it was argued, could better ensure that broadcasting’s effects were socially positive (and particularly not politically negative) The major exception was the U.S., where concern about government control over information outweighed concerns about private or corporate control This is not to say that the rise of public service broadcasting (PSB) was monolithic or homogeneous Public broadcasting spanned a range of operational structures from state-controlled propagandists to state-owned corporate structures that provided a mix of informational, educational, and even entertainment content Nissen (2006) provided a set of guiding philosophies and goals: “enhancing social, political and cultural cohesion”; “sustaining national culture and democratic society”; and “serving minority groups and the individual citizen.” In more academic terms, contributing to socialization, nation-building, and development of an informed public sphere (or civil society), while embracing and preserving minority cultures Of course, more authoritarian states phrased it somewhat differently – serving the public by promoting the state There were some other important differences – particularly the relative emphasis placed on serving dominant political and cultural groups versus serving other “publics.” These other publics might be geographically isolated areas, minority cultural groups (particularly minority language groups), and bringing a bit of home to those serving abroad, as well as émigré and ex-pat publics There was also the potential to use PSB as an external propaganda arm as the technology improved to provide transborder and global reach for some radio signals The main point, here, is that all PSB systems can be said to be following one driving focus: bringing to publics content consistent with each specific PSB’s mission and goals At a minimum, that provided PSBs a set of baseline service goals: establishing a broadcasting infrastructure that came as close to comprehensive national signal coverage as possible; and producing or acquiring appropriate content In the early days of PSBs, a dearth of available content led many PSBs to focus on producing its own content Producing content in-house also had several advantages, assuring content complied with PSM goals and concerns; assuring a flow of content that was less commercially viable, and allowing PSMs to take advantage of scale and scope efficiencies in content production More importantly, PSBs owned and controlled the IP rights to that content This gave PSBs greater freedom over scheduling, rebroadcasts, and potential derivative uses And as markets for program content developed, it allowed PSB to bring its content to those markets and capture any licensing fees generated It should be noted that a number of states incorporated international broadcasting activities within its definition of “public service broadcasting In most cases the identified goal and purpose was some mix of public diplomacy and propaganda efforts, and attempts to provide nationals living outside the coverage areas of national broadcast services access to PSB content In some cases, PSBs were tasked with establishing and operating these International broadcasting services After all, they had the content, and it was often only a matter of establishing new broadcast stations in the shortwave frequencies (whose signals could reach a large proportion of the globe), or in friendly nations In other cases, particularly when there was an emphasis on propaganda and the states had given PSBs a measure of autonomy in their operations, states could place some or all of its international broadcasting efforts under the direct control of state agencies Transformed Conditions and Context of PSM The current dilemma facing PSBs can be seen as being driven by the simple fact that the markets and environments in which they operate have significantly changed over the past few decades, largely a result of a wide range of transformative technological advances The media environment they have engendered is a stark contrast to the media environment that existed when most PSBs were established Where there had been scarcity there is now over-abundance; market and media barriers and limitations have disappeared, media consumption patterns are increasingly active and user-controlled, in contrast with broadcasting’s model of passive mass audiences There are even viable mechanisms for countering “free rider” concerns The evolution of media environments have triggered concern that the conditions that sparked the initial rise of PSBs are no longer valid, and states and PSBs need to develop new approaches if they want to maintain viability in the future Let’s look at what various advances have wrought by re-examining the original proposed limitations and sources of market failure The spectrum scarcity issue was always somewhat problematic The radio spectrum actually is infinite – what has been limited has been the portion (bandwidth) that is usable for particular purposes – which could be further restricted if there are competing uses for a particular range of radio spectrum At the beginning of broadcasting, the portion of the radio spectrum that technology could access was very limited As it grew, states and international agencies started to carve out limited segments for particular uses, which established limits for a particular type of broadcasting As demand for alternative spectrum uses grew, it became difficult to find open usable spectrum that could add to the supply available for broadcast services Additionally, most of the newly usable spectrum emerging in the last 50 years have been in frequencies that aren’t particularly efficient or useful for terrestrial broadcasting One thing that has helped with broadcast spectrum scarcity has been digital technology Over the last few decades digital technology has improved to the point where a shift from analog to digital broadcasting, combined with signal compression technology, permits several broadcast signals to be As interference is a real problem when multiple operators attempt to use the same or nearby frequencies, administrative actions setting aside portions of spectrum essentially determined how many separate signals could be accommodated within terrestrial broadcasting multiplexed into what had been a single channel Current standards allow broadcast regulators to double, even quadruple the number of viable channels achievable within an assigned spectrum allocation As the new digital broadcast systems also reduce interference, regulators are also able to reduce signal separation limits, allowing them to free up space to squeeze in additional broadcast channels, or for other uses While there has been a virtual expansion in the capacity of allocated spectrum, the real capacity increase has come in the form of new distribution channels that can compete directly with terrestrial broadcasting services The development of cable systems opened up competition in local markets, while DBS has taken advantage of newly-usable spectrum They (and other forms of multichannel distribution systems) have created a system of abundance, and lead to a huge jump in the amount of competition that PSB face But that’s not the limit of competition – broadcast signals and content are easily distributed over IP-based network Until recently, the impact of networks on broadcasting were limited by signal processing and network speeds – the signals and content couldn’t be reliably delivered in real time in the same quality as available from broadcast and multichannel providers But within the last few years, global digital networks have diffused and improved to a point where it offers an alternative distribution system for “broadcast content.” One that operates outside any spectrum limitations Add in the addressability and interactive nature of the global net, and you have almost unlimited “spectrum” available Far from “scarcity” driving economic and political behavior, the world is moving to having to figure out how to deal with “abundance.” While information and its delivery systems such as broadcasting still retain most public good attributes, the technology has improved to the point where the “free rider” problem can be irrelevant Not only is it possible to have users pay for content, or access to content, audiences have shown a willingness to so In addition, the success of advertising as a funding source in the U.S., and the expansion of consumer culture globally, have developed a funding source that can outstrip the funds states are willing to devote to PSBs It’s also led to the increased licensing and adoption of commercial broadcasters in competition with PSB In addition, there are other reasons to create content and distribute it to publics than commercial gain (Bates, 1988) The market for content has certainly grown and transformed as well There is a dominant commercial sector, producing content that often aimed at the global marketplace In addition, digital technologies have radically changed production cost structures, and access, to the point where almost anyone can produce content As a result, the content market is flooded with smaller commercial content producers of niche programming, as well as noncommercial and amateur producers Additionally, the rise and improvement of digital networks has similarly reduced distribution costs Yet the real transformation is in other areas, driven by digital advances that have radically reduced both production and distribution costs for broadcast content While the cost shifts have certainly aided commercial content producers, the transformative impact is it’s make content production and distribution feasible for those wanting to produce and share content and programming for other reasons Benkler (2006) noted several alternative motivations for content producers enabled by the new cost structures; those who see value in getting their ideas out, those who see possible community and social value in their content; content targeting narrow audiences, etc i2 These can be grouped under the general concept of user-generated content (UGC) The explosive growth of YouTube is ample illustration of the impact of digital on the production of broadcast content In its most recent press release, YouTube (2014) notes that more than a billion unique users use YouTube every month, watching billion hours of video On the production side, 100 hours of new video content are uploaded every minute In 2011, YouTube noted that more video had been uploaded in 60 days than had been created by networks in the first 60 years of American television broadcasting The rise of content-sharing and social media systems have aided the explosion in the amount and variety of media content that is readily available online The expansion of the markets for content, and the amount of content available is demonstrated by a phrase used to promote online media systems – “Any content ever produced, by anyone, anywhere in the world; available and immediately accessible by anyone, at any time, from anywhere.” We’re not quite there yet, but the idea provides an image of the shift from scarcity to abundance, and what PSBs and PSM find themselves competing with Finally, Nessen (2006) noted that the increased diversity in channels and the ideals of pluralistic democracy have contributed to a growing shift in the public’s perception of credibility Rather than the state being seen as credible and authoritative, people today see “editorial independence,” where there is a separation of PSB and direct state control, to be a prerequisite for credibility Additionally, there is now a century of research suggesting that broadcast content is not all that directly influential; that it’s influence is more likely to be in reinforcing attitudes rather than prompting political action As a result, PSM are arguably becoming less valuable as a propaganda tool, and more valuable as a producer and distributor of content Implications of Expanding PSM “service definitions.” To the degree that PSM focus, organizational structure, and operations were developed in response to market and technological conditions of the first half of the 20th century, they may not be best suited to deal with the radical transformations transforming media and audience markets in the 21st century That is not to suggest that current PSM focus, strategies, and operations are necessarily inappropriate, or deserve the blame for PSM shortcomings in recent years What it does suggest is that it may be worthwhile for PSMs to take a step back to their core purpose – distributing content to publics – and consider what that means within current and future media and audience contexts Most of the papers, reports, and proposals looking at PSM options focus on just two of the three components of the envisioned core focus: on the types of content desired, and in promoting an expansion of the definition of publics Reimagining content focus generally boils down to an argument that PSM should focus on providing more of certain types of content, and perhaps less of other types Arguments for taking a fresh look at publics can be categorized into five general approaches Many of these alternative motivations are consistent with PSM goals and practices While PSMs provided such when production costs outweighed commercial value, now the costs have dropped to the point where individuals can so • • • • • Identifying segments of the native population that are currently unserved or underserved by PSM offerings (usually some cultural or linguistic groups), which, under national values and policy, shouldn’t be left out of the reach of PSM Expanding the idea of publics to include non-native populations residing full or part-time within national borders Typically this includes legal and illegal immigrants, and proponents draw on rationales such as PSM helping socialization and integration of these groups within the national identity combination of the benefits of using PSM to facilitate state, or the polar opposite – that PSM should help these groups to maintain and value their own cultures In recent years, some have expanded this into considering the degree to which PSM should target refugees as a distinct public to be served Noting that one underserved group is those who would clearly fit the basic definition of a covered public, but who are not within public broadcasting’s signal coverage area Examples include military units serving overseas, temporary ex-pats working overseas (including diplomatic corps and those with NGOs or other service groups) Expanding the definitions of public broadly to emphasize non-native populations, particularly when a major component of the service focus includes promotional, public diplomacy, and/or propaganda elements, then “outsiders” are core publics for those service activities Identifying “outsider” elements as a potential revenue stream This idea builds upon the recent success in channel and content licensing in wealthier consumer nations (the U.S in particular) The part that is ignored, or considered as secondary goal, is the third component – distribution That’s a shame, because one of the best opportunities PSM have to build an expanded public service focus is to embrace the opportunities to make their content and service more accessible and usable to its publics While the idea that PSMs need to move beyond being “mere broadcasters,” and embrace emerging media forms and outlets is widely embraced, there’s been limited consideration of what that means, and which new media outlets are reasonable and which may not be Let’s start with the idea that PSM should embrace the basic notion of expanding the mechanisms of distribution as a central component of the revised public service goals Recognition could be driven by an awareness that the global digital network has serious advantages as a distribution system It is, or can be, a much more efficient provider of access to a wide range of media content, compared to traditional media systems Online distribution costs tend to be a miniscule fraction of comparable traditional media distribution costs The digital network can readily store and make accessible much more content and programming than traditional channels (and again much more cheaply) This could be driven by recognition that today’s PSM function under increased competition and changing media consumption habits Digital networks accommodate a range of content delivery option and display Some proposals make both arguments simultaneously; it’s difficult to envision how both can be achieved without calling for two separated content streams Specifically, it taps into the dream of almost every TV network and channel that they can become the next ESPN, collecting more than $5 monthly in subscription and licensing fees from a global audience approaching one billion It can be difficult to convince people who think they produce a valuable, quality, content stream, that for them, the dream is utter fantasy, rather than being a realistic, achievable, goal options, providing the opportunity to explore and embrace new ideas for accessing and consuming media content, and accommodating those can open new opportunities to match audiences, their preferences, and PSM content For example, mobile technologies and devices are creating multiple ways and opportunities to deliver valued content to a range of audiences and locations Looking at expanding PSM distribution capabilities can be a response to a growing need to develop new ways to reach core publics to match changing media consumption habits; for example, giving audiences more ability to obtain content when and where they prefer, rather than at a standardized broadcast schedule It might mean taking advantage of digital networks’ storage and search capabilities to expand “distribution” by expanding access to an expanding selection of available content and services PSMs can take advantage of their own content systems (or available content-sharing sites) to solicit independent content submissions, particularly in the areas of niche or non-commercial interest, providing access and promoting relevant content to those niche publics They can expand “distribution” by expanding the range of delivery and consumption options (for example, on-demand, mobile options, and even options for things like binge viewing or recommendation systems that inform users of related or similar content PSMs in the West can expand distribution by taking advantage of the networks ubiquitous nature and low costs to provide increased content and improved access options for minorities and other small audience segments, providing improved access and service to those groups Finally, PSM can expand distribution by embracing online options, taking advantage of the fact that digital networks are inherently global, and that it’s easier to allow everybody access rather than limit access Expanding distribution beyond national borders or broadcast range through digital networks is not only easy and cheap; it seems to have the potential to add a lot of value to PSM operations Looking at all this opportunity and potential, it would seem to be pretty evident that going online in one way or another can be a key component in PSM efforts to take advantage of the changed media environment And it doesn’t hurt that the benefits for moving in that direction is that most of the opportunities would seem to seem to have the potential for adding significant value for both the PSM and its publics (audiences), at very minimal cost The lower cost aspect is clearly true for digital content production, which continues to become cheaper, more usable, and more widely available to interested content producers every year Similarly digital network storage and distribution costs are also decreasing over time In fact, there are a growing number of free content-sharing services, who will host content and make it publicly available at no cost (many are now adding apps to facilitate uploading content and facilitate adding the hypertext coding that makes it easier to find content through search engines) And it’s pretty clear that the flexibility of the digital network can tap into many of features and services that audiences increasingly value One interesting aspect in the diffusion of mobile video devices and online video consumption in the U.S is that the highest penetration and usage levels are for Hispanics It’s argued that while there are limited Spanishlanguage broadcast options in most parts of the country (whether through local broadcasting or basic service cable and DBS), there is a significant (and rapidly growing) number of Spanish language programming and channels available online Young Hispanics in particular are changing their traditional media watching habits (and devices) to take advantage of those online options Some of the content-sharing services are encouraging contributors to establish their own channels, arguable providing a more familiar framework for PSM to work within Channels can also be configured to incorporate advertising, and some include a subscription mechanism, allowing channels to generate revenues from at least some of its online efforts PSM and regulators both look at the rapid increase in online advertising revenues (in the West passing all media except for TV), and the rapid rise of licensing and subscription revenues for television channels and networks in the US, and they see potential new revenue streams for PSM that go online and global These can seem critical to long-term PSM viability when competition and slow economic growth in many countries make it difficult to increase revenues through hiking license fees, or increasing taxes The idea that by going online and global, PSM can add new significant revenue streams and ensure their viability and independence from state financing is as tempting as it is overly optimistic Yes, the ability to target global audiences for revenues (advertising, licensing, and/or subscription) might be justified within PSM authorizing legislation as something separate from, and not affecting, the primary public service obligations Also, economic theory suggests that shifting from an open-access broadcast model to an online, controlled access, distribution model can create a context where PSM can try to tap into any existing surplus value in their service Things such as recycling older content, providing expanded access options, etc Similarly, there would seem to be opportunities to create added-value for their services (for example, higher quality, commercial-free, early access, access to additional content not included in the original program) that might be similarly tapped On the other hand, some wonder if such a commercial focus are consistent with historic PSM service goals and obligations The difficulty is that there’s not a lot of evidence as to the amount of value out there, or how much of it is extractable as cash Sure, there’s some illustrative examples that can be called upon, mostly from the US: the product licensing success of Sesame Street; subscription revenues for cable networks with similar ratings; the money raised by PBS and NPR in pledge drives; the success of BBC international satellite channels on the world market But these are the best-case examples, from the wealthiest markets There some studies and reports that aren’t as optimistic about the possibility that PSM seeking to market channels and content internationally will achieve much of a windfall A study looking at broadcast signal piracy and its financial impact for broadcasters (WIPO, 2010) came to two interesting conclusions First that broadcast signal piracy was rampant, particularly in Third World countries Second, there wasn’t much economic loss resulting from that piracy Specifically, for most broadcasters, there wasn’t significant revenue potential in marketing their signals in other countries, for the simple reason that where there was interest and value for the service, people couldn’t afford to pay Western6 Which is not owned by PBS/CPB, and thus doesn’t help that PSM at all As these are additional contributions, arguably by those who value the service and content more highly; they can be seen as reflecting the surplus value of PSM BBC has successfully marketed both a global news channel BBC World News, several commercial, entertainmentfocused, targeted channels (America, Canada, Entertainment, Lifestyle), and foreign-language channels emphasizing news (Arabic, Persian, Urdu) By law, all are separate from BBC domestic PSM operations and funding level subscription fees, and where they could pay, there was little interest (value) in paying for the service Bates & Fontenot (2012) looked at the specific sets of IP-rights in the draft WIPO Broadcasting Treaty, and what potential value they conferred on PSM They found that there were a couple of the more specific (and rarely applicable) rights that could have modest value, but overall, most of the value of the listed rights would be captured first by copyright holders, then performance rights holders So unless the PSM also held copyright and performance rights, the Treaty wouldn’t help much They also questioned whether the Treaty’s emphasis on restricting access and use of broadcast signals conflicted with PSM emphasis on maximizing reach for its content A recent white paper from Ernst & Young put a more professional tone on the question of how to create and capture value from media and entertainment channels and content They noted that interest in accessing free content doesn’t necessarily correlate with willingness to pay for it And as for the value and revenue potential of online distribution of media content, they found that the US is one of only a few countries where both Internet use, and willingness to pay for content, are high Thus, there’s not a lot of opportunity for pulling revenues from online distribution of media services and content outside of those few areas; at least not at this time But there are two potential pitfalls with going online, and particularly with going online on an international or global basis The first is a result of copyright and intellectual property rights regimes This is an area that doesn’t benefit from going online, or expanding access and distribution The second comes from the question of whether the added value of expanded distribution is commercial and recoverable – that is, are people willing to pay more for it? And is there a way to collect payment (the old free rider problem) And even if that is the case, does the potential added revenue stream cover the added IP costs? One of the benefits of the digital network transformation is that it has not only made those options viable, but also relatively inexpensive – at least for the technologies used for production and distribution Things have not progressed as smoothly in the regulatory area There, existing media have used the regulatory framework of Intellectual Property (IP) rights to try to protect their market shares and hamper competition from entering the market The problem with that is that current IP regulatory policy was developed to operate efficiently within the technological restrictions of traditional media, and within national borders It’s not particularly well-suited to digital networks or transborder and/or global media operations In addition, as traditional media systems have taken revenue hits as a result of the increasing competition, they seem to be looking towards licensing fees as a viable additional revenue source That has put more emphasis on IP rights enforcement and more restrictive license terms (to allow more licensing opportunities) Combine that with the traditional IP focus on national standards, applications, and enforcement, and you have a situation where IP regulation and licensing varies significantly from state to state, and from context to context In essence, PSM seeking to provide content across digital media systems and national boundaries will find themselves having to deal with a variety of IP rights and licensing issues, if they don’t own the IP rights to that content And even if they do, they have to consider whether it makes more sense to offer the content themselves, or seek to license it to other providers in those countries The minefield that is Intellectual Property Rights The problem with intellectual property rights for audio and video content is that there are too many of them (and a growing trend to try to add even more), and that they frequently operate differently in different locations and contexts First, IP rights are implemented on a national basis, although they operate under global guidance of a series of Treaties, now gathered under the umbrella of the World Intellectual Property Organization (WIPO) The main guiding treaties are the Paris Convention for the Protection of Industrial Property, the Berrne Convention for the Protection of Literary and Artistic Works, and the WIPO Copyright Treaty The main thrust of these are to establish that IP rights granted by one nation are to be recognizes by all others, and to set forth minimum standards for the terms and conditions of those rights The Treaties facilitate IP and Copyrights within nations, but pose some problems when applied on a transborder or global basis Since the provisions set minimum standards (and allow some nations to obtain exemptions) rather than uniform standards, transborder and international media may be dealing with different sets of standards in different areas Older content may well be out of copyright in one country, but still remain covered by copyright in others This is acerbated by the fact that the treaties’ terms for extending coverage – content granted IP rights in one country (A) is recognized as having those IP rights in another country (B), but under the terms and conditions of country B, not those of the originating country ii In addition, the Berne Convention mentions a series of “related rights,” that may be granted beyond the limits of the basic copyright In essence, a copyright covers the intellectual (content) of the underlying work (the song, the text, etc.), and the basic right of the copyright owner to control the act of reproduction (making copies) or performance When the content is “performed,” that is a derivative act that also includes a creative and intellectual component Several treaties and many nations recognize that performers can have additional IP rights in their particular performance of that work, as well as some other particular types of derivative works, such as translations, transforming the work into another medium, etc Other related rights may exist in rights of public performance, rights of broadcasting, rights of reproduction, and even what are considered “moral rights” (which remain with the author of the work even if copyright ownership is transferred to another As mentioned above, performers of copyrighted works may be granted IP rights as derivative works Some nations provide performers more specific rights to control the recording (fixation) and/or distribution of their live performances Some of these principles are enumerated under the Special Conventions in the Field of Related Rights; The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (often referred to as the Rome Convention), followed by “Other Special Conventions” focusing on Performers, Phonogram Producers (Record companies), and Satellites (to deal with international distribution) Finally, 1996 saw the creation of the WIPO Performances and Phonograms Treaty (WPPT) As with the various copyright treaties, these dealt primarily with providing definitions and extending IP rights to deal with emerging distribution issues – providing guidance to those nations looking to extent IP rights and protections to those groups There is one major distinction, though; these treaties make it clear that should the various IP rights come into conflict, then the basic copyright trumps all Some countries also grant broadcasting organizations separate and specific IP rights to their broadcasts In fact, the WIPO has proposed a more formal international “Treaty on the Protection of Broadcasting Organizations” as a mechanism for granting a new set of IP rights to broadcasters, on the premise that it can help broadcasting organizations (like PSM) obtain licensing fees for access to their signals in other countries There are a number of issues and problems with the various versions of the proposed Treaty: the fact that it seeks to create a third set of unique monopoly rights (exclusive monopoly rights in copyright and performance rights already exist in virtually all the content contained in broadcast signals); the fact that there is no real value to a broadcast signal absent content; and the question of whether there is any real value left for broadcasters after accounting for all of the other rights (Bates & Wells, 2007) In addition, many countries provide those who produce physical copies of content IP protections against importation of copies from other countries (although it’s debatable whether this is a true IP right or just trade protection) The issue of diverse rules and standards also apply to the definition of “fair use” or “fair dealing” exemptions to licensing The Treaties indicated that nations could, if they wanted, set up exemptions from the requirements limiting the use of protected works However, they did not mandate such, nor did they establish any baseline standards Thus, there is a wide range of national standards for determining whether or not specific uses in specific conditions are considered “fair” or a violation of IP rights Similarly, national courts have set a variety of standards for determining what kinds of derivative works constitute infringements, and which are allowable and protected The World Copyright Treaty was designed to deal with copyright issues emerging with the development of new technologies, particularly digital technologies Some of the key problematic aspects of the WCT are that it defines any “storage” of works (permanent or temporary) in an electronic form is considered to be a copy (reproduction) under copyright law, and that any online transmission of covered works must by authorized by the copyright owner However, the WCT noted that the range of digital systems and their regulatory treatment by various states, and the differences in which “related rights” were granted precluded any precise restatement of IP digital rights Rather, the WCT extended the general “right to communicate to the public” found in Berne to “all categories of works” and all distribution systems, including interactive digital systems such as the Internet In addition, the WCT expressly permitted IP right owners to institute Technological Measures of Protection (TMP) and Rights Management Systems RMS to protect their rights, and criminalized any attempts to bypass or otherwise defeat such measures (also expressed in the WTO TRIPS Agreement Most nations have implemented this as rules mandating that if a copyright owner uses such systems, that the protective measures must be passed through in an transmission of covered content This can impact content distributors, who have the added problem and cost of compliance And if the distributor must deal with multiple (and sometimes conflicting) TMP and RMS systems from different suppliers or in different countries, that compounds the potential problems In addition to the range and variety of basic IP rights that exist, there is also the issue of content licensing If a PSM produces absolutely original content, then they, as the copyright (and related rights) owner can easily grant themselves whatever licenses they need to reproduce, fix, and/or distribute that content If not, media must get licenses from the copyright (and related rights) owners for their specific proposed uses (and conditions of use), or face the considerable penalties for IP piracy And the licensing situations in various countries are even more jumbled than the IP rights systems Some nations might require separate licensing negotiations with each rights-holder, but to facilitate the process, many countries work with a set of specific licensing agencies, sets of general licenses and fair use guidelines, and compulsory licenses In the U.S., for example, performers pay a mandatory fee to the three music (copyright) licensing agencies who have obtained the rights to license and administer almost all music copyrights The same three agencies also administer the licenses for performance rights; however, different agencies may administer the copyright and the performance right for a particular song’s performance In fact, one problem with the U.S licensing system is that there is no central listing of which agency owns which rights to which songs, so most broadcasters end up making deals with all three Many countries have instituted monopoly agencies to handle music licensing as an alternative Often this is a form of compulsory licensing, to the degree that it mandates that all IP rights owners Compulsory licensing may apply to the licensee as well In 1976, the U.S Congress gave cable operators a compulsory license to retransmit local broadcast television signals, as a means of assuring that cable systems treated local stations equally, and to maximize signal distribution It also served the purpose of avoiding the necessity of coping with obtaining separate licenses for each program (as IP rights and licensing were maintained by program owners and distributors, and not the broadcast stations) Compulsory licensing may also be a way of addressing “fair use” questions, for example, giving schools a blanket license to play music for educational purposes in classrooms The biggest potential problem with content licensing, however, is the terms of licenses Most media content licenses are very specific in their terms – a license is granted for a fixed period of time, for use by a specific media outlet (often for a specific purpose or for transmission to a specific geographic area) The license may also include various conditions, such as how many times the content may be broadcast, or its use for a specific purpose (for example, a song may be licensed for use within a particular TV show, but not in commercials), or limited to a specific medium or distribution system What all this means for PSM is that, if you’re not the rights-holder, and you want to extend your signal to other countries, then you’ll likely need to deal with identifying all of the various IP rights associated with each piece of content, identify what each license covers (what it specifically permits and specifically prohibits), and identify, negotiate, and obtain licensing for each country you want to use the content in, and for every anticipated use of the content The fact that there are variations in the types of IP rights provided for different types of content (which can also vary somewhat from country to country), that each country has its own licensing rules and agencies, and that the PSM may find it needs to obtain licenses for each anticipated use, and for each country, doesn’t help much The process of identifying the IP-rights, who holds them, and obtaining needed licenses can be fairly easy (particularly if there is compulsory licensing or if the state has established a monopoly licensing authority) On the other extreme, having to identify each rights-holder individually, track them (or their heirs) down, and negotiate individually each separate license, is often enough for many to decide to just chuck that content aside, and find something easier to license to replace it An emerging IP/licensing concern is its application to User-Generated Content (UGC) Underlying copyright and other IP rights indicate that the creator is granted the IP rights Most countries allow the creators to assign those rights to others Courts in the U.S have found that putting content online, or sharing it with others, does not abrogate their IP rights They’ve also suggested that language assigning IP rights or licensing that is hidden inside click-through user agreements is not necessarily binding Solicitation of UGC from audiences, or grabbing content from online repositories, does not necessarily mean that PSM own the IP rights, or even have the right to use the content The language used in legal judgements concerning media use of UGC suggest that claims of ownership for “found” UGC (particularly when the UGC is then used for commercial gain by the “grabbing” media organization) will not be upheld – while clear language granting media organizations the right to use solicited UGC for specific and limited purposes will be upheld The problem is that a lot of situations fall somewhere between those two extremes In addition, there’s a lot of variability in “fair use” claims for use in news reporting, but giving credit to the IP rights holder helps That leaves a lot of uncertainty for media; but to the degree that PSM are “noncommercial,” or are given compulsory licenses, there may be less concern over licensing needs for UGC Still, PSM need to be aware of potential IP rights / licensing issues affiliated with their use of UGC, and proceed with caution Conclusions, or What PSM now? There can be significant value for PSM extending their signals and services beyond national boundaries (Bates, 1998) Whether serving ex-pat communities and émigrés, promoting cultural and educational opportunities, or supporting public diplomacy efforts, extending PSM signals and content beyond the border can be seen as complementing most PSM goals and mandates In addition, looking into international markets for PSM signals and content may open up new revenue streams On the other hand, in an era of increasingly litigious intellectual property rights enforcement, it must be noted that any content licensed by PSM (rather than created and owned) may not include out-of-market licensing If PSM want to distribute that content outside the areas covered by the license, or in ways that violate other terms of that license, they may need to obtain additional licensing for each market area or use As noted, this can open the PSM to having to navigate a virtual minefield of rights and licensing issues that are compounded by multiple sets of intellectual property rights that can be An exemption is what is called “work for hire,” where the content is created purposely for another In that case, it is the entity initiating and guiding the work that is granted IP rights connected with content (copyright; performance rights) and the likely forthcoming signal rights associated with the proposed WIPO Broadcasting Treaty The WIPO and related treaties are extending these rights globally, with several major parties pushing heavily for extending coverage and increasing enforcement The problem that PSM may face in extending their signals across borders, or globally, is that they may face a minefield of interconnected IP rights and licenses that may not extend to those areas If the PSM create their own content, and/or have acquired the full set of intellectual property rights associated along with acquired content, then they are likely to at least have the capacity to extend their signal coverage without interference or potential additional licensing costs 10 (However, they may want to consider the impact doing so may have on their efforts to market or license that content in those countries.) The problem can be magnified by the fact that a single piece of content may include multiple items of distinct intellectual property (IP), each with a distinct set of IP rights And each element covered by some IP right may have separate and distinctive licensing arrangements that limit what can be done with that content; licensing issues that can vary widely from country to country In addition, the continued growth of new distribution mechanisms and consumer devices for consuming content produce alternatives not envisioned by older licenses; and legal battles over whether such uses are subsumed by existing licenses or require new licenses And the impact of IP rights and licensing are not static – uses that were covered by fair use yesterday may find that a court ruling or change in the law saying its no longer fair use Licensing authorities can change fees or terms That’s the potential minefield that PSM (in fact, any content distributor) faces in entering new markets today Licensing issues are not only potentially expensive and dangerous, but are shifting with the whims of legislators, licensing authorities, and courts Extending PSM ability to distribute signals and content is now technologically and economically viable It is certainly seems to have the potential to be socially and culturally valuable What it may not be is legally or economically viable - particularly if you don’t own the IP rights for your content and you’re looking to make money from it Recommendations for PSM going global The recommendations for PSM wanting to distribute their services internationally can be fairly simple Make sure that you hold the full IP rights for as much of your content as you can If you don’t, make sure you know what your primary license for that content allows, and find out what you may need to to obtain licenses in countries you want to market your signal in If licensing particular sets of content is a hassle, consider finding or creating substitute content that is public domain, open-license, or that you own IP rights to If you find that a particular country’s licensing system is massively FUBAR and you have a lot of content needing licensing, consider just removing that country from your marketing plans (It’s probably not worth the effort) 10 However, they may face a requirement to license the content to themselves in some situations Particularly if the transborder operations are run as a separate, independent, organization There is one last thing for PSM to consider before going global If your content is very valuable, and you own IP and/or licensing rights; it might be more profitable to licensing the content separately than to market a service that includes that content This becomes a concern primarily when a PSM’s primary goal in going global is to commercially exploit its content and services Bibliography Bates, Benjamin J "Information as an Economic Good: Sources of Individual and Social Value." In V Mosco and J Wasko (Eds.), The Political Economy of Information (pp 76-94) Madison, WI: University of Wisconsin Press, 1988 Bates, B J (1998) “The Economics of Transborder Video.” In P S Lee & A Goonesekera, (Eds.), TV Without Borders: Asia Speaks Out (pp 224-258) Singapore: AMIC, 1998 Bates, B J., and Wells, S (2007) “Broadcaster Rights and the Public Interest: A Social Economic Analysis of the WIPO’s Draft Broadcast Treaty.” Paper presented at the International Communication Association conference, San Francisco, CA, May 2007 Bates, B J., and Fontenot, M (2012) “The WIPO Broadcast Treaty: What Value for (Public Service) Radio Broadcasters?” Paper presented at the 4th European Communication Conference, ECREA 2012, Istanbul Turkey, October 2012 Benkler, Y (2006) The Wealth of Networks: How Social Production Transforms Markets and Freedom New Haven: Yale University Press Braman, S (2006) Change of State Boston: MIT Press Ernst & Young (2013) Monetizing digital media: Creating value consumers will buy White paper, available at http://www.ey.com/GL/en/Industries/Media -Entertainment/Monetizing-digital-media-creating-value-consumers-will-buy Hoskins, C., McFayden, S., & Finn, A (1998) Global Television and Film: An Introduction to the Economics of the Business, Oxford University Press Merges, R et al (2012) Intellectual Property in the New Technological Age, 6th Ed Aspen Casebook Series Nissen, Christian S (2006) Public service media in the information society: Report prepared for the Council of Europe’s Group of Specialists on Public Service Broadcasting in the Information Society (MC-S-PSB) Obtained online at http://www.menntamalaraduneyti.is/media/MRN-PDFAlthjodlegt/Public_service_media.pdf WIPO (2010) Study on the Socioeconomic Dimension of the Unauthorized Use of Signals – Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organizations Document Code SCCR/21/2, accessible at http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=144152 YouTube (6/29/2014) Statistics released by YouTube press office, at https://www.youtube.com/yt/press/statistics.html i Many of these alternative motivations are consistent with PSM goals Consider the issues surrounding this thought experiment A classic black & white film that was produced in country A Suppose the terms of IP protection are longer in country A (where the original is still in copyright) than in country B, where the film has fallen into the public domain As the film is in public domain, someone takes the original film, converts it to digital form and makes sufficient changes (refreshed and cleaned the original content, colorized it, edited and re-cut the film with new material, added new soundtrack) so that the derivative work is treated as an original work under country B’s IP rules Thus the derived work is now copyrighted in country B, and that copyright must be recognized by country A, where the owners of the original work must now face competition from the legal (from IP rights perspective) derivative version ii ... content may include multiple items of distinct intellectual property (IP) , each with a distinct set of IP rights And each element covered by some IP right may have separate and distinctive licensing... that is granted IP rights connected with content (copyright; performance rights) and the likely forthcoming signal rights associated with the proposed WIPO Broadcasting Treaty The WIPO and related... and extending IP rights to deal with emerging distribution issues – providing guidance to those nations looking to extent IP rights and protections to those groups There is one major distinction,