[WSIS CS-Plenary] IPJ: WIPO Pushes Forward with Broadcasting Treaty - Webcasting Deferred

[Robin Gross]

Outcome of 14th SCCR Session on Proposed WIPO Broadcasting Treaty:
*/WIPO Pushes Forward with Broadcasting Treaty/**/ - Webcasting Deferred/*
**By IP Justice Executive Director Robin D. Gross
www.ipjustice.org  ~  8 May 2006

An agreement was reached on 5 May 2006 at the conclusion of a United 
Nations treaty negotiation in Geneva to exclude the issue of webcasting 
from a controversial treaty proposal to create new rights for 
broadcasting companies.

The UN Specialized Agency in the business of enacting global treaties on 
intellectual property rights, the World Intellectual Property 
Organization (WIPO), held its 14th Session 
<http://www.wipo.int/meetings/en/details.jsp?meeting_id=9943> of 
Standing Committee on Copyrights and Related Rights (SCCR) from 1-5 May 
2006 to debate the proposed Broadcasting Treaty.

Country delegates expressed concern over the draft text 
<http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=57213>of the 
proposed treaty because it would create a number of new and excessive 
intellectual property rights for broadcasting companies which would sit 
on top of the creator's copyrights in the programming.  Most delegates 
advocated for taking the traditional approach of  outlawing "theft of 
service" regarding broadcast signals, but the SCCR Chairman Jukka Liedes 
was adamant about taking the unprecedented move of creating new 
intellectual property rights for broadcasting companies. 

*Member States Concern Over "Anti-Circumvention" Rights Ignored*

Also over the objections of the majority of Member States, Liedes has 
thus far insisted on retaining the wildly unpopular anti-circumvention 
provisions in the treaty.  The anti-circumvention rights would allow 
broadcasting companies to lock-up public domain programming and make it 
illegal for anyone to bypass those "digital locks".   Similar 
anti-circumvention rights for copyright holders have already been shown 
to create harmful unintended consequences like restricting free speech, 
chilling innovation, and stifling competition.  Many Member State 
delegates questioned the wisdom of creating another set of 
anti-circumvention rights for broadcasting companies.  Columbia 
submitted a proposal 
<http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=58472> 
specifically designed to address the harm caused by creating broad new 
anti-circumvention rights.

*Unreasonably Long Term Troubles Majority of Member States*

The excessively long term for the new rights of 50 years remains a 
sticking point for many Member States.   A 50-year term per broadcast is 
more than twice the international standard of 20 years in the Rome 
Convention for broadcast signals and far exceeds the economic lifespan 
of a broadcast.  Developing countries are particularly concerned that 
the term's length will create a significant barrier to knowledge and 
education.  But no justification has been given for the need for a term 
of 50 years.

*Artists' and Performers' Rights Subordinate to Broadcasters' Rights*

Many copyright holder groups remain concerned about the impact the 
proposed treaty will have on their existing rights.  Under the proposed 
draft text, artists would need to get permission from broadcasting 
companies to use their own performances.  A wide range of musicians, 
journalists, song writers, actors, and other performing artists have 
expressed concern that the treaty would subordinate their rights to the 
new broadcasters' rights.

*Intel Warns WIPO that Treaty is Harmful to Innovation*

Intel Corporation and a growing number of technology companies were in 
Geneva for the SCCR 14th session to tell Member State delegates about 
the treaty's harmful impact on innovation and competition.  In a letter 
to WIPO, Intel said that it was against the Broadcasting Treaty because 
the burdens created by the new broadcasting rights would outweigh any 
benefits they may provide. 


*Webcasting Deferred - Internet Transmissions of Broadcasts Still Covered*

The treaty's most controversial provision, a proposal by the United 
States to create a separate new "webcasting" right through an "opt-in" 
appendix <http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=57214> 
has been thrown out of this proposal, but will go forward in a later 
instrument.  The deal struck at the conclusion of the 14th SCCR was that 
webcasting be separated from this "traditional" Broadcasting Treaty and 
dealt with in a broader, "new media" specific treaty proposal next 
year.  The United States threatened other Member States that if they did 
not vote for a Diplomatic Conference to begin formal treaty drafting at 
this fall's General Assembly meeting, then it would consider a 
webcasting right to be back in the Broadcasting Treaty.

While the separate webcasting right was removed from this proposal, the 
Internet transmission of broadcasts remains covered under the proposal's 
"retransmission right" in Article 6.  The broadcast companies are given 
the right to prevent retransmission "by any means" and specifically via 
"computer networks".  So much ordinary consumer activity, such as 
blogging a clip from a tv show would still be made illegal by this 
"traditional" Broadcasting Treaty.

There is also uncertainty within the committee about whether or not 
"simultaneous" transmissions are included under the "traditional" 
broadcasting proposal or the forthcoming " new media" package. 

*What Next for Broadcasting Treaty?*

WIPO SCCR Chairman Liedes will draft a new treaty proposal (excluding 
webcasting) to be published on 1 August 2006.   During the first part of 
September 2006, the SCCR will hold a special session to debate and 
possibly finalize the 1 August Chairman's draft text.  At the late 
September 2006 WIPO General Assembly 
<http://www.wipo.int/meetings/en/details.jsp?meeting_id=10264>meeting, 
Member States will vote on whether or not to hold a Diplomatic 
Conference in 2007 to begin formal drafting of the Broadcasting Treaty.

If the August proposal does not begin to address the concerns expressed 
by Member States, there is a good chance that the 2006 General Assembly 
will reject a Diplomatic Conference based upon that text.

______________________________________

*SCCR Chairman's Summary of 2-Track Process
SCCR 14th Session --  5 May 2006*

*A. On protection of traditional broadcasting organizations:*

1. One more meeting of the SCCR before the General Assembly.

2. The agenda of that meeting will be confined to protection of
broadcasting in traditional sense (broadcast and cable)

3. A revised basic draft basic proposal will be prepared for the
meeting and all efforts will be made to make it available to the
Member States by August 1 2006. It will be made on the basis of
SCCR/14/2 and SCCR/14/3 and now-existing proposals and
taking account the discussions of this committee.

4. There will be a recommendation to the General Assembly
to convene a Diplomatic Conference at a suitable time in 2007.


*B. A proposal on protection of webcasting and simulcasting.*

1. The deadline for the proposals foreseen at 14th session of
SCCR concerning these webcasting and simulcasting, will be
August. 1 2006.

2. Revised document on protection of web and simulcasting
will be prepared on basis of SCCR/14/2, and the proposals, and
taking into account discussions of the committee.

3. Consultation will be taken on the matter of an agenda for a
meeting of an SCCR to be convened after the General Assembly.

________________________________________

More Information on WIPO Broadcasting Treaty:
http://www.ipjustice.org/WIPO/broadcasters.shtml

IP Justice Statement at 14th SCCR Session on Broadcasting Treaty:
http://www.ipjustice.org/WIPO/14_SCCR_050106.shtml

IP Justice's "Top 10 Reasons to Reject WIPO Broadcasting Treaty":
http://www.ipjustice.org/WIPO/2006_top10_Broadcast_Treaty.shtml

IP Justice Op-Ed in "IP-Watch" on WIPO Broadcasting Treaty:
http://www.ip-watch.org/weblog/index_test.php?p=286

IP Justice Slides on WIPO Broadcasting Treaty at iTechLaw Conference:
http://www.ipjustice.org/WIPO/050506WIPO.ppt