[WSIS CS-Plenary] UN Steamrolls Member States and Insists on Controversial Broadcast Treaty

[Robin Gross]

IP Justice Media Contact:
IP Justice Executive Director Robin Gross
+1 415-553-6261 robin at ipjustice.org


*UN Steamrolls Member States and Insists on Controversial Broadcast Treaty*
*WIPO to Outlaw Internet Transmissions of Cable and TV Programs*

Over the objection of Member States, the WIPO copyright committee 
Chairman Jukka Liedes called for convening a diplomatic conference to 
draft a treaty to create unprecedented new rights for broadcasting 
companies. At the end of the 15th session of the WIPO Standing Committee 
on Copyrights and Related Rights (SCCR), which was held in Geneva on 
11-13 September 2006, Chairman Liedes dropped the gavel to conclude the 
meeting after announcing there would be no time for further discussion 
on the controversial treaty.

“Rather than address legitimate concerns about theft of broadcast 
signals, the treaty would create 8 new intellectual property rights over 
broadcasts that are so broad they will stifle technological innovation, 
freedom of expression and access to knowledge,” said IP Justice 
Executive Director Robin Gross.

India was the loudest objector to the proposal and made several attempts 
to remind the Chair that there was no consensus among Member States to 
hold a diplomatic conference based on the Chair’s draft proposal. Other 
Member States who expressed a lack of consent regarding a diplomatic 
conference included Brazil, Argentina, Chile, Bolivia, Iran, and South 
Africa. In a surprise move, the United States changed its previous 
position and also stated its opposition to calling for a diplomatic 
conference based on the existing draft – although for entirely different 
reasons than developing countries.

“Despite WIPO’s claim that it is ‘member-driven’ and ‘consensus based’ 
in its decision making, SCCR Chairman Liedes unilaterally decided it 
would be the recommendation of the Committee to the WIPO General 
Assembly to convene a diplomatic conference in July 2007 to finalize the 
treaty,” said Robin Gross, who was present at the meeting in Geneva.

The 2004 proposal for a “Development Agenda at WIPO” designed to reform 
WIPO’s practice of favoring special interests and creating new IP rights 
that harm the public interest was prevented from moving forward in 2005 
based on the objection of only two Member States, the US and Japan. In 
an inexplicable stark contrast, numerous Member States’ objections to 
Liedes’ proposal for a Broadcasting Treaty have been ignored and Liedes 
continues to steamroll Member States into accepting his treaty.

Besides the dissent from Member States, public interest groups and major 
technology companies were also in Geneva to voice their concern with the 
dangerous provisions in the Chairman’s draft proposal. At a lunch-time 
briefing session during the SCCR meeting, Intel’s Global Policy Director 
Jeffrey Lawrence explained how the treaty will prevent the roll out of 
home networking technologies because permission will be required from 
broadcasting companies for consumers to access and use the cable and 
television programs that they have already paid for in their own homes. 
Verizon Vice-President Sarah Deutsch said that Internet service 
providers and other intermediaries also face significant legal liability 
under the treaty for transmitting programming. “A broadcaster’s right of 
control should stop at the front door of the home,” Deutsch said.

Proponents of the treaty are mainly large cable and broadcasting 
companies like Ralph Murdoch’s News Corp. subsidiary, Fox News, which 
was also in Geneva to lobby for the new rights that would allow it to 
control the way in which the public consumes news and other entertainment.

“Member-States must stop passing treaties that only benefit narrow 
special interests like major broadcasters,” Gross added. Small and 
community-based broadcasters have ardently opposed the treaty, as have 
artists and other performers, who will need to obtain permission from 
broadcasting companies to use the footage of their own performances.

An unpopular proposal from the US to include web-casting within the 
scope of the treaty was almost unanimously rejected by Member States at 
the May 2006 SCCR meeting. Nonetheless, the draft treaty still regulates 
Internet transmissions of media because Article 9’s retransmission right 
and Article 14’s right of transmission after fixation makes explicit 
that broadcasters can prevent transmission “by any means including 
computer networks.”

During the meeting, Liedes re-iterated the US’ threat from the previous 
SCCR meeting that if the Committee did not call for convening a 
diplomatic conference at this meeting, then the US would insist that the 
earlier webcasting prohibitions be included back in the treaty again.

Rather than create 8 new intellectual property rights for broadcasting 
companies, the majority of Member States argued for taking an approach 
that outlaws the theft of signals. It is already illegal to steal cable 
television under existing law in all countries. This proposal, however, 
will give broadcasting companies the power to control what consumers can 
do with those programs.

This creates a problem for a growing number of consumers who use 
technology to copy, edit, comment on, and re-use media in otherwise 
lawful ways. Internet bloggers and websites such as YouTube where people 
post snippets of media programming based on copyright law’s fair use 
privilege are also at risk. Since this is not copyright, but rather a 
brand new type of IP right, traditional fair use privileges would not 
apply to protect consumers. Television programs like Jon Stewart’s 
“Daily Show,” which uses short video clips of politician’s speeches and 
other news to provide political commentary on them, can also be 
prevented from re-using the footage if this treaty is passed.

One of the most dangerous provisions in the treaty is the proposal to 
grant broadcasters the right to lock up public domain programming using 
technological restrictions that it will then be illegal to bypass in 
order to access the public domain information. South Africa called for 
WIPO to conduct an impact assessment study to weigh the potential social 
and economic costs of these technological restriction measures.

There is also a growing trend at WIPO to restrict public-interest 
groups’ access to Member State delegates. For example civil society was 
not allowed to give any intervention statements during the meeting and 
some civil society members were told they could not take pictures of the 
proceedings. Strict new rules are also being enacted at WIPO to control 
the press’ access to the proceedings and journalists’ ability to share 
information with Member State delegates.

Sometimes referred to as “chairman for life,” Liedes of Finland has 
presided over WIPO’s copyright committee for over 10 years. “Member 
States must take some of the responsibility for their unhappiness with 
the way things are done at WIPO,” said Gross. “Despite the SCCR Chair’s 
unwillingness to respect the expressed wishes of numerous countries, 
Member States continue to re-elect him to preside over their meetings 
and impose his views on the entire committee.”

The WIPO General Assembly will decide whether to accept Liedes’ 
recommendation at its annual meeting which takes place 25 September – 3 
October 2006.



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

Chairman's current draft proposal [SCCR/15/2] 
<http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=64712>


*SCCR Chairman's Conclusions
SCCR 15th Session
11-13 September 2006*


*Recommendation on the diplomatic conference.*

A diplomatic conference on the protection of broadcasting organizations 
be convened [11 July - 1 Aug 2007] in Geneva. The objective of this 
diplomatic conference is to negotiate and conclude a WIPO treaty on the 
protection of broadcasting organizations, including cablecasting 
organizations. The scope of the treaty will be confined on the 
protection of broadcasting and cablecasting organizations in the 
traditional sense.

*Conclusions on the preparatory steps*

*Basic Proposal*

A basic proposal for the diplomatic conference will be prepared on the 
basis of the revised draft basic proposal [SCCR/15/2] 
<http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=64712> and the 
discussions in the September meeting of the SCCR, as well as the 
drafting instructions below, adopted by the SCCR. The basic proposal 
shall be distributed to the Member States of WIPO, the European 
Community, as well as to the observer organizations by 15 December 2006. 
All Member States may make new proposals at the diplomatic conference.

*Preparatory Committee*

There will be a 2-day meeting to clarify outstanding issues in 
conjunction with a Preparatory Conference. The meeting of a preparatory 
committee will be convened for January 2007, to prepare the necessary 
modalities of the diplomatic conference. The preparatory committee 
considers the draft rules of procedure to be presented for adoption to 
the diplomatic conference, the lists of states, as well as IGOs and NGOs 
to be invited to participate in the conference, as well as other 
necessary organizational matters.
*
Consultation and information meetings*

The Secretariat of the WIPO will organize, in co-operation with the 
Member States concerned, and at the request by the Member States, 
consultations and information meeting on the matters of the diplomatic 
conference. The meetings will be hosted by the inviting Member State.

*Instructions for the Preparation of the Basic Proposal*

The following is provided in order to allow consideration of whether the 
items should be retained, reformulated or deleted.

*General*
The basic proposal will be designed to clearly indicate the nature, the 
focus and the scope of the instrument, i.e. the treaty will provide 
protection for the signals of the broadcasting and cablecasting 
organizations without affecting or addressing the rights on content 
carried by the signal.

*Preamble*
- A revised preamble will be prepared in order to clarify the objectives 
of the treaty. Explanatory notes shall further amplify these issues.
- Regrouping of provisions on certain general principles in the Preamble.


*Definitions*
- definition of "signal" will be added
- concept of "broadcast" will be explained or defined


*Scope*
- provisions on the scope will be refined (signal, broadcast)


*Rights and protection*
- a broad-based exclusive right of retransmission
- exclusive right of (the initial) fixation
- post-fixation rights


*National Treatment*
- the main principle
- in areas where different levels of protection are allowed, possibility 
for reciprocity.

*
Limitations and exceptions*
- the WPPT type of provisions on limitations and exceptions
- list approach

*
Technological measures*
- as in the revised draft basic proposal
- certain conditions


*Term of protection*
- at least 20 years


*Eligibility*
- unconditional, open for all Member States of the WIPO, as well as for 
inter-governmental organizations