CHILE AND BRAZIL PROPOSE PUBLIC INTEREST EXEMPTIONS TO WIPO BROADCAST TREATY

Brazil and Chile's calls for a series of public interest exceptions to be entrenched in a future treaty on the rights of broadcasting organisations took centre stage during negotiations at the World Intellectual Property Organisation (WIPO) from 21-23 November. Many countries have expressed concerns that the future treaty, which seeks to update the rights of broadcasters in light of technological advances in recent decades, could pose restrictions on access to knowledge, the development of educational materials, and private use of broadcasted material.

In WIPO's Standing Committee on Copyright and Related Rights (SCCR), countries have been debating the rights to be granted to broadcasters. The recent session saw discussions on the second draft of the potential treaty (SCCR/12/2 Rev.2). The Rome Convention of 1961 gives certain rights to performers, the recording industry and broadcasting organisations. Nevertheless, rights given to the first two are wider than those given to broadcasters. For example, public sound broadcasts are not covered. Broadcasting organisations' desire to obtain a similar level of protection -- expanded to include new technologies such as cable broadcasts -- is one of the driving forces behind the current negotiations. A controversial issue on the table is the nature of the rights that they could be granted -- for instance, whether these would be rights to signals or the actual content of broadcasts. Another point of contention is whether or not a new treaty should cover webcasting, or broadcasts over the internet.

Many developed and developing countries have expressed general support for the process, with the exception of extending it to cover webcasts, a proposal which has few supporters other than the US. Nevertheless, Chile and Brazil, in a set of separate proposals on exceptions and limitations to the treaty, stressed the need to ensure that future broadcasters' rights do not work against the public interest.

The Chilean proposal (SCCR/13/4 and 5), dated 22 November, warned that a future treaty could pose obstacles to the development of social initiatives such as public libraries, distance education, and programmes for disabled people, particularly in developing countries. It thus suggested exempting several potential uses of broadcasts from the rules of the future treaty, including private use, news reporting, temporary electronic copies, teaching or scientific research purposes, use by disabled people, and use by libraries and museums. The paper also proposed a clause that would oblige national governments to prevent broadcasters from engaging in anti-competitive or abusive behaviour.

The same day, Brazil made a proposal (SCCR/13/3) calling for a general public interest clause, a broad copyright limitation and exception clause, and a minimum list of exceptions to be present in a future treaty. The general clause would specify that "nothing in this Treaty shall limit the freedom of a Contracting Party to promote access to knowledge and information and national educational and scientific objectives, to curb anti-competitive practices or to take any action it deems necessary to promote the public interest in sectors of vital importance to its socio-economic, scientific and technological development." The Brazilian proposal would also allow parties to provide, in national legislation, for exceptions or limitations of the sort found in existing copyright treaties including the Bern Convention, the Rome Convention, WTO rules, and WIPO internet treaties. It included a list of exceptions that would meet the tests laid out in the relevant clauses of these treaties.

Reactions to these proposals were mixed. The US delegation said that Brazil's paper raised serious concerns, and indicated that capital-based officials would look at both proposals more carefully. Switzerland stated that it would prefer to explore new options on limitations and exceptions at a later stage.

Many developing countries and some developed countries welcomed the discussions on limitations and exceptions to a future broadcast treaty, and said that further work would be needed in this regard. Countries including Argentina, Paraguay, Syrian Arab Republic, India, Uruguay, Iran, Brazil, Egypt, Costa Rica, Dominican Republic, Senegal and Bangladesh, expressed support for the Chilean proposal.

The Civil Society Coalition (CSC), a group of 28 public interest non-governmental organisations (NGOs), welcomed the Chilean proposal, and issued a statement indicating that the limitations and exceptions are essential to ensuring that the copyright system is consistent with the public interest, human rights and the promotion of new creativity. On the other hand, some groups representing publishers, authors, composers, and broadcasters expressed concerns that limitations and exceptions might be excessive.

The September 2005 WIPO General Assembly directed the SCCR to step up work on the rights of broadcasters with a view to adopting an international treaty by 2007. Supporters of the broadcast treaty hope that WIPO member states will be able to agree at the September 2006 General Assembly to set the stage for finalising the treaty.

ICTSD reporting; "Brazil Seeks Knowledge Access, Diversity In WIPO Broadcasting Treaty," INTELLECTUAL PROPERTY WATCH, 18 November 2005; "Development: Debate at WIPO on limitations and exceptions to copyright," SOUTH-NORTH DEVELOPMENT MONITOR (SUNS), 28 November 2005; Civil Society Coalition Statement, 22 November 2005.