WIPO COMMITTEE APPROVES BROADCAST TREATY AMIDST DISAGREEMENT

In spite of persistent differences over its content, a potential new treaty to update the rights of broadcasters over their transmissions received the backing of a World Intellectual Property Organisation (WIPO) committee on 13 September.

After discussions from 11-13 September, the chair of WIPO's Standing Committee on Copyright and Related Rights (SCCR) decided that there was sufficient consensus on the proposed agreement to send it to a 'diplomatic conference,' the final stage for the negotiation of a treaty. Thus, even though the meeting left several member states feeling unsettled, the committee will ask WIPO's General Assembly, which kicks off on 25 September, to convene one in July 2007. Chair Jukka Liedes (Finland) suggested that countries could discuss their remaining disagreements in the interim, specifically alongside a January 2007 preparatory meeting for the diplomatic conference.

Differences on text persist

The nature and scope of rights conferred by the proposed treaty remain a source of controversy. As it stands, the draft text would confer on broadcasting and cablecasting organisations exclusive rights over anything they transmit -- equivalent to a new intellectual property right.

US and EU broadcasters, who have strongly backed the negotiations, say that they need such protections to prevent their signals from being stolen and retransmitted on a large scale.

Sceptics, from the high-tech industry, civil society, and many developing countries, warn that if the treaty's scope remains wide, it could end up substantially raising the costs of using broadcasted material for personal or educational purposes, and could restrict the entry of information into the public domain. Prior to the meeting, several non-governmental organizations (NGOs) and major multinational companies, including Dell, Intel, and Sony, released a joint statement saying that there was "no justification" for a new treaty. Some suggest that the broadcast industry is simply trying to protect itself by stymieing innovation in new digital technologies, as it unsuccessfully attempted to do with the VCR in the 1980s.

During the talks in Geneva, negotiators observed that even such central terms as "signal" and "broadcast" had not been clearly defined, rendering it hard to clearly determine the precise scope of the treaty. Developing countries including Brazil, India, Iran and Argentina reiterated that any implicit or direct reference to webcasting and simulcasting should be specifically excluded from protection under an eventual treaty. The two forms of transmission over the internet were split off from the negotiations at the SCCR's last meeting in May, in the face of US opposition (see BRIDGES Weekly, 10 May 2006). At the recent meeting, most developing countries stressed that broadcasting should be understood in the traditional sense, thereby excluding activities such as transmission over the internet.

An important point of contention was whether or not technological protection measures (TPMs; for example, 'broadcast flags' that make transmissions unrecordable) should be included within the scope of the draft treaty. The treaty currently contains an option to exclude TPMs, which has placated many developing countries. The US and some other developed countries, on the other hand, would like to see such measures covered by the treaty.

Supporters of narrowing the scope of treaty rights and excluding TPMs argue that both are necessary to protect access to knowledge, information in the public domain, and personal use. Countries such as South Africa stressed that any treaty would need to maintain an appropriate balance between the economic interests of the broadcasting organisations and the freedom of expression of individuals. Other governments cautioned that a treaty might adversely affect competition.

To address these concerns, many countries asked for the flexibility to determine limitations and exceptions to treaty obligations, in order to suit specific national needs and conditions. They emphasised the need for the policy space to draft provisions reflective of their own priorities and interests. Yet again, member states differed widely, and the issue was passed on to the diplomatic conference -- in the event, of course, that the General Assembly agrees to convene one.

Diplomatic conference scheduled for July 2007

Numerous countries expressed their disagreement over the initiative to call for a diplomatic conference, both inside and outside the meeting rooms. Nevertheless, Liedes deemed members to have consented "by silence" at the end of the meeting to recommend convening one from 7 July to 1 August 2007. He said that the draft proposal (SCCR/15/2) would constitute the working basis for this diplomatic conference, which would aim at finalising a broadcast treaty, with 'broadcasting' to understood in the traditional sense.

These conclusions elicited negative reactions from developing country negotiators, who argued that the draft proposed treaty was far from ready to form the basis of a diplomatic conference, given the divergence of views on its content. India stated that since three meetings of the SCCR had failed to produce consensus, this would likely happen at the diplomatic conference as well. The US, too, expressed reservations on making the draft proposal the basis for the conference, stating that there were numerous uncertainties in it that would first need to be resolved. WIPO meetings generally operate on the basis of consensus. On being questioned by countries such as India about the level of support for the committee's decision, Liedes said that that the call for a diplomatic conference on the treaty was no more a recommendation for the General Assembly to decide on.

Though unable to voice their opinions during the meetings, civil society and industry representatives expressed serious objections to the treaty.

A representative of a performers' organization in Europe noted that member states were considering updating broadcasters' rights under the 1961 Rome Convention while performers' rights had been in cold storage for about as many years.

The Consumer Project on Technology's Thiru Balasubramaniam was particularly critical of the way in which Liedes deemed the draft text approved. "We feel that the chair, Jukka Liedes, deserves a red card for his conduct during the negotiations, he said. "For the second consecutive time, he silenced the voice of non-governmental organizations -- public interest and industry alike." The SCCR chair, Balasubramaniam added, "steamrolled over the procedural and substantive concerns expressed by the US, India, Bolivia, Argentina, Iran and Brazil through a byzantine 'silent approval' vote. Proceeding to a diplomatic conference with a 108 page text riddled with inconsistencies is a recipe for disaster."

The future of the proposed broadcast treaty will be determined by the upcoming WIPO General Assembly, which is also set to consider the fate of a series of proposals to integrate developmental concerns into every aspect of the organisation's functioning.

ICTSD reporting; "WIPO: Broadcast Treaty Moving Forward Despite Objections" GWEN HINZE and THIRU BALASUBRAMANIAM (http://www.eff.org/deeplinks/archives/004913.php), 16 September; "WIPO Broadcasting Treaty Advances Past Disagreements," INTELLECTUAL PROPERTY WATCH, 14 September 2006; "Proposed Treaty on TV Signals Spurs Criticism," LA TIMES, 13 September 2006.