By John T. Aquino for Intellectual Property Watch
WASHINGTON, DC – At the 3 January roundtable discussion concerning the work at the World Intellectual Property Organization (WIPO) on a broadcasters’ rights treaty, many of the more than 50 participants were vocal in their opposition, with some in support. Most said the proposed treaty was unnecessary and, if it was deemed necessary, must be signal-based and exclude any reference to exclusive rights for broadcasters. Some, however, indicated that the concerns about the unforeseen effects of exclusive rights were “overblown.”

The proposed Treaty on the Protection of the Rights of Broadcasting Organizations under debate in the Standing Committee on Copyright and Related Rights (SCCR) has been eight years in the making. Although broadcasters’ rights are protected under existing international agreements such as the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations and the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), some have felt that changes in technology and the opening up of much of the world to commercial broadcasting have made the protection provided in those agreements ineffective to safeguard broadcast signals against piracy.

In September 2006, the WIPO General Assembly decided to convene two special sessions of the SCCR in Geneva in 2007 – the first on 17-19 January and the second in June (IPW, WIPO, 4 October 2006). The assembly specified that the approach of the treaty should be narrowed to signal-based issues. The SCCR would then submit a revised basic proposal that would amend the agreed-upon relevant parts of the Revised Draft Basic Proposal (WIPO Document SCCR/15/2). A diplomatic conference, or formal treaty negotiation, will be convened in November 2007 if such agreement is achieved. The 3 January roundtable here was held in preparation for the 17 January meeting.

Technology companies have stepped up their opposition to the proposal in recent months. Attorney Jim Burger, representing Intel, Hewlett Packard and Dell Computer, said, “We really don’t need a new treaty. TRIPS works fine for copyright.”

Jamie Love, director of the Consumer Project on Technology (CP Tech), took the view that the latest draft proposal is a massive, complicated text and inconsistent with the General Assembly’s desire to slim it down to a signal-based approach. While arguing that evidence that a treaty is necessary has not been presented, Kevin G. Rupy, director of policy development for US Telecom, applauded the WIPO assembly’s decision to move forward with a signal-based approach, narrowly tailored to address any harm without granting broadcasters exclusive rights.

Gwen Hinze of the Electronic Frontier Foundation indicated that the draft proposal focuses on the rights of recording and intellectual property rights and urged the US delegation to pursue a signal-protection approach. Sarah Deutsch of Verizon argued, “Not only do we want to do no harm to copyright, we want to do no harm to US concerns.” There are signals all around, she said, and adopting a rights-based approach could mean attaching additional fees and adversely affecting the consumer. “All unintended consequences disappear if we look at a signal-based approach,” Deutsch said.

Others expressed concern that creating additional property rights for broadcasters would create additional layers of IP and clearance issues. “If signal theft begins to look like exclusive rights, then we haven’t gotten very far with this,” said Jonathan Band of the Library Copyright Alliance. Neal Jackson, general counsel for National Public Radio (NPR), said NPR was opposed to adoption of the treaty unless there was a provision in it to protect the equivalent of the fair use doctrine in the United States. “From our limited perspective as broadcasters, we believe it’s almost a human rights issue.”

There were some who argued in favour of the treaty. While supporting the signal-based approach, Fritz Attaway of the Motion Picture Association of America (MPAA) noted that other countries in the world provide exclusive rights to broadcasters without the dire consequences others at the roundtable were predicting. “These concerns are overblown,” Attaway concluded. Ben Ivins of the National Association of Broadcasters (NAB) insisted, “There is nobody in this room who says these horrible things are going to happen who can provide us with any examples where home use was disrupted.” In addition, Erica Redler of the National American Broadcasters Association noted that, while others were claiming that all content is already protected, news and court content does not receive protection in some other countries.

Question of Broadcasts over the Internet

Lee Knife of the Digital Media Association lamented the deletion of webcasting from the treaty draft. “My member organization understood that the purpose of the treaty was to move the current protection into the future, including webcasting and netcasting.” MPAA’s Attaway agreed, saying, “If the treaty does not cover the Internet, it is meaningless.”

CP Tech’s Love wondered aloud, “Who are the beneficiaries of the treaty?” and proposed that it was the cable companies, especially since cable was not covered by the 1961 Rome convention. If the big cable conglomerates gain something in the process, Love suggested, then copyright holders are going to lose something. NAB’s Ivins scoffed at the idea that the treaty was a plot or conspiracy of some kind, noting that the first proponent of the treaty had been Switzerland and that the United States had come into the process fairly late.

At the conclusion of the roundtable, Michael Keplinger, new WIPO deputy director for copyright and related rights, advised that, because there would be some traditionalists who would say that the new treaty could not detract from the 1961 Rome Convention, it would have to include some component of a rights-based approach. It would, he agreed with many of the participants, be a difficult process. He had been told by the General Assembly, he added, that unless there is agreement there would be no diplomatic conference in November 2007.

“We very much hope in January that there are productive discussions for a narrower treaty with a signal-piracy approach,” Keplinger said, adding that it was unfortunate that webcasting had been deleted from the treaty and the hope that it could be readdressed in some other way in the near future.

John T. Aquino may be reached at info@ip-watch.ch.