By William New
World Intellectual Property Organization members on Friday recommended to move talks on a proposed broadcasters’ and cablecasters’ treaty back to committee level for further consideration, a day after rejecting a proposal to elevate the issue to formal treaty negotiations. The move could signify a shelving of the issue, some nine years after discussions first began.

The issue of updating the 1961 Rome Treaty on broadcasters’ rights was addressed in the 18-22 June meeting of the WIPO Standing Committee on Copyright and Related Rights. The group was mandated to try to reconcile differences this year so the 2007 WIPO General Assembly in September could send it on to formal negotiations (or diplomatic conference) scheduled for November. Members said the mandate could not be fulfilled.

“An idea whose time has come is unstoppable,” the Indian delegate told the closing plenary session. But the past decade of talks on the treaty idea has served to show members the “deep fault lines” between them on the issue, he said. The Indian official suggested there might be better uses of the committee’s time now, such as working to ensure access to knowledge and education for all members. Other observers pointed to an existing Chilean proposal in the committee to discuss exceptions and limitations for libraries and other special users.

Committee Chairman Jukka Liedes of Finland, the veteran chair of the broadcasting talks, oversaw an effort in the last hours to rescue the process by proposing a special session of the committee in autumn and the diplomatic conference in 2008.

But countries such as India and rest of the Asian Group, and Brazil, said they would not agree to specific dates after this year’s effort showed how far apart governments are on the issue. Some countries, including in Europe and several in Africa and Latin America, urged that the talks be continued.

But it was agreed to recommend postponing the diplomatic conference indefinitely, giving “time for reflection” and returning the issue to the regular meetings of the copyright committee. The recommendation would leave it that the committee could recommend the General Assembly schedule a diplomatic conference whenever it agrees the text is ready.

The talks broke down at the eleventh hour before moving to the diplomatic conference (IPW, WIPO, 22 June 2007).

WIPO Sees Talks Advancing

Liedes and WIPO Deputy Director General Michael Keplinger in a press briefing defended the outcome and signalled the intent to forge ahead with treaty talks. “I think we have made tremendous progress,” Keplinger said, as members have carefully examined alternatives for protecting broadcasts. “I don’t consider this a failure at all. We’re looking at a process that is advancing.”

“We are in a marathon,” Liedes said, likening the setback to a “cramp in the leg.”

Keplinger, who came on board about six months ago, said there have only been six months of actual negotiations and that members are still learning about the subject. The previous 8 years were “discussions,” during which members were learning about the topic, he said.

“This is not a topic that is well-known,” Keplinger said, adding that since discussions began, the number of countries signing on to the Rome Treaty has nearly tripled to almost 90. But more than half of WIPO’s 184 members are not members of Rome, which could be improved through continuing the negotiating process, he said, adding that there was “momentum” now.

Both officials downplayed the notion that technological developments have rendered obsolete the need for the treaty, as has been occasionally suggested by members. In fact, the evolving technological environment “makes it necessary” to update it, one said.

Liedes also defended his dogged efforts to get the treaty through, sometimes through creative chairmanship. “Some of us recognise that broadcasters might be in a position to licence re-use of their broadcasts,” he said, creating a “balanced and fair way their investment is used in other territories.”

The official basis for the negotiation is a lengthy text numbered SCCR 15/2, which reflects a wide divergence in views. Liedes developed several shorter “non-papers” reflecting his consultations with members in recent months and intended to provide a potential basis for narrowing the larger text.

“It’s kind of sad,” an opposing official said afterward. “But realism finally prevailed. These issues are difficult. It was a prudent decision.”

NGO Reaction

Public interest groups and technology companies appeared pleased with the outcome. James Love, director of Knowledge Ecology International, said the committee’s action “set a high bar” for a scheduling of a future diplomatic conference: “After there is agreement on the objectives, scope and object of protection, topics for which there is no agreement in sight.”

Love said the negotiation reflects a change in WIPO from primarily responding to rights-holders needs to broader issues related to the impact of intellectual property rights. In this case, he said, “the broadcasters demanded too much, and made too few concessions, for the treaty to move forward.”

Rights holders and broadcasters groups did not offer comments at the conclusion.

Earlier in the week, the Electronic Frontier Foundation presented an open letter to WIPO signed by more than 1,500 podcasters from around the world expressing concern about the impact of the treaty on the future of podcasting. “Giving traditional broadcasters and cablecasters exclusive rights over deferred Internet retransmissions that apply in addition to copyright is also likely to harm emerging citizen broadcasting on the Internet, such as podcasting, at a time when it is still unclear whether incumbent broadcasters will be displaced by these new modes of Internet media,” EFF’s Gwen Hinze said in her statement to the meeting.

William New may be reached at wnew@ip-watch.ch.