By Robin Gross, IP Justice

From 1-5 May 2006, the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) will hold its 14th Session in Geneva to determine the fate of the controversial Broadcasting Treaty.

In its final meeting before the General Assembly votes this autumn to send the proposed Broadcasting Treaty to a Diplomatic Conference for final treaty drafting, WIPO delegates will debate a far-reaching “wish list” of new rights for large broadcasting companies.

The proposed broadcasting treaty would create entirely new global rights for broadcasting companies who have neither created nor own the programming. What’s even more alarming is the proposal from the United States that the treaty regulate the Internet transmission of audio and video entertainment.

It is dangerous and inappropriate for an unelected international treaty body to undertake the task of creating entirely new rights, which currently exist in no national law, such as webcasting rights and anti-circumvention laws related to broadcasting. A global treaty is not the place for experimentation with new rights, but rather for the harmonization of existing legal norms. WIPO treads on shaky ground by proposing to create new rights that no elected body in the world has yet agreed to.

Artists are opposed to the broadcasting treaty because it would subvert creators’ rights to the new rights granted to broadcasting companies. Under the proposal, artists would need to beg permission from broadcasting companies in order to make any use of their own performances.

The general public interest would be harmed by the treaty’s proposal to ban bypassing “digital locks” used by broadcasting companies to restrict access to programming. WIPO treaties of 1996 created similar anti-circumvention rights for copyright holders. Laws such as the controversial US Digital Millennium Copyright Act (DMCA) of 1998 implemented this treaty in the United States. Even after many have doubted the wisdom in creating such rights for copyright holders, no case has yet to be made why broadcasting companies should be given an additional set of rights to lock information away. The negative unintended consequences of anti-circumvention measures have been shown to be more dangerous in practice than the harm they intend to address. A refusal to weigh the social costs of anti-circumvention measures would ignore the resolution of the WIPO General Assembly for a development agenda at WIPO in line with development goals and the global public interest.

The proposal threatens the public domain since it allows broadcasting companies to fence it off, while making it illegal for the public to access what is lawfully theirs. Existing fair use rights to use copyrighted broadcasts would vanish under the treaty as well. For example, if US President Bush gave an interview to Fox News, Fox could prevent any subsequent use of that footage including fair use, commentary, or criticism of President Bush - at its sole discretion - under the new anti-circumvention rights created by this treaty. Much of the political humor available on Comedy Central’s “The Jon Stewart Show” could become illegal under this treaty. Bloggers and other citizen journalists would also suffer because they would need permission to use small portions of video for news reporting, commentary or educational uses. In response, Colombia submitted a proposal that would permit circumvention to facilitate non-infringing uses of broadcasts.

In prior SCCR meetings, an overwhelming number of WIPO member states argued against including anti-circumvention measures in the treaty; yet this provision still exists in the current draft. Rather than include it as an appendix, these measures should have been removed from draft and placed in “working paper” since they received so little support.

The current draft reflects a basic lack of respect for the concerns addressed by numerous member states at prior SCCR meetings that discussed these provisions. International treaty bodies that claim to be mere instruments of the will of their member states cannot simply ignore the concerns of the vast majority of member states who expressed discomfort with any type of anti-circumvention measures or webcasting provisions in the treaty. A United Nations specialized agency has an obligation to uphold certain democratic principles when deciding how to draft a treaty. A refusal to make substantive changes in the proposal’s text to reflect concerns expressed by member states calls into question the legitimacy of the entire process.

The current proposal would obligate countries to pass laws in excess of their existing obligations under TRIPS [World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights]. The proposal’s increase in the term of the broadcasters’ rights, and its restriction of the exceptions and limitations to these rights create a significant barrier to the access to knowledge.

The proposed broadcasting treaty would also stifle innovation and favor entrenched industry players. Member States should be cautious of this proposal and the benefits it promises. The social costs to creating yet another layer of broadcasting rights that sit on top of creators’ rights cannot be ignored.

The current Basic Draft is such a poor reflection of the expressed will of WIPO member states that the broadcasting treaty is nowhere near ready for a Diplomatic Conference at this time.

Robin Gross is an attorney and Executive Director of IP Justice, an international civil liberties organization that promotes balanced intellectual property laws. IP Justice is based in San Francisco, California (US).