By William New
Just months before full-fledged negotiations are expected to begin on a treaty to boost broadcasters’ and cablecasters’ rights, World Intellectual Property Organization (WIPO) negotiators meeting this week to iron out differences struggled to find their footing for a way forward.

“It was a slow start,” said Jukka Liedes of Finland, chairman of the WIPO Standing Committee on Copyright and Related Rights. Liedes appeared to spend much of the day prodding the roomful of negotiators to say anything at all.

While no governments appeared to advance new positions or put forward proposals on the first day, Liedes floated three “non-papers” (see below) in what he said was an attempt to stir debate and move the process along.

He said there appears to be agreement to narrow the focus of the treaty, and expressed optimism about the outcome. If not, he signalled that he would be prepared to abandon the project after many years of leadership.

“I am convinced we will conclude this fairly soon,” Liedes told Intellectual Property Watch. “Otherwise, I am not disposed to lead this anymore.” He noted that he is now also responsible for significant access to knowledge projects in Finland.

“The [proposal] package will have to be made smaller,” he said, with “narrower” application and “less ‘over-protection.’”

The committee was told by the WIPO General Assembly in October to hold meetings in January and June 2007 to try to overcome differences on a draft treaty text referred to as the basic proposal. The committee is ordered to find common ground on a signal-based approach, defining the objectives, scope and object of protection, all to be addressed in a diplomatic conference, or formal treaty negotiation, late this year. This committee special session runs from 17 to 19 January.

“There seems to be a last-minute effort to try to reach consensus by narrowing the treaty,” said Sarah Deutsch of US telecommunications company Verizon, which is critical of the proposal. “The real question is, ‘what does a signal-based approach mean?’”

The meaning of signal-based could be restricted mainly to theft of signals with minimal rights for broadcasters, or it could include a greater emphasis on rights, sources said. “The divergence of views will come later when there is an actual proposal on the table,” Deutsch said.

Despite profound disagreement, the existing basic proposal, SCCR/15/2, remains the official reference document for the talks, and several governments, including Colombia, El Salvador, and Mexico, insisted that discussions continue on the basis of that document. India suggested that talks focus on objectives and scope, which it said would lead to answers to specific questions still to be addressed.

The chairman said the assembly had decided that the existing document was “too big and complicated” to be a starting point again, and that the committee must take on “relevant” portions of the text where they could get agreement. He warned that if no agreement is reached on amendments to the existing proposal, there would be no diplomatic conference.

Debate Over Non-Papers May Pick Up

On the first day, delegations seemed to be carefully feeling each other out. There were rumours that several had statements tucked in their coat pockets in case the need to make them arose. But any such papers remained tucked away, and those who did speak stayed consistent with previous positions, participants said.

Liedes doled out his non-papers sparingly during the day only when it was clear member governments were not going to proffer their own, he said. “There is no master plan … no mandate on what to do,” Liedes said afterward. He said he decided to put forward “something that reflects my understanding” of positions.

The first paper, termed a “discussion paper,” attempted to characterise the decision of the General Assembly. Some delegates quietly took issue with the language, which left open all possibilities. For instance, it said the focus should be on “live” signals, which could mean the removal of some “post-fixation” rights, appeasing critics from the technology industry and some non-governmental organisations. But the provision also said that protection could in some cases extend beyond live signals to post-fixation.

The second paper contains proposed articles on object and definitions, while the third covers proposed articles on rights and protections. Debate in the coming days will almost certainly focus on the chair’s third paper, which includes proposals to protect against decryption of broadcasts and the removal of electronic information used for the protection of broadcasters.

Liedes said his non-papers represent “an opening of minds” and a “necessity test” for a broadcasting treaty. He said there protections that broadcasters otherwise would not have internationally.

The European Union is widely seen as a driver of the treaty talks, and has held the position that the treaty may not derogate from the 1961 Rome Convention. EU delegates called for an explanation of how signals are stolen.

The United States appears to have taken a low-key role at the start. It had sought a treaty that would cover webcasting as well, but that was taken out of this negotiation last year with the possibility that it could be brought up later.

Critics remain focused on identifying any additional rights that might be granted to broadcasters, and any unintended consequences of the treaty text. Another point of question was the reference to preventing competition.

Non-governmental Opposition Continues to Rise

Meanwhile, the strongest opposition coalition yet showed up this week, including dozens of information and communications technology companies, rights holder representatives and non-governmental organisations crowding the room. The group issued a statement calling for the abandonment of a rights-based approach to addressing signal theft; the avoidance of a negotiation based on whether it is compliant with the Rome Convention; inclusion of limitations and exceptions; exclusion of coverage of fixations, transmissions or retransmssions across a home or personal network; protection against liability for network intermediaries such as telecommunications providers.

Also at the meeting, the Yale University Information Society Project, announced that it is working on a report on different approaches to protecting broadcasters’ and cablecasters’ rights over their transmission signals. The report is expected to be ready in time for the diplomatic conference scheduled for late 2007, the project said. Representatives of the project are at the meeting, talking with delegates to try to win official status to the negotiations for the report.

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

CHAIRMAN’S TEXTS BELOW
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Chair’s Non Paper- signal-based approach
Articles on Rights and Protections

Rights in the Broadcast

Broadcasting organizations shall enjoy the exclusive right of authorizing:
(i) the simultaneous or deferred retransmission of their broadcasts by any means, including rebroadcasting, retransmission by wire, and retransmission over computer networks; and
(ii) the fixation of their broadcasts.

Protection of Uses Following Broadcasting

Broadcasting organizations shall enjoy adequate and effective legal protection in respect of
(i) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts;
(ii) the making available to the public of the original and copies of fixations (distribution) of their broadcasts, through sale or other transfer of ownership;
(iii) the making available to the public of their broadcasts from fixations, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them; and
(iv) the communication to the public of their broadcasts, if such communication is made in places accessible to the public against payment of an entrance fee, or using very large screens in places accessible to the public, or made in a profit making purpose.

Protection of Encryption and Relevant Information

Contracting Parties shall provide for adequate and effective legal protection against unauthorized
(i) decryption of an encrypted broadcast;
(ii) manufacture, importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast; and
(iii) removal or alteration of any electronic information relevant for the protection of the broadcasting organizations.

Protection of the Pre-broadcast Signal

Broadcasting organizations shall enjoy adequate and effective legal protection against any acts referred to in [Article on rights and Article on encryption] of this Treaty in relation to their signals prior to broadcasting.

[end of document]

——-

Chair’s Non paper- signal-based approach
Articles – Object and Definitions

Object

(1) The provision of this Treaty shall apply to the protection of the broadcasting organizations in respect of their broadcasts.

(2) The provisions of this Treaty do not give rise to any rights in the programme content transmitted by the broadcasting organizations.

Definitions

For the purposes of this Treaty:

(a) “broadcast” means the programme-carrying signal used for transmission by the broadcasting organization;

(b) “signal” means an electronically-generated carrier capable of transmitting programmes;

(c) “broadcasting” means the transmission by wireless means of broadcasts for the reception by the public;
- such transmission by satellite is also “broadcasting”;
- wireless transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasting organization or with its consent;
- “broadcasting” shall not be understood as including transmissions over computer networks;

(d) “cablecasting” means …

(e) “broadcasting organization” and “cablecasting organization” mean the legal entity that takes the initiative and has the responsibility for the transmission of a broadcast to the public, and for the assembly and scheduling of the programme content;

(f) “retransmission” means …

(g) “communication to the public” means making the programme content of broadcasts perceptible to the public;

(h) “fixation” means …

[end of document]

——————-

Chair’s Non-Paper
Discussion Paper

Decision of the General Assembly

1. The WIPO General Assembly discussed in its thirty-third session which took place from September 25 to October 3, 2006, the question of the protection of broadcasting organizations, and decided that two special sessions of the Standing Committee on Copyright and Related Rights (SCCR) will be convened in January and June 2007 to clarify the outstanding issues. It furthermore decided that:

“…the sessions of the SCCR should aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal…”

Purpose and nature of this non-paper

2. This non-paper has been prepared with a view to facilitate the work of the first special session of the SCCR of January 2007, in order to provide basis for the consideration of the amendments of the relevant parts of the Revised Draft Basic Proposal (SCCR/15/2).

3. The non-paper reflects only the understanding of the Chair and no Delegation is bound to the thoughts presented in it.

4. In the following, the approach and the tasks of the sessions are elaborated.

The goal is to make the treaty more acceptable for all. Delegations are invited to consider the next preparatory steps based on these elements.

Approach: “on a signal-based approach”

5. The system of protection of the broadcasters’ rights has often, in colloquial language, been referred to as the “signal protection”. In the present-day discussion in Geneva, “signal-based” seems to refer, however, to something that is narrower than what has been laid down in the working documents up to now. The decision of the General Assembly, seems to indicate that the main focus should be set on the protection of the “live signal”, as this is the moment when the need for protection is most acute. In order to make the protection practicable and effective, the protection could, however, in some cases, extend beyond the live signal, to some post-fixation instances.

6. It should be stressed that the signal-based approach by no means precludes granting some exclusive rights to broadcasting organizations. The signal-based approach and the question whether the protection is rights-based or based on other legal means, are actually different aspects or dimensions of the protection.

7. The narrowing down of the Treaty could be facilitated by regrouping the provisions on rights into new combined and condensed articles on rights and protections.

If the range of exclusive rights and that of protections would be reduced, and also the object made more precise, the Delegations could consider to reduce or narrow down also other provisions, surrounding these provisions on protection.

Task 1: “objectives”

8. The main objective of the instrument is to provide a stable legal framework for the activities of the broadcasting organizations. Its focus is on the “anti-piracy” function but it provides also protection against competitors and against unfair exploitation, and against free-riding. The reason of the legal protection is twofold: the investment required for providing programme content to the public, and the easiness of exploitation by others, of the result of this investment in the new technological environment.

If the provisions on rights would be reformulated or reduced, the Delegations could also consider qualifying some of the provisions on protection to be applicable only against acts that are committed for commercial purposes, for competitive uses, or for outright misappropriations (“theft of signals”).

Task 2: “specific scope”

9. The treaty would provide a form of protection, consisting of related rights, and/or other specific protections that are not defined as rights. They are independent and self-standing rights or protections in relation to rights of authors and other rights holders of the programme content. They do not interfere with, nor do they depend on, other rights.

10. The “scope”, in the most common legal parlance on treaties, refers to the field of application, i.e. to the phenomena to which the treaty applies. It does not usually refer to the extent or level of rights and protections. However, in order to provide a comprehensive consideration of the whole “coverage” of the treaty, also the “scope of the protection” should be considered.

The Delegations could consider what elements are absolutely necessary to meet the objective of the Treaty, and the need for an adequate and effective protection.

Task 3: “object of protection”

11. The scope of the instrument is normally dictated by the definition of the object. The object of protection is the “broadcast”. The “broadcast” is also the object of protection in the Rome Convention and in the TRIPS Agreement. The term “broadcast” has not been defined in any international instrument. If now defined, the term should ideally have the same scope as in these treaties, and in any case it should not be narrower.

It is suggested that a technologically neutral definition of the “broadcast” be added to the instrument, and possibly complemented by a definition of the “signal”.

[end of document]