By William New
World Intellectual Property Organization negotiations for a treaty on rights for broadcasters broke down at the eleventh hour, according to participating government officials. A high-level final treaty negotiation scheduled for November will not take place, they said.

The outcome will not be official until Friday, however, when the Standing Committee on Copyright and Related Rights resumes in a plenary session. Government sources stopped short of calling the treaty talks dead forever, saying that proponents might still propose a way to resume the talks in the future.

Too many fundamental disagreements over proposed draft treaty text made it clear that the committee would not be able to make a clear recommendation to the September WIPO General Assembly that the high-level negotiation, or diplomatic conference, should be held in November as scheduled, participants in the closed-door negotiations told Intellectual Property Watch.

At issue is a proposal to increase the rights of broadcasters and cablecasters over their transmissions in order to prevent signal theft, under discussion in the 18-22 June committee meeting. The 2006 WIPO General Assembly mandated that the committee narrow differences on a 100-plus page proposal, SCCR 15/2, in order to proceed to the November diplomatic conference. This was the final scheduled meeting of the committee before the General Assembly makes its decision in September.

The discussion stalled progressively as objections and alternatives to language in the chair’s unofficial draft treaty proposal piled up, sources said. But it turned on a statement by the US delegation late Thursday night that it could not see any way to resolve differences in the time remaining. The US said that in the entire paper under discussion they saw “not a single area of agreement,” whether it was new or years-old proposals, a US official said.

“We weren’t being pessimistic, we were being realistic,” the official said, as it recognised the General Assembly’s mandate could not be fulfilled. “We were confident that agreement on these key issues was not within our grasp, even if we had additional days,” the official said.

Several countries spoke after the United States, either opposing or regretting the inability to hold the diplomatic conference, including Brazil, India, Canada, Switzerland, Algeria (on behalf of the African Group), Kenya, and Benin, according to one official. [Editor's Note: this list includes countries that supported moving to a diplomatic conference and countries that opposed it.]

“There are some strongly held but widely divergent views,” the US official said. Another factor was the recognition that technologies have continually evolved since the start of the broadcasting negotiation nearly 10 years ago, the official said.

India made reference to the negotiation not proceeding “by any means necessary,” which also was one of the more contested phrases in the chair’s draft text. “We strived and struggled but could not reach consensus,” said an Indian official, adding that this left the group with the decision “this diplomatic conference won’t take place.”

The committee recommendation to the assembly on how to proceed could be highly contested on Friday, officials said. One participant said Chair Jukka Liedes of Finland, who has led the talks for 10 years, has been creative in the past at keeping the negotiation alive despite adversity. “He has a very fertile mind,” the participant said.

10 Years and Still Divided

The unsuccessful outcome of key talks Thursday at the World Trade Organization down the street also rippled through the hallways of WIPO but officials said there was no direct link. If you asked five officials coming out of the closed-door negotiations at midday Thursday, you got five different answers on whether they are likely to proceed to a final treaty negotiation later in the year. But continued disagreements during the day, captured in two unofficial draft papers, led delegations to declare they could not recommend proceeding.

The 21 June draft “non-paper” available here.

It has been difficult to gauge progress this week on the high-profile treaty proposal. The week’s discussions have focused on a document that has not yet been officially recognised, a 10-page non-paper from the meeting chair, who said he based it on consultations with members.

The final day of the weeklong meeting was set aside for a preparatory committee meeting to work out procedures for the November diplomatic conference.

New versions of paper finally emerged on Thursday showing that members had added many alternatives to the chair’s version of the provisions. Members said there was also concern about the chair’s discretion in handling proposals from governments. Europe was seen as the strongest proponent for the treaty.

The members overruled the chair and chose to proceed this week on an article-by-article approach. During the week, a number of new proposals were suggested to change language of the non-paper to the point where some officials said it would be difficult to recommend to the General Assembly that a treaty is in sight.

“In addition to having a lot of proposals you have a lot of directions,” said one participating official. “They are not merely divergent, they are adding new things to the treaty. That makes it difficult to find one single goal to go to.”

Heading into the second late-night session in a row, key provisions remained to be addressed, including technological protection measures, which could be used by broadcasting companies to control access to content.

Also to be dealt with are three paragraphs being referred to by some as ‘public interest’ provisions, which would highlight a need to balance broadcasters’ rights with public interests, promote access to knowledge, prevent anti-competitive practices, and safeguard cultural diversity.

These three paragraphs were moved by the chair into the preamble of the treaty, and a key disagreement is over whether they should remain there. Supporters of moving them back to the main text appeared to include Brazil, Chile, India, Venezuela and the African Group, sources said. The United States, Switzerland, Japan and Colombia have said they want them to stay in the preamble, they said.

Proposed modifications included a dozen possible changes to the basic definitions alone. Other suggestions were limits on the scope of the treaty, removal of references to computer networks, exclusive rights, and an apparent carve-out offered by the United States for sports broadcasters.

Meeting Closed to Stakeholders

Intergovernmental and non-governmental groups were removed from the room after the second day. Chairman Liedes, who missed the second day to attend to business back home in Finland, told Intellectual Property Watch the meeting was moved to informal status to add “flexibility” for negotiators.

That action filled the expansive WIPO lobby with lobbyists from a wide range of countries and disciplines, such as broadcasting, film, music, telecommunications, professional sports, online media, high technology, and many public interest groups. Representatives were on hand from some of the world’s biggest companies.

Ten nongovernmental groups from a variety of global regions issued a joint statement on 20 June calling on delegates to stop the negotiation and reject the treaty proposal. “After more than 9 years of discussions, efforts to find a treaty formulation that deals with piracy of broadcast signals, but which does not harm copyright owners and the legitimate users of broadcasts have failed,” they said.

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