By Monika Ermert for Intellectual Property Watch
The Council of Europe is deliberating on whether to negotiate a convention to protect broadcasters’ signals against piracy and thereby take up the issue from the World Intellectual Property Organization (WIPO) where negotiations on a proposed broadcasting treaty came to a standstill earlier this year.

The Council’s decision to proceed depends on approval by its Committee of Ministers. The Council of Europe, based in Strasbourg, France, predated and includes the European Union members.

With only 47 member states from Europe and other western societies to agree upon a convention, the Council of Europe might succeed where WIPO failed. WIPO’s 184 member states could not agree on a basic text for a broadcasting treaty after several years of discussions and cancelled a diplomatic conference (a full negotiation) scheduled for November. European countries were among those pushing hardest for a treaty at WIPO.

A Council of Europe convention would reinforce the organisation’s earlier “recommendations” on the protection of broadcasting and neighbouring rights, said Jan Malinowski [Note corrected spelling], head of the Council’s Media and Information Society Division. It would do this “by establishing a stronger legal basis in international law [to] provide guidance to states as to how to regulate the matter.”

Signal piracy could be a problem, especially in the cross-border context, according to experts at the Council. “For example, you can have television programmes with content licensed by the copyright owners for a particular territory where the signal is picked up by a cable operator and distributed to its subscribers within a different territory without this latter distribution being licensed,” explained Malinowski. This was the subject of a 2006 opinion of the “Standing Committee on Transfrontier Television.” A convention would provide a solid legal basis for enforcement on copyright rules in this type of cross-border issue.

“As in many other cases,” Malinowski said, “the Council of Europe would provide a framework for dialogue within which states would work out the standards that they wish to apply, having regard to the values of human rights and the rule of law for which this organisation stands.”

If WIPO had temporarily and for whatever reason “ceased to provide such space for working out a common international response to the call for protection of neighbouring rights” the Council of Europe was experienced in facilitating such a process, he added.

“I suspect that Council of Europe member states would be very happy if the WIPO deadlock were overcome and revert to WIPO negotiations,” Malinowski told Intellectual Property Watch. “However, at present many feel that progress at the Council of Europe level is desirable.”

Industry Initiative

The European Broadcasting Union and several member states “pointing to an apparent standstill within WIPO, have requested that the Council of Europe take the relay and resume work on this,” according to Malinowski, who said the Association of Commercial Television in Europe may also support this initiative.

The topic is not new for the Council, which would just continue work given up when WIPO started its negotiations on the treaty, he said. “Council of Europe member states already considered the possibility of elaborating a convention on neighbouring rights, but discontinued work on the subject when this very specific matter was taken up by WIPO,” said Malinowski.

Over the last 20 years the Council has, according to Malinowski, “elaborated other instruments designed to enhance the protection of broadcasters neighbouring rights.” One more recent example was the 2002 Recommendation (No. R (2002) 7) on measures to enhance the protection of the neighbouring rights of broadcasting organisations. In 2001, the Council also adopted a convention on the legal protection of services based on, or consisting of, conditional access, he added.

IP issues in a more general sense were also dealt with by the Council’s Convention on Cybercrime that touched on infringement of copyright and related rights online or through computer systems. The Cybercrime Convention was promoted heavily at the United Nations-led World Summit on the Information Society (WSIS) and the two subsequent meetings of the Internet Governance Forum (IGF) as the first global instrument against cybercrime.

Council Deputy Secretary General Maud de Boer-Buquicchio recently joined the numerous voices who favour wider accession to the Cybercrime Convention, said Malinowski. That convention was seen as the most prominent example of these types of legal instruments could have a global application or serve as a model for non-Council members, Malinowski said.

With respect to concerns about fair access rules and possible negative side effects for the South voiced by developing countries and civil rights organisations during the WIPO debate over the broadcasting treaty, Malinowski underlined: “A human rights-centred approach is also necessary when examining access to education, to knowledge, research, and I would add, also as regards cultural and artistic expression and scientific development.”

He pointed to considerable protection of these values through the European Convention on Human Rights in General and Article 10 and Article 2 of Protocol 1 in particular. “Article 10 of the European Convention on Human Rights consecrates the right to freedom of expression and information without interference by public authority and regardless of frontiers,” Malinowski said.

Report on IP Rights and Restrictions

One of the Council of Europe groups of specialists has received the mandate to “prepare a report on emerging issues and trends in respect of, on the one hand, the protection of intellectual property rights and the use of technical protection measures in the context of the development of new communication and information services (and the Internet) and, on the other hand, the fundamental right to freedom of expression and free flow of information, access to knowledge and education, the promoting of research and scientific development and the protection and promotion of the diversity of cultural expressions and artistic creation.” This group was expected to make concrete proposals for further action in this area as it found them appropriate, said Malinowski.

Another much-debated issue during the WIPO broadcasting treaty talks was the expansion of protection to webcasting organisations. As discussions were still at an early stage, Malinowski pointed to the need to be consistent with other Council instruments like the European Convention on Transfrontier Television that is currently under review.

Consistency with the approach followed by the European Union in the context of the new Audiovisual Media Services Directive also is key for the Council. “I would assume that not any webcast would qualify as a broadcasting organisations’ signal,” he said. The Audiovisual Media Services Directive tried to draw a line between commercial, television-like, linear services and non-linear services like webcasts of a non-commercial nature or user generated content. But experts still see problems in deciding what falls under the directive, especially with formats changing rapidly.

Substantive issues have not yet been addressed, according to Malinowski who also said he could not give a timetable. “However, considerable work has been done within WIPO and it appears sensible that this should be the starting point.”

Monika Ermert may be reached at info@ip-watch.ch.