Critical Talks Ahead For WIPO Broadcasters’ Treaty

By William New
A proposed treaty to strengthen rights for broadcasters faces a critical test next week at the World Intellectual Property Organization. Government negotiators are under pressure to finish preliminary work on a draft treaty before the 25 September annual WIPO assembly, as increasing numbers of private sector stakeholders are digging in their heels on either side of the issue.

The WIPO Standing Committee on Copyright and Related Rights will discuss the proposed treaty on 11 to 13 September. The proposed treaty is intended to give broadcasters stronger rights over their transmissions which they say are being stolen, and would extend protection from 20 to 50 years. But opponents see trouble in giving seemingly unnecessary intellectual property rights to broadcasters who typically do not have ownership over the content of their broadcasts, with a negative impact on consumers.

A number of changes have been made to the draft since the last committee meeting in May, including the addition of limitations and exceptions for cases where countries may decide the treaty terms should not apply.

A key development in May was the agreement to remove a proposal by the United States for the treaty to cover webcasting. This week’s meeting “will be confined to protection of broadcasting organizations and the cablecasting organizations (in the traditional sense),” according to the revised draft basic proposal. Traditional broadcasting (including television, radio and satellite) and cablecasting were covered in the 1961 Rome Treaty that this treaty is intended to update. The United States never signed the Rome Treaty but is a strong proponent of the new one.

There do not appear to be any new proposals being tabled for next week’s meeting. The United States pitched a new paper on the separate webcasting negotiating track, expected to continue soon after the General Assembly. The new US paper clarifies that its proposal would be for “netcasting,” not webcasting per se.

“The proposed definitions use a new term, “netcasting”, to describe computer-based transmission of signals,” the US paper said. This is intended to avoid confusion with the old term “webcasting”, which unnecessarily implied that ordinary activity on the World Wide Web would be covered by the definition.”

“In proposing that the treaty cover ‘webcasting’,” it added, “the United States has never intended that protection be afforded to the ordinary use of the Internet or World Wide Web, such as through e-mail, blogs, websites and the like. We intended only to cover programming and signals which are like traditional broadcasting and cablecasting, i.e. simultaneous transmission of scheduled programming for reception by the public.”

The 100-page draft still contains references to exclusive right over “retransmission over computer networks by any means” in Articles 5, 9, and 14. Article 14.02 states that “the right of authorizing transmission covers all transmissions by any means … including … transmission over computer networks, following fixation.”

Some are concerned that references to signals carried on “computer networks” reflect a European Union proposal to protect simulcasting, the simultaneous broadcast of signals over the Internet, and could lead to re-inclusion of the U.S. webcasting proposal. One possibility is that the United States may make the claim that if the European proposal for simulcasting may be discussed, their netcasting proposal should be allowed for discussion.

South Centre: Draft Text No Help for Development

Sisule Musungu of the South Centre, the intergovernmental group of developing countries, said preliminary analysis by the Geneva-based group of developing countries appears to show an absence of “any serious thinking or analysis on who will benefit” from such a treaty.

The South Centre will issue its lengthy analysis of broadcasting and the proposed treaty at the meeting. The research finds there is a lack of evidence of a need for the treaty, that its costs would outweigh benefits for developing countries, and that it would not help with development.

Developing countries are somewhat split in their view of the proposed treaty, as some have strong broadcasting lobbies, and many have been subject to hands-on influence by large economies and WIPO itself.

The South Centre recommends that developing countries keep the treaty limited to signal protection, reject any new exclusive rights, refrain from extending protection to computer networks, ensure appropriate safeguards exist through limitations and exceptions, limit protection to 20 years, and decline obligations on the use of technological protection measures, which are employed to protect content.

Tech Industry Giants Join Consumer Groups In Opposition

The South Centre suggestions are similar to those of nearly 40 US companies and groups who issued a statement of opposition on 5 September. AT&T, Dell, Hewlett-Packard, Intel and Verizon Communications joined forces with the Consumer Project on Technology, Electronic Frontier Foundation and Public Knowledge. Many of the signers also spoke at a US Patent and Trademark Office treaty roundtable on 5 September.

The opponents said the treaty is unjustified, but if it moves forward, it should abandon its rights-based orientation, have strong limitations and exceptions, prevent increased control of broadcasters over signals in home or personal use, remove the threat of liability for network intermediaries (telecommunications providers), and drop references to computer networks.

Broadcasters’ Expectation of their Own Treaty Goes Back 10 Years

The proposed treaty is intended to give broadcasters the same rights that performers, producers and copyright holders have under a pair of 1996 so-called WIPO Internet treaties.

The push for a treaty is being led by the US National Association of Broadcasters and other nations’ broadcasting industries, apparently joined by the US content industries. The broadcasters claim they need protection from signal theft and that the treaty is critical for the survival of the industry.

With the fundamental question of the potential impact of the draft treaty still unclear, it seems unlikely that all the members of WIPO would agree to recommend its negotiation at this time. But the pressure is high, and everyone at WIPO has something else they want, so there is reason to believe that this could be the year.