WIPO Secretariat Ramps up the Pressure for a new Treaty on Broadcasting Organisations

At the recent WIPO Assembly, Member States resisted pressures to move forward with a diplomatic conference on a proposed new treaty to provide increased protection to broadcasting organisations. The WIPO Secretariat’s activism in pushing for a rapid convening of a Diplomatic Conference on the Protection of the Rights of Broadcasting Organisations generated strong reactions from many of WIPO’s developing country Members and civil society groups, as well as some industry observers.

At issue was the recommendation from the last meeting of WIPO’s Standing Committee on Copyright and Related Rights (SCCR) that Member States “consider approving” the convening at an “appropriate time” of a Diplomatic Conference (which is traditionally the last step in the treaty-making process).

Why the Hurry?

On the rationale for moving ahead, the WIPO Secretariat notes that “[a] growing signal piracy problem in many parts of the world, including piracy of digitized pre-broadcast signals” has made the need for a new treaty protecting the rights of Broadcasting Organisations “more acute.”

Most WIPO Member States, however, cautioned that the convening of a Diplomatic Conference would be premature. Many developed and developing countries argued against a rush to push through a decision, emphasizing that it should be taken only when sufficient preparatory work has been completed.

Many substantive issues remain unresolved—from the range of treaty beneficiaries (should protection include not only traditional broadcasters but also cable casters and web casters), the scope of rights to be granted (here some delegations argued for limiting protection to rights necessary to fight signal piracy), and the term of protection of any new rights (the draft treaty proposes fifty-year protection).

The Africa Group, for its part, was of the view that a decision on whether to convene a Diplomatic Conference could only be taken after a thorough assessment of the work of the SCCR at its next session (scheduled for 17-19 November 2004). Brazil reiterated this position, as did most delegations that took the floor—from the delegations of Mexico, India and Canada, to those of the European Community and China. While the United States “urged” the General Assembly to authorise the scheduling of a Diplomatic Conference, Japan—one of the most fervent advocates of a quick Diplomatic Conference—said that “a new treaty [was] a core element in the revision of the international copyright framework.”

What is at Stake?

Beyond procedural arguments, delegations from both developed and developing countries expressed substantive reservations about the purpose of a new treaty. “The proposed new treaty would provide for a TRIPS-plus level of protection at a moment where most developing countries [are] still in the process of understanding and complying with that Agreement,” said the Indian delegation. Brazil added its voice, noting that “several provisions of the proposed new treaty [are] controversial, in particular whether web casting should be included in the scope of a new treaty.”

Industry associations, on the other hand, such as the U.S. National Association of Broadcasters (NAB) argue that the “time is ripe” for a diplomatic conference. Along with organisations such as the Association for Commercial Television (ACT) in Europe, they argue that new rights are a necessary measure to defend against signal theft and represent a just reward for the “time, effort and financial investments.”

Industry associations are, however, far from united on the appropriate scope of the treaty. Seth Greenstein, a Partner at law firm McDermott Will & Emergy—which represents the Digital Media Association (DIMA) (whose members include AOL, FullAudio, RealNetworks and Yahoo)—has argued that proposed new protections should also extend to web casters. While some industry groups have argued for deferring this issue until a later stage (NAB-Japan) or leaving it out altogether, DIMA argues that the “time to protect web casting is now.”

Representatives of the ‘content’ industry such as the International Music Managers Forum (IMMF) have been joined by groups like the International Federation of Actors in expressing reservations about the expansion of the treaty’s scope beyond the original focus on addressing non-authorized transmission of signals. The International Confederation of Societies of Authors and Composers (CISAC) and the International Bureau of Societies Administering the Rights of Mechanical Recording and Reproduction (BIEM) have expressed fear that the proposed additional protections for broadcasting organisations “could result in diminishing rights for authors.”

As discussions have evolved over the past year, the push toward a diplomatic conference has provoked active opposition from a range of civil society groups. While some groups oppose the treaty outright, others argue that the treaty’s scope should be confined narrowly on the issue of signal protection.

The Civil Society Coalition concludes that the treaty is not so much about protecting against piracy but a “land grab” by a narrow group of industries at the expense of a broad range of important public policy objectives. Forming an unusual coalition with rights-holders (such as the IMMF), groups such as Public Knowledge, the Electronic Frontiers Foundation (EFF), European Digital Rights, and IP Justice highlight that the proposed treaty would grant broadcaster’s a “new layer” of rights for their signal stream, on top of their existing rights.

In addition, civil society groups stress that most of the content transmitted by broadcasters is already copyrighted (either by broadcasting organisations or by the companies from whom they license their content) and warn that new rights for broadcasting organisations could further erode the fair use rights of citizens under copyright. Of particular concern to civil society groups are proposals which could enable treaty broadcasters to restrict the distribution of material that is not copyrightable, is in the public domain or is made freely availably by its creator. Arguing that broadcasting organisations are yet to provide compelling evidence of their need for additional international protection, EFF notes that the treaty poses a “grave threat” to competition, technological innovation, scientific research and freedom of expression.

WIPO Secretariat Continues to Push for Action

According to well-informed delegates, the broadcasting industry has directed its pro-treaty lobbying efforts not only toward their governments, but also toward a WIPO Secretariat keen to regain prestige lost through the failure of the 2000 Diplomatic Conference on the Protection of Audiovisual Performances. Several developing country delegations have noted the WIPO Secretariat’s activism in this respect, observing that it actively encouraged Members to endorse a quick convening of a Diplomatic Conference both at the last session of the Committee in June 2004 (where it encouraged countries to recommend the convening of a conference) and more recently at the Assembly. Indeed, WIPO‘s proposal for an ‘Extraordinary Session’ of the General Assembly to approve the convening of a Diplomatic Conference went beyond that which even the staunchest pro-conference countries—the United States and Japan—had suggested.

Despite the repeated reservations expressed by most delegations and their insistence that more work should be done by the SCCR to sort out outstanding disagreements, the Chair of the General Assembly proposed, that provided the SCCR completes its work at its next session, an extraordinary session of the 2005 General Assembly could decide the dates of a Diplomatic Conference. India opposed this idea, drawing attention also to the financial inconsistency of convening a conference given WIPO’s financial constraints (see page 8). The Chair concluded by suggesting that the General Assembly request that the SCCR accelerate its work so that the 2005 General Assembly could decide on the question of a Diplomatic Conference.

This was not however the end of the matter. Debate reignited on the day of the adoption of the report of the General Assembly when India, supported by other delegations (namely, Germany and Brazil) contested the wording of the draft report, noting that it did not reflect the range of views expressed during the discussion. India called for the replacement of the words “approve the convening” of a diplomatic conference with “consider the possibility of convening.” The Director General of WIPO intervened to reassure everybody that the exact wording would be checked and the report amended accordingly. In private, several delegations contended that by summing up discussions in a way that strengthened the probability of a Diplomatic Conference, the Secretariat had gone beyond its prerogatives and failed to reflect the debates faithfully.

Post-Assembly, a WIPO Secretariat press release reported that the General Assembly had asked the SCCR to “pursue its efforts” towards the “eventual conclusion” of an international instrument on the protection of broadcasting organisations in order to “update international intellectual property standards for broadcasting in the information age.” The final Secretariat report on the Assembly was not publicly available at the time of publication.

The Draft Treaty on the Protection of Broadcasting Organisations The proposed treaty aims to extend new rights to broadcasting organisations, adding to those already granted by existing treaties (in particular, the Rome Convention on the Protection on the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, the WIPO Performance and Phonograms Treaty (WPPT), the WIPO Copyright Treaty (WCT) and the TRIPS Agreement). The treaty would give broadcasters, cable casters, and, under the U.S. proposal, web casters a range of new rights, and at the same time, substantially expand both the scope and duration of currently recognised rights for broadcasting organisations.