WIPO Broadcasting Treaty Discussions End in Controversy, Confusion

Discussions last week in WIPO’s Standing Committee on Copyrights and Related Rights (SCCR) on a proposed treaty that would expand protections for broadcasting organisations ended in heated debate about whether the Chair’s report of the meeting adequately reflected the views of all Member States.

The Chair’s departure in the final moments of the meeting from WIPO’s usual ‘consensus-based’ approach to decision-making provoked alarm among several delegations and has left doubt as to the final status of the meeting’s report.

In an effort to draw discussion on the report to a close, the Chair called for a show of hands to “measure the prevailing position” among the Members. One delegate explained that “Members were effectively asked to vote on whether or not they could agree to the Chair’s report. Five countries—Iran, Brazil, Egypt, India and Argentina—indicated that that they could not support the Chair’s recommendations as written. A large show of hands indicated that they could.” The United States did not participate in the show of hands.

Amidst cheers from delegates from the broadcasting industry, the Chair declared that “in many cases it is the majority whose opinion has to be respected. That is democracy”—implying thereby that the report had indeed been adopted by a majority vote of the meeting. While some delegates seemed similarly satisfied that an apparent decision had been reached, several delegations—even those in favour of the final decision—expressed both opposition to the ad hoc resort to a show of hands and concern that it should not set a precedent for future meetings.

“The call for a show of hands was a stark deviation from WIPO’s decision-making norms and culture. Reports are normally presented for comments by Committee Members at the end of a meeting, amended to ensure they reflect discussion and then adopted by consensus,” explained one delegate. A WIPO Secretariat official confirmed the significance of the departure, noting that no formal vote had taken place in a WIPO meeting since 1996. Another delegate argued that the informal ‘vote’ was illegal because it failed to follow WIPO’s rules of procedure for voting and that there was thus no definitive outcome of the meeting.

Several developing country delegations expressed surprise that the United States had not expressed resistance to the call for a show of hands—highlighting that in many aspects of WIPO’s work a resort to voting-style procedures would often leave the United States out-numbered by other Members.

A core issue of contention was the emphasis in the Chairman’s recommendations on regional consultations as the next step forward for discussions on the proposed broadcasting treaty. While Algeria, Mexico, Morocco, Senegal, Togo, and Zambia expressed their support for regional consultations, Argentina Brazil, Chile, Honduras, India and Iran opposed it—arguing that the core differences of opinion exist between regions not within them and that regional consultations should only be arranged when specifically requested by a particular regional group. Dissatisfied with the failure of the Chair to incorporate explicitly their proposal for “open-ended, inter-sessional” consultations, both Brazil and India cautioned that the outcome of the meeting must be led by the Committee Members. Insisting that the process remain “Member-driven”, Brazil stated that “any decisions on future work with respect to this process must be accepted by this Committee.”

Behind the scenes, several delegations expressed their view that regional consultations had been proposed as a tool for pro-treaty forces to ensure that they have ‘the numbers’ to push a treaty forward (particularly in Africa) and to isolate those countries expressing caution.

The Chairman’s report also included a recommendation that a second revised version of the Consolidated Text be prepared by the Chair based on the discussion and that the SCCR add an Agenda item on Exceptions and Limitations to Copyright and Related Rights for its next meeting. Originally proposed by Chile, the latter had been broadly welcomed by Member States in the substantive discussion.

Secretariat turns up the Heat while Governments remain Divided

The dramatic closure of the meeting reignited concerns about the Secretariat’s role in promoting a speedy conclusion of the contentious negotiations. Several delegations reported to IP-Watch that the Agenda for the SCCR had been devised to focus on substantive discussion of the consolidated treaty text even in the absence of clear consensus on the general purpose and desirability of the treaty, its scope and appropriate timing.

Industry groups were frank in their endorsement of efforts by the Secretariat to drum up support for the treaty. Jonathan Potter of the Digital Media Association (DIMA)—a leading industry group pushing for the inclusion of webcasting in the treaty— noted that the “Secretariat has been working very hard to increase consensus.” He confirmed that Rita Hayes, the Deputy Director-General of WIPO and the official responsible for the SCCR “has not only met with delegations here but also travelled around the world to meet with officials in capitals.” Alluding to pressures on capitals to support the treaty, Robin Gross of IP Justice observed that “it appears that the tail is wagging the dog.”

Of particular concern to some delegations was the failure of the Secretariat to produce the final report of the recent General Assembly in time for the SCCR. Recalling disagreements at the Assembly about proposed language implying the inevitability of a positive decision to endorse the convening of a Diplomatic Conference, these delegates argued that without the final Assembly report in hand the SCCR Members had no clear instructions to guide their work (See WIPO Secretariat Ramps up the Pressure). Members had been assured at the Assembly that the Secretariat would consult with Members to arrive at an acceptable formulation for the final report. The Secretariat ascribed the delay in the report’s publication to the need for translation into multiple languages.

In the meantime, while much of last week’s discussion focused on specific, politically-divisive aspects of the consolidated treaty text (such as provisions on technological protection measures and the question of whether or not to include webcasting), underlying differences of views on the treaty itself were also evident.

In a statement prepared by broadcasting associations from around the world, broadcasters argued that “the overwhelming majority of governments agree that it is now high time to adopt a new Treaty to update broadcasters’ protection.” Actual statements from many Member States reflected a diversity of views on this point.

Some countries (including Uruguay, Zambia, Senegal, the EU and the United States) argued that sufficient consensus existed to move toward a Diplomatic Conference. Many Member States—including those broadly supportive of the proposed treaty—stressed the need for greater consideration of its particular implications for developing countries. China argued that “divergence is greater than consensus.” While pledging its broad support for the work of the SCCR, Nigeria noted that “making progress for its own sake is not satisfactory,” and alluded to the need for more time for countries to digest the issues. Several developing countries emphasized that discussion of specific substantive issues should not distract from consideration of the overall approach of the treaty nor lead to a presumption of consensus on the desirability of concluding a treaty.

Also on the side of caution were industry associations such as the International Music Managers Federation (IMMF) and technology companies, such as Broadcast.com and Salon.com. Arguing that the current rights of broadcasters are already too broad, Nick Ashton-Hart of the IMMF explained that the controversy surrounding the proposed broadcasting treaty stems in part from the fact that broadcasting organisations are yet to provide convincing evidence “of an epidemic of piracy which current international norms do not handle.”

Similarly, David Tannenbaum of the Union for the Public Domain affirms that while “broadcasters have convincingly argued that the passage of this treaty will boost their profits,” they have yet to show why the effort to create entirely new rights to the broadcasting stream is either economically necessary or desirable, particularly when balanced against its costs to society at large—such as restrictions on access to knowledge and encroachment on the public’s rights to fair use. Michelle Childs of the Civil Society Coalition argued that the proposed “Special Interest” treaty stands to benefit a narrow group of companies “at the expense of copyright owners and the public domain.” Along with other civil society groups, she called for greater efforts to ensure the coherence of the broadcasting discussions with WIPO’s new Development Agenda.

Cory Doctorow of the Electronic Frontier Foundation offered specific criticisms of efforts to include technology protection measures (TPMs) and webcasting in the treaty. He challenged that TPMs have not proven “remotely effective” in practice and presented a letter to the SCCR on behalf of 20 technology companies and organizations that oppose including new webcasters’ rights in the treaty, arguing that it shattered “the illusion that there is a technology consensus on this issue.” A range of civil society groups, including EFF, have worked alongside IMMF to develop an alternative draft treaty text which targets the problem of signal theft through a ‘protection-based’ rather than a ‘rights-based’ approach.

IP-Watch approached WIPO in advance for comments on several of the topics covered in this article. The Secretariat apologized for not being able to provide a response in time for the publication deadline.

The Draft Treaty on the Protection of Broadcasting Organisations The proposed treaty aims to extend new rights to broadcasting organisations, adding to a range of rights already granted to broadcaster 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, cablecasters, and, under the U.S. proposal, webcasters a range of new rights, and substantially expand both the scope and duration of currently recognised rights for broadcasting organisations.