Interview With WIPO Deputy Director General Rita Hayes

Member governments of the UN World Intellectual Property Organisation at their 26 September to 5 October General Assemblies agreed on a way to proceed with negotiations for a treaty on broadcasters’ rights. They will prepare a “basic proposal,” or draft negotiating text, during 2006 with an eye toward holding a high-level negotiation, known as a diplomatic conference, by mid-2007. WIPO Deputy Director Rita Hayes is the highest-ranking official at the organisation with responsibility for copyright and related matters. She spoke with Intellectual Property Watch at WIPO headquarters near the end of the assembly.

Intellectual Property Watch (IPW): What is the role of the secretariat during the broadcasting talks?

Rita Hayes (RH): … I think the responsibility of the secretariat is to help the member states to get where they want to go. The decision taken [by the General Assembly] is clear – that we move forward, that we accelerate our work. In the period leading up to next year’s General Assembly, we will have two standing committees, and working sessions [informal consultations]. The basis for these talks will be the second consolidated text presented by the chairman and also the working paper on webcasting [broadcasting over the Internet] and simulcasting [broadcasting over the Internet only at the time of original broadcast]. In addition, some delegations have also said that they might have some other proposals. There are still some points that member states would like to clarify. This is part of the process of preparing a basic proposal – you have to look at what the sixteen member states have already put forth in the consolidated text. More discussions are clearly needed both for talks at WIPO and within national governments.

IPW: How would you characterise the decision taken by the General Assembly?

I think [the] decision was very wise. I think it was a decision that will help to move the process forward. The decision also demonstrated that there was a large majority of member states that want to move forward to a conclusion on the protection of broadcasting organisations. So we’ve got what I would call a very clear mandate for what’s ahead. We will have to make sure that we listen to what the member states have said and have the consultations and discussions that are necessary to iron out the remaining issues and focus on what the member states consider to be important.

IPW: I understand they decided they have to have an agreement on a text to use as a basis for negotiations by the next General Assembly. What does that mean? Could it be as simple as compilation of all proposals put into brackets?

RH: We’ll have to see. I don’t want to speculate on what it’s going to be. The process so far has been to compile the proposals that have so far been submitted by 16 member states. These proposals will be put into a consolidated text that will become a “basic proposal”. The basic proposal put before the diplomatic conference includes the substantive issues where there is some agreement, but it’s also the issues that are still outstanding. Each provision is accompanied by explanatory comments. So what we have been trying to do over this period of time is to try to find where there is agreement and then leave aside the outstanding issues that still haven’t been discussed.

That’s what a basic proposal is – a document from the member states to their ministers saying that we have narrowed everything that we possibly can and here are the outstanding issues. We hope that when we get to that point, there will only be very few outstanding issues. To give you an example: there is one issue that I don’t think will be decided until we get to the ministerial – and that is the duration of the rights. You know, for a good little while, there was an agreement that it would be 50 years and then Singapore submitted a proposal for 20 years, and there is some support for that. That will have to be looked at to see how we can find a middle ground and that will probably be left up to the ministers.

You certainly have other issues, like the rights to be granted to broadcasters. And those all need to be talked about, you’ve heard a lot about that. So we will have to go through each one of the proposals very clearly and have an understanding of what is there and what is the feeling of member states.

IPW: In looking at the agreed-upon text, is it your interpretation that this is an agreement to have a diplomatic conference, or only if there is agreement on a basic proposal?

RH: Well, I think that when looking at the text, it is saying that we go obviously to the 2006 assemblies in the hopes that there would be a diplomatic conference in December 2006. It also says that if there is not an agreement on a December 2006 date, then we look at a date in 2007. You heard the chairman say when several people said the first half of 2007, that it was his understanding that if the 2006 December date couldn’t be, then hopefully it would be in the first half of 2007. I also want to clarify another misunderstanding. The General Assembly doesn’t say that there is going to be a diplomatic conference, it recommends the convening of a diplomatic conference.

IPW: On webcasting, as far as I know, it remains the case that the US remains alone in wishing that it be included. How would you characterise the status of webcasting in the context of the broadcaster rights talks?

RH: Webcasting was put forward by the US, which is the only country which formally submitted a proposal including webcasting in the scope of the treaty. Although most of the countries are against extending protection to webcasters, some became interested when European negotiators later proposed extending broadcasting protections to a narrow class of webcasting-Internet simulcasts by traditional broadcasters. During the regional meetings, we found there was a significant number of member states that are interested in protection for webcasters even though they are not ready to grant that protection today. It is also clear that the longer they wait the more the technology will develop.

A working paper prepared by the SCCR [Standing Committee on Copyrights and Related Rights] chair takes into account the need to find a compromise between the request of the majority of countries to leave the question of webcasting aside and the growing understanding of the importance of this matter. Webcasting and simulcasting issues have been taken out from the main draft treaty and the paper provides for optional models of protection.

The first alternative is an “opt in” approach. The treaty would include language on webcasting which would only become a binding part of the treaty if the signatory nation submitted a separate “notification” to WIPO indicating its desire to be bound to those additional provisions.

The second alternative is an “opt out” approach. Again, the treaty would include language on webcasting. Signing the treat would bind the signatory nation to the webcasting provisions. However, a country could opt out by submitting a “reservation” declaring that it will not extend protection to webcasting.

The third alternative calls for the creation of an optional “protocol”, a separate legal instrument subject to its own administrative and ratification procedures. Signatories could either submit the protocol when agreeing to the broadcasting treaty, or attach it to the treaty at some point later on. Every model enjoys some support. The additional time given to us will allow for further discussions to see where member states stand.

IPW: Can you explain how rights holders would benefit from giving more rights to broadcasters? Why do broadcasters need new rights?

RH: The updated protection of broadcasters would not be to the detriment of other content owners. On the contrary, the updating of broadcaster rights will complement and enhance the enforcement of other content owners’ rights. When a broadcaster obtains an injunction against unauthorised use of the broadcast signal, the order to cease necessarily stops equally unauthorised use of the program content. Broadcaster control over signal piracy will have the positive effect of legalising the content distribution marketplace to the benefit of all stakeholders. That said, rights holders have indicated that they will wait until they see the final proposal.

On this question, take the example of China, which will host the Olympics in 2008. World broadcasters will have to acquire expensive exclusive rights from the Olympic organisers. If the signal is not protected you can imagine that the providers of program will be reluctant to license broadcasters who do not have adequate legal means of protection against unauthorised use abroad of their signal. Highlighting the importance of a treaty for his country, the Minister of Justice of Antigua and Barbuda told the General Assembly that in light of the fact that the cricket World Cup will be hosted by the Caribbean region in 2007, “and that the protection of rights for broadcasting, simulcasting and webcasting are issues that are addressed in the various agreements and supporting legislation in relation to the forthcoming World Cup, we recognise the urgent need for the immediate update of the rights of broadcasting organisations through an international instrument.”

The issue is not about “sharing the revenue pie” but about increasing the size of the pie. Control over signal piracy will increase the revenue pie to the benefit of all stakeholders and of the global marketplace. Online TV piracy impacts not only broadcasters but all content owners. In September 2005, the Industry Trust for IP Awareness in the UK reported that more than 1.6 million people are estimated to be downloading illegal films and TV programming every week.

A broadcaster can only license a program to a third party for the rights which he holds. If content rights holders do not wish to license their material contained in the broadcast program, the use of the program-carrying signal will therefore not be possible. There is no overlap. As an example, an accumulation of different rights exists in the case of phonograms where the rights granted to the phonogram producer over the phonogram are separate from the rights authors have over the musical work contained in that phonogram or that performers enjoy over the execution of that same work.

There is a need to discuss digital rights. This will be an international instrument which will essentially benefit developing countries that do not have that protection. There might be some countries, like the US or in the EU, which have national protection, but others don’t have the protection they need. But these laws are national and do not adequately cover what we are here talking about here, that is to say cross-border piracy.

The treaty is not about granting new rights but about updating existing rights and preventing acts of piracy that modern technology allows and facilitates. More than 40 years have passed since the adoption of the Rome Convention [for the Protection of Performers, Producers of Phonogram and Broadcasting Organizations]. The protection granted corresponds to the broadcast technological infrastructure we had in the 1960s. Just to give you an example, it does not grant protection against cable distribution or satellite transmissions. The decision was made a long time ago that broadcasters would have certain rights, this assessment was made by the member states. In a large number of countries in the world, broadcasters enjoy a neighbouring right to protect them against illegal or unauthorised use of their programme-carrying signal, either by their competitors or other third parties hoping for a free ride. This protection goes back to the 1961 Rome Convention.

IPW: Who is lobbying on this and how is it done?

RH: The member states lobby most. This is a member state concern. The negotiating process is a transparent and inclusive process where all parties, whether they are members states or NGOs [non-governmental organisations] can make their voice heard. A large share of the overall discussions was allocated to NGOs at the last SCCR meeting as well as in the regional meetings.

IPW: Will you hold regional meetings again this time?

RH: Regional meetings are something that WIPO has done for years, like technical assistance. After the last SCCR meeting, several invitations were received from member states from different parts of the world to host regional meetings. These meetings which were held with the technical experts from capitals allowed for a detailed and thorough discussion of the revised consolidated text and of the working paper. This was an entirely member state driven process, coordinated by the member states for the member states. Now, it is up to the member states to tell us where and how they want to carry on the discussions. Member states guidance has been decisive in moving the process forward. The request for two additional meetings of the SCCR was one of the clear messages of these assemblies. These SCCR meetings will be the cornerstone of the discussions for paving the way to the diplomatic conference.

IPW: Technologies are converging rapidly at this point in history. How would you incorporate this broadcasting treaty notion aimed at giving more rights to a specific sector into the bigger picture?

RH: I think we have the responsibility to look at issues when the member states ask us to look at it. Take the broadcasting treaty. As I said, it was the member states that wanted to move forward with this. So we had these standing committees, we listen to them, they felt that for eight years we’ve been talking about this, since 1997, and it’s been 40 years since the original agreement, and you think about the technology [that has evolved since then]. Your question about the new technology and everything, you get into well, maybe you shouldn’t be protecting this, maybe this shouldn’t be protected. But someone had to create that technology, and then somebody is going to have to be accountable for that new technology. Some think there should be no protection on this. That’s fine to say, but who is also in the very end going to be accountable for it? It works both ways.

It’s the same thing with a lot of these comments in the academic world where they say there shouldn’t be copyright on things. Well, that’s fine, they have another salary. They’re teaching. They’re publishing articles and every time they publish articles they get credit for it as part of the academic world. But that doesn’t help the creator that is out there also trying to make a living by this particular publication.

So there are two sides, and you know I think the great thing about where we are now in IP field is that people are talking about it, and that there are two sides. People realise not only the economic value of it, but they also realise it helps not only national governments move forward in their overall wealth creation but it is a situation by which everybody realises the importance of intellectual property now, whether you are on one side or the other. So when people say, gosh, nobody even talked about these issues so many years ago — I mean who would think there would be an IP-Watch here? And you just hired somebody new, your publication grows – is because people know how important it is.

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