Webcasting Prominent In WIPO Broadcasting Talks Despite Few Supporters

Member governments of the World Intellectual Property Organisation last week spent significant time discussing a proposal to include the delivery of broadcasts over the Internet in a treaty updating the rights of broadcasters. But the proposal appears to have almost no supporters among the member governments.

The proposal to include webcasting in a WIPO broadcasting treaty came from the United States and remains in play despite little to no support among other members, according to sources. The European Union has offered a proposal to include simulcasting, or delivering broadcasts simultaneously on the Internet.

At issue is whether and how to update broadcasters’ rights, which WIPO says are currently provided by the 1961 Rome Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. “A growing signal piracy problem in many parts of the world, including piracy of digitised pre-broadcast signals, has made this need more acute,” WIPO said in a release.

Critics are concerned that the treaty might give unnecessary new rights to broadcasters, including over the content they are transmitting, and might cut into the public domain. Significant discussion also was devoted to possible exceptions and limitations to copyrights and to the potential broadcasting treaty.

While no firm agreements on substance came from the 21-23 November meeting, members agreed on the need for two more committee meetings before the 2006 WIPO General Assembly next fall. Treaty proponents hope there will be agreement at that General Assembly to hold formal treaty negotiations in late 2006 or 2007. A committee meeting was already expected in June, and the timing of the first meeting is under debate. It could be held as early as March or April, or immediately prior to the June meeting, sources said.

The focus of committee discussion is a draft consolidated text that is expected to end up forming the basis for treaty talks. In the meeting, debate on the broadcasting treaty was split into the scope of protection and what substantive rights should be given.

A number of members sought to ensure that protection would be limited to the theft of broadcasting signals. A key remaining sticking point is the duration of rights, with support for the term of protection split over whether it should be 20 years or 50 years.

According to participants, many hours were spent in the meeting discussing webcasting, as governments, industry groups and non-governmental organisations gave their mostly sceptical views. A developing country official said that in the October General Assembly, webcasting was seen as problematic and requiring more time for discussion. The long discussions in this meeting and the decision to hold a third meeting over the year could address that, he said.

The developing country official said an attempt was being made to “cleanse” the draft consolidated text of references to webcasting. There remain references to “transmissions over the Internet,” and “transmissions by wire,” the official said.

Brazilian, Chilean Proposals Put Forward

Also discussed was a new proposal from Brazil to tie the broadcasters’ rights treaty to a newly approved cultural diversity treaty at the UN Educational, Scientific and Cultural Organisation. The Brazilian proposal also called for a provision in the treaty ensuring public access to knowledge and other issues, and said members should be required to ratify the Rome Convention to be a part of the broadcasting treaty. A number of key countries, including the United States, have not joined the Rome Convention (IPW, WIPO, 18-11-05).

Brazil suggested its proposal should be included in the draft consolidated text under discussion by the committee, rather than a separate “working paper” like the webcasting proposal. The consolidated text is not a consensus document and therefore may include proposals relevant to the text that are not agreed to by everyone beforehand, a Brazilian official said.

A Brazilian official suggested Chairman Jukka Liedes of Finland develop a new draft text and then go through the items one-by-one to determine whether which proposals enjoy broad support.

Chile also put forward a proposal (SCCR/13/4) on the broadcasting treaty that called for national treatment to ensure broadcasting organisations from other member countries are treated the same as any country’s own organisations. It also called for ways to prevent abuses of intellectual property rights, negative effects on competition, and a series of exceptions for reasons such as private use, reporting on current events, education and research, and disabilities.

A Chilean delegate said the aim is to ensure the work of the committee includes a reference to the need to identify minimum exceptions, with the final goal of having some minimum exceptions to the treaty terms. The delegate said the Berne Convention established mandatory exceptions, and exceptions should be updated in this new treaty.

In a second proposal (SCCR/13/5), Chile also urged that the committee undertake three areas of work related to exceptions and limitations: to identify national models, analyze exceptions and limitations needed to promote innovation and dissemination, and establish an agreement on exceptions and limitations for the national public interest.

US Shows Early Opposition To Brazilian, Chilean Proposals

During the committee meeting, the United States reacted negatively to Brazil’s proposal after a preliminary review. The US delegate expressed “serious concerns” and said it required further analysis. He said the Chilean proposal also needed further attention.

The US delegate also stressed that the webcasting proposal would be limited to programming, which he said is “an important social contribution broadcasters make.”

Chairman Liedes said in an interview during the meeting that when the webcasting proposal was raised two years ago, it was included as an alternative with the other documents but at the November 2004 meeting it became clear that mandating webcasting was “out of the question.”

Liedes said that the 99 members who want to negotiate on broadcasting, therefore, should be able to proceed, with webcasting handled in a separate but related way. Consideration was given in the meeting for handling webcasting as a protocol to the broadcasting treaty, but this met with resistance, sources said.

The European Commission representative told the meeting that Europe continues to be generally supportive of treaty negotiations, but highlighted several principles guiding its support. These include targeting the protection at signal piracy, and not compromising the rights of content holders. There should be nothing in the treaty that compromises the rights of whose work is subject to broadcasts, the EU representative said.

The Indian delegate said there were many differences of opinion among members, but highlighted several areas of broad agreement. There was a general consensus that the treaty object is to provide protection from piracy to broadcasters for their signals. Protection should not be aimed at copyright holders (as content is already protected), nor against public interest users, he said.

NGOs, Industry Give Views

During the meeting, a variety of non-governmental organisations, industry groups and others made statements about exceptions and limitations, and about the broadcasting treaty. WIPO has not made the meeting interventions available. Some interventions were posted on listserves operated by the Consumer Project on Technology, including the running notes and commentary of a collective group of NGO participants such as the Electronic Frontier Foundation.

A coalition of non-governmental groups submitted the view to the committee that the treaty should not cover content within transmissions, but rather only the transmissions themselves. The World Blind Union proposed a study on the disabled and the blind which gained some government support, according to one source.

The Civil Society Coalition drew attention to efforts by technology company Google to put books on the Internet and make them searchable, and said publishers are trying to limit the availability of those books online, sources said. The International Publishers’ Association took the opposite position, stating that publishers are part of the project but are being disrespected.

Werner Rumphorst, legal director for the European Broadcasting Union, urged in an interview that the committee’s work lead a diplomatic conference, or formal negotiation. He criticised WIPO procedures that allow a minority to block progress sought by the majority. Rumphorst also said that no country would possibly adopt the Rome Convention at this point in history because it is outdated.

Rumphorst also gave an example of Internet theft of broadcasting signals. He said that next year’s World Cup in Germany normally would be broadcast hours later in the United States, but that by then, illegal broadcasts will have been sent over the Internet.

The Way Ahead

Apart from the debate over how to handle the new proposals, there did not appear to be any indication of irregularities in the management of the meeting, according to participants. At the last formal meeting of the committee, exactly one year ago, some members charged that their opposition to the outcome was improperly ignored.

WIPO Deputy Director General Rita Hayes, in a brief interview afterward, put a positive spin on the outcome. She hailed it a “very good meeting” and said it was a full agenda. The broadcasting discussions and the new proposals from Brazil and Chile were “very constructive,” she said, adding that now, “everybody sees what’s ahead of us.”

The developing country official said this time the secretariat and chairman’s handling of the meeting was “with gloves,” meaning with care. Still, the official said, “The meeting ended on a very abstract note.”