WIPO Broadcasting Treaty Advances Past Disagreements

By William New
A proposal to negotiate a treaty to expand the rights of broadcasters and cablecasters cleared a key committee of the World Intellectual Property Organization on 13 September despite outstanding disagreements among committee members.

“The draft basic proposal [the document upon which talks will proceed] is full of contradictions,” Surinder Kumar Arora, India’s information and broadcasting secretary and lead delegate to the negotiations, told reporters afterward. “It is not the sort of document for a diplomatic conference [as it is] likely to enhance the risk of failure. It requires more discussion.” (A diplomatic conference is a formal, three-week final negotiation for a treaty.)

The recommendation to proceed to a make-or-break treaty negotiation next summer will be put before the WIPO General Assembly, which meets on 25 September to 3 October.

WIPO members have worked for nearly 10 years to resolve differences on the idea of modernising the protection broadcasters have under the 1961 Rome Treaty. The majority of governments said this year they now are willing to move to a formal negotiation.

Long-time WIPO copyright committee Chairman Jukka Liedes, who informally consulted with the WIPO secretariat during the 11-13 September meeting, guided the governments to a form of consensus in order to proceed to the final negotiation. Liedes said remaining differences could be addressed in a “special meeting” before the negotiating conference.

It was agreed that in January, before the diplomatic conference proposed for 11 July to 1 August, 2007, there will be a two-day special meeting to address remaining issues as well as an adjacent preparatory committee meeting. It was also stated that new proposals may be introduced along the way.

WIPO Deputy Director General Rita Hayes was positive after the event. She told reporters afterward that there “certainly are some reservations that are outstanding issues,” but said member states want a treaty on traditional broadcasting and cablecasting. Key issues to be resolved include the length of the term of protection (currently suggested at 20 years); treaty scope (webcasting and simulcasting have been taken out for now); and what rights will be given to broadcasters, she said.

In addition, some governments have raised concerns about the inclusion of technological protection measures used to control the flow of content such as music and film, and a number have suggested they would prefer the treaty to be explicitly limited to signal piracy only. Other key concerns are the potential liability for technology companies and telecommunications service providers, and the inclusion of references to broadcasters’ exclusive rights over retransmissions “by any means” including over computer networks.

“What we have now is a basic draft proposal that has everybody’s concerns in it,” Hayes said. “That was what they wanted.”

Positive Outcome Cited By WIPO, Proponents

According to a WIPO press release, Director General Kamil Idris “welcomed the positive outcome of the meeting as well as the political will demonstrated by member states to conclude the negotiations.”

“The positive spirit that has characterized these discussions will further strengthen consensus on these issues in the months leading up to the diplomatic conference,” Idris said. “The success of this process hinges on the continued inclusiveness of the debate which seeks to reach an agreement that is balanced and serves the common interests of all stakeholders.”

Broadcasters, who have argued for help against rising signal piracy and other concerns, also were positive. Tom Rivers of the Association for Commercial Television in Europe said, “It was a difficult process, but in the end we’re pleased it was a success. We’ve waited a long time.”

The other expected beneficiaries, cablecasters, including some which have their own content such as News Corp and Time Warner, did not comment on the outcome. Content industry representatives have cautiously supported the idea of moving to negotiation, but have been careful not to state unqualified support for the draft proposal.

The New Broadcast “Cloud of Uncertainty”

US industry was prominent at the meeting, as several representatives from information and communications technology (ICT) companies were there in opposition. Jeffrey Lawrence, director of digital home and content policy at Intel, said it would create a “whole cloud of liability issues.”

“We have the patent cloud, the copyright cloud, and now we’re going to have a broadcast cloud,” Lawrence said. He predicted such a treaty would “stifle innovation because it creates uncertainty.” In addition, it has significant Internet ramifications, as it could impact cable and home networking, seen as critical to ICT industries. The movement of content is the “next killer application” for industries, he said. Lawrence called on industries to “stand up” to fight the treaty as it is proposed. Other opposed companies present at the meeting were Verizon and AT&T.

During the week, a letter of concern by podcasting organisations was circulated by the Electronic Frontier Foundation.

It is conceivable that allowing proposals to be introduced along the way to the diplomatic conference could lead to the re-inclusion of the US proposal on webcasting or the European proposal on simulcasting. But a number of delegations have said the removal of webcasting was what allowed them to be able to support a diplomatic conference.

For Hayes, a sharp negotiator accustomed to tough diplomatic environments in her distinguished career so far at WIPO and the World Trade Organization, this could be a last hurrah at WIPO. She is expected to leave her office by the end of this year.

“The Twilight Zone”: Opponents Voice Procedural Objections

Numerous opponents of the proposed treaty from the ICT industry sector and consumer and civil liberties groups voiced strong objections to the outcome. Liedes closed the meeting on time with a “silence as approval” approach as no further debate was possible and the absence of objections meant consensus.

Hayes told reporters afterward that the approach used by Liedes was common for international negotiations. WIPO does not formally take a position on the outcome of negotiations, which are conducted by member states.

But several key governments, including the India and the United States had voiced concern about proceeding on the basis of the text with so many differences. Some participants afterward said by comparison, the opposition of the United States and Japan to the development agenda process earlier this year had been sufficient for a recommendation of no agreement to the General Assembly.

Industry and non-governmental groups who attended the meeting were not given a chance to contribute during the week.

“To me, this resembled an episode of ‘The Twilight Zone,’” said Thiru Balasubramaniam of the Consumer Project on Technology. “Member states including India, Brazil, Argentina and the United States expressed concern about going forward with this process for different reasons.” He asserted that the chairman had “steamrolled over objections.”

Matthew Schruers of US-based Computer and Communications Industry Association, said, “It would appear that given the clear lack of complete consensus, some unresolved differences have effectively been punted into the general assembly.” Several other industry representatives signalled disapproval of the process but were not prepared to make statements.

Gwen Hinze of the Electronic Frontier Foundation said, “It was extremely disappointing that there was such little understanding and no discussion of the significant policy implications of the treaty for innovation and the Internet community.”

Robin Gross of IP Justice said, “We are really concerned about the lack of consensus in the room about going forward with a diplomatic conference. It is my understanding that WIPO is a consensus-based organisation. If disagreements are voiced, we don’t go forward until these are ironed out. At least eight delegations voiced concern. I’m puzzled by what does consensus mean.”

This is not the first time Liedes’ chairing style has led to complaints. In a November 2004 meeting of the committee on the same broadcasting treaty issue, Liedes was criticised by some governments for closing the meeting after calling for a show of hands and implying that near-consensus was sufficient to proceed with the issue in the future. WIPO’s procedure is based on consensus.