WIPO Broadcasting Treaty, EU-Wide Patent Generate Debate

By Tove Iren S. Gerhardsen
NEW YORK – Two “old” intellectual property policy issues are continuing to generate new debate among legal and policy experts, namely the broadcasting treaty under negotiation at the World Intellectual Property Organization (WIPO), and the recent move by the European Commission to re-launch the debate on a single European patent system.

At a 12-13 April Fordham University conference here some panellists linked progress on a proposed treaty to boost broadcasters’ rights to the current environment for multilateral negotiations. Talks on strengthening the rights of broadcasters have been ongoing for roughly a decade, but this year is seen as the last chance for a full high-level negotiation for the treaty at WIPO.

Shira Perlmutter, executive vice president of global legal policy at the International Federation of the Phonographic Industry (IFPI), said that it would “not be good for WIPO to have another failure,” but added that if a broadcasting treaty cannot be reached, IFPI would take it as a sign of the difficult environment for multilateral negotiations and not blame it on “WIPO as an organisation.”

Julie Samnadda, who has moved within the European Commission from the Internal Market Directorate General to Legal Service, said that blame was being cast for the failure of earlier treaty efforts on audiovisual protection for performers, with the European Union, the United States and India, for example, to some extent blaming each other. Europe, concerned mainly about sports broadcasts, has been seen as the primary driver for the treaty since the United States weakened its support after its proposal to include webcasting was shot down last year.

Samnadda said there are different regional groups within the EU when it comes to WIPO, all supporting the organisation and a treaty but maybe to varying degrees and for somewhat different reasons.

Samnadda said that the treaty was needed to cover broadcasters’ costs of acquiring rights, saying for instance, that often the broadcasts of the English Premier Football League are sent back into England via Japan. But Samnadda said there should only be protection of the signal and not the content as that was already covered by copyright, (except for sports programmes without commentaries and sound, which some in the audience disagreed with).

Tom Rivers, external legal adviser, Association of Commercial Television, Europe, and media consultant in the United Kingdom, also talked about the challenge this particular discussion was for WIPO. He said it could choose between “a lot of consensus and little content” or vice versa, but WIPO was stuck somewhere in between.

James Love, director of Knowledge Ecology International, said that another layer of rights should not be added for broadcasters at a time when transaction costs had dropped. He said that for some of the negotiators involved for years, their own reputations seemed to be at stake. Love said he hoped for a “meaningless treaty” so that WIPO could move on with other issues.

Comments on WIPO Non-Paper

After years of debate, the chair of the WIPO copyright committee addressing the broadcasting proposal has presented a non-paper on which 14 member states have provided comments. The latest draft excludes broadcasting over the Internet, sources said, and will be discussed at a meeting of the Standing Committee on Copyright and Related Rights in June. Looking at the 14 comments, four of these favoured rights-based approaches and four (Brazil, India, Indonesia and Iran) were hostile to such rights, Rivers said.

Perlmutter said her industry would support a treaty if WIPO “gets it right,” but one should avoid “poison pills” such as cultural diversity and public domain arguments sought strongly by groups working in the public interest and a number developing country governments. Before the June WIPO meeting, the US is planning to hold a roundtable meeting on 9 May and the Commission appears to be planning the same, sources said.

New EU Push on Harmonisation Patents

On 3 April, the European Commission presented a communication proposing a harmonised patent litigation system in Europe, leaving it to the European Parliament and Council to take the issue forward (IPW, European Policy, 4 April).

Harrie Temmink of the intellectual property unit at the Commission’s trade directorate told the meeting that the German presidency will hold three meetings on the patent issue in May and June. He said that the communication was meant to restart negotiations on a harmonised court system, hoping it could lead to a single patent system in Europe, which he said remains a top IP priority for the Commission.

Erik Nooteboom, head of the industrial property unit at the Commission’s trade directorate, said that, “we have entered the last round,” emphasising that this was an attempt to force member states to take a stand and show their positions. He said that France, for example, had first supported a proposal for a European patent court (European Patent Litigation Agreement, or EPLA) and a proposal to ease the language requirements (the London Protocol) but later changed its mind, and that the main reason for the 2003 EPLA proposal having failed was that Germany had difficulties with the centralisation in Luxembourg.

Tove Gerhardsen may be reached at tgerhardsen@ip-watch.ch.