Battle For A New WIPO Treaty On Broadcasting Begins In Earnest

By William New
World Intellectual Property Organization members are engaged in a critical weeklong meeting that will determine the fate of a proposed WIPO treaty on broadcasters’ rights. At the end of a second slow day, it was unclear which way it will go, according to participants, but things are intensifying and WIPO is watching closely, they said.

“This meeting is absolutely crucial,” WIPO Deputy Director General Michael Keplinger told Intellectual Property Watch. “It is necessary that we achieve some consensus.”

The 18-22 June meeting of the Standing Committee on Copyrights and Related Rights is seeking to agree on the appropriate basis for a high-level negotiation on the treaty later this year. It is unclear precisely what measure will be used by WIPO members to decide whether to proceed to the negotiation, or diplomatic conference, scheduled for November 2007. But if the amount of disagreement with the latest draft on the opening day of the meeting is any indication, the negotiation could be in trouble.

Keplinger said consensus could be reached to move forward on the basis of a “non-paper” (having no official status) from the committee chair, or with alternatives – which he said he hoped would be at an “absolute minimum.”

Several key WIPO members, such as Brazil and India, raised significant concerns on the first day about the latest draft of the proposed treaty language. The language is offered in a non-paper by committee Chair Jukka Liedes, and supposedly reflects member comments and consultations with Liedes, who has chaired the process for about 10 years.

The committee is under instructions from the 2006 General Assembly to try to bridge differences sufficiently to make the diplomatic conference likely to result in success. The annual WIPO General Assembly in September-October will make the final decision on whether to hold the diplomatic conference.

All discussion on draft treaty language is expected to end by Thursday night to allow for a preparatory committee meeting for the diplomatic conference to be held Friday, 22 June. That would set the rules of procedure and other details for the negotiation, according to a document prepared by WIPO for the meeting.

Specific issues under particular debate are the scope of rights to give broadcasters – including exclusive rights, the protection of retransmissions of broadcasts, and exceptions and limitations to the treaty. Another key issue is whether and how to reintroduce language on cultural diversity and the public interest.

Broadcasters Ready to Proceed on Basis of Non-Paper

US, European and Canadian broadcasters told Intellectual Property Watch that the non-paper represents the bare minimum they can accept, but they have declared it would make an acceptable starting document for the diplomatic conference. The recent return of language on retransmissions and exclusive rights from an earlier non-paper made the difference for them, one industry source said.

But a number of delegations expressed concern about the non-paper. Brazil said the non-paper does not reflect the General Assembly mandate for the process, and that Liedes chose to ignore Brazil’s comments during the comment period held this spring. Brazil, India, Chile, Venezuela and others raised questions about basic elements of the non-paper, such as definitions and even the title, sources said.

Brazil and others have sought to include general principles, promotion of cultural diversity and defence of competition in the body of the treaty, but in the non-paper, Liedes has put these in the preamble, and developed countries, including the European Union, are seeking to keep them there.

India raised concern about issues it opposes that continue to appear in the non-paper, such as computer networks and simulcasting. It said current language could lead broadcasting organisations to obtain more benefits than intended at the expense of content creators and the public.

Developed countries appeared to be keeping their positions more hidden at the outset of the meeting. The United States has a division within its industries which could be difficult to bridge, sources said.

A US official told Intellectual Property Watch at the start of the meeting that the United States supports updating protections for broadcasters, but “not at any cost.” It is important that broadcasters’ protection not interfere with the rights of content owners and the use of technology in the public interest, the official said.

In its floor statement late Tuesday, the United States asserted that the base document for the negotiations is an earlier draft basic proposal, WIPO document 15/2, which was roughly 100 pages long. The chair’s non-paper is 10 pages. Other delegations also have reminded the group that the last official text is 15/2, on which there is no agreement and which the General Assembly mandated must be narrowed in order for a diplomatic conference to be held. The assembly also said the treaty should focus on signal protection.

“At a minimum, we believe a draft basic proposal must include consensus on key provisions that provide broadcasters with what they need to protect against signal piracy, while not undermining the rights of underlying content holders or the public interest,” the US delegate said. “As the General Assembly directed, we must agree on the objectives, specific scope and object of protection at this meeting if we are to proceed to a diplomatic conference.”

The US also raised concern that language related to technological protection measures should be the same as in the 1996 WIPO “Internet treaties,” which gave digital age protection to copyright holders and performances.

Canadian Proposal Submitted

Canada submitted a proposal to this week’s meeting. It focuses on retransmission, allowing that a free, over-the-air signal be retransmitted within the country of reception but not across borders. It also recommends that limitations and exceptions for broadcasters allowed under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [under Article 14.6] should continue, which a source said is more generous for users than the three-step test traditionally used in copyright law.

Under the proposal, areas that would fall under the exceptions and limitations would be similar to those that fall under Article 15.1 of the Rome Treaty, such as private use, teaching or scientific research. Other types of uses would be subject to the three-step test.

Gerald (Jay) Kerr-Wilson, counsel at Fasken, Martineau and DuMoulin in Ottawa, offered support for the Canadian proposal on behalf of the Canadian cable, satellite and telecom industries. He highlighted the Canadian concern that consumers would be impacted if a new layer of rights were created for broadcasters. Canadian cable and satellite operators already pay rights holders for the retransmission of programs and are concerned about the impact of having to pay broadcasters an additional fee in order to access the content that has already been paid for, said Kerr-Wilson.

In another development, the US public broadcasting companies, including National Public Radio (NPR), have opposed the treaty. An NPR representative told sources that the North American Broadcasters Association (NABA), to which it belongs, was here supporting the treaty without the approval of its membership. NPR’s opposition may stem from concern that the exceptions and limitations of the current draft would not be equivalent to US law, where news reporting is covered.

A NABA representative at the meeting showed that a brochure it has distributed at the meeting stating its support includes a footnote that several members were not in agreement with the position.

WIPO Needs a Win

Keplinger noted that agreement on a document for negotiation does not signal an endorsement of a treaty.

He also said all decisions are up to the member states, not the secretariat, but said it is an important discussion for WIPO. “There has been a feeling that on substantive issues, it has been difficult for the organisation to show progress,” he said. “So in that regard, moving forward is important for WIPO.”

But as the US delegate put it, “Nobody should underestimate the difficulty of achieving the necessary consensus.” The treaty is so far from satisfactory for US technology and telecommunications firms, they are pushing hard at the meeting to see that the treaty, as one lobbyist put, “goes over the falls.” Major sports broadcasters from the US and elsewhere also have appeared at the meeting for the first time.

Liedes Absent

Liedes missed the second day, 19 June, to return to his native Finland for another matter. The second day began with statements from intergovernmental and non-governmental organisations, and was expected to move to the first discussions of the substance of the proposed text.

On day one, member states shot down an effort by Liedes to follow the same “green room”-style procedures that were employed at last week’s Development Agenda meeting, and which echoes a procedure used at the WTO. That would have meant regional coordinators overseeing the drafting of text for clusters of proposals. Officials said it would not work this week as there is too much divergence within the regions on the broadcasting issue.

William New may be reached at wnew@ip-watch.ch.