New US ‘Compromise’ Proposal On Broadcasting Treaty At WIPO Stirs Fresh Negotiations

Members of the World Intellectual Property Organization copyright committee today are locked away in a private room negotiating on a draft text for global treaty to boost the rights of broadcasters. A key element of the debate, according to participants at this week’s meeting, is a new proposal put forward by the United States that seeks to clarify the scope of protection of the treaty and preserve national-level approaches.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is meeting from 26-30 November. All meeting documents are available here.

The text under negotiation (SCCR/36/6), as agreed by the last SCCR meeting in May, is available here.

The US proposal, document SCCR/37/7, is available here.

“The United States has for some time now suggested an approach based on a single right – a right to control retransmission of the signal to the public – as the best way to address the core problem of signal piracy, while still being able to achieve consensus at the international level,” US delegation lead Shira Perlmutter of the US Patent and Trademark Office told the committee plenary meeting yesterday. “I note in response to some of the prior interventions that one advantage of such a single right approach is that it would not prevent reproductions made by consumers or libraries or researchers.”

“The new US submission builds on this approach – but adds flexibility for member states – to give room for the provision of this key right through a combination of different bodies of law,” she said in a copy of her remarks. “It would also give us all the ability to adjust this combination over time, as technology and market conditions evolve in each country going forward.”

“And,” she added, “of course this would be a ‘minimum rights’ treaty, so that each country or region would be free to provide additional, more specific rights as they see fit.

Perlmutter noted that in spite of some two decades of negotiations on the issue, agreement still has not been found on the fundamental issues of objectives, specific scope, and object of protection. She suggested three reasons why this has been the case:

“1.       The conceptual and practical difficulty of distinguishing between signal protection and content protection, as required by our mandate from the 2007 General Assembly.

2. There is very different legal treatment among Member States, involving different bodies of law (those are primarily but not solely communications law and copyright/related rights law)
3. Shifting ground beneath us due to the rapidly changing use of technology by both broadcasting organizations and pirates.”

She noted that the US proposal is not intended to replace the existing draft text under discussion by the committee, but rather to be added into it in the appropriate place.

“The new proposal deals only with the scope of rights to be granted and the nature of their implementation, so would be appropriately placed in Section III of the Chair’s text. Other provisions in that text would remain in place, subject to further discussion by the Committee. These would include, for example, the definitions, the object of protection, exceptions and limitations, and technological protection measures among others. All of these issues remain important to the United States, even though not explicitly mentioned in this proposal,” she said.

Perlmutter said the US has “restated in Article (1)(i) the exclusive retransmission right from the Chair’s draft. That is the exclusive right to authorize retransmission to the public of a broadcast signal using any means.

“The essence of the new U.S. proposal can be found in the next paragraph, Article (1)(ii),” she said. “This provision recognizes that different Member States define the nature and scope of signal protection differently, while ensuring that they all do so in an adequate and effective way.”

She added: “Member States would be required to provide this exclusive right, but have the ability to provide certain limitations on the scope of the right as required by their national law, but only upon two conditions: (1) they must provide transparency through notification to WIPO of their specific limitations on the right; and (2) they must fill in any gaps in effective protection through their copyright or related rights laws.”

“This approach draws in some respects draws on the approach of TRIPs Article 14(3), which also relates to the implementation of protection for broadcasters in national law, but its a major substantive improvement for broadcasters in two important respects.”

“First,” she said, “TRIPs Article 14(3) offers WTO Members a choice:  they must either grant broadcasting organizations rights to prohibit certain acts, or provide the owners of copyright in the subject matter of the broadcast with the possibility of preventing those acts. By contrast, under the U.S. proposal, Contracting Parties would be required to provide broadcasting organizations with an exclusive right to authorize retransmissions to the public of their signals. Merely providing protection to owners of the copyright in the program carried by the signal would not be sufficient.

“Second, in circumstances where the Contracting Party imposes some limits on the exclusive right, that right must be adequately and effectively supplemented by copyright or related rights that may be exercised by the broadcaster—not just the owner of copyright in the program.”

Perlmutter’s full prepared remarks are available here [pdf].

 

Image Credits: Catherine Saez