Outcome of 14th SCCR Session on Proposed WIPO Broadcasting
WIPO Pushes Forward with Broadcasting Treaty - Webcasting Deferred
By IP Justice Executive Director Robin D. Gross
agreement was reached on 5 May 2006 at the conclusion of a United
Nations treaty negotiation in Geneva to exclude the issue of webcasting
from a controversial treaty proposal to create new rights for
The UN Specialized Agency in the business of enacting global treaties
on intellectual property rights, the World Intellectual Property
Organization (WIPO), held its 14th
of Standing Committee on Copyrights and Related Rights
(SCCR) from 1-5 May 2006 to debate the proposed Broadcasting Treaty.
Country delegates expressed concern over the draft
of the proposed treaty because it would create a number of
new and excessive intellectual property rights for broadcasting
companies which would sit on top of the creator's copyrights in the
programming. Most delegates advocated for taking the traditional
approach of outlawing "theft of service" regarding broadcast
signals, but the SCCR Chairman Jukka Liedes was adamant about taking
the unprecedented move of creating new intellectual property rights for
Member States Concern Over "Anti-Circumvention" Rights Ignored
Also over the objections of the majority of Member States, Liedes has
thus far insisted on retaining the wildly unpopular anti-circumvention
provisions in the treaty. The anti-circumvention rights would
allow broadcasting companies to lock-up public domain programming and
make it illegal for anyone to bypass those "digital locks".
Similar anti-circumvention rights for copyright holders have already
been shown to create harmful unintended consequences like restricting
free speech, chilling innovation, and stifling competition. Many
Member State delegates questioned the wisdom of creating another set of
anti-circumvention rights for broadcasting companies. Columbia
submitted a proposal
specifically designed to address the harm caused by creating broad new
Unreasonably Long Term Troubles Majority of Member States
The excessively long term for the new rights of 50 years remains a
sticking point for many Member States. A 50-year term per
broadcast is more than twice the international standard of 20 years in
the Rome Convention for broadcast signals and far exceeds the economic
lifespan of a broadcast. Developing countries are particularly
concerned that the term's length will create a significant barrier to
knowledge and education. But no justification has been given for
the need for a term of 50 years.
Artists' and Performers' Rights Subordinate to Broadcasters' Rights
Many copyright holder groups remain concerned about the impact the
proposed treaty will have on their existing rights. Under the
proposed draft text, artists would need to get permission from
broadcasting companies to use their own performances. A wide
range of musicians, journalists, song writers, actors, and other
performing artists have expressed concern that the treaty would
subordinate their rights to the new broadcasters' rights.
Intel Warns WIPO that Treaty is Harmful to Innovation
Intel Corporation and a growing number of technology companies were in
Geneva for the SCCR 14th session to tell Member State delegates about
the treaty's harmful impact on innovation and competition. In a
letter to WIPO, Intel said that it was against the Broadcasting Treaty
because the burdens created by the new broadcasting rights would
outweigh any benefits they may provide.
Webcasting Deferred - Internet Transmissions of Broadcasts Still
The treaty's most controversial provision, a proposal by the United
States to create a separate new "webcasting" right through an "opt-in"
has been thrown out of this proposal, but will go forward
in a later instrument. The deal struck at the conclusion of the
14th SCCR was that webcasting be separated from this "traditional"
Broadcasting Treaty and dealt with in a broader, "new media" specific
treaty proposal next year. The United States threatened other
Member States that if they did not vote for a Diplomatic Conference to
begin formal treaty drafting at this fall's General Assembly meeting,
then it would consider a webcasting right to be back in the
While the separate webcasting right was removed from this proposal, the
Internet transmission of broadcasts remains covered under the
proposal's "retransmission right" in Article 6. The broadcast
companies are given the right to prevent retransmission "by any means"
and specifically via "computer networks". So much ordinary
consumer activity, such as blogging a clip from a tv show would still
be made illegal by this "traditional" Broadcasting Treaty.
There is also uncertainty within the committee about whether or not
"simultaneous" transmissions are included under the "traditional"
broadcasting proposal or the forthcoming " new media" package.
What Next for Broadcasting Treaty?
WIPO SCCR Chairman Liedes will draft a new treaty proposal (excluding
webcasting) to be published on 1 August 2006. During the
first part of September 2006, the SCCR will hold a special session to
debate and possibly finalize the 1 August Chairman's draft text.
At the late September
2006 WIPO General Assembly
meeting, Member States will vote on
whether or not to hold a Diplomatic Conference in 2007 to begin formal
drafting of the Broadcasting Treaty.
If the August proposal does not begin to address the concerns expressed
by Member States, there is a good chance that the 2006 General Assembly
will reject a Diplomatic Conference based upon that text.
Information on WIPO Broadcasting Treaty:
Summary of 2-Track Process
SCCR 14th Session
5 May 2006
A. On protection of traditional broadcasting organizations:
1. One more meeting of the SCCR before the General Assembly.
2. The agenda of that meeting will be confined to protection of
broadcasting in traditional sense (broadcast and cable)
3. A revised basic draft basic proposal will be prepared for the
meeting and all efforts will be made to make it available to the
Member States by August 1 2006. It will be made on the basis of
SCCR/14/2 and SCCR/14/3 and now-existing proposals and
taking account the discussions of this committee.
4. There will be a recommendation to the General Assembly
to convene a Diplomatic Conference at a suitable time in 2007.
B. A proposal on protection of webcasting and simulcasting.
1. The deadline for the proposals foreseen at 14th session of
SCCR concerning these webcasting and simulcasting, will be
August. 1 2006.
2. Revised document on protection of web and simulcasting
will be prepared on basis of SCCR/14/2, and the proposals, and
taking into account discussions of the committee.
3. Consultation will be taken on the matter of an agenda for a
meeting of an SCCR to be convened after the General Assembly.