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IP Justice Media Contact:

IP Justice Executive Director Robin D. Gross, Esq.
+1 415-553-6261 robin@ipjustice.org


Outcome of 15th SCCR Session on Proposed WIPO Broadcasting Treaty:

UN Steamrolls Member States and Insists on Controversial Broadcasting Treaty:
WIPO to Outlaw Internet Transmissions of Cable and TV Programs

13 September 2006

Over the objection of Member States, the United Nations WIPO copyright committee Chairman Jukka Liedes called for convening a diplomatic conference to draft a treaty to create unprecedented new global rights for broadcasting companies.  At the end of the 15th session of the WIPO Standing Committee on Copyrights and Related Rights (SCCR), which was held in Geneva from 11-13 September 2006, Chairman Liedes, asked for "silent approval" and dropped the gavel to conclude the meeting after announcing there would be no time for further discussion on the controversial treaty.

“Rather than address legitimate concerns about theft of broadcast signals, the treaty would create 8 new intellectual property rights over broadcasts that are so broad they will stifle technological innovation, freedom of expression and access to knowledge,” said IP Justice Executive Director Robin Gross.

India was the loudest objector to the proposal and made several attempts to remind the Chair that there was no consensus among Member States to hold a diplomatic conference based on the Chair’s draft proposal.  Other Member States who expressed a lack of consent regarding a diplomatic conference included Brazil, Argentina, Chile, Bolivia, Iran, and South Africa.  In a surprise move, the United States changed its previous position and also stated its opposition to calling for a diplomatic conference based on the existing draft – although for entirely different reasons than developing countries.  WIPO is the United Nations Specialized Agency charged with drafting intellectual property rights treaties.

“Despite WIPO’s claim that it is ‘member-driven’ and ‘consensus based’ in its decision making, SCCR Chairman Liedes unilaterally decided it would be the recommendation of the Committee to the WIPO General Assembly to convene a diplomatic conference in July 2007 to finalize the treaty,” said Robin Gross, who was present at the meeting in Geneva.

The 2004 proposal for a “Development Agenda at WIPO” designed to reform WIPO’s practice of favoring special interests and creating new IP rights that harm the public interest was prevented from moving forward in 2005 based on the objection of only two Member States, the US and Japan.  In an inexplicable stark contrast, numerous Member States’ objections to Liedes’ proposal for a Broadcasting Treaty have been ignored and Liedes continues to steamroll Member States into accepting his treaty.

Besides the dissent from Member States, public interest groups and major technology companies were also in Geneva to voice their concern with the dangerous provisions in the Chairman’s draft proposal.  At a lunch-time briefing session during the SCCR meeting, Intel’s Global Policy Director Jeffrey Lawrence explained how the treaty will prevent the roll out of home networking technologies because permission will be required from broadcasting companies for consumers to access and use the cable and television programs that they have already paid for in their own homes.  Verizon Vice-President General Counsel Sarah Deutsch said that Internet service providers and other intermediaries also face significant legal liability under the treaty for transmitting programming.  “A broadcaster’s right of control should stop at the front door of the home,” Deutsch said.

Proponents of the treaty are mainly large cable and broadcasting companies like Ralph Murdoch’s News Corp. subsidiary, Fox News, which was also in Geneva to lobby for the new rights that would allow it to control the way in which the public consumes news and other entertainment.

“Member-States must stop passing treaties that only benefit narrow special interests like major broadcasters,” Gross added.  Small and community-based broadcasters have ardently opposed the treaty, as have artists and other performers, who will need to obtain permission from broadcasting companies to use the footage of their own performances.

An unpopular proposal from the US to include web-casting within the scope of the treaty was almost unanimously rejected by Member States at the May 2006 SCCR meeting.  Nonetheless, the draft treaty still regulates Internet transmissions of media because Article 9’s retransmission right and Article 14’s right of transmission after fixation makes explicit that broadcasters can prevent transmission “by any means including computer networks.”

During the meeting, Liedes re-iterated the US’ threat from the previous SCCR meeting that if the Committee did not call for convening a diplomatic conference at this meeting, then the US would insist that the earlier webcasting prohibitions be included back in the treaty again.

Rather than create 8 new intellectual property rights for broadcasting companies, the majority of Member States argued for taking an approach that outlaws the theft of signals.  It is already illegal to steal cable television under existing law in all countries.  This proposal, however, will give broadcasting companies the power to control what consumers can do with those programs.

This creates a problem for a growing number of consumers who use technology to copy, edit, comment on, and re-use media in otherwise lawful ways.  Internet bloggers and websites such as YouTube where people post snippets of media programming based on copyright law’s fair use privilege are also at risk.  Since this is not copyright, but rather a brand new type of IP right, traditional fair use privileges would not apply to protect consumers.  Television programs like Jon Stewart’s “Daily Show,” which uses short video clips of politician’s speeches and other news to provide political commentary on them, can also be prevented from re-using the footage if this treaty is passed.

One of the most dangerous provisions in the treaty is the proposal to grant broadcasters the right to lock up public domain programming using technological restrictions that it will then be illegal to bypass in order to access the public domain information.  South Africa called for WIPO to conduct an impact assessment study to weigh the potential social and economic costs of these technological restriction measures.

There is also a growing trend at WIPO to restrict public-interest groups’ access to Member State delegates.  For example civil society was not allowed to give any intervention statements during the meeting and some civil society members were told they could not take pictures of the proceedings.  Strict new rules are also being enacted at WIPO to control the press’ access to the proceedings and journalists’ ability to share information with Member State delegates.

Sometimes referred to as “chairman for life,” Liedes of Finland has presided over WIPO’s copyright committee for over 10 years.  “Member States must take some of the responsibility for their unhappiness with the way things are done at WIPO,” said Gross.  “Despite the SCCR Chair’s unwillingness to respect the expressed wishes of numerous countries, Member States continue to re-elect him to preside over their meetings and impose his views on the entire committee.”

The WIPO General Assembly will decide whether to accept Liedes’ recommendation at its annual meeting which takes place 25 September – 3 October 2006.


More Information on WIPO Broadcast Treaty:
http://www.ipjustice.org/WIPO/broadcasters.shtml


SCCR Chairman's current draft proposal for Broadcast Treaty [SCCR/15/2]

IP Justice's "Top 10 Reasons to Reject the WIPO Broadcast Treaty":
http://www.ipjustice.org/WIPO/15SCCR_2006_Top_10_reasons_WIPO.pdf
http://www.ipjustice.org/WIPO/15SCCR_2006_Top_10_reasons_WIPO.doc



SCCR Chairman's Conclusions
SCCR 15th Session
  11-13 September 2006


Recommendation on the diplomatic conference.

A diplomatic conference on the protection of broadcasting organizations be convened [11 July - 1 Aug 2007] in Geneva.  The objective of this diplomatic conference is to negotiate and conclude a WIPO treaty on the protection of broadcasting organizations, including cablecasting organizations.  The scope of the treaty will be confined on the protection of broadcasting and cablecasting organizations in the traditional sense.

Conclusions on the preparatory steps

Basic Proposal

A basic proposal for the diplomatic conference will be prepared on the basis of the revised draft basic proposal [SCCR/15/2] and the discussions in the September meeting of the SCCR, as well as the drafting instructions below, adopted by the SCCR.  The basic proposal shall be distributed to the Member States of WIPO, the European Community, as well as to the observer organizations by 15 December 2006. All Member States may make new proposals at the diplomatic conference.

Preparatory Committee

There will be a 2-day meeting to clarify outstanding issues in conjunction with a Preparatory Conference. The meeting of a preparatory committee will be convened for January 2007, to prepare the necessary modalities of the diplomatic conference.  The preparatory committee considers the draft rules of procedure to be presented for adoption to the diplomatic conference, the lists of states, as well as IGOs and NGOs to be invited to participate in the conference, as well as other necessary organizational matters.

Consultation and information meetings


The Secretariat of the WIPO will organize, in co-operation with the Member States concerned, and at the request by the Member States, consultations and information meeting on the matters of the diplomatic conference.  The meetings will be hosted by the inviting Member State.

Instructions for the Preparation of the Basic Proposal

The following is provided in order to allow consideration of whether the items should be retained, reformulated or deleted.

General
The basic proposal will be designed to clearly indicate the nature, the focus and the scope of the instrument, i.e. the treaty will provide protection for the signals of the broadcasting and cablecasting organizations without affecting or addressing the rights on content carried by the signal.

Preamble
- A revised preamble will be prepared in order to clarify the objectives of the treaty.  Explanatory notes shall further amplify these issues.
- Regrouping of provisions on certain general principles in the Preamble.


Definitions
- definition of "signal" will be added
- concept of "broadcast" will be explained or defined


Scope
- provisions on the scope will be refined (signal, broadcast)


Rights and protection
- a broad-based exclusive right of retransmission
- exclusive right of (the initial) fixation
- post-fixation rights


National Treatment
- the main principle
- in areas where different levels of protection are allowed, possibility for reciprocity.


Limitations and exceptions

- the WPPT type of provisions on limitations and exceptions
- list approach


Technological measures

- as in the revised draft basic proposal
- certain conditions


Term of protection
- at least 20 years


Eligibility
- unconditional, open for all Member States of the WIPO, as well as for inter-governmental organizations










 
Read the Principles of IP Justice and Sign-on!
1. We reserve the right to control our individual experience of intellectual property.
2. Creators deserve to be compensated.
3. We reserve our right to make private copies of lawfully acquired intellectual property.
4. Technology and information that enable the exercise of rights should be lawful.
5. "Copy Rights" come with "Copy Responsibilities."

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