IP Justice Media Contact:
Justice Executive Director Robin D. Gross, Esq.
Outcome of 15th SCCR Session on
Proposed WIPO Broadcasting
UN Steamrolls Member States and Insists on
Controversial Broadcasting Treaty:
WIPO to Outlaw Internet Transmissions of Cable and TV
Over the objection of Member States, the United Nations WIPO copyright
Chairman Jukka Liedes called for convening a diplomatic conference to
draft a treaty to create unprecedented new global rights for
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
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
“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
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
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
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
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
The WIPO General Assembly will decide whether to accept Liedes’
recommendation at its annual meeting which takes place 25 September – 3
Information on WIPO Broadcast Treaty:
current draft proposal for Broadcast Treaty [SCCR/15/2]
IP Justice's "Top 10 Reasons to Reject the WIPO Broadcast Treaty":
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
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.
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.
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.
- 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.
- definition of "signal" will be added
- concept of "broadcast" will be explained or defined
- 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
- 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
- as in the revised draft basic proposal
- certain conditions
Term of protection
- at least 20 years
- unconditional, open for all Member States of the WIPO, as well as for inter-governmental organizations