IP Justice[1] is deeply concerned about the WIPO Secretariat’s rush to convene a Diplomatic Conference to create new rights for large broadcasting companies while ignoring the pleas of developing nations for WIPO to adopt work plans that provide access, not barriers, to knowledge and innovation and creativity. 

“Special-Interest” Broadcasting Treaty Undermines “Development Agenda” Goals

At its recent 2004 annual meeting, WIPO’s General Assembly adopted a “Development Agenda” designed to refocus WIPO’s work away from continuously increasing intellectual property rights, and rather, to enable access to knowledge and assist developing nations to foster innovation and creativity in alternative ways.[2]

There is a rapidly growing concern among developing nations and international NGO’s about the dangerous impact on civil rights, access to education, innovation, creativity, and competition facilitated by “special-interest” laws such as the proposed WIPO Broadcasting Treaty.[3]

There has been absolutely no showing that a new treaty on broadcasting is needed.  Proponents of this treaty have yet to attempt an explanation why existing intellectual property regimes are inadequate to meet the legitimate needs of broadcasting companies.  Arguments in favor of this treaty have focused on a need to reward investment in broadcasting, something outside the scope of intellectual property rights and thus outside of WIPO’s mandate.  While such reward may be appropriate in certain cases, it is not WIPO’s role to create new rights for those who played no role in creating programming or other content.

Many of these provisions (i.e., webcasting or anti-circumvention provisions for broadcasters) currently exist nowhere in national laws.  So in many cases, this treaty is not about “harmonizing” existing rights, but rather, creating entirely new rights that have never been shown to be warranted; as such, it is entirely inappropriate for an international treaty to mandate them.

While IP Justice recommends that Member States reject the entire treaty, we are particularly concerned about several provisions in the current draft that threaten to undermine the goals of the Development Agenda and endanger the public interest.

Delete Articles 16 and 17 Entirely, as Requested by Member States

Articles 16 and 17, which mandate that Member States create new rights for broadcasting companies regarding the circumvention of technological measures controlling broadcast signals are among the proposed treaties’ most dangerous provisions.  Similar measures granted to copyright holders under the WIPO Copyright Treaty and Performances and Phonograms Treaty have been widely criticized as endangering freedom of expression, technological innovation, and market competition.[4]

A 2003 UK Royal Society Report calls for a re-examination of the balance struck between developing and developed nations in international intellectual property regimes – particularly with respect to anti-circumvention laws.[5]  And in 2002 a study from the UK Commission on Intellectual Property warned developing countries to avoid enacting extreme [Digital Millennium Copyright Act] “DMCA-like" anti-circumvention laws.[6]  A Canadian Heritage Study from 2002 also rejects the need for enacting such broad anti-circumvention laws.[7]

Based on the growing evidence of the harmful impact these “anti-circumvention” measures have had in countries that have passed them in accordance with the WCT/WPPT, Brazil and India called for their complete removal from this treaty at the previous Committee meeting.  Surprisingly, the Secretariat’s latest draft, which promised to take into account all expressed views failed incorporate this crucial proposal in the current articles.  It is not the role of the WIPO Secretariat to tell Member States what their new laws will be, but rather to facilitate Member States’ expressed will.  Self-determination is an indispensable component of legitimate democratic law-making processes.  Unfortunately, it would appear that the “tail is wagging the dog” in this case.

If Articles 16 and 17 become international law, they will only serve to keep poor countries from developing to their full potential and from competing on a level playing field with developed countries.  Bypassing technological restrictions is necessary for consumers to access public domain programming, exercise fair use or other personal use rights under copyright, build interoperable technologies, engage in scientific research, librarying, and archiving of information.  Prohibitions against the exercise of these socially beneficial activities impede access to knowledge and stifle the technological and social development of the countries who would benefit the most from recent advances in technology.

 Internet Transmissions Should be Excluded from Broadcasting Treaty

Only a single state, the USA, proposed widening the scope of the treaty to regulate Internet webcasting.  At the June 2004 Standing Committee on Copyright and Related Rights (SCCRR) meeting, numerous objections were raised to such an expansive broadening of the treaty’s scope to treat the Internet transmission of programming with rules designed for traditional broadcasting.  Regulating Internet transmissions of audio and/or visual content would subject potentially millions of people to broadcast rules.

The Internet and traditional broadcasting are entirely different technologies and should not be lumped together for purposes of regulation.  Including webcasting in this treaty will give traditional broadcasters an enormous advantage over new and innovative Internet companies.

At the June SCCRR meeting, the European Community together with at least twelve additional Member States called for the complete removal of Webcasting from the treaty.  Yet the US proposal to regulate webcasting remains in this treaty draft.

Even if webcasting is ultimately excluded from the scope of this treaty as all states but the US want, the proposed new right of retransmission in Article 6 controls retransmissions “by any means,” including via the Internet.  So webcasting and Peer-to-Peer (P2P) file-sharing would fall into this category, regulating an enormous amount of ordinary consumer activity that is even further removed from traditional broadcasting.

Broadcasting Treaty Should Regulate “Signals” to Protect Creators and Public

Also at the previous Committee meeting in June, India proposed that the next draft of the treaty include a “signals” based approach for consideration, similar to the Brussels Satellite Convention.  The alternative “NGO Proposal” for a broadcast treaty also recommended taking this more tailored approach.[8]  Unfortunately, India’s proposal, which would have addressed the concerns of many public-interest NGOs, the artistic community, and developing nations was also left out of the current draft.

This treaty should be designed to regulate signals, not the content of the programming itself, which is owned by the copyright owner (if its not in the public domain).  But the content and the signal cannot be separated and the current draft’s treatment will give broadcasting companies power to control the content of the programming, not just the signals. 

Besides permitting broadcasting companies to lock-up and control public domain information, the current approach will also allow the rights of broadcasting companies to trump the rights of creators.  Many artists will be harmed by this existing layer of regulation on their performances.  Artists who publish under new alternative distribution models such as under Creative Commons licenses are stifled because they use innovative business models that depend upon the wide dissemination of their works for their success.[9]  But this treaty gives broadcasters the power to prevent that because they will own a right that sits on top of artists’ right and can prevent distributions essential for these new alternative business models to succeed.

Expand Limitations and Exceptions in Article 14 to Protect Consumers

Article 14 on the limitations and exceptions to broadcasters’ rights pays short-shrift to consumers’ rights to use programming.  While plenty of attention and detail has been paid to the expansive new rights of broadcasting companies in this treaty, the legitimate needs of consumers have been completely ignored.  In order for this treaty to maintain any semblance of balance, the limitations and exceptions to the broadcasters’ rights must be updated to reflect the legitimate expectations of consumers who will be prevented from making private copies and engaging in numerous educational uses.  Creating new rights for broadcasters while not providing for appropriate exceptions to those rights also undermines the goals of the Development Agenda and impedes access to knowledge.

Community Broadcasters Oppose the Proposed Treaty

"AMARC, the World Association of Community Broadcasters, an international network of over 3000 community broadcasters is opposed to proposals to extend broadcasters' intellectual property rights in this draft treaty.  AMARC, recognized by ECOSOC, believes a better balance is needed between intellectual property rights and protection of cultural commons and the public domain." [IP Justice delivered this paragraph on behalf of AMARC].

In conclusion, WIPO should heed the pleas of developing countries and the international community to begin its much needed reform by rejecting (or substantially reformulating) the proposed “special interest” Broadcasting Treaty in favor of agendas that will facilitate access to knowledge and reward true creators.

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