Justice Statement on the Proposed WIPO
Session of the WIPO Standing Committee on Copyright and Related Rights
17-19 November 2004
deeply concerned about the WIPO Secretariat’s rush to convene a
Conference to create new rights for large broadcasting companies while
the pleas of developing nations for WIPO to adopt work plans that
access, not barriers, to knowledge and innovation and creativity.
“Special-Interest” Broadcasting Treaty Undermines “Development
At its recent 2004 annual meeting, WIPO’s General
adopted a “Development Agenda” designed to refocus WIPO’s work away
continuously increasing intellectual property rights, and rather, to
access to knowledge and assist developing nations to foster innovation
creativity in alternative ways.
There is a rapidly growing concern among
and international NGO’s about the dangerous impact on civil rights,
education, innovation, creativity, and competition facilitated by
“special-interest” laws such as the proposed WIPO Broadcasting Treaty.
There has been absolutely no showing that a new
broadcasting is needed. Proponents of
this treaty have yet to attempt an explanation why existing
property regimes are inadequate to meet the legitimate needs of
companies. Arguments in favor of this
treaty have focused on a need to reward investment in broadcasting,
outside the scope of intellectual property rights and thus outside of
mandate. While such reward may be
appropriate in certain cases, it is not WIPO’s role to create new
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
in national laws. So in many cases,
this treaty is not about “harmonizing” existing rights, but rather,
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
entire treaty, we are particularly concerned about several provisions
current draft that threaten to undermine the goals of the Development
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
treaties’ most dangerous provisions.
Similar measures granted to copyright holders under the WIPO
and Performances and Phonograms Treaty have been widely criticized as
endangering freedom of expression, technological innovation, and market
A 2003 UK Royal Society Report calls for a
the balance struck between developing and developed nations in
intellectual property regimes – particularly with respect to
And in 2002 a study from the UK Commission on Intellectual Property
developing countries to avoid enacting extreme [Digital Millennium
Act] “DMCA-like" anti-circumvention laws.
Canadian Heritage Study from 2002 also rejects the need for enacting
Based on the growing evidence of the harmful
“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
treaty at the previous Committee meeting.
Surprisingly, the Secretariat’s latest draft, which promised to
into account all expressed views failed incorporate this crucial
the current articles. It is not the
role of the WIPO Secretariat to tell Member States what their new laws
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,
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
or other personal use rights under copyright, build interoperable
engage in scientific research, librarying, and archiving of information. Prohibitions against the exercise of these
socially beneficial activities impede access to knowledge and stifle
technological and social development of the countries who would benefit
most from recent advances in technology.
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
(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
The Internet and traditional broadcasting are
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
At the June SCCRR meeting, the European Community
with at least twelve additional Member States called for the complete
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
this treaty as all states but the US want, the proposed new right of
retransmission in Article 6 controls retransmissions “by any means,”
via the Internet. So webcasting and
Peer-to-Peer (P2P) file-sharing would fall into this category,
enormous amount of ordinary consumer activity that is even further
Broadcasting Treaty Should Regulate “Signals” to Protect Creators
Also at the previous Committee meeting in June,
proposed that the next draft of the treaty include a “signals” based
for consideration, similar to the Brussels Satellite Convention. The alternative “NGO Proposal” for a
broadcast treaty also recommended taking this more tailored approach. 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
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
will give broadcasting companies power to control the content of the
programming, not just the signals.
permitting broadcasting companies to lock-up and
control public domain information, the current approach will also allow
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
under Creative Commons licenses are stifled because they use innovative
business models that depend upon the wide dissemination of their works
their success. But this treaty gives broadcasters the power
to prevent that because they will own a right that sits on top of
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
While plenty of attention
and detail has been paid to the expansive new rights of broadcasting
in this treaty, the legitimate needs of consumers have been completely
In order for this treaty to
maintain any semblance of balance, the limitations and exceptions to
broadcasters’ rights must be updated to reflect the legitimate
consumers who will be prevented from making private copies and engaging
numerous educational uses.
rights for broadcasters while not providing for appropriate exceptions
rights also undermines the goals of the Development Agenda and impedes
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].
should heed the pleas of developing countries and
the international community to begin its much needed reform by
substantially reformulating) the proposed “special interest”
Treaty in favor of agendas that will facilitate access to knowledge and
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