IP Justice: “WIPO Pushes Forward with Broadcasting Treaty – Webcasting Deferred”

By IP Justice Executive Director Robin D. Gross
8 May 2006

An 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 broadcasting companies.

The UN Specialized Agency in the business of enacting global treaties on intellectual property rights, the World Intellectual Property Organization (WIPO), held its 14th Session 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 text 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 broadcasting companies.

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 anti-circumvention rights.

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 Covered

The treaty’s most controversial provision, a proposal by the United States to create a separate new “webcasting” right through an “opt-in” appendix 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 Broadcasting Treaty.

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.

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.