[A2k] IPJ Stmt on Broadcasting Treaty on WIPO

[Robin Gross]

STATEMENT BY IP JUSTICE

REGARDING A PROPOSAL FOR A BROADCASTING TREATY
AT THE 13TH SESSION OF THE WIPO STANDING COMMITTEE ON
COPYRIGHTS AND RELATED RIGHTS
23 November 2005

Thank you, Mr. Chairman.  I speak on behalf IP Justice, an international
civil liberties organization that promotes balanced intellectual
property law.  Based in San Francisco, IP Justice also maintains
representatives in Switzerland and Italy.

Firstly, we would like to express support for Brazil=92s recent proposal
to reformulate the existing proposal for a Broadcasting Treaty to more
adequately balance the public=92s interest with the new rights created for
broadcasting companies.

Mr. Chairman, IP Justice is particularly concerned with any proposal to
include the regulation of Internet transmissions within the scope of
this treaty, whether mandatory or optional.

It is worth noting, that such webcasting provisions currently exist no
where in any national law.  It would be dangerously inappropriate to
=93experiment=94 in an international treaty by first creating those rights
in this forum -- without any opportunity to see how such regulation
actually works in the real world.

IP Justice is concerned that broadening the scope of this treaty to
include Internet transmissions of media would harm the growth and
development of the Internet.  As it would apply to thousands, if not
millions, of individual websites around the world, such regulation of
Internet transmissions threatens to chill freedom of expression and harm
innovation.

The proposal to regulate only simulcasting is a =93red herring=94, and is i=
n
fact, a back-door means of including webcasting within the scope of the
treaty.  All a webcaster would need to do is schedule a time for the
original Internet transmission, and all subsequent retransmissions of
that webcast, would be regulated under the treaty=92s retransmission
right.  So webcasting would, in fact, remain within the scope of
regulation in this treaty despite attempts to narrow it to simulcasting.

Including a provision on webcasting in an international treaty as an
optional feature makes absolutely no sense.  Member States are always
free to enact webcasting transmissions in their national law, so an
=93optional=94 provision in a treaty adds no value, and will only create
dis-harmony among Member States.  If such measures are truly needed, I
ask: why hasn=92t any country, including the United States, the lone
supporter regulating webcasting, enacted such measures in their home
countries?

Mr. Chairman, IP Justice is also concerned about the proposals to
include a ban on circumventing technological protection measures placed
on broadcasts.  These provisions have already been shown to be harmful
and overly-broad in the areas where they already exist for copyrighted
works, for example the controversial US Digital Millennium Copyright Act.

Creating an additional layer of rights for broadcasting companies on top
of existing rights will make it difficult for artists to use their own
performances without obtaining the permission of broadcast companies.
And consumers would be preventing form accessing works in the public
domain that are broadcasted by media companies.

Greater exceptions and limitations would need to be included in this
treaty in order to protect the general public interest.  Considering the
global trend to create new rights for rightsholders, due consideration
must be afforded to the exceptions and limitations to those rights in
order to ensure the public is able to access and use broadcasted
information.

The treaty proposal must be further clarified to ensure that any new
rights created apply only to the broadcast signals, and not the content
that is transmitted.  It is impossible to separate a broadcast signal
from the underlying content transmitted, so intentions to regulate only
signals, will inherently regulate access to the content as well.

Finally, Mr. Chair, IP Justice supports the views expressed by several
Member States at this meeting and in regional consultations to undertake
comprehensive studies of the impact of this treaty on local economies
before rushing into a Diplomatic Conference.  Without weighing the costs
to society and local economies against the possible benefits of this
treaty, we are unfortunately =93putting the cart before the horse=94 so to
speak.

IP Justice welcomes the opportunity to further discuss these views as
well as those of Member States at any time.  Thank you, Mr. Chairman.