[A2k] WIPO Assembly: WIPO Members divided over proposed Broadcasting Treaty

[Sangeeta]

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Sangeeta

SUNS #5884 Friday 30 September 2005

south-north development monitor SUNS [Email Edition]



Development: WIPO Members divided over proposed Broadcasting Treaty

Geneva, 29 Sep (Sangeeta Shashikant) -- The WIPO General Assembly heard

divided views on Wednesday between Members that wished to hold a diplomatic

conference (to negotiate a new treaty) on the protection of broadcasting

organizations in 2006 and those that felt that discussions on the treaty had

not yet matured sufficiently to warrant a diplomatic conference.



Informal consultations were held by the Assembly Chairman, Ambassador

Enrique Manalo of the Philippines, with a view to bridging the gap and come

up with appropriate language agreeable to all Members, but the consultations

were unable to reach a conclusion. Argentina and the United Kingdom were

appointed as facilitators of the Chair to try and reach a solution. The

issue is expected to be resolved only next week, perhaps at the end of the

Assembly.



Advocates claim that broadcasters' rights have to be protected, as present

copyright laws do not adequately cover these. Those who are against or are

cautious of the proposed treaty say it creates a new layer of rights for

organizations (broadcasters and web-casters) that are not creators, add on

costs to the consumers, and hinder access to information and knowledge.



At the Assembly discussion, many developing countries criticised what they

said was the un-transparent and non-inclusive process by which the WIPO

Secretariat had organized regional consultations on the issue. The process

by which the treaty is being pushed has become as big an issue as the

treaty's contents.



Rita Hayes, WIPO Deputy Director-General in charge of the Copyright and

Related Rights and Industry Relations Division, introduced the document

prepared by the International Bureau (i. e. the WIPO Secretariat) on the

protection of broadcasting organizations (WO/GA/32/5).



The issue has been discussed at the Standing Committee on Copyright and

Related Rights (SCCR) at its past 12 consecutive sessions (from 1998 to

2004). According to the Secretariat document, the idea to launch a

diplomatic conference was first mooted at the SCCR in June 2004. The venue

for deciding on this shifted last year to the General Assembly, which did

not make a decision.



A revised version of the Consolidated Text for a Treaty on the Protection of

Broadcasting Organizations was prepared for the 12th session of SCCR in

November 2004. At that meeting several developing countries (Argentina,

Brazil, Chile, Honduras, India and Iran) had indicated that they were not in

favour of regional consultations on the issue but preferred "open-ended

inter-sessional" consultations that allowed all Member States and observers

to participate.



However, no open-ended meeting was convened. Instead, the Secretariat

organized six regional consultation meetings between May to July 2005. A

second revised version of the Consolidated Text (SCCR/12/2/Rev. 2) and the

working Paper on alternative and non-mandatory solutions on protection in

relation to web-casting (SCCR/12/5) (released after the November SCCR and

not discussed at any SCCR meeting) were the basis for discussions at the

regional meetings.



Norway also organized an informal consultation in Brussels (13-14 September)

for representatives of WIPO member states that were not represented in the

regional consultations. Most of the participants came from developed

countries.



According to the Secretariat document, the regional consultations produced

broad agreement that a Diplomatic Conference be convened. The paper

recommends that the WIPO General Assembly (GA) "approve the convening of a

Diplomatic Conference" (to take place in the second quarter of 2006) and

"approve the organizational and procedural matters" for the Conference. It

also proposes that the 13th SCCR session be convened on 21-22 November,

before the diplomatic conference to discuss the remaining issues, and that

the Chairman of the SCCR, Mr. Jukka Liedes, in cooperation with the

International Bureau, be requested to prepare the Basic Proposal for the

Diplomatic Conference.



The legitimacy of the consultations was questioned by many developing

countries who said that invitations had been issued to selected countries

and to officials to participate in their personal capacity. An African

delegate said that his country and many other African countries had not been

invited to participate in the African Regional consultations. At the meeting

Wednesday, many countries severely criticised the process of convening of

the regional meetings for not being transparent or inclusive.



WIPO members that support the convening of a diplomatic conference next year

are the Group B (comprising developed countries), the European Community,

and some of the members that participated in the regional consultations.



On the other hand, those opposed to the holding of a diplomatic conference

in 2006 (and instead want further discussions at the SCCR on the text and an

assessment of the implications of such a treaty) include the Asian Group,

and many members of the Group of Friends of Development (Argentina, Bolivia,

Brazil, Cuba, Dominican Republic, Iran, Peru, Sierra Leone, South

Africa, Tanzania, and Venezuela) and Chile.



The Czech Republic speaking on behalf of the Central European and Baltic

states said that the consultations led to useful exchange of information and

came to the understanding that it is possible to move forward, and so

supports the holding of a diplomatic conference.



Group B (comprising developed countries) supported the holding of a

diplomatic conference. Norway and New Zealand supported this. The UK

(speaking on behalf of the European Community) said that it is timely to

hold the conference. The remaining outstanding issues can be resolved in the

SCCR meetings.



Morocco said that progress on the protection of broadcasting organizations

had been made over the years. It had hosted a consultation for Arab states

in May. It said the WIPO Copyright Treaty and WIPO Performances and

Phonograms Treaty do not include broadcasters' rights. There are many

important aspects, for example, to prevent illegal use of broadcasting

signals. It said the consultation's participants asked the Assembly to take

necessary steps.



Moldova and Russia briefed the meeting about the regional consultation held

for countries of Central Asia, Caucasus and Eastern Europe in June in

Moscow. They supported a diplomatic conference in the first half of 2006.



Kenya, which hosted an African regional consultation in May, said that the

current legal framework is inadequate, that the consultation recognized the

significant social and economic role of broadcasting and the importance of

protection of broadcasting organizations, and it supported the convening of

the diplomatic conference in 2006.



Benin on behalf of the least developed countries also supported the

convening of the diplomatic conference in 2006.



Antigua and Barbuda, supported by St. Vincent and the Grenadines, Jamaica

and Trinidad and Tobago, said it approved the holding of the diplomatic

conference. Similar support was expressed by Mexico, Nicaragua and Colombia.



The United States also stated that it was timely and appropriate to convene

the Diplomatic Conference in 2006.



On the other hand, many other countries said that it was premature to

convene a diplomatic conference, and wanted further discussions at the SCCR,

including an assessment of the implications of a treaty.



Iran on behalf of the Asian Group said the complexity and cross-cutting

nature of the issue and its implications means that the issue is sensitive

and of serious concern to member states.



It criticised the organizing of the regional consultations, and the putting

forward of the second text to regional consultations as there was not even

any consensus on the holding of such consultations in the 12th session of

SCCR. It stressed the importance of transparency in the process.



The Asian group, said Iran, feels that there is need for sufficient time for

members to address the second consolidated text in depth during at least two

further SCCR sessions in 2006. The SCCR would then report its progress to

the next GA. The holding of any diplomatic conference is premature.



It added that web-casting is an evolving and unknown issue for member states

and the implications for developing countries are not clear. The Asian group

is of the opinion that web-casting should be excluded from the process of

SCCR and the issue should not be raised in any form during any diplomatic

conference in this process.



Brazil (speaking on behalf of Argentina, Bolivia, Brazil, Cuba, Dominican

Republic, Iran, Peru, Sierra Leone, South Africa, Tanzania, and

Venezuela) said that WIPO as a UN body is expected to operate as a

Member-driven institution. Brazil said the Secretariat's document does not

fully reflect the decision taken by Member states on the issue a year ago,

in particular the request put forth to the SCCR to accelerate its work on

the protection of broadcasting organizations "with a view to considering the

possibility of convening a diplomatic conference in 2005". [The Secretariat

Document states "with a view to approving the convening of a diplomatic

conference ."]



The expectation was that the SCCR would afford WIPO members an opportunity

to engage in an in-depth consideration of the complex legal and technical

issues involved in the proposed new broadcasting treaty, added Brazil. Only

by these means could the GA be in a position to take a fully informed

decision on whether to convene a diplomatic conference to conclude

negotiations on the treaty.



Notwithstanding the decision to accelerate the work of SCCR, only one

meeting was held between the last GA and the current GA and this did not

provide a number of developing countries with an opportunity to grasp the

difficult and multifaceted issues involved.



It added that the SCCR in November 2004 did not allow proper examination of

the various provisions contained in the consolidated text of the Chairman.

NGOs were also given little space and time for interventions. The call by

some developing countries for an inter-sessional meeting of the SCCR to

allow for a narrowing of differences went unheeded. Instead regional

consultations were held although few regional groups had actually agreed on

the need and convenience of holding such consultation during the 12th

Session of the SCCR, said Brazil.



It added that there was a clear lack of consensus on whether regional

meetings should be convened as several Member states felt that the issue as

a whole needed further clarification and debate in an appropriate formal

multilateral setting, with the presence of official government

representatives assigned to represent their countries' interest in WIPO in

Geneva.



It noted that not all countries belonging to their respective regional

groups attended the regional meetings. It gave examples of the African

consultation, which was attended only by 13 of the 53 Members of the African

Group, and the GRULAC consultation, attended by only 15 of the 33 nations.

Invitations were issued directly to capital officials in their personal

capacity without going through the normal diplomatic channels. Thus,

obviously the outcomes of these consultations are not binding and cannot be

invoked as a basis on which Member states should make their decision.



The group expressed the view that discussions had not progressed to the

point where a consensus on a diplomatic conference can be achieved. The

debate at the November SCCR showed that significant differences persist

among Members on several crucial substantive issues and proposed clauses,

including the scope of the treaty, duration of protection, the nature of the

rights conferred, technological protection measures, digital rights

management, the inclusion of web-casting, and the relationship between the

proposed new treaty and other WIPO conventions.



In some areas, positions have actually grown further apart from each other,

said Brazil, as the group is not prepared to go along with the inclusion of

"web-casting" as a subject matter of negotiations.



It is particularly important to have more in-depth substantive discussions

on the several complex and difficult provisions that have been proposed and

to assess the potential development impact of such a major international

treaty.



It suggested that at least two other meetings of the SCCR be organized in

the coming year to consider the second consolidated text, and they should

devote more time to the issues of exceptions and limitations. It also

pointed out that the "Basic Proposal" of a Diplomatic Conference would have

to be discussed and approved by the SCCR and not be elaborated under the

sole responsibility of the Chair and the Secretariat.



South Africa agreed with Brazil and said a diplomatic conference will take

place in future but it would be too optimistic to call it in 2006. It

expressed dissatisfaction with the regional consultations which reflected a

process that is not member-driven and registered concern about lack of

balance and transparency.



It concurred with Brazil that invitations were issued to personnel in their

personal capacity and gave the example of the African regional consultations

which was attended by a handful of African countries. It agreed with Brazil

that there was no agreement on many issues, stressing that the rights of

other stakeholders are still being discussed and to reach a conclusion while

these issues are not resolved would be counterproductive. In addition, no

empirical studies have been conducted. The GA should take a principled

position that development impact assessment be conducted. It did not support

the holding of a diplomatic conference in 2006 and suggested that the issue

be decided at the next GA.



Chile shared the concerns about the consultations and did not think that the

time was ripe for a diplomatic conference. Much work needs to be done and

there needs to be independent studies. Egypt said that despite favouring a

broadcasting treaty, it felt that more vital work needs to be done prior to

taking a decision to hold a diplomatic conference.



India urged the holding of SCCR meetings to consider the unresolved issues

and expressed the view that the various procedural aspects on diplomatic

conference is premature. It said that the draft treaty will create a new

layer of rights and this would have a negative impact on the content. It

would affect access to information and the public at large. India is willing

to consider the protection of broadcasting signals but opposed the granting

of exclusive rights to broadcasters that include the content. It also

opposed the inclusion of "web-casting" in a treaty.



India said the time is not ripe for the treaty as the implications are not

fully understood. It had raised the matter in UNESCO as the issue goes

beyond intellectual property. It had also requested that universal access to

knowledge not be hindered by a draft treaty.



Although the broadcasting industry in India had reached a certain level of

sophistication, it still felt that the current treaty grants broad rights to

broadcasters. India expressed its support for the statement by the Asian

group, the statement by Brazil on behalf of the 12 members of the Group of

Friends of Development and by Chile, Egypt and South Africa.



Peru said that there was insufficient information and requested that the

time-frame be extended before a decision on a diplomatic conference.

Venezuela said that it was invited to the GRULAC regional consultation but

its representative left after realizing that it had not been properly

convened. It said that NGOs that were against the treaty had not been

invited, whereas the private sector that supported the treaty was present.

It proposed the postponement of the diplomatic conference.



While making their general statements to the Assembly, a number of NGOs made

comments on the broadcasting rights issue.



The Civil Society Coalition (CSC) (comprising 28 NGOs from 12 countries)

urged WIPO to take more seriously its role in supporting development, and

protecting the public interest. The CSC opposed the convening of a

diplomatic conference on a proposed treaty for broadcasting, cable-casting

and web-casting organizations since the process for consideration of this

treaty is flawed.



The views of consumers and the technology community on the radical and

restrictive web-casting proposal has not been taken account of, and there

has been no economic analysis of the impact of the treaties on consumers, or

on copyright owners, said the CSC delegate.



Further, the treaty is being sold by its advocates as something that is

necessary to address piracy. But in reality, said CSC, it has little to do

with piracy. Instead it provides for extensive commercial rights to

broadcasting organisations, lasting 50 years, to make reproductions and

redistribute the works.



This new right is on top of the copyright in copyrighted work, and applies

even to works in the public domain. If this is extended to the web and to

web-casting organisations, it will harm access to knowledge.



If rights are given to one group after another that asked for it, where

would it end? Multiple rights would be given on the same works. The end

result is that there will be no public domain left. There would also be the

curtailing of the free movement of information, higher prices for

information, and less access to knowledge. It ends with a less informed and

less equal society, added the CSC.



The Electronic Frontier Foundation (EFF) registered concern about the

proposed broadcasting treaty. In the US, thousands of people have protested

to the government about the treaty and requested a thorough investigation of

its potential impacts.



The EFF said it was concerned mainly with the broad scope and questionable

necessity of the treaty, adding: "For example, why would an instrument

intended to protect against signal piracy include post-fixation rights for

broadcasters and web-casters? Why does it cover web-casters at all, when the

incredible proliferation of web-casting companies seems to indicate no need

for new monopoly rights? Are there any economic justifications for such a

radical new form of intellectual property?"



EFF pointed out that there is no consensus among American web technology

companies that web-casters would benefit from new monopoly rights. The

web-casting proposal has been rejected by 20 web technology companies. A

letter by them to WIPO was signed among others by Mark Cuban (operator of

the largest digital HDTV network in the world - HDNet), the owner of a major

league sports team whose matches are web-cast (Dallas Mavericks) and owner

of half a billion dollars' worth of digital content.



The EFF said in view of these basic questions, the discussion on the

broadcasting treaty should be in plain view and WIPO members should not turn

the treaty over to a diplomatic conference in 2006. +



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