[A2k] Re: [Broadcast-discuss] Notes from WIPO Barcelona Broadcasting meeting

[Seth Johnson]

Probably why they're so antsy to get the Stevens Bill this
session, here in the States . . .

Broadcast flag, go right ahead with their corporate personhood
rights and kill IP layer neutrality -- it all dovetails quite
nicely.

I think they think they need to act quickly while they can,
before we figure out their bag.


Seth


Michelle Childs wrote:
>
> >From Michelle Childs Blog
>
> http://downontheriver.blogspot.com/
>
> Notes of WIPO Barcelona Seminar
> BARCELONA SEMINAR TO DISCUSS BROADCASTING ISSUES
>
> On June 21, 2006, I was a panellist at an all day seminar in Barcelona
> entitled =93The Proposed WIPO Treaty on the Protection of Broadcasting
> Organizations: From the Rome Convention to Podcasting"
>
> For details see:
> http://www.wipo.int/edocs/prdocs/en/2006/wipo_ma_2006_23.html
>
> It was organised by WIPO, the Catalan Broadcasting Council and the
> Barcelona Bar Association and =91supported=92 by several other EU broadca=
sters
> organisations (.Association of Commercial Television in Europe (ACT),
> Association of European Radios (AER), Association of Spanish Commercial
> Radio (AERC), International Association of Broadcasting (AIR), European
> Broadcasting Union (EBU), and the Audiovisual Producers Rights Management
> Organization (EGEDA). )
>
> While the meeting was in theory open to all, only one weeks notice was
> given, so it made it very difficult for civil society to attend, and I wa=
s
> the only representative there from consumer/ public interest groups. In
> addition my talk was cut from a promised 10 minutes to five, though I was
> allowed to question some of the speakers. Despite the title there was
> little detail discussion of podcasting, most speakers focused on
> justifications for the Treaty itself.
>
> By the time I arrived ( due to travel delays I missed the opening ceremon=
y
> and general introductory panels) there was quite a small audience , about
> 20 or so people. It was worth attending though to hear the coded and not
> so coded messages from EU Broadcasters, the EU Commission and the WIPO
> Secretariat on how they think the discussions on the Broadcasting Treaty
> should play out at the next WIPO meeting in September.
>
> Key themes coming out of the meeting:
> =B7 EU broadcasters very keen to get the Treaty finalised quickly
> =96broadcasters reps spoke of the need to deal with webcasting separately=
,
> but to get on with =91their=92 treaty.
>
> =B7 EU Broadcasters also want simulcasting included ( i.e protection for =
the
> simultaneous transmission on the Internet as well as on terrestrial cable
> and satellite systems )- without such a right their broadcast protection
> is =91meaningless=92.
>
> =B7 WIPO secretariat see the removal of the controversial webcasting
> proposal from the main text as removing the final obstacle to agreement t=
o
> a Diplomatic Conference (DC), at the September meeting. Their message was
> that it was a time for compromise, on the basis that no one opposes a
> Treaty , just its contents(!).The final details can be resolved at the DC=
,
> where as in past years, many proposals could be made.
>
> =B7 EU Commission- All 25 member States =91without demur=92 support a DC.
> Support for simulcasting is a compromise position given different legal
> traditions ( see below), not on the principle of granting protection but
> on extending protection to a new class of beneficiaries.
>
> =B7 There is clearly a split between the US and EU on extension of rights=
 to
> the Internet. Given the strong lobbying from EU broadcasters, it is
> possible that the Commission could push more strongly in September for th=
e
> inclusion of simulcasting , but not webcasting in the main text of the
> treaty. This may be opposed by the US as its excludes pure webcasters suc=
h
> as Yahoo.
>
> =B7 Several Delegates mentioned linking the Broadcast Treaty to signing u=
p
> to the Rome Convention ( which the US has not done)
>
> I couldn=92t take a verbatim note of proceedings and some notes are based=
 on
> the translations from the original languages , so double check directly
> with the speakers if you wish to quote their views. With that caveat (!)
> below are some points of interest from some of the speakers.
>
> The second panel was on Broadcasting in the 21st Century : scenarios and
> challenges=92:
>
> One of the speakers was Yahoo Europe ( the main lobbyist for the inclusio=
n
> of webcasting) represented by its Legal Director , Mr Ventura Barba . In
> essence he argued that:
>
> The only difference between webcasters and broadcasters was the technolog=
y
> used, the business model was the same as was the experience for consumers=
.
> They were in the same field and needed the same protection against
> potential signal pirates. In addition they already dealt with radio and T=
V
> broadcasters who were putting pressure on them to guarantee protection.
>
> Given that his justification focused on protection against signal piracy =
I
> asked him if Yahoo would therefore support a the proposed webcasting
> treaty which was limited to signal piracy without the broader protections
> in the proposed Broadcasters Treaty. He said that the signal piracy
> approach was a start but not the end and not what =91we deserve=92.
>
> Other panellists spoke about the need for a Broadcasting Treaty and the
> need to show that Broadcasters were creators too. They mentioned that
> Spain's new broadcasting law will give protection to simulcasting,
> webcasting and podcasting.,( IP Director, PRISA group Madrid.)
>
> The copyright Counsel for Alfa- Redi, Lima While suggesting that addition=
s
> to the Treaty should not be limited to webcasting/simulcasting but`also
> included 3G radio broadcasting and Digital Terresterial Televison . Care
> should be taken over identifying the problem. People called pirates in
> Spain centuries ago were called lords in the UK. It was important not jus=
t
> to think of IP but also consider data protection, civil liability,
> cultural diversity( especially the UNESCO convention)and the rights of
> other performers. The Internet is different but the same principles on
> these issues must apply.
>
> This was followed by 30 minute session from Mr Ficsor, Chairman, Central
> and Eastern European Copyright Alliance (CEECA) Budapest a well known
> supporter of the Treaty and always dismissive to opponents. True to form
> he started off by criticizing the reactionaries of the Copyleft movement
> who exaggerated the effect of the Treaty. A strong defence was needed
> against those who opposed the Treaty. The Treaty was essential and its
> adoption urgent as the Rome Convention was old fashioned. However he said
> the Treaty was only worth having if it had proper protections for
> broadcaster which included TPMs. (He did acknowledge that the Treaty woul=
d
> also have to have exemptions for public interests if TPMs were included).
> It should also include simulcasting, webcasting should be dealt with
> separately.
>
> I questioned him on the difference between simulcasting and webcasting,
> wasn=92t it just seeking to protect a limited class of beneficiaries (
> traditional broadcasters) rather than any real difference in activities
> between webcasters and simulcasters ? As such . didn=92t all the concerns
> about the chilling effects of extending protections to the Internet apply
> to simulcasting as much as to webcasting?
>
> He replied with a circular argument. If simulcasting was not protected
> then Broadcasters would not have signal protection if they choose to
> simulcast (!), as even though the traditional broadcast signal would be
> protected, the signal on the Internet would not be. In practice it would
> be =91meaningless=92 if broadcasters don=92t have protection of simulcast=
ing.
>
> I spoke on the next panel. This was broadly split between broadcasters wh=
o
> supported the Treaty and artists representatives concerned about the lack
> of protection of their rights.
>
> The European Broadcasting Union appeared to be worried about the future o=
f
> the Treaty, repeating that the Treaty needed to be finalised urgently , t=
o
> include simulcasting, but that webcasting should be dealt with separately=
.
>
> Mediaset wanted the Treaty but said that webcasting should be included.
> There would be no threat to others rights as =91fair rights=92 would be
> included.
>
> I explained the consumer concerns about the Treaty eg for non signatories
> to Rome, on TPMs , limitations and exceptions and repeated my belief that
> there was not a substantive difference between webcasting and
> simulcasting. I pointed out that NGOs had been supportive of a pure
> signals based Treaty and had provided a draft text.
>
> A representative of the artists organisation, Artistas Interpretes
> Sociedad de Gestion (AISGE) , Madrid opposed a broad treaty, they wanted
> it limited to a signal based approach. As drafted it could cause conflict=
s
> between broadcasters and rightholders. The Treaty was seeking to regulate
> the highway before the car ( content =3D car) as artists did not have
> appropriate international regulation of their rights.
>
> The legal representative of Artistas,Interpretes, Ejecutantes (AIE),
> Madrid supported the Treaty and its extension to simulcasting. She sought
> to draw a distinction between simulcasting and webcasting. Simulcasting
> was exactly the same as traditional broadcasting just on a different
> medium , whereas webcasting goes into other fields e.g podcasting, mobile
> phones. ( I pointed out that the current draft does not limited it just t=
o
> simultaneous transmission but allows delayed transmission which could
> include, VOD, podcasting. ) . She also suggested that it should be a
> requirement that all countries join the Rome Convention.
>
> The EBU rep was questioned about the concerns of artist and consumers. He
> said it was a =91dialogue with the deaf=92 as there were no concerns, as =
there
> were no threats to either groups rights.
>
> The final two panels were directly on the WIPO Broadcasting Treaty. The
> first panel was a pretty fair overview of the discussions to date at WIPO
> by Professor Delia Lipszyc from Buenos Aires University.
>
> The final panel was chaired by Jukka Liedes ( in fluent Spanish), Chair o=
f
> the SCCR charged with taking forwarded the Broadcasting Treaty.
>
> =B7 He was a great pains in a lengthy introduction to make the point that
> the current document was just a draft and not the final document ( I
> assume to head off criticisms that he had not included several Latin
> American proposals in the previous draft.)
>
> =B7 But what was clear` was that the need for updating the protection of
> Broadcasters had been proved, to protect against signal piracy ,and, that
> the basis of the protection was the investment that broadcasters had made=
.
>
> =B7 There was concern to ensure separation between content and signal. Th=
ere
> was a clear demand that there should be no interference with the content
> system from content holders. There needed to be a balance between multipl=
y
> stakeholders and the framework must be acceptable to the majority of
> Governments. (noticeable that he didn=92t say all)
>
> The Panel included a representatives from the EU Commission, the Permanen=
t
> Mission of Brazil in Geneva, and IP offices in Bogota, Lima and Mexico. I=
t
> seemed like it was a last push by Europe through Spanish/Portuguese
> speaking interlocuters to convince Latin American delegates how great the
> broadcasting treaty would be.
>
> Lima, Mexico and Bogata IP reps supported the Broadcasting Treaty but all
> made comments on concerns about TPMs and limitations and exceptions. Ther=
e
> were several comments about previous Diplomatic Conferences where
> =91hundreds=92 of new proposals had been made. I assume to make the point=
 that
> concerns about wording should not delay the DC as changes could still be
> made at the conference.
>
> Julie Samnadda from the EU Commission ( one of the two person team
> negotiating the Treaty at WIPO) gave a detailed explanation of the EU=92s
> position ( building on the previous Commission response to the
> Transatlantic Consumer Dialogue=92s resolution on the Treaty www.tacd.org=
).
> It appears to be pretty inflexible on the substantive points.
>
> She spoke very quickly so I don=92t have all the points. However she is o=
pen
> to the idea ( subject to approval) to provide a briefing at WIPO to civil
> society on the commissions position, which I will be following up.
>
> She gave bullet points on four areas.
>
> 1. Commissions Position in the negotiations
>
> =B7 The Commission represents all 25 member States plus two Accession
> States, Bulgaria and Romania at WIPO.
>
> =B7 All 25 have agreed =91without=92 demur to go forward with the Broadca=
sting
> Treaty, as its important to broadcasters and consumers.
>
> =B7 [It is even a virtue!] Commission deeply committed to the multilatera=
l
> approach rather than a bilateral approach. Many Member States are firm
> supporters of the UN and WIPO
>
> 2. Relationship between the documents as they stand and the Community aqu=
is.
>
> =B7 Most of the exclusive rights in the draft Treaty are already a part o=
f
> Community Law . E.g right of reproduction, making available right,
> distribution right, legal protection of TPMs. Others are in addition to
> Community law but not to some of the laws of Member States e.g protecting
> the pre broadcast signal, a broad right of retansmission.
>
> =B7 There is a distinction between the approaches taken between Member
> States. A number of =91Northern =91 MS including Ireland, UK, Denmark, Fi=
nalnd
> , Austria, Sweden, Cyrus and Malta have based their laws on a technology
> neutral approach =96 this means that webcasting is already covered in the=
ir
> laws.
>
> =B7 =91Southern=92 States including France have a more restrictive approa=
ch to
> creating a new class of beneficiary. As a result a compromise position ha=
s
> been reached on simulcasting. They accept that simulcasting is covered by
> community law ( as the right of reproduction refers to any form including
> the Internet) but the caution is over the creation of a new category of
> beneficiary.
>
> =B7 Whether the definition of the protection is based on a description of
> the beneficiary of the activity is therefore irrelevant to Northern MS as
> its already covered in their national laws but it is a critical issue for
> Southern MS.
>
> =B7 At an international level Member States are willing to include
> simulcasting as this is most important to EU Broadcasters. ( Though she
> didn=92t say this the implication is that webcasting would not be accepta=
ble
> as it creates a whole new class =96 pure webcasters- rather than just an
> extension to an existing class).
>
> 3.Rights and exception as they are expressed in the present draft and a
> possible way forward drawing on the community approach
>
> =B7 Strong supporters of Berne 3 step test will not move away from that.
>
> =B7 EC prepared to export and discuss at WIPO their approach to balancing
> TPMs and Exceptions and limitations, once have approval of Member States
> to do so. This refers in part to the =912 step test=92 in the Copyright
> Directive in relation to the restriction of the exercise of exceptions an=
d
> limitations by a TPM. Only if voluntary measures fail can a beneficiary o=
f
> the E &L appeal to a body who then may remedy the problem. ( note this
> appeal mechanism approach is strongly criticised by consumer groups in
> Europe )
>
> 4. Relationship between the Treaty and other areas e.g cultural diversity=
.
>
> =B7 Cultural diversity important issue for Europe as many languages and
> ethnic groups, do not see it just as developing country issue. Signatory
> to UNESCO Convention on Cultural diversity.
>
> =B7 Do not see protecting broadcasters rights as necessarily in conflict
> with UNESCO convention. Do not favour provisions inserted into Treaty on
> this issue which seek to create a hierarchy of norms. eg which Treaty
> trumps another.
>
> Guilherme de Aguiar Patriota, Brazils representative at WIPO made a numbe=
r
> of broad points:
>
> =B7 Had the impression that the Broadcasters wanted a quick Treaty. They
> appear latecomers to technological change. They need to adapt their
> business models to the new reality of the Internet. He does not think tha=
t
> the legal framework will determine the pace of change.
>
> =B7 Negotiators at WIPO should be aware that a return to the 96 Treaties =
-
> =91WIPO Internet Treaties=92 was not feasible on technological or politic=
al
> terms and because of the involvement of other groups , such as civil
> society groups , who are attentive to the impact of any new Treaty.
> Developing countries are aware of the different affects on different
> levels of development and that new rights may limit their policy space.
>
> =B7 The signal in digital form was too important and widespread to be
> controlled by a very narrowly defined set of broadcasters with exclusive
> rights. It was important to ensure that the philosophy behind the Treaty
> was correct and that the object and subject of protection was clearly
> defined.
>
> =B7 2 main proposals to deal with the Internet. 1) Simulcasting supported=
 by
> Europe. This option favours the traditional broadcasters, who are
> attempting to hold onto their business role in a new technological world,
> which challenges it. 2)Webcasting supported by the US. Seeking to widen
> beneficiaries to newcomers, who just work on the Internet. Questions abou=
t
> whether such protections should also apply to telecom companies. These
> rights are untested.
> =B7 There are however a whole range of other stakeholders e.g authors and
> public interests whose interests need to be safeguarded. Also concerns
> about exceptions and limitations.
>
> =B7 Broadcasting has an important public and social role in Brazil and th=
ere
> are special regimes that broadcasters have to abide by. Concerns that
> international treaties override national regulations.
>
> =B7 It is not clear what equilibrium will come out of this Treaty. The ra=
nge
> of rights and protections for example TPMS are untested in developing
> countries. It gives greater protections to broadcasters and also need
> limitations and exceptions for consumers and others. Won=92t bind ourselv=
es
> to the 3 step test as that test was part of the copyright balance this is
> a new treaty.
>
> =B7 A Rome criterion for eligibility is relevant. The US is not a signato=
ry
> to the Rome Convention. This should be looked at.
> =B7 Support cultural diversity provisions.
> =B7 Need to study the duration of the rights given. When do they end- how
> are they exhausted?
>
> Rita Hayes, Deputy Director of WIPO closed the seminar .
>
> =B7 She felt there had been a good discussion on the framework for a Trea=
ty.
> Leave people with one thought, Where do you think we are going? She hadn=
=92t
> heard anyone say they don=92t want a treaty. Calls for different levels o=
f
> treaty and different ideas about how it will be done. She highlighted the
> fact that someone ( me) had said that they would agree to the protection
> of signals , so all were in agreement to a Treaty (implying I assume that
> NGOs could not object to a DC as we had agreed to signal based treaty =96
> though such a draft has not yet been agreed)
>
> =B7 The chair of the SCCR had been given the task of preparing the next
> draft. This would be prepared on the basis of the documents previously
> submitted and on new and existing proposals and the discussions at the
> previous SCCR, which took a full five days. She knew that those discussio=
n
> included calls for proposals not included to be put in. She was looking
> forward to what the chairman would do about this (!)
>
> =B7 The next draft would be prepared for August so that delegates would h=
ave
> time to review before the next SCCR in September, with a view to making a
> recommendation for a DC in 2007.
>
> =B7 Proposals on webcasting and simulcasting have to be with the Chair by
> 1st August, who will then prepare a revised document on the two issues.
> Discussions on this will take place at a SCCR after the General Assembly.
>
> =B7 On the Broadcasting Treaty there has to be the will to move forward.
> Many more proposals are\ likely to be made and can be discussed at the DC
> , as in past DCs. Issues have been discussed and there is a realisation
> that there is a need to look at broadcasting organisations and to deal
> with their rights. Need to compromise can=92t deal with all issues at SCC=
R
> but can move forward to DC in 2007 and deal with them there. She is
> though, speaking as a member of the Secretariat and realises that it is a
> member driven organisation and it is for Member States to agree (!).
>
> --
> Michelle Childs -Head of European Affairs
> Consumer Project on Technology in London
> 24, Highbury Crescent, London, N5 1RX,UK.
> Tel:+44(0)207 226 6663 ex 252.
> Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607
> http://www.cptech.org
>
> Consumer Project on Technology in Washington, DC
> 1621 Connecticut Ave, NW, Washington, DC 20009 USA .Tel.:
> +1.202.332.2670,Fax: +1.202.332.2673
>
> Consumer Project on Technology in Geneva
> 1 Route des  Morillons, CP 2100, 1211 Geneva 2, Switzerland
> Tel: +41 22 791 6727
>
> _______________________________________________
> Broadcast-discuss mailing list
> Broadcast-discuss@lists.essential.org
> http://lists.essential.org/mailman/listinfo/broadcast-discuss

--

RIAA is the RISK!  Our NET is P2P!
http://www.nyfairuse.org/action/ftc

DRM is Theft!  We are the Stakeholders!

New Yorkers for Fair Use
http://www.nyfairuse.org

[CC] Counter-copyright: http://realmeasures.dyndns.org/cc

I reserve no rights restricting copying, modification or
distribution of this incidentally recorded communication.
Original authorship should be attributed reasonably, but only so
far as such an expectation might hold for usual practice in
ordinary social discourse to which one holds no claim of
exclusive rights.