[A2k] IPJ on WIPO Broadcasting Treaty in IP-Watch

[Robin Gross]

Apologies for the cross-posting.


From:
http://www.ip-watch.org/weblog/index.php?p=3D286&print=3D1&res=3D1024_ff&pr=
int=3D1

1 May 2006


      Inside Views column: WIPO Broadcasting Treaty Contains Unsupported
      Webcasting and =93Digital Locks=94

By Robin Gross, IP Justice

>From 1-5 May 2006, the World Intellectual Property Organization (WIPO)
Standing Committee on Copyright and Related Rights (SCCR) will hold its
14th Session in Geneva to determine the fate of the controversial
Broadcasting Treaty.

In its final meeting before the General Assembly votes this autumn to
send the proposed Broadcasting Treaty to a Diplomatic Conference for
final treaty drafting, WIPO delegates will debate a far-reaching =93wish
list=94 of new rights for large broadcasting companies.

The proposed broadcasting treaty would create entirely new global rights
for broadcasting companies who have neither created nor own the
programming. What=92s even more alarming is the proposal from the United
States that the treaty regulate the Internet transmission of audio and
video entertainment.

It is dangerous and inappropriate for an unelected international treaty
body to undertake the task of creating entirely new rights, which
currently exist in no national law, such as webcasting rights and
anti-circumvention laws related to broadcasting. A global treaty is not
the place for experimentation with new rights, but rather for the
harmonization of existing legal norms. WIPO treads on shaky ground by
proposing to create new rights that no elected body in the world has yet
agreed to.

Artists are opposed to the broadcasting treaty because it would subvert
creators=92 rights to the new rights granted to broadcasting companies.
Under the proposal, artists would need to beg permission from
broadcasting companies in order to make any use of their own performances.

The general public interest would be harmed by the treaty=92s proposal to
ban bypassing =93digital locks=94 used by broadcasting companies to restric=
t
access to programming. WIPO treaties of 1996 created similar
anti-circumvention rights for copyright holders. Laws such as the
controversial US Digital Millennium Copyright Act (DMCA) of 1998
implemented this treaty in the United States. Even after many have
doubted the wisdom in creating such rights for copyright holders, no
case has yet to be made why broadcasting companies should be given an
additional set of rights to lock information away. The negative
unintended consequences of anti-circumvention measures have been shown
to be more dangerous in practice than the harm they intend to address. A
refusal to weigh the social costs of anti-circumvention measures would
ignore the resolution of the WIPO General Assembly for a development
agenda at WIPO in line with development goals and the global public
interest.

The proposal threatens the public domain since it allows broadcasting
companies to fence it off, while making it illegal for the public to
access what is lawfully theirs. Existing fair use rights to use
copyrighted broadcasts would vanish under the treaty as well. For
example, if US President Bush gave an interview to Fox News, Fox could
prevent any subsequent use of that footage including fair use,
commentary, or criticism of President Bush - at its sole discretion -
under the new anti-circumvention rights created by this treaty. Much of
the political humor available on Comedy Central=92s =93The Jon Stewart Show=
=94
could become illegal under this treaty. Bloggers and other citizen
journalists would also suffer because they would need permission to use
small portions of video for news reporting, commentary or educational
uses. In response, Colombia submitted a proposal that would permit
circumvention to facilitate non-infringing uses of broadcasts.

In prior SCCR meetings, an overwhelming number of WIPO member states
argued against including anti-circumvention measures in the treaty; yet
this provision still exists in the current draft. Rather than include it
as an appendix, these measures should have been removed from draft and
placed in =93working paper=94 since they received so little support.

The current draft reflects a basic lack of respect for the concerns
addressed by numerous member states at prior SCCR meetings that
discussed these provisions. International treaty bodies that claim to be
mere instruments of the will of their member states cannot simply ignore
the concerns of the vast majority of member states who expressed
discomfort with any type of anti-circumvention measures or webcasting
provisions in the treaty. A United Nations specialized agency has an
obligation to uphold certain democratic principles when deciding how to
draft a treaty. A refusal to make substantive changes in the proposal=92s
text to reflect concerns expressed by member states calls into question
the legitimacy of the entire process.

The current proposal would obligate countries to pass laws in excess of
their existing obligations under TRIPS [World Trade Organization
Agreement on Trade-Related Aspects of Intellectual Property Rights]. The
proposal=92s increase in the term of the broadcasters=92 rights, and its
restriction of the exceptions and limitations to these rights create a
significant barrier to the access to knowledge.

The proposed broadcasting treaty would also stifle innovation and favor
entrenched industry players. Member States should be cautious of this
proposal and the benefits it promises. The social costs to creating yet
another layer of broadcasting rights that sit on top of creators=92 rights
cannot be ignored.

The current Basic Draft is such a poor reflection of the expressed will
of WIPO member states that the broadcasting treaty is nowhere near ready
for a Diplomatic Conference at this time.

Robin Gross

/Robin Gross is an attorney and Executive Director of IP Justice, an
international civil liberties organization that promotes balanced
intellectual property laws. IP Justice <http://www.ipjustice.org/> is
based in San Francisco, California (US)./

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