[A2k] SUNS #6021: Developing countries oppose webcasting in broadcast treaty

[Sangeeta]

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SUNS #6021 Friday 5 May 2006



 WIPO: Developing countries oppose webcasting in broadcast treaty



Geneva, 4 May (Sangeeta Shashikant) -- The issue of whether the scope of the
proposed treaty on the protection of broadcasting organizations should
include "webcasting" (transmission over the web) has dominated much of the
discussion so far in the 14th Session of the Standing Committee on Copyright
and Related Rights (SCCR).



The issue of "webcasting" is included in a Non-Mandatory Appendix on the
Protection in Relation to Webcasting (SCCR/14/2) attached to the Draft Basic
Proposal for the WIPO Treaty on the Protection of Broadcasting
Organizations, both of which are the basis of discussions at the 14th
Session.



The Appendix provides that Members that wish to "opt-in" and be bound would
have to deposit a notification with the Director General of WIPO.



Opening statements of members indicated overwhelming opposition to the
inclusion of the issue of webcasting as a mandatory or voluntary "opt-in"

part of the proposed treaty but the matter still remains on the table for
negotiations.



Many delegations are also opposed to any direct and indirect references to
the "webcasting" that is found in many parts of the main text of the
proposed treaty on the protection of broadcasting organizations.



Since the start of the meeting many delegations have highlighted repeatedly
that unless the issue of the scope of protection is resolved, it is
difficult to proceed to discuss the other substantive elements of the
proposed treaty.



The SCCR is meeting for a second time as mandated by the 2005 General
Assembly to accelerate discussions on the proposed treaty on the protection
of broadcasting organizations. The outcome of this meeting will determine
whether a diplomatic conference on this proposed treaty will be held any
time in the near future.



Webcasting has emerged as an acrimonious issue that could stall negotiations
on the proposed treaty. The proponents for the inclusion of webcasting are
the US, Japan and Korea. The European Community is in favour of
"simulcasting" i. e. wherein the broadcaster transmits its broadcasts over
the web.



Developing countries are mainly worried that the implications of granting
extensive rights to webcasters are unknown and thus it is premature to
regulate the internet. They are also concerned that the inclusion of
webcasting will hinder access to knowledge and information and widen the
digital divide between developed and developing countries.



Several civil society organizations, webcasting organizations as well as
corporations (including Intel) have voiced objections on extending the scope
of the treaty to include webcasting.



A paper by the Civil Society Coalition states that even though webcasting is
framed as an "opt-in" provision, it creates a backdoor for the upward
harmonization of webcasting rights. It says that the definition in the
current draft text is so broad that if adopted it will burden all World Wide
Web content (including text and still images) with a "rights" framework
designed for broadcasting and radio waves over the air.



In 2004, 20 webcasting organizations indicated in an open letter to WIPO
that they do not desire the protection that is afforded by the proposed
Treaty. Said the letter:



"The Internet depends on permission-free access. This is reflected in the
exemptions in many countries' copyright laws for online and internet service
providers. When authors or rights-holders' permission has been required for
fixation, copying, re-transmission or decoding in other situations, the
negotiation of licenses from creators and copyright rights-holders have
provided ample protection for all parties.



"Adding a new layer of intermediaries, over and above copyright holders, for
the re-use of information on the Internet benefits no one - save those
intermediaries. If an Internet company has the rights to a work, or need not
secure the rights to a work due to a limitation in copyright, or because the
work is in the public domain, there is no rational reason to require that
the company also seek the permission of a further intermediary whose sole
creative contribution to the work is in making it available."



The letter adds that "Internet businesses are famously, legendarily
well-capitalized from angels, venture capitalists, public markets, private
investors, governments and every other source of capital imaginable".



Intel Corporation has also issued a paper opposing the treaty as currently
proposed, stating it has not "demonstrated that the benefits of creating new
exclusive rights outweigh the burdens that these new rights impose." The
burdens include liability risk to software developers, internet service
providers and device makers. It proposes that the proposed treaty be
narrowed to focus on signal theft.



When webcasting was discussed on Wednesday afternoon, many developing
countries reiterated their concerns and it was clear that they could not
accept its inclusion.



Noting the broad resistance against webcasting, the Chairman Jukka Liedes
indicated the possibility of having two separate Basic Proposals, one on
webcasting and simulcasting and the other on broadcasting and cable casting.



The US said that if the issue of webcasting is not addressed, a great
opportunity would be missed. It could remove the uncertainty caused by use
of the word webcasting, adding that it was never intended to cover webpages,
blogs and common activities over the internet and that the definition could
be worked on. Including "webcasting" and making it non mandatory would deal
with the concerns about the matter.



Egypt said that its concern had increased on the second reading of the
Appendix and indicated that it should not be there. It added that it did not
see the differences between the normal use of the Internet and "webcasting",
as the discussion is about transmission of sounds and images over the
internet for reception by the public. It also added that webcasting is
different from radio or television.



The European Communities said there should be no new beneficiaries and that
the only entities that should receive protection should be the broadcasters
and cable casters that retransmit over internet.



South Africa, referring to the non-mandatory Appendix, said that there seems
to be an assumption that both the affected parties reside in one state. It
sought clarification on what would happen if one party resided in a state
that was a signatory to the Appendix while another party resided in a non
signatory state. It also said that the document is silent on the question of
liability for broadcasters, although it grants broad rights.



Bangladesh said that the subject was broad and raised the matter of who will
control the governance of the internet. It added that there were issues
relating to cyber-squatting and security as well and until these matters are
resolved it is premature to discuss webcasting.



Brazil said it was premature to negotiate on "webcasting" as there is a
rapid process of technology convergence. There should instead be impact
studies which takes into account the specific perspectives of developing
countries.



It added that there is no specific mandate to regulate the internet and
remarked that delegations pushing for regulation of the internet in WIPO
were the same delegations that during the World Summit on Information
Society process was against regulating the internet.



Australia asked what is the internet equivalent of the "transmitter" (that a
broadcasting organization uses), an indication of the different nature of
"webcasting" from traditional broadcasting over the wire and wireless means.



India said that it was clear from the interventions from the US and the EU
that "webcasting" in the broadest sense was not intended to be in the
treaty. It raised certain difficulties and matters that had to be considered
even if the scope of "webcasting/simulcasting" is limited.



Due to the nature of the internet, it is difficult to regulate and thus a
contracting party would find it difficult to provide protection such as a
right to authorise or the right to prohibit unauthorised transmissions.



The protection granted to broadcasting organizations is based on the
assumption that there is a head office and a transmitter and thus someone is
responsible. But if transported over the internet the situation is much
hazier.



It said that the nature of the rights, the limitations and exceptions are
issues that need to be revisited in light of the new proposal. Cablecasters
like telecommunication companies are just re-transmitters and thus any
rights that are being discussed should focus on the rights of original
broadcasters.



Argentina said the issue should not be included in the negotiations. In
bilateral free trade agreements all sorts of WIPO treaties are included and
so the fact that "webcasting" is non mandatory provides no comfort.



It said for the last three years, delegations have been distracted by the
issue and this slowed down the progress on other issues in treaty. There
should be an impact assessment before embarking on "webcasting" which should
be in a separate instrument.



Chile asked whether regulation as proposed in the Appendix was needed for
the Internet and Information Society. It added that the burden of proof that
these norms were required was on delegations seeking this level of
protection.



It asked what would be the effect on software developers, developers of
hardware, internet service providers, content providers and what is the
impact on access to knowledge?



Following these interventions, US agreed that the focus should be signal
theft. It added that the scope of protection granted under the treaty
(broadcasters, cablecasters and webcasters) must ensure that they have
enough protection to prevent against piracy while not harming content
creators and consumers etc.



It added that technology neutrality and competitive parity are guiding
principles and that it does not want to limit protection based on the type
of organizations. It also added that protection should also apply to other
organizations that invest time and effort to schedule and assemble content
for dissemination to the public over the Internet.



The European Community said the open public internet is not the scope of the
treaty. Some broadcasters transmit over the internet and offer content to
only a certain set of subscribers, and these broadcasters should be
protected. This is the closed internet and there is no new beneficiary, it
added.



Brazil responded that even after all the attempts by delegations to clarify
the issue, it was more confused and thus the best thing would be to stick to
the original mandate and only focus on broadcasting. +



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