[A2k] WIPO discussions on xCasting Treaty, notes from Thursday

[James Love]

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WIPO discussions on xCasting Treaty
By James Love
Created 05/05/2006 - 3:17am

Geneva, May 3, 2006

Today is the fourth day of a 5-day negotiations on a new treaty for
broadcasting and webcasting organizations. I posted a long discussion
[1] about it today in the Huffington Post. Most US citizens are
unfamiliar with the notion of a =93broadcaster right=94 because unlike 83
other countries, the United States never signed the 45-year old Rome
Convention (on the protection Rome Convention on the protection of
performers, producers of phonograms and broadcasting organizations.).
We have a copyright law, but that=92s it. In Europe and many other
countries, they give broadcasters a property right in information
they transmit. They call it a =93related=94 or =93neighboring=94 right to
copyright. Europe also has something like this for uncopyrighted
elements of databases.

The European broadcasters and databases owners rights are not part of
US legal traditions, but here in Geneva, today, the US government is
not only advocating a new broadcasters right treaty, but also wants
to expand this right to the Internet --- to areas where even Europe
has not ventured, let alone the US.

Think about this. The US government sends negotiators to Geneva, to
cook up a new treaty, that would create legal protections that the
Congress has never accepted, considered, or even discussed.

There is no way Yahoo (the main proponent of the webcasting treaty
provisions) would ever get something like webcasting through the US
Congress. How can we let a handful of WIPO negotiators create this
new IP right in a major international treaty? At least in 1996, the
US government held real consultations, and provide a number of papers
to justify its actions pushing for the WCT and WPPT. This
administration has done exactlyy the opposite. They won't have public
meetings. They don't have a single public document explaining what
they are doing, or why, or how it would change US law. USTR is far
far more transparent...... It is a measure of how screwed up US
politics are that stuff like this happens routinely, and no one in
the White House, the Congress, or the news media is that interested.

All week long the US government, together with the European
Commission and some other countries, has opposed efforts by
developing countries to exclude webcasting, or to include in the
treaty language that would ensure that countries could control
anticompetitive practices, protect access to knowledge, and provide
greater lee-way in terms of excerptions for libraries, education,
access for disabled persons, and other public interests.

The EU is right now unloading on Chile's proposal to have language
similar to TRIPS Article 40 concerning the control of anticompetitive
practices, which is pretty surprising given the fact that the EC's
copyright chief Tilman Lueder formerly worked for the competition
authority. The EC complained that it might be used for compulsory
licenses, which the EC was opposed to. The US also is opposing this
proposal, even though strong language on this topic is already part
of the WTO TRIPS agreement, and part of the US/Chile FTA accord.

The US and the EC both wanted only a single "three step test"
provision covering the possibility of exceptions to rights, which
they believe will be more restrictive than the proposals by several
Latin American countries that the the treaty provide certain named
exceptions, with a three step test for additional exceptions
countries may want to consider later. There are also debates over
whether or not the "casting" exceptions can go beyond those used in
domestic copyright laws, or even if the exceptions can be limited to
those used in copyright on the day the treaty is accepted by a member.

At one point the EU however offered as an alternative an "exhaustive"
list of exceptions that are found in the EU copyright directive. This
has not gone over well with NGOs because it does not permit any
future flexibilities in exceptions, which may be particularly
necessary as technologies and business models changes. Of course, the
EU copyright directive can be changed much easier than is the case
for a treaty.

Chile is responding by noting the treaty is TRIPS plus (involves
protections not mandated by the WTO TRIPS Agreement), and drew
attention to provisions in the Rome Convention and the Berne which
provide more certainty regarding the availability of some limitations
and exceptions.

This is pretty depressing regarding the values of some of these
negotiators, because they want a treaty that is more dangerous, as it
would be more difficult to address unintended or unwanted
consequences or problems.

The anti-consumer positions of the EU and US negotiators are often
backed up by delegations such as New Zealand, and rarely rebutted by
any OECD country. One would hope we could get more out of the
Canadian delegation on these topics.

Now we are starting discussions on technical protection measures.

Basically, the hardliners are the same people, lead by the US and the
EU, with considerble pushes from the very non-neutral chair, Jukka
Liedes from Finland. The EU delegation gives almost no hint of the
considerable backlash against DRM/TPMs in Europe, and neither does
the US. Canada, Chile, Peru, Brazil and some other delegations make a
number of comments about the mis-use of DRM/TPMs in connection with
public domain materials, or make it impossible to use legitimate
exceptions to rights. The linkages between L&Es and DRM/TPMs are
quite important, but not addressed very deeply.

EU copyright chief Tilman Lueder claims that since the protection is
to only the signal and not to the content, it can never exceed the 50
year term. At which point Brazil asks what many are thinking, why
does a signal need a protection term of 50 years? This is a an issue
that has been raised on and off for a couple years (including an
excellent presentation by India earlier in this meeting) but it is
becoming more obvious to delegates that there should be no term at
all in the treaty, if it is only about protecting broadcasters from
signal theft, and not a IP right in the content.

Many other issues are then discussed. When they return to the
webcasting issue, it appears as though the EU thinks it can get the
US to accept an approach that would provide a back-door webcasting
right in as retransmissions over computer networks. We will explore
this Friday morning.

.........
On Thursday, a group of 8 right-holder groups, including the IFPI
(the major trade group for publishers of recorded music), EUROCOPYA,
FIAD, FIAPF, GIART, ICMP/CIEM, IFPI, IFTA, IMPALA issued a joint
statement on the negotiations, which among other things, called for
removing webcasting from the scope of this treaty, and also that any
future work on webasting should not start with the an assumption that
webcasters would get the same rights that broadcaster have. Also,
USTelecom issued an excellent statement, which among other things,
said the broadcaster rights should be limited to signal theft, and
that webcasting should be deleted from the treaty.

There is a lot of uncertainly and drama here now. It seems as if the
US, EU and most developing countries would like to find a way to kill
the treaty, as long as they can blame it on someone else. But that
may not be enough, given the way this institution is so committed to
enacting new treaties, as its primary mission, and main measure of
achievement.

There has to be a better and more realistic mission for WIPO than
dreaming up higher and higher IP standards.
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Links:
[1] http://www.huffingtonpost.com/james-love/wipo-carves-up-the-
intern_b_20336.html

---------------------------------
James Love, CPTech / www.cptech.org / mailto:james.love@cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040

"If everyone thinks the same: No one thinks."  Bill Walton