[A2k] U.S. Deal Allows Webcasting, Simulcasting To be Considered Separately

[Robin Gross]

WASHINGTON INTERNET DAILY  MONDAY, MAY 8, 2006

U.S. Deal Allows Webcasting, Simulcasting To be Considered Separately
By Monika Ermert, Dugie Standeford

GENEVA -- A last-min. U.S. move could ease the way to an up-
dated broadcast treaty, NAB Senior Assoc. Gen. Counsel Ben Ivins told
us Fri.  The last day of a World Intellectual Property Organization
(WIPO) Standing Committee on Copyright & Related Rights (SCCR)
meeting at WIPO hq here, delegates from the U.S. agreed to split the
treaty into 2.  One would guard traditional broadcaster and cablecaster
signals;  another might extend copyright protection to webcasters and
simulcasters.  "I wouldn't have predicted this 24 hours ago," Ivins said.

Broadcasters are "ecstatic," seeing a chance that by sometime in
2007 they may be able to update a treaty to protect their signals, Ivins
said.  But the deal to split traditional broadcasting from controversial
proposals to give webcasters and simulcasters the same rights is subject
to 3 conditions, he said.

First, the WIPO General Assembly actually must schedule a
diplomatic conference on the deal's traditional broadcast portion, Ivins
said.  If not, all webcasting/simulcasting proposals will go back into
the broadcast package.  The 2nd condition is that simulcasting be part
of the webcasting package, he said.  The EU wants to get simulcasting
into the treaty.  Broadcasters are amenable to protecting colleagues
who simulcast their own signals, but oppose protections for Yahoo and
webcasters simulcasting those signals, Ivins said.  Throwing simulcast-
ing in with webcasting ensures the EU does not let webcasting con-
cerns fall by the wayside, he said.

Current draft treaty language would give broadcasters the exclu-
sive right to authorize or forbid 3rd parties to retransmit their
signals "by
any means," including "over computer networks," Ivins said.  That text
confused some who said, "There's that dirty word -- computer networks"-
- and want it out, he said.  However, the treaty isn't about new rights but
about broadcasters' right to keep their signals off the Internet.  For now,
as the 3rd condition, the language will remain in the draft as part of the
traditional broadcast package.

The "interesting part of the puzzle" is the fact that it's tied to
whether a diplomatic conference is scheduled,
Ivins said.  That leans on Brazil, a steadfast opponent of such a
conference.  The penalty for blocking a conference
now would be having all the controversial webcasting issues back on the
table, he said.

 Many roadblocks still exist and talks could stall, said Ivins.  But the
"huge" U.S. concession -- widely
lauded by broadcasters -- cleared the logjam, he said.

 SCCR Chmn. Jukka Liedes called the meeting "pretty productive."  He
acknowledged many issues are
outstanding, but pointed to convergence in some areas, particularly in
terms of exceptions and limitations of the
copyright rights.  But given lack of accord on the treaty's scope, the
panel decided to divide the project, Liedes
told us.  It will meet again in Aug., before the Sept. general assembly,
confining discussion to traditional broad-
casting/cablecasting rights.  Meanwhile, the U.S. and EU will refine
their proposals on webcasting and simul-
casting for submission to the committee by Aug. 1, Liedes said.  A
working paper will be presented at a later
SCCR meeting, after the general assembly.

 "We have convergence on the limitations and exemptions for education
and research," Liedes told
Washington Internet Daily:  "We have at least an opening to the specific
mentioning to allow limitations and
include language on some public interest concerns.  But we have still
the same quite rigid positions on the ques-
tion if webcasting should be included."

 A clear splint in the talks will make it politically easier to deal
with broadcasting rights, Liedes said.  At this
point, delegations differ so broadly on webcasting and simulcasting
protections as to preclude agreement, so mak-
ing them separate will relax the process.  Liedes stressed that the
"deals" Ivins outlined are "wishes" that were re-
corded, but not endorsed, by the SCCR.  They're subject to later
decisions by the committee, he said.

 Liedes has until Aug. 1 to prepare another draft, if he can find
consensus by then.  Then the General Assem-
bly could set a date for a diplomatic conference in 2007.  The
webcasting issue then would be addressed in separate
talks, said Guilherme Patriota, negotiations leader for the U.S. mission
in Geneva.  "We are satisfied with the con-
ference result, as it will give developing countries more time and not
rush us into a diplomatic conference by to-
morrow," he said.  The U.S. delegation, the main -- some say the sole --
proponent of the webcasting part, has
asked to merge the issues again if no diplomatic conference is convened.

 "Some member states do believe that webcasting should be covered," said
a spokesperson for the U.S. Pat-
ent & Trademark Office (PTO), which is helping negotiate the treaty:
"To address the concerns expressed by those
member states opposing the inclusion of webcasting/simulcasting, we
agreed to address webcasting/simulcasting in
a separate standalone document to be discussed at the November SCCR."
The treaty's goal is to provide protection
for broadcasters to deal with new technologies that create new risks of
signal piracy, the PTO official said:  "All
who select, assemble and program content should have their signals
protected regardless of the means of delivery of
those signals.  To do otherwise would be to provide a competitive
advantage to certain entities and outdate the
treaty before it is even ratified."

 Including webcasting, even as an opt-in annex giving member states a
chance to decide if they want to sign it,
was rejected by many member states, by many non-governmental entities
comprising the Civil Society Coalition and
recently even by U.S. tech outfits such as Intel and the ComputerTech
Assn.  "Intel opposes the WIPO Broadcast
Treaty," Intel said:  "Proponents have not demonstrated that the
benefits of creating new exclusive rights outweigh the
burdens that these new rights impose."  The main burdens would be
control of mobile device and digital home innova-
tion, the mandatory nature of Technological Protection Measures (TPM),
the liability risk for software developers,
device makers and ISPs and increased rights clearance complexity, it
said.  "We are meeting with a number of indus-
try groups who have a variety of concerns in an effort to find
consensus," said the PTO spokesperson.

 The EU also opposed including webcasting, Patriota said.  Differences
between U.S. and EU positions be-
came clear as soon as talks began on the treaty's respective clauses, he
said.  But the EU has stressed the need to
include a "new media package" for traditional broadcasters.  This
spurred a new discussion on simulcasting, mean-
ing live transmission of a broadcast over the Internet.  Members of the
Civil Society Coalition said that is seen by
some as a Trojan horse mechanism giving "webcasting" privileges to
traditional broadcasters.

 Splitting traditional broadcast and webcast cheered civil
libertarians.  "Good news," IP Justice Exec. Dir.
Robin Gross said:  "This is a step in the right direction." It would
have been perilous for WIPO to try to create new
rights for webcasters, since no nation's legislators have done so, she
told us.  Many problems remain with the treaty
proposal, such as its anticircumvention measures, narrow limitations and
exceptions and 50-year term of protection.
"But one of the biggest threats to innovation and online civil
liberties, the webcasting rights, will be removed from
this document," Gross said.

 One big problem is that "you cannot separate the signal from the
content," Gross said:  "Access to signal is
access to content."  Creators would need permission from broadcasters to
use their own performances, she said.

 Expectations on the outcome of the next round of negotiations are
mixed:  "If the EU does not push too
hard on the new media add-ons for traditional broadcasting, we might get
the diplomatic conference next year,"
said Patriota:  "But it will be a limited treaty."  Gross said she
wouldn't be surprised if negotiations fail, as they
have on issues like databases.  "It would give the WIPO time to refocus
on the development agenda," she said.

 "WIPO finally took a step back from forcing a restrictive Rome
Convention intellectual property (IP) right
on Internet publishing," Consumer Project on Technology Exec. Dir. James
Love said, adding that there's still much
to do, and more problems to solve.  There's a "strong likelihood the
traditional broadcasting treaty will move for-
ward, and the EU will clearly push to expand this to cases where
broadcasters use the Internet," Love said.

 But Love cited a "growing movement away from granting IP rights in the
content of transmissions, in favor of
theft of services protections."  That's a positive development, he
said:  "The Internet is far safer now than before, be-
cause the threat of a new treaty for Internet middlemen is now much less
likely."

-- Monika Ermert, Dugie Standeford