[A2k] SUNS: Groups voice concerns over WIPO broadcast treaty

[Thiru Balasubramaniam]

United Nations: Groups voice concerns over WIPO broadcast treaty

Geneva, 6 Sep (Kanaga Raja) -- A broad and diverse group of information
technology and telecommunications industry representatives, public interest
organizations and performers' associations has warned that a proposed WIPO
Treaty on the Protection of Broadcasting Organizations, as currently drafted,
would harm important economic and public policy interests.

This warning is in a statement issued by the group on the eve of the fifteenth
session of the WIPO Standing Committee on Copyright and Related Rights (11-13
September), which will be discussing the scope and substantive elements of a
proposed treaty.

The meeting is crucial as it will determine whether Members agree to and finalize
a Basic Proposal for a treaty on the protection of the rights of broadcasting
organizations in order to enable the WIPO General Assembly that begins on 25
September to recommend the convening of a Diplomatic Conference.

A Revised Draft Basic Proposal (SCCR/15/2) has been prepared for the meeting
by the chair of the Standing Committee in cooperation with the Secretariat.

Among the signatories to the statement are the American Association of Law
Libraries; the Association of Research Libraries; AT&T; Broadband Service
Providers Association; Consumer Project on Technology; Dell Inc; Electronic
Frontier Foundation; Hewlet Packard Company; Intel Corporation; International
Music Managers Forum; Medical Library Association; and the US Internet
Industry Association.

In their statement, the groups (business as well as civil society ones based in the
United States), said that they remain unconvinced that a treaty is necessary at all,
and expressed concern that treaty proponents have not clearly identified the
particular problems that the treaty would ostensibly solve.

They also questioned whether there are in fact significant problems that are not
addressed adequately under existing law. ''Further, we are concerned that the
current treaty approach differs radically from US legal traditions, and, if
implemented, would require substantial and unnecessary changes to current US
law.''

The groups believe that if the treaty moves forward in any form, the current
rights-based approach of the treaty must be abandoned. Creating broad new
intellectual property rights in order to protect broadcast signals is misguided and
unnecessary, and risks serious unintended negative consequences.

''We recommend instead a signal protection-oriented approach, ideally focusing
narrowly and specifically on protecting signals from intentional misappropriation
or theft.''

They also noted that most of the concerns expressed in their statement would be
rendered moot by a treaty and associated implementing legislation that narrowly
addressed signal theft.

The groups believe that to the degree that the treaty leaves room for implementing
states to create broader rights or protections beyond protection against intentional
signal theft, a mandatory set of limitations and exceptions must be included in the
treaty in order to ensure that uses of broadcast content that are lawful under
copyright law are not inhibited by the treaty.

At a minimum, limitations and exceptions under the treaty should be equivalent to
those that an implementing state provides under its copyright laws, and should
provide flexibility for additional limitations and exceptions that are appropriate in
a digital network environment.

Under the current draft of the treaty, according to the statement, the broad scope of
the proposed rights, combined with proposed additional rights regarding
technological protection measures (TPMs) in connection with these rights, raises
questions about whether ''casters'' would gain the ability to control signals in the
home or personal network environment.

Such control is without precedent and would interfere with the rollout of
broadband and home and personal networking services and limit the development
of innovative devices that provide home and personal networking functionality.
Accordingly, the treaty should include a provision excluding coverage of fixations,
transmissions or re-transmissions across a home or personal network.

''Further, we should note that many of our group believe that TPM provisions are
inappropriate in connection with this treaty and should be excluded from the treaty
entirely.''

The groups also expressed serious concerns that network intermediaries would
face the threat of direct or secondary liability for infringement of the broad rights
granted under the current treaty draft. The exceptions from liability afforded under
the current text of the treaty only apply to broadcasters, not to intermediaries.

Further, the limitations of liability afforded to intermediaries today under existing
national laws would only protect against copyright infringement, not against a
violation of these broad new rights.

''We believe that the treaty should ensure that network intermediaries do not face
liability for alleged infringement of rights or violations of prohibitions by virtue of
actions they take in their normal course of business or by actions of their
customers,'' the statement said.

The current treaty draft also includes protection for Internet simulcasts made by
traditional broadcasters and cablecasters, but otherwise excludes computer
networks from its scope.

The statement said that while members of the group do not share a common view
about the best approach to addressing Internet-related issues, they are united in
their belief that the current approach is unacceptable.

Further, the groups oppose the treaty's application to the Internet, to the extent that
the treaty continues to take a rights-based approach rather than a signal-theft-based
approach.