[A2k] IP Watch: Critical Talks Ahead For WIPO Broadc asters’ Treaty

[Manon Ress]

http://www.ip-watch.org/weblog/index.php?p=393&res=1024_ff&print=0
9/9/2006

Critical Talks Ahead For WIPO Broadcasters’ Treaty
By William New

A proposed treaty to strengthen rights for broadcasters faces a
critical test next week at the World Intellectual Property
Organization. Government negotiators are under pressure to finish
preliminary work on a draft treaty before the 25 September annual
WIPO assembly, as increasing numbers of private sector stakeholders
are digging in their heels on either side of the issue.

The WIPO Standing Committee on Copyright and Related Rights will
discuss the proposed treaty on 11 to 13 September. The proposed
treaty is intended to give broadcasters stronger rights over their
transmissions which they say are being stolen, and would extend
protection from 20 to 50 years. But opponents see trouble in giving
seemingly unnecessary intellectual property rights to broadcasters
who typically do not have ownership over the content of their
broadcasts, with a negative impact on consumers.

A number of changes have been made to the draft since the last
committee meeting in May, including the addition of limitations and
exceptions for cases where countries may decide the treaty terms
should not apply.

A key development in May was the agreement to remove a proposal by
the United States for the treaty to cover webcasting. This week’s
meeting “will be confined to protection of broadcasting organizations
and the cablecasting organizations (in the traditional sense),”
according to the revised draft basic proposal. Traditional
broadcasting (including television, radio and satellite) and
cablecasting were covered in the 1961 Rome Treaty that this treaty is
intended to update. The United States never signed the Rome Treaty
but is a strong proponent of the new one.

There do not appear to be any new proposals being tabled for next
week’s meeting. The United States pitched a new paper on the separate
webcasting negotiating track, expected to continue soon after the
General Assembly. The new US paper clarifies that its proposal would
be for “netcasting,” not webcasting per se.

“The proposed definitions use a new term, “netcasting”, to describe
computer-based transmission of signals,” the US paper said. This is
intended to avoid confusion with the old term “webcasting”, which
unnecessarily implied that ordinary activity on the World Wide Web
would be covered by the definition.”

“In proposing that the treaty cover ‘webcasting’,” it added, “the
United States has never intended that protection be afforded to the
ordinary use of the Internet or World Wide Web, such as through e-
mail, blogs, websites and the like. We intended only to cover
programming and signals which are like traditional broadcasting and
cablecasting, i.e. simultaneous transmission of scheduled programming
for reception by the public.”

The 100-page draft still contains references to exclusive right over
“retransmission over computer networks by any means” in Articles 5,
9, and 14. Article 14.02 states that “the right of authorizing
transmission covers all transmissions by any means … including …
transmission over computer networks, following fixation.”

Some are concerned that references to signals carried on “computer
networks” reflect a European Union proposal to protect simulcasting,
the simultaneous broadcast of signals over the Internet, and could
lead to re-inclusion of the U.S. webcasting proposal. One possibility
is that the United States may make the claim that if the European
proposal for simulcasting may be discussed, their netcasting proposal
should be allowed for discussion.

South Centre: Draft Text No Help for Development

Sisule Musungu of the South Centre, the intergovernmental group of
developing countries, said preliminary analysis by the Geneva-based
group of developing countries appears to show an absence of “any
serious thinking or analysis on who will benefit” from such a treaty.

The South Centre will issue its lengthy analysis of broadcasting and
the proposed treaty at the meeting. The research finds there is a
lack of evidence of a need for the treaty, that its costs would
outweigh benefits for developing countries, and that it would not
help with development.

Developing countries are somewhat split in their view of the proposed
treaty, as some have strong broadcasting lobbies, and many have been
subject to hands-on influence by large economies and WIPO itself.

The South Centre recommends that developing countries keep the treaty
limited to signal protection, reject any new exclusive rights,
refrain from extending protection to computer networks, ensure
appropriate safeguards exist through limitations and exceptions,
limit protection to 20 years, and decline obligations on the use of
technological protection measures, which are employed to protect
content.

Tech Industry Giants Join Consumer Groups In Opposition

The South Centre suggestions are similar to those of nearly 40 US
companies and groups who issued a statement of opposition on 5
September. AT&T, Dell, Hewlett-Packard, Intel and Verizon
Communications joined forces with the Consumer Project on Technology,
Electronic Frontier Foundation and Public Knowledge. Many of the
signers also spoke at a US Patent and Trademark Office treaty
roundtable on 5 September.

The opponents said the treaty is unjustified, but if it moves
forward, it should abandon its rights-based orientation, have strong
limitations and exceptions, prevent increased control of broadcasters
over signals in home or personal use, remove the threat of liability
for network intermediaries (telecommunications providers), and drop
references to computer networks.

Broadcasters Expectation of their Own Treaty Goes Back 10 Years

The proposed treaty is intended to give broadcasters the same rights
that performers, producers and copyright holders have under a pair of
1996 so-called WIPO Internet treaties.

The push for a treaty is being led by the US National Association of
Broadcasters and other nations’ broadcasting industries, apparently
joined by the US content industries. The broadcasters claim they need
protection from signal theft and that the treaty is critical for the
survival of the industry.

With the fundamental question of the potential impact of the draft
treaty still unclear, it seems unlikely that all the members of WIPO
would agree to recommend its negotiation at this time. But the
pressure is high, and everyone at WIPO has something else they want,
so there is reason to believe that this could be the year.

This work is licensed under a Creative Commons License. All of the
news articles and features on Intellectual Property Watch are also
subject to a Creative Commons License which makes them available for
widescale, free, non-commercial reproduction and translation.

************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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