[A2k] Wash-Int-Daily on Casting Treaty: Every Issue Still Open

[Robin Gross]

WASHINGTON INTERNET DAILY - THURSDAY, SEPTEMBER 14, 2006

'Every Issue Still Open'
Diplomat Conference Recommended to Make Decisions on Broadcast Treaty
-- Scott Billquist, Dugie Standeford

GENEVA -- WIPO's standing committee on copyright and related rights
(SCCR) recommended a diplomatic
conference be convened during the summer of 2007 to conclude negotiation
of the treaty on protection of
broadcasting organizations, despite continuing lack of agreement on what
the treaty should contain.

The recommendation came quickly late Wed. over concerns raised over
procedure and the wide range of
options in the revised draft basic proposal for the treaty. The
meeting's conclusion might have seemed quick, "but
all of the issues have been talked about over and over again," said Rita
Hayes, WIPO deputy dir. gen., after the
talks here. Outstanding issues will need varying degrees of negotiation,
"but no one is going to give up on a position
until you get a diplomatic conference," added Hayes.

"A decision was made despite the clear lack of consensus," said Sarah
Deutsch, Verizon vp-assoc. gen.
counsel, and will likely result in a very contentious debate during the
diplomatic conference. Some industry and
non-govt. organization officials were disappointed at the recommendation
to convene a diplomatic conference, citing
the disparity between positions and the absence of narrowing in
positions, and some delegations, including the
U.S., and observers said going ahead with a diplomatic conference may
risk failure.

Japan, Philippines, Brazil, Australia, Switzerland, the European
Commission, Mexico and Indonesia spoke
in favor of recommending a diplomatic conference; India, Iran, Bolivia
and the U.S. voiced concerns and reservations
to making the recommendation, but none halted the procedure to recommend
the diplomatic conference.
Questions raised were over duration, scope, public interest concerns,
economic impact, whether the basic proposal
will be used as a basis for the conference.

The U.S. said: "At this point, our conclusion, our assessment is that in
our view the document SCCR/15/2
[the revised draft basic proposal] by itself is not a proper basis to go
forward towards a diplomatic conference. It
requires something more, whether that be revisions to the document,
whether that be instructions in the framework
you have put before us in the draft document, it requires some more
certainty."

There are many areas which cause "great concern to many delegations,
including our own," the U.S. delegation
said: "Principal among them, but not an exhaustive list" are the
relation to other conventions and treaties, general principles, and
protection and promotion of cultural diversity. "Those are provisions
that reach well beyond protection of
broadcasting organizations and enter into areas that create great
difficulty for us in proceeding forward," the U.S. said.
"Similarly, there is much uncertainty about the scope of the
technological measures provision in that document," and
the document needed more work in order to put the diplomatic conference
on better footing, the U.S. said.

"Anytime you're working on a treaty and you go for a diplomatic
conference, you first of all have to say
okay, we have the consensus of the committee to move forward -- and
there certainly are some reservations by
some delegates that there are a lot of outstanding issues," said Hayes.
But there have been previous diplomatic conferences when all the issues
were decided before the diplomatic conference and then it didn't work,
she added.
"So, I think it all comes down to, do the member states want a treaty on
traditional broadcasting and cablecasting.
And they do," said Hayes: "But there are different issues that are out
there... That's why we have 3 weeks for the diplomatic
conference because it's going to take 3 weeks. There are positions there
that will not take any time, but no one is
going to give up on a position until you get a diplomatic conference.
There's duration -- 20 or 50 years. We talked a lot
about that... but that is not going to be agreed to. The scope, that's
another thing... The same thing on the rights... What we
have now is a basic draft proposal and that was what came out of the
last standing committee," she added.

In a final procedure that used lack of dissent as a means to move the
issue forward toward a recommendation for
a diplomatic conference, Jukka Liedes, SCCR chmn., said diplomatic
conference on the protection of broadcasting organizations will be
convened on July 11 to Aug. 1, 2007, in Geneva. The meeting of a
preparatory committee will begin
in Jan. 2007. The preparatory committee considers the draft rules of
procedure to be presented for adoption to the diplomatic conference. A
special meeting is expected before the preparatory committee, perhaps in
Dec., officials said.
"Everybody has problems and concerns," with the basic proposal said
Liedes. While the final procedure seemed rushed, applause broke out when
the meeting concluded without a formal objection to recommend calling a
diplomatic conference to negotiate a final treaty. The WIPO general
assembly will fix the exact date.

Despite opposition by at least 8 nations, including the U.S., to a
diplomatic conference, SCCR Chmn. Jukka
Liedes "unilaterally" decided to set one, IPJustice Exec. Dir. Robin
Gross told us. She questioned how WIPO, an
allegedly consensus-based organization, could proceed amid discord when
the recent UN debate over a development
agenda stalled when only the U.S. and Japan disagreed with other
delegates. "Every issue is still open," because
little substantive work was done Wed., Gross said. Liedes made clear any
delegation can offer new proposals
at the conference, tentatively set for July 11-Aug. 1, 2007, she said.

NAB is "obviously pleased" by the results, said Senior Assoc. Gen.
Counsel Ben Ivins. Broadcasters have
waited 8-plus years to get to this point and look forward to the WIPO
General Assembly (GA) convening a conference,
he said. The meeting=92s "overall flavor," and the decision to put before
the GA the extensive document on which this
week's talks were based, shows the talks were "all-inclusive" and "no
doors were being closed." Nevertheless, much
work remains, since the assembly could reject a diplomatic conference or
the SCCR recommendations, Ivins said.
Ivins predicted "hueing and crying" over the consensus issue. The
negotiation was a "difficult process," he said, but in the end, "no one
objected" to the 3-part proposal that emerged. Despite U.S. reluctance
to go to diplomatic conference now, Ivins said, NAB shares its concerns
about proposals in the document relating to access to knowledge
and other issues NAB deems extraneous in a treaty covering only
traditional broadcasters and cablecasters.

"A great deal of consensus" arose around the need to define what
protection the treaty is creating, and to
limit it to signal and not content protection, said RIAA Exec. Vp Neil
Turkewitz. There wasn't time to reach accord
on whether the working document circulated earlier in the week -- which
would have restricted the pact to signal
theft -- should replace the existing rights-based draft, he said. The
decision to proceed on the basis of the current
text "effectively translates into a decision -- largely by default -- to
leave resolution of the key issues and problems
to the diplomatic conference itself, or perhaps to the preparatory
meeting" in mid-Jan. Turkewitz said hopes the
consensus building this week "can be captured" there, he said. -- Scott
Billquist, Dugie Standeford