[A2k] A2K Brazil, The Proposed WIPO Broadcasting Treaty

[Soenke Zehle]

The Proposed WIPO Broadcasting Treaty: What Implications for Access to
Knowledge?
Tuesday 19 September 2006
<http://www.a2kbrasil.org.br/ENG/The-Proposed-WIPO-Broadcasting>

Following a collaboration project initiated between the Centre for
Technology and Society (CTS), of FGV School of Law in Rio de Janeiro,
and the Innovation and Access to Knowledge Programme of the South
Centre, an intergovernmental organization of countries of the South, it
is with great pleasure that we make it public the first post kindly
prepared by the latter=92s experts:

I. Introduction

Member States of the World Intellectual Property Organisation (WIPO) met
on 11-13 September 2006 for the Fifteenth Session of the Standing
Committee on Copyright and Related Rights (SCCR) to discuss a Revised
Draft Basic Proposal for a WIPO Treaty on the Protection of Broadcasting
Organisations (WIPO document SCCR 15/2). The discussions on the Treaty
began eight years ago as an attempt to address the issue of the
protection of signal theft. The Member States of the European Union and
broadcasting organisations sought protection for programme-carrying
signals on the grounds that these can be stolen and retransmitted
without permission through new means of transmission not covered in
previous international instruments (i.e. the International Convention
for the Protection of Performers, Producers of Phonograms and
Broadcasting Organisations - the Rome Convention; and the Agreement on
Trade-Related Aspects of Intellectual Property Rights =96 the TRIPS
Agreement). What some expected to be a simple negotiation has become
complex, since a great number of proposals have been submitted by WIPO
Members over the eight year period. There has also been greater
involvement by public interest groups in the last couple of years as
well as by technology industries coupled with deeper analysis of the
provisions of the draft treaty which was hitherto missing

The discussions on the draft of the Treaty on the Protection of
Traditional Broadcasting Organisations, including cablecasting
organisations, involve several controversial issues, such as whether the
treaty should cover webcasting. Although the United States tried to push
for protection of webcasting organisations in the draft text by arguing
that the functional role of webcasting (transmissions through computer
networks), and traditional broadcasting is similar, and that the only
difference between them is the means of transmission, the U.S. proposal
was not successful. As a result, protection of webcasting organisations
was left out of the draft, but it will be part of a separate discussion
in the SCCR, though fears have been raised that some of the language in
the draft text would still cover some form of webcasting.

II. Recommendation to the WIPO General Assembly

Notwithstanding the contentious debate in the Fifteenth Session of the
SCCR on various substantive issues and the clear lack of agreement on
many of these, the SCCR under pressure from the Committee Chairman
agreed to recommend that the WIPO General Assembly, scheduled to meet
from 25 September 2006, decide that: (a) the Revised Draft Basic
Proposal (SCCR 15/2) would become the Basic Proposal for the Diplomatic
Conference, which is the last step in the treaty-making process, subject
to any proposals that might be agreed to at a special meeting in January
2007 or proposals presented by Members at the Diplomatic Conference, and
(b) a Diplomatic Conference to negotiate and conclude the treaty take
place from 11 July to 1 August 2007 in Geneva. While in normally the
General Assembly simply endorses Committee recommendations, such
recommendations could be modified or even rejected by the General Assembly.

III. Brief Analysis of the Key Issues Discussed at the Session

Some of the main issues discussed in the Session were the following: (a)
preamble, objective and scope of the treaty; (b) the rights of
protection; (c) exceptions and limitations to rights and (d)
technological protection measures (TPMs). The following is a brief
summary of the issues and the relevant discussions. The analysis is
partly based on a pre-publication research paper released by the South
Centre at the start of the session. The paper is available at the South
Centre website. A series of other papers outlining concerns with regard
to the Draft Basic Proposal were also presented by representatives of
civil society, non-governmental organisations and industry at the session.

(a) Preamble, Objective and Scope

The delegations of India, Brazil, South Africa and the African Group,
among others, argued that prior to beginning the discussion on
substantive issues, such as rights to be protected, the objective and
scope of the Broadcasting Treaty must be clearly defined. In particular,
it is important to clarify that the rationale of the treaty is to
protect broadcasters and cablecasters against signal theft. The object
of the protection would be limited to the signal, and not extend to the
content transmitted through the signal. One of the problems identified
by delegations is that there is no definition of =93broadcast=94 in the tex=
t
of the Draft Basic Proposal, and it does not specify whether only
broadcast signals are the object of protection. Although the objective
of the Treaty might be obvious for many Members, because broadcasts
represent the product of a broadcasting organisation, if explicit
reference to broadcasts is not made in the objective of the Treaty and
the objective is not clearly defined, it can be later argued that the
object of protection is not the signal itself, but the signal and the
content carried by the signal. Moreover, many delegations pointed that
it is necessary to define whether the Treaty is limited to signal
protection and takes a signal-based approach, or whether it takes a
rights-based approach, in order to determine whether exclusive rights to
broadcasters are warranted or not.

(b) The Rights to be granted to Broadcasting Organisations

The Draft Basic Proposal contains a number of exclusive rights that
confer on broadcasters and cablecasters the right to control the
signals, and as argued by various analysts and delegations, the content
carried by the signals. Exclusive rights would create a dangerous
additional layer of rights for broadcasters and cablecasters over those
already granted to copyright and other related right holders. These
provisions may pose serious risks for developing countries and Least
Developed Countries where generally traditional broadcasting via TV and
radio are the most important means of providing access to information.
Articles 9 to 16 of the draft text contain the provisions related to the
rights to be protected, which go beyond the provisions contained in the
Rome Convention, Satellites Convention and the TRIPS Agreement.

(c) Limitations and Exceptions

Limitations and exceptions to the exclusive rights that may be provided
to broadcasters and cablecasters are a core issue for developing
countries. Limitations are extremely important in providing a balance
between the rights of broadcast organisations and the public interest.
The establishment of limitations and exceptions may allow governments to
ensure public use of information and access to knowledge for their
population, in particular, for those who do not have economic resources
to pay for accessing such content. Several developing countries
expressed support for alternatives in the text on limitations and
exceptions that would provide for a non-exhaustive list of specific
limitations and exceptions that leave enough flexibility for governments
to establish policies that are necessary to protect the public interest.
This was also supported by some developed countries, such as Canada. On
the other hand, several developed countries such as the United States
and Switzerland, expressed their preference for maintaining language on
limitations and exceptions similar to that contained in the WIPO
Performances and Phonograms Treaty (WPPT), which does not list specific
limitations and exceptions.

(d) Technical Protection Measures (TPMs)

The discussion on the TPMs was highly contentions. TPMs refer to
technological tools that may be used by the copyright owner, performer
or phonogram producer to prevent or restrict non-authorised use and/or
access to works in the digital environment. Concerns have been raised
with the implementation of TPMs as they could block access by, for
example, consumers to legitimate uses of content when it is in the
public domain. According to some delegations, if TPMs were extended to
broadcasting organisations and cablecasting organisations as proposed in
the two alternatives in the Basic Draft Proposal, it would mean new
obligations for WIPO Members, since neither the Rome Convention nor the
TRIPS Agreement contains such provisions. In addition, some delegations,
including Brazil, argued that TPMs are not relevant to protect signals,
which is the objective of the Treaty, and would only serve to protect
the content.

IV. Conclusion

The analysis of the provisions above, demonstrates that the Broadcasting
Treaty contain provisions that may seriously affect developing
countries. It also shows that the establishment of safeguard measures,
such as limitations and exceptions are essential for assuring access to
knowledge, in particular, for those who lack economic resources to pay
for accessing information.

Post by: Marcia Aribela and Viviana Munoz, South Centre.