[A2k] IP-Watch: Broadcasting Treaty: Council of Europe Picks Up Where WIPO Left Off

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Intellectual Property Watch

10 December 2007

By Monika Ermert for Intellectual Property Watch
The Council of Europe is deliberating on whether to negotiate a convention
to protect broadcasters' signals against piracy and thereby take up the
issue from the World Intellectual Property Organization (WIPO) where
negotiations on a proposed broadcasting treaty came to a standstill earlier
this year.

The Council's decision to proceed depends on approval by its Committee of
Ministers. The  <http://www.coe.int/> Council of Europe, based in
Strasbourg, France, predated and includes the European Union.

With only 47 member states from Europe and other western societies to agree
upon a convention, the Council of Europe might succeed where WIPO failed.
WIPO's 184 member states could not agree on a basic text for a broadcasting
treaty after several years of discussions and cancelled a diplomatic
conference (a full negotiation) scheduled for November. European countries
were among those pushing hardest for a treaty at WIPO.

A Council of Europe convention would reinforce the organisation's earlier
"recommendations" on the protection of broadcasting and neighbouring rights,
said Jan Malikowski, head of the Council's Media and Information Society
Division. It would do this "by establishing a stronger legal basis in
international law [to] provide guidance to states as to how to regulate the
matter."

Signal piracy could be a problem, especially in the cross-border context,
according to experts at the Council. "For example, you can have television
programmes with content licensed by the copyright owners for a particular
territory where the signal is picked up by a cable operator and distributed
to its subscribers within a different territory without this latter
distribution being licensed," explained Malikowski. This was the subject of
a 2006 opinion of the "Standing Committee on Transfrontier Television." A
convention would provide a solid legal basis for enforcement on copyright
rules in this type of cross-border issue.

"As in many other cases," Malikowski said, "the Council of Europe would
provide a framework for dialogue within which states would work out the
standards that they wish to apply, having regard to the values of human
rights and the rule of law for which this organisation stands."

If WIPO had temporarily and for whatever reason "ceased to provide such
space for working out a common international response to the call for
protection of neighbouring rights" the Council of Europe was experienced in
facilitating such a process, he added.

"I suspect that Council of Europe member states would be very happy if the
WIPO deadlock were overcome and revert to WIPO negotiations," Malikowski
told Intellectual Property Watch. "However, at present many feel that
progress at the Council of Europe level is desirable."

Industry Initiative

The European Broadcasting Union and several member states "pointing to an
apparent standstill within WIPO, have requested that the Council of Europe
take the relay and resume work on this," according to Malikowski, who said
the Association of Commercial Television in Europe may also support this
initiative.

The topic is not new for the Council, which would just continue work given
up when WIPO started its negotiations on the treaty, he said. "Council of
Europe member states already considered the possibility of elaborating a
convention on neighbouring rights, but discontinued work on the subject when
this very specific matter was taken up by WIPO," said Malikowski.

Over the last 20 years the Council has, according to Malikowski, "elaborated
other instruments designed to enhance the protection of broadcasters
neighbouring rights." One more recent example was the 2002 Recommendation
(No. R (2002) 7) on measures to enhance the protection of the neighbouring
rights of broadcasting organisations. In 2001, the Council also adopted a
convention on the legal protection of services based on, or consisting of,
conditional access, he added.

IP issues in a more general sense were also dealt with by the Council's
Convention on Cybercrime that touched on infringement of copyright and
related rights online or through computer systems. The Cybercrime Convention
was promoted heavily at the United Nations-led World Summit on the
Information Society (WSIS) and the two subsequent meetings of the Internet
Governance Forum (IGF) as the first global instrument against cybercrime.

Council Deputy Secretary General Maud de Boer-Buquicchio recently joined the
numerous voices who favour wider accession to the Cybercrime Convention,
said Malikowski. That convention was seen as the most prominent example of
these types of legal instruments could have a global application or serve as
a model for non-Council members, Malikowski said.

With respect to concerns about fair access rules and possible negative side
effects for the South voiced by developing countries and civil rights
organisations during the WIPO debate over the broadcasting treaty,
Malikowski underlined: "A human rights-centred approach is also necessary
when examining access to education, to knowledge, research, and I would add,
also as regards cultural and artistic expression and scientific development.


He pointed to considerable protection of these values through the European
Convention on Human Rights in General and Article 10 and Article 2 of
Protocol 1 in particular. "Article 10 of the European Convention on Human
Rights consecrates the right to freedom of expression and information
without interference by public authority and regardless of frontiers,"
Malikowski said.

Report on IP Rights and Restrictions

One of the Council of Europe groups of specialists has received the mandate
to "prepare a report on emerging issues and trends in respect of, on the one
hand, the protection of intellectual property rights and the use of
technical protection measures in the context of the development of new
communication and information services (and the Internet) and, on the other
hand, the fundamental right to freedom of expression and free flow of
information, access to knowledge and education, the promoting of research
and scientific development and the protection and promotion of the diversity
of cultural expressions and artistic creation." This group was expected to
make concrete proposals for further action in this area as it found them
appropriate, said Malikowski.

Another much-debated issue during the WIPO broadcasting treaty talks was the
expansion of protection to webcasting organisations. As discussions were
still at an early stage, Malikowski pointed to the need to be consistent
with other Council instruments like the European Convention on Transfrontier
Television that is currently under review.

Consistency with the approach followed by the European Union in the context
of the new Audiovisual Media Services Directive also is key for the Council.
"I would assume that not any webcast would qualify as a broadcasting
organisations' signal," he said. The Audiovisual Media Services Directive
tried to draw a line between commercial, television-like, linear services
and non-linear services like webcasts of a non-commercial nature or user
generated content. But experts still see problems in deciding what falls
under the directive, especially with formats changing rapidly.

Substantive issues have not yet been addressed, according to Malikowski who
also said he could not give a timetable. "However, considerable work has
been done within WIPO and it appears sensible that this should be the
starting point."










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