[A2k] WIPO Broadcasting Treaty SCCR S1 - Day 1 and 2 notes

[Gwen Hinze]

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[ Picked text/plain from multipart/alternative ]
FYI the NGO coalition's notes of proceedings on days one and two at
the WIPO SCCR Special Session on the Broadcasting Treaty are now
posted at EFF DeepLinks:

<http://www.eff.org/deeplinks/archives/005082.php>


Some of my thoughts follow:

Blogging the WIPO Broadcasting Treaty: Signal-Based Protection or
Rights by Any Other Name?
January 19, 2007

The 183 member states of the UN's World Intellectual Property
Organization are gathered in Geneva this week to discuss the
controversial draft WIPO Broadcasting Treaty. EFF's main concern with
the current treaty draft - shared by the other 40 public interest
groups, companies and industry groups that have submitted a joint
statement to WIPO this week - is that it is not limited to signal
theft. Instead, it creates a set of broad and unwieldy intellectual
property rights in the recording and use of fixed transmissions,
which are likely to restrict the public's access to information in
the public domain, preclude uses of works permitted under national
copyright law, curtail consumers' use of lawfully-received
programming in their home, and stifle technological innovation.

Over the last year there has been widespread support for moving to an
alternative signal-focused treaty. Last October, WIPO's plenary body,
the General Assembly seemed to endorse just that. It gave the
Copyright Committee a clear mandate for this week's discussions: to
agree and finalize the objectives, specific scope and object of
protection for a signal-based draft treaty, which will be discussed
at an intergovernmental Diplomatic Conference in November.

This, of course, brings us to the key question: What does
"signal-based" mean? And that has been the focus of discussion for
the last two days. Despite the clear concerns expressed by many
Member States with the current rights-based approach - as evidenced
by the heated discussion at the 2006 General Assembly - the Chair
told us that the current draft was indeed signal based, but now
needed to be more so. He also stated that a signal-based approach did
not necessarily preclude exclusive rights, nor protection of a signal
after it ceased to be a "live signal".

In other words, a "signal-based approach" could look quite like the
current treaty draft. Rights creation, but under a different name.

The Chair has now given us six "non-papers" (documents) to help shape
discussions on this topic. They contain his suggested language for
the most contentious parts of the treaty. While they have no official
force, the non-papers provide a useful insight into what the next
treaty draft may look like because it is the non-papers that everyone
is now discussing since the meeting moved into "informal" unrecorded
sessions, in which NGOs are not permitted to attend, in the afternoon
of day two.

The sixth non-paper, released late on day two, contains the Chair's
consolidated set of treaty articles. There are a number of features
of the Chair's document that are clearly right-based. First, it
contains exclusive rights for simultaneous and deferred
retransmissions over computer networks. This would actually expand
the current treaty draft's right to authorize simultaneous
retransmissions, and clarifies that broadcasters and cablecasters
have exclusive rights of control of deferred transmissions over the
Internet. Second, it includes a set of "Protections Following
Broadcast" that would require Contracting Parties to provide adequate
and effective legal protection in respect of various activities
involving fixed transmissions. Even if not phrased as rights, these
require legal protection after the fixation of a live signal, and for
that reason would raise exactly the same concerns for the public
interest, consumers and technological innovation as the current
treaty draft. Finally, the Chair's non-paper contains a 20 year term
- for what is supposed to be signal protection.

It is now clear that WIPO member states are being asked to negotiate
about a rights-based treaty, even if it is being done under the guise
of "signal-based protection".

If that's not troubling enough, the Chair's non-paper also brings bad
news on TPMs. The language from the WIPO Copyright and Phonograms and
Performances Treaties has gone, replaced with a far broader
decryption device regulation. Paragraph (ii) of that may catch
devices with multiple purposes other than decryption, such as
personal computers, and would be flatly inconsistent with U.S. law's
Betamax standard. On the new formulation, a technology would be
unlawful if it is capable of an infringing use; the reverse of the
Betamax standard. Brazil's alternative proposal - that the treaty
have no TPM provision - has completely disappeared.

Following are notes of the public parts of the proceedings on days
one and two, and the full texts of the six non-papers.

--
Gwen Hinze
International Affairs Director
Electronic Frontier Foundation
Email:gwen@eff.org
Tel.: + 1 415 436 9333 x110

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