[A2k] Battle For A New WIPO Treaty On Broadcasting Begins In Earnest

[Thiru Balasubramaniam]

It should be noted that the 3rd day of discussions (morning, afternoon
and night) were conducted in informal mode despite the concerns raised
by the representative of India who noted that he wanted all of his
delegation's positions recorded in the official records of the WIPO
Standing Committee on Copyright and Related Rights.

Thiru


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http://ip-watch.org/weblog/wp-trackback.php?p=3D661

19 June 2007
Battle For A New WIPO Treaty On Broadcasting Begins In Earnest



By William New

World Intellectual Property Organization members are engaged in a
critical weeklong meeting that will determine the fate of a proposed
WIPO treaty on broadcasters=92 rights. At the end of a second slow day,
it was unclear which way it will go, according to participants, but
things are intensifying and WIPO is watching closely, they said.

=93This meeting is absolutely crucial,=94 WIPO Deputy Director General
Michael Keplinger told Intellectual Property Watch. =93It is necessary
that we achieve some consensus.=94

The 18-22 June meeting of the Standing Committee on Copyrights and
Related Rights is seeking to agree on the appropriate basis for a
high-level negotiation on the treaty later this year. It is unclear
precisely what measure will be used by WIPO members to decide whether
to proceed to the negotiation, or diplomatic conference, scheduled for
November 2007. But if the amount of disagreement with the latest draft
on the opening day of the meeting is any indication, the negotiation
could be in trouble.

Keplinger said consensus could be reached to move forward on the basis
of a =93non-paper=94 (having no official status) from the committee chair,
or with alternatives =96 which he said he hoped would be at an =93absolute
minimum.=94

Several key WIPO members, such as Brazil and India, raised significant
concerns on the first day about the latest draft of the proposed treaty
language. The language is offered in a non-paper by committee Chair
Jukka Liedes, and supposedly reflects member comments and consultations
with Liedes, who has chaired the process for about 10 years.

The committee is under instructions from the 2006 General Assembly to
try to bridge differences sufficiently to make the diplomatic
conference likely to result in success. The annual WIPO General
Assembly in September-October will make the final decision on whether
to hold the diplomatic conference.

All discussion on draft treaty language is expected to end by Thursday
night to allow for a preparatory committee meeting for the diplomatic
conference to be held Friday, 22 June. That would set the rules of
procedure and other details for the negotiation, according to a
document prepared by WIPO for the meeting.

Specific issues under particular debate are the scope of rights to give
broadcasters - including exclusive rights, the protection of
retransmissions of broadcasts, and exceptions and limitations to the
treaty. Another key issue is whether and how to reintroduce language on
cultural diversity and the public interest.

Broadcasters Ready to Proceed on Basis of Non-Paper

US, European and Canadian broadcasters told Intellectual Property Watch
that the non-paper represents the bare minimum they can accept, but
they have declared it would make an acceptable starting document for
the diplomatic conference. The recent return of language on
retransmissions and exclusive rights from an earlier non-paper made the
difference for them, one industry source said.

But a number of delegations expressed concern about the non-paper.
Brazil said the non-paper does not reflect the General Assembly mandate
for the process, and that Liedes chose to ignore Brazil=92s comments
during the comment period held this spring. Brazil, India, Chile and
others raised questions about basic elements of the non-paper, such as
definitions and even the title, sources said.

Brazil and others have sought to include general principles, promotion
of cultural diversity and defence of competition in the body of the
treaty, but in the non-paper, Liedes has put these in the preamble, and
developed countries, including the European Union, are seeking to keep
them there.

India raised concern about issues it opposes that continue to appear in
the non-paper, such as computer networks and simulcasting. It said
current language could lead broadcasting organisations to obtain more
benefits than intended at the expense of content creators and the
public.

Developed countries appeared to be keeping their positions more hidden
at the outset of the meeting. The United States has a division within
its industries which could be difficult to bridge, sources said.

A US official told Intellectual Property Watch at the start of the
meeting that the United States supports updating protections for
broadcasters, but =93not at any cost.=94 It is important that broadcasters=
=92
protection not interfere with the rights of content owners and the use
of technology in the public interest, the official said.

In its floor statement late Tuesday, the United States asserted that
the base document for the negotiations is an earlier draft basic
proposal, WIPO document 15/2, which was roughly 100 pages long. The
chair=92s non-paper is 10 pages. Other delegations also have reminded the
group that the last official text is 15/2, on which there is no
agreement and which the General Assembly mandated must be narrowed in
order for a diplomatic conference to be held. The assembly also said
the treaty should focus on signal protection.

=93At a minimum, we believe a draft basic proposal must include consensus
on key provisions that provide broadcasters with what they need to
protect against signal piracy, while not undermining the rights of
underlying content holders or the public interest,=94 the US delegate
said. =93As the General Assembly directed, we must agree on the
objectives, specific scope and object of protection at this meeting if
we are to proceed to a diplomatic conference.=94

The US also raised concern that language related to technological
protection measures should be the same as in the 1996 WIPO =93Internet
treaties,=94 which gave digital age protection to copyright holders and
performances.

Canadian Proposal Submitted

Canada submitted a proposal to this week=92s meeting. It focuses on
retransmission, allowing that a free, over-the-air signal be
retransmitted within the country of reception but not across borders.
It also recommends that limitations and exceptions for broadcasters
allowed under the World Trade Organization Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) [under Article 14.6]
should continue, which a source said is more generous for users than
the three-step test traditionally used in copyright law.

Under the proposal, areas that would fall under the exceptions and
limitations would be similar to those that fall under Article 15.1 of
the Rome Treaty, such as private use, teaching or scientific research.
Other types of uses would be subject to the three-step test.

Gerald (Jay) Kerr-Wilson, counsel at Fasken, Martineau and DuMoulin in
Ottawa, offered support for the Canadian proposal on behalf of the
Canadian cable, satellite and telecom industries. He highlighted the
Canadian concern that consumers would be impacted if a new layer of
rights were created for broadcasters. Canadian cable and satellite
operators already pay rights holders for the retransmission of programs
and are concerned about the impact of having to pay broadcasters an
additional fee in order to access the content that has already been
paid for, said Kerr-Wilson.

In another development, the US public broadcasting companies, including
National Public Radio (NPR), have opposed the treaty. An NPR
representative told sources that the North American Broadcasters
Association (NABA), to which it belongs, was here supporting the treaty
without the approval of its membership. NPR=92s opposition may stem from
concern that the exceptions and limitations of the current draft would
not be equivalent to US law, where news reporting is covered.

A NABA representative at the meeting showed that a brochure it has
distributed at the meeting stating its support includes a footnote that
several members were not in agreement with the position.

WIPO Needs a Win

Keplinger noted that agreement on a document for negotiation does not
signal an endorsement of a treaty.

He also said all decisions are up to the member states, not the
secretariat, but said it is an important discussion for WIPO. =93There
has been a feeling that on substantive issues, it has been difficult
for the organisation to show progress,=94 he said. =93So in that regard,
moving forward is important for WIPO.=94

But as the US delegate put it, =93Nobody should underestimate the
difficulty of achieving the necessary consensus.=94 The treaty is so far
from satisfactory for US technology and telecommunications firms, they
are pushing hard at the meeting to see that the treaty, as one lobbyist
put, =93goes over the falls.=94 Major sports broadcasters from the US and
elsewhere also have appeared at the meeting for the first time.

Liedes Absent

Liedes missed the second day, 19 June, to return to his native Finland
for another matter. The second day began with statements from
intergovernmental and nongovernmental organisations, and was expected
to move to the first discussions of the substance of the proposed text.

On day one, member states shot down an effort by Liedes to follow the
same =93green room=94-style procedures that were employed at last week=92s
Development Agenda meeting, and which echoes a procedure used at the
WTO. That would have meant regional coordinators overseeing the
drafting of text for clusters of proposals. Officials said it would not
work this week as there is too much divergence within the regions on
the broadcasting issue.

William New may be reached at wnew@ip-watch.ch.



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---------------------------------
Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
voice +41.22.791.6727
fax +41.22.723.2988
mobile +41 76 508 0997
thiru@keionline.org