[A2k] KEI Statement on WIPO’s May 1, 2007 “Non-pa per on the WIPO Treaty on the Protection of Bro adcasting Organizations”

[Manon Ress]

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[ Picked text/plain from multipart/alternative ]
Knowledge Ecology International (KEI) Statement on WIPO’s May 1, 2007
“Non-paper on the WIPO Treaty on the Protection of Broadcasting
Organizations”

FMI: Manon Ress, manon.ress@keionline.org,
+1.202.332.2670, http://www.keionline.org

Summary

* The May 1, 2007 non-paper will be the basis of the discussion to
take place June 18-22 at the special second session of the SCCR. The
European Union and other proponents of a Rome-based approach present
the non-paper as the narrowest treaty that can be “accepted”. It is
designed to give intellectual property
rights for broadcasting content, and it is designed to extend those
rights to the Internet. It is not about preventing the theft of
signals. It is not about piracy. It risks the introduction of a
thicket of new rights that will harm the Internet.

* We urge Congress to engage the U.S. Delegation to oppose any new
treaty that introduces an intellectual
property right for merely packaging and distributing works. It is
possible to put an end the current
negotiations, if the U.S. Delegation rejects the European
Commission’s proposal (the May 1, 2007 draft).
The broadcasting treaty can be discussed at a later date, if and when
anyone can identify a compelling
reason to introduce such a treaty.

Background

The World Intellectual Property Organization (WIPO) Standing
Committee on Copyright and Related Rights (SCCR) has met twice a year
since 1998, for a total of 15 times. The SCCR’s topic of discussion,
up until the Tenth Session, focused on both a possible treaty on the
protection of non-original elements of databases (a follow-up to a
treaty that failed in a 1996
diplomatic conference), and a new treaty for broadcasting organizations.

Since November 2003, the SCCR has focused almost entirely on the
proposal for a Broadcasting Treaty. The negotiations have
addressed a number of controversial topics, including the
identification of potential “beneficiaries” of the treaty
(traditional TV and radio, satellite and cable television, or, most
controversially, webcasting), the nature of the
protections (a new intellectual property right for the “casting”
entity, like the 1961 Rome Convention, or a signal-theft model, like
the 1974 Brussels Satellite Convention), and other topics.

A large coalition of civil society NGOs, libraries, and innovative
businesses have opposed the extension of the treaty to the Internet,
and have argued that the treaty should follow the 1974 Brussels
Satellite Convention approach, which
addresses the theft of signals, but which does not create an
intellectual property right in content. These groups are concerned
that a treaty that follows the “rights” approach from the Rome
Convention will create problems for consumers
by making it more difficult to share or repurpose information, will
present new liabilities for anyone hosting digital content, and will
create new orphan works as it becomes more complicated and time-
consuming to clear the rights of both broadcasters and copyright
owners. This will only benefit a handful of large companies that
merely package content into
cable and satellite channels, at the expense of both consumers and
copyright owners. The timing of the treaty has also been questioned,
coming, as it does, at a time when transmission costs are falling,
and technologies and business models are changing, especially given
the abundance of legal rights in the 1996 WIPO Digital Copyright
Treaties which already protect
creative works. Why do this now, when there is no pressing need, no
one can explain the purpose of the treaty, and we are still learning
about the technology and business models?

In May 2006, the SCCR agreed that the treaty would only cover
"traditional" television and radio broadcasting, which are the two
technologies covered by the 1961 Rome Convention, as well as any
combination or representation of "images and sounds" delivered by
cable and satellite television, and that it would not deal with the
Internet. In October 2006, the WIPO General Assembly (GA) decided to
convene two meetings in January and June 2007 to clarify outstanding
issues. The convening of a Diplomatic Conference at the end 2007 is
contingent upon whether WIPO Member States reach an agreement on a
revised basic
proposal. The General Assembly of the World Intellectual Property
Organization (WIPO) in its thirty-third session in 2006, stated that:

“The sessions of the SCCR should aim to agree and finalize, on a
signal-based approach, the objectives, specific scope and object of
protection with a view to submitting to the Diplomatic Conference a
revised basic proposal, which will
amend the agreed relevant parts of the Revised Draft Basic Proposal
(document SCCR/15/2). The Diplomatic Conference
will be convened if such agreement is achieved.”

Many delegations and NGOs stated that there should be no Diplomatic
Conference until WIPO members can agree upon the basic paradigm for
the treaty. Do member states want a "rights" approach, or a "signal
theft" approach?

After the January 2007 special session, the Chair circulated a draft
non-paper and WIPO received comments on that draft. 15 member states
and the European Community submitted comments. 7 member states
expressed their support for a signal-theft approach, 4 did not
express support for that approach and 4 did not directly address the
issue.

Recent developments

On May 1st, 2007, WIPO made a new draft available on its website:
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=77333

The May 1, 2007 non-paper will be the basis of the June 18-22
discussion at the special second session of the SCCR. The European
Union and other proponents of a Rome approach present the non-paper
as the narrowest treaty that can be
“accepted”. It is designed to give intellectual property rights for
broadcasting content, and it is designed to extend those rights to
the Internet. It is not about preventing the theft of signals. It is
not about piracy. It is about rent-seeking. It risks the introduction
of a thicket of new rights that will harm the Internet. Some of the
most controversial rights (post-fixation and reproduction) are
supposedly gone, but the exclusive rights of retransmission and
deferred retransmission are there, and they effectively mean the same
thing.

The USPTO and the LOC have an uneven history in the negotiations. The
U.S. Delegation was initially strongly supportive of a new ROME plus
treaty, and wanted to extend it to the Internet. Then the U.S.
Delegation agreed to proceed on a “traditional broadcasting only”
approach, and began to push for a signal theft approach. More
recently the U.S. Delegation seems to be accommodating the European
Commission position, which promotes a position that is contrary to
U.S. legal traditions, and
which will harm consumers and create new risks for the Internet.

We urge Congress to request that the U.S. Delegation oppose any new
treaty that introduces an intellectual property right for merely
packaging and distributing works. It is possible to put an end the
current negotiations, if the U.S. Delegation rejects the European
Commission’s proposal (the May 1, 2007 draft). The broadcasting
treaty can be discussed at a later
date, if and when anyone can identify a compelling reason for the
adoption of such a treaty.

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Manon Anne Ress
manon.ress@keionline.org,

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