[A2k] EFF Statement to WIPO SCCR 17 on Broadcasting Treaty and Future Work Program

[Gwen Hinze]

Thank you, Mr. Chair.

I speak on behalf of the Electronic Frontier Foundation and its
13,000 members worldwide. Thank you for the opportunity to present
our views to the Member States on the proposed Broadcasting Treaty
and the future work plan of this Committee.

We stand at a pivotal moment for WIPO=92s leadership in the global
knowledge economy. As affirmed by the recently adopted Development
Agenda, this body should be focused on restoration of WIPO=92s role in
the promotion of creativity and innovation for the global information
society, rather than the promotion of new intellectual property
rights as ends in themselves. The Development Agenda points the way
forward =96 reorienting WIPO=92s work towards the preservation of the
public domain and stimulation of innovation, creativity and
development. The measure of relevance for future work is based not
only on whether the Internet or other dynamic technologies are
discussed, but about who benefits from the norms generated here.

Member States have been presented with a clear choice: they can start
on work to alleviate suffering for the world=92s citizens and tackle
the greatest challenges facing the global copyright regime today, or
they can resuscitate discussions on a treaty that, as currently
drafted, would protect broadcasters=92 and cablecasters=92 investments
but cause considerable harm to consumers, citizen broadcasting on the
Internet, competition and innovation at a time when it is still
unclear whether incumbent broadcasters will be displaced by these new
modes of innovative Internet media.

EFF remains concerned about the proposed Broadcasting Treaty, because
it would give broadcasters broad intellectual property rights over
retransmissions after fixation of signals, rather than providing
measures against intentional signal theft. We endorse the joint
statement of civil society and industry opposing the current draft,
which is available outside. So long as the treaty is not limited to
signal protection as mandated by the General Assembly, it imperils
the public=92s access to knowledge and the future of citizen
broadcasting and user generated content on the Internet. The
inclusion of legally enforced technological protection measures and
an overbroad ban on decryption devices is likely to override national
exceptions and limitations in copyright law that protect the public
interest and preclude access to public domain works. The treaty will
also harm competition and innovation by allowing broadcasters and
cablecasters to control the market for transmission receiving
devices. Finally, it will increase liability for Internet
intermediaries and impede Internet innovation.

After 10 years of negotiations without substantial agreement and in
the absence of empirical evidence justifying the necessity for a
rights-based treaty for broadcasters, we do not believe that the
Broadcasting Treaty proposal should continue to remain a priority
item on the work agenda. But at a minimum, any treaty would have to
include mandatory exceptions that are at least equivalent in scope to
those in the Rome Convention and TRIPs. While TRIPs permits
signatories to recognize certain non-exclusive broadcasting rights,
it does not condition creation of exceptions on satisfaction of the
three-step test and we see no reason to constrain Member States=92
ability to do so in this treaty.

Meanwhile, exceptions and limitations, a topic of great interest to
many developing and developed countries, and of tremendous importance
to the visually impaired, libraries, and education communities, and
Internet users generally has been supported by the thorough analysis
of the experts that enlightened this Committee earlier this week.
This is not resolvable by trusted environments and walled gardens for
the lucky few; this requires an international agreement on minimum
exceptions for socially beneficial uses. There is a high level of
urgency about finding solutions to these essential human needs and
the degree to which imbalanced intellectual property exacerbate these
humanitarian problems. The Standing Committee should direct this
institution=92s valuable resources to make progress for the betterment
of all humankind.

Thank you for your consideration.

Eddan Katz
International Affairs Director


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

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