[A2k] PK Blog post on WIPO BT

[Sherwin Siy]

--
[ Picked text/plain from multipart/alternative ]
As posted on November 7th:

http://www.publicknowledge.org/node/1862

The Broadcast Treaty at the 17th Session of WIPO's Standing Committee on
Copyright and Related Rights

 By Sherwin Siy <http://www.publicknowledge.org/user/1713> on November 7,
2008 - 11:43pm

The World Intellectual Property Organization's Standing Committee on
Copyright and Related
Rights<http://www.wipo.int/meetings/en/topic.jsp?group_id=3D62>just
finished meeting in its seventeenth
session <http://www.wipo.int/meetings/en/details.jsp?meeting_id=3D16828>. O=
n
the agenda <http://www.wipo.int/edocs/mdocs/sccr/en/sccr_17/sccr_17_1.pdf>a=
re
three major areas of work: exceptions and limitations to copyright,
the
protection of audiovisual performances, and the protection of broadcasting
organizations.

The audiovisual performances and broadcasting treaties have remained in a
somewhat moribund state, with years'-long deadlock on the broadcast
treaty<http://www.publicknowledge.org/issues/wipobroadcasters>,
and the audiovisual treaty receiving only cursory attention over the past
several sessions.

That status didn't seem to change much at this meeting=97although pretty mu=
ch
every member country expressed a desire to keep both of those items on the
agenda, there were constant references to the lack of agreement on the
issues.

*The Broadcast Treaty*

The statements by the various countries were mostly made in reference to an
informal document (meaning it has no official status) prepared by the Chair
of the Committee, Jukka Liedes of Finland, who summarized the status of
broadcast treaty negotiations to date. (available online
here<http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=3D109212>)
The informal paper also outlined a couple of possible ways forward on the
treaty=97either continuing negotiations as they had been for the past ten
years (option A), or adopting something that looked more like a narrow
signal theft treaty (option B). Alternatively, the paper notes:

Finally, if after consideration of the options above (A/B) and possible
other options, it will not in the present situation be possible to decide o=
n
the establishment of a new treaty, the SCCR should end these discussions
through an express decision in order to avoid further spending of time,
energy and resources to no avail. Such a decision could include a timetable
for later revisiting and reconsidering the matter.

The lack of consensus noted in all of this was the established split among
the member countries, with European countries and Japan pressing strongly
for broad exclusive rights in a signal, and many developing countries, such
as India, which supported a narrower treaty that would have prohibited
signal theft without granting broad exclusive rights.

France (speaking on behalf of the European Union and its member states)
among the most vociferous proponents for a treaty; one that includes
exclusive IP rights for broadcaster in their signals and extends to
post-fixation rights. This means a broadcaster has the right to prevent
anyone from retransmitting, recording, or doing anything with that recordin=
g
of their broadcast=97regardless of who (if anyone) owns the copyright in th=
e
transmitted work. This position was echoed by Japan.

On the other side, India and Egypt were among the most definitive in noting
their conceptions of the treaty as a signal protection treaty=97one that wo=
uld
prohibit the misappropriation or theft of signals, while not extending
rights to what happens after the work carried by a signal is fixed into a
copy. Both countries also appeared concerned that extending broadcast right=
s
to Internet retransmissions of traditional radio and TV broadcasts would
have unintended consequences.

However, that was not the only conflict in evidence. Pakistan, for instance=
,
speaking on behalf of the Asian Group of member states, proposed not pickin=
g
any of the options mentioned by the informal paper, instead proposing
additional study of the matter before making any decisions.

Brazil was even a bit bolder, noting that, even though it supported keeping
the treaty on the agenda, rushing back into negotiations on such a
contentious topic might be, as the paper put it, a spending of time,
resources, and energy to no avail.

This same phrase was echoed by the United States, which dropped a bit of a
bombshell by resurrecting a much larger potential conflict. The US noted
that early drafts of the broadcast treaty included protection for
webcasters=97something the US was very interested in. However, this idea ha=
d
received a lot of pushback from other countries who felt that webcasting
was, as a fairly new development, still too unsettled to propose how it
should be covered by IP. In the interests of progressing past
*that*conflict, the US agreed to remove webcasting from the scope of
the treaty
years ago. Keeping webcasting out of the picture had remained a talking
point for India, Algeria (here speaking on behalf of the African Group,
whose other members also spoke up on this), and China (which was more vocal
this session than it was in the past few).

Now, however, the US mentioned that its earlier agreement to split off
webcasting in the interests of compromise might have expired, due to the
lack of a diplomatic conference to finalize the treaty in 2007. In other
words, the US might well be interested in bringing webcasting back into the
scope of the treaty. Obviously, if it did so, there would be even more
issues to debate, possibly forestalling a treaty further.

However, the positions staked out on either side of this divide were
mentioned almost in passing. As each delegation took the floor, the same
mantra of support for keeping the item of the broadcast treaty on the agend=
a
was repeated.

Running parallel (or perhaps even underpinning) the delegations' positions
were those of the non-governmental organizations (NGOs), which tended to be
far less ambivalent. These groups range from industry associations
representing broadcasters, record labels, performers, and others, to groups
like PK, KEI, EFF, and Consumers International. Those representing
broadcasters predictably wanted stronger, exclusive rights, and wanted a
broad treaty passed soon. PK, along with its public interest allies, and a
number of industry groups, felt that there was no rationale for a treaty
that could place an additional layer of IP rights on information. While NGO
statements don't have official sway over the process, the groups do
represent constituencies of the present delegates, and often these
statements (and the lobbying that accompanies them in between meetings)
reflect some of the considerations that member states take into account whe=
n
forming positions.

Other considerations come from the policies of the present delegates and th=
e
decisions made by authorities in the delegates' home capitals. Whatever
these may have been, they resulted in no countries actively asking that the
treaty be removed from the agenda. And so the broadcast treaty remains.

Furthermore, Australia had suggested during the course of these statements
that there might be some value in convening experts. Statements from the
Asian Group, the US, and others supported this. At the end of the meeting,
the status of the broadcast treaty is represented by this conclusion of the
Chair:

*Protection of broadcasting organizations*

 The Committee decided to contine its work on this item in consonance with
the mandate of the General Assembly. A number of delegations showed their
interest towards the conclusion of a treaty. The Committee reaffirmed that
according to the decision of the General Assembly the protection must be
established on a signal-based approach, and the convening of a diplomatic
conference could be considered only afer agreement on objectives, specific
scope and objective of protection has been achieved.

The Committee took no decision regarding the options presented in the
Chair's paper.

The Committee will continue its analysis of the matter and requested the
Secretariat to convene an information meeting on the current conditions of
the broadcasting environment in connection with [during?] the next session
of the SCCR.

The matter will be maintained on the Agenda of the next session of the SCCR=
.


*emphasis in original. NB: This is an unofficial version of the text
compiled from my notes. An official version will be released some time from
now; I'll likely lost that on the blog when it arrives.*

Extensive discussions of limitations and exceptions also occupied the week,
but I'll cover those in (a) later post(s). Suffice to say, though, there wa=
s
a great deal of tension over, and a disturbing amount of resistance from
some member states to, a proposed treaty on copyright limitations and
exceptions to give the visually impaired access to copyrighted works.


--
Sherwin Siy
Staff Attorney
Public Knowledge
202.518.0020