[Ecommerce] IP-Watch: WIPO Broadcasting Treaty Discussions ends in Controversy, Confusion

[Thiru Balasubramaniam]

http://www.ip-watch.org/weblog/index.php?p=3D10&res=3D1024_ff&print=3D0

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   11/22/2004


     WIPO Broadcasting Treaty Discussions ends in Controversy, Confusion


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   * IT <http://www.ip-watch.org/weblog/index.php?cat=3D8>

by Carolyn Deere @ 10:46 am

Discussions last week in WIPO=92s Standing Committee on Copyrights and
Related Rights (SCCR) on a proposed treaty that would expand protections
for broadcasting organisations ended in heated debate about whether the
Chair=92s report of the meeting adequately reflected the views of all
Member States.

The Chair=92s departure in the final moments of the meeting from WIPO=92s
usual =91consensus-based=92 approach to decision-making provoked alarm amon=
g
several delegations and has left doubt as to the final status of the
meeting=92s report.

In an effort to draw discussion on the report to a close, the Chair
called for a show of hands to =93measure the prevailing position=94 among
the Members. One delegate explained that =93Members were effectively asked
to vote on whether or not they could agree to the Chair=92s report. Five
countries=97Iran, Brazil, Egypt, India and Argentina=97indicated that that
they could not support the Chair=92s recommendations as written. A large
show of hands indicated that they could.=94 The United States did not
participate in the show of hands.

Amidst cheers from delegates from the broadcasting industry, the Chair
declared that =93in many cases it is the majority whose opinion has to be
respected. That is democracy=94=97implying thereby that the report had
indeed been adopted by a majority vote of the meeting. While some
delegates seemed similarly satisfied that an apparent decision had been
reached, several delegations=97even those in favour of the final
decision=97expressed both opposition to the ad hoc resort to a show of
hands and concern that it should not set a precedent for future meetings.

=93The call for a show of hands was a stark deviation from WIPO=92s
decision-making norms and culture. Reports are normally presented for
comments by Committee Members at the end of a meeting, amended to ensure
they reflect discussion and then adopted by consensus,=94 explained one
delegate. A WIPO Secretariat official confirmed the significance of the
departure, noting that no formal vote had taken place in a WIPO meeting
since 1996. Another delegate argued that the informal =91vote=92 was illega=
l
because it failed to follow WIPO=92s rules of procedure for voting and
that there was thus no definitive outcome of the meeting.

Several developing country delegations expressed surprise that the
United States had not expressed resistance to the call for a show of
hands=97highlighting that in many aspects of WIPO=92s work a resort to
voting-style procedures would often leave the United States out-numbered
by other Members.

A core issue of contention was the emphasis in the Chairman=92s
recommendations on regional consultations as the next step forward for
discussions on the proposed broadcasting treaty. While Algeria, Mexico,
Morocco, Senegal, Togo, and Zambia expressed their support for regional
consultations, Argentina Brazil, Chile, Honduras, India and Iran opposed
it=97arguing that the core differences of opinion exist between regions
not within them and that regional consultations should only be arranged
when specifically requested by a particular regional group. Dissatisfied
with the failure of the Chair to incorporate explicitly their proposal
for =93open-ended, inter-sessional=94 consultations, both Brazil and India
cautioned that the outcome of the meeting must be led by the Committee
Members. Insisting that the process remain =93Member-driven=94, Brazil
stated that =93any decisions on future work with respect to this process
must be accepted by this Committee.=94

Behind the scenes, several delegations expressed their view that
regional consultations had been proposed as a tool for pro-treaty forces
to ensure that they have =91the numbers=92 to push a treaty forward
(particularly in Africa) and to isolate those countries expressing caution.

The Chairman=92s report also included a recommendation that a second
revised version of the Consolidated Text be prepared by the Chair based
on the discussion and that the SCCR add an Agenda item on Exceptions and
Limitations to Copyright and Related Rights for its next meeting.
Originally proposed by Chile, the latter had been broadly welcomed by
Member States in the substantive discussion.

*Secretariat turns up the Heat while Governments remain Divided*

The dramatic closure of the meeting reignited concerns about the
Secretariat=92s role in promoting a speedy conclusion of the contentious
negotiations. Several delegations reported to IP-Watch that the Agenda
for the SCCR had been devised to focus on substantive discussion of the
consolidated treaty text even in the absence of clear consensus on the
general purpose and desirability of the treaty, its scope and
appropriate timing.

Industry groups were frank in their endorsement of efforts by the
Secretariat to drum up support for the treaty. Jonathan Potter of the
Digital Media Association (DIMA)=97a leading industry group pushing for
the inclusion of webcasting in the treaty=97 noted that the =93Secretariat
has been working very hard to increase consensus.=94 He confirmed that
Rita Hayes, the Deputy Director-General of WIPO and the official
responsible for the SCCR =93has not only met with delegations here but
also travelled around the world to meet with officials in capitals.=94
Alluding to pressures on capitals to support the treaty, Robin Gross of
IP Justice observed that =93it appears that the tail is wagging the dog.=94

Of particular concern to some delegations was the failure of the
Secretariat to produce the final report of the recent General Assembly
in time for the SCCR. Recalling disagreements at the Assembly about
proposed language implying the inevitability of a positive decision to
endorse the convening of a Diplomatic Conference, these delegates argued
that without the final Assembly report in hand the SCCR Members had no
clear instructions to guide their work (See WIPO Secretariat Ramps up
the Pressure <http://www.ip-watch.org/weblog/index.php?p=3D9>). Members
had been assured at the Assembly that the Secretariat would consult with
Members to arrive at an acceptable formulation for the final report. The
Secretariat ascribed the delay in the report=92s publication to the need
for translation into multiple languages.

In the meantime, while much of last week=92s discussion focused on
specific, politically-divisive aspects of the consolidated treaty text
(such as provisions on technological protection measures and the
question of whether or not to include webcasting), underlying
differences of views on the treaty itself were also evident.

In a statement prepared by broadcasting associations from around the
world, broadcasters argued that =93the overwhelming majority of
governments agree that it is now high time to adopt a new Treaty to
update broadcasters=92 protection.=94 Actual statements from many Member
States reflected a diversity of views on this point.

Some countries (including Uruguay, Zambia, Senegal, the EU and the
United States) argued that sufficient consensus existed to move toward a
Diplomatic Conference. Many Member States=97including those broadly
supportive of the proposed treaty=97stressed the need for greater
consideration of its particular implications for developing countries.
China argued that =93divergence is greater than consensus.=94 While pledgin=
g
its broad support for the work of the SCCR, Nigeria noted that =93making
progress for its own sake is not satisfactory,=94 and alluded to the need
for more time for countries to digest the issues. Several developing
countries emphasized that discussion of specific substantive issues
should not distract from consideration of the overall approach of the
treaty nor lead to a presumption of consensus on the desirability of
concluding a treaty.

Also on the side of caution were industry associations such as the
International Music Managers Federation (IMMF) and technology companies,
such as Broadcast.com and Salon.com. Arguing that the current rights of
broadcasters are already too broad, Nick Ashton-Hart of the IMMF
explained that the controversy surrounding the proposed broadcasting
treaty stems in part from the fact that broadcasting organisations are
yet to provide convincing evidence =93of an epidemic of piracy which
current international norms do not handle.=94

Similarly, David Tannenbaum of the Union for the Public Domain affirms
that while =93broadcasters have convincingly argued that the passage of
this treaty will boost their profits,=94 they have yet to show why the
effort to create entirely new rights to the broadcasting stream is
either economically necessary or desirable, particularly when balanced
against its costs to society at large=97such as restrictions on access to
knowledge and encroachment on the public=92s rights to fair use. Michelle
Childs of the Civil Society Coalition argued that the proposed =93Special
Interest=94 treaty stands to benefit a narrow group of companies =93at the
expense of copyright owners and the public domain.=94 Along with other
civil society groups, she called for greater efforts to ensure the
coherence of the broadcasting discussions with WIPO=92s new Development
Agenda.

Cory Doctorow of the Electronic Frontier Foundation offered specific
criticisms of efforts to include technology protection measures (TPMs)
and webcasting in the treaty. He challenged that TPMs have not proven
=93remotely effective=94 in practice and presented a letter to the SCCR on
behalf of 20 technology companies and organizations that oppose
including new webcasters=92 rights in the treaty, arguing that it
shattered =93the illusion that there is a technology consensus on this
issue.=94 A range of civil society groups, including EFF, have worked
alongside IMMF to develop an alternative draft treaty text which targets
the problem of signal theft through a =91protection-based=92 rather than a
=91rights-based=92 approach.

IP-Watch approached WIPO in advance for comments on several of the
topics covered in this article. The Secretariat apologized for not being
able to provide a response in time for the publication deadline.

*The Draft Treaty on the Protection of Broadcasting Organisations*

The proposed treaty aims to extend new rights to broadcasting
organisations, adding to a range of rights already granted to
broadcaster by existing treaties (in particular, the Rome Convention on
the Protection on the Protection of Performers, Producers of Phonograms
and Broadcasting Organisations, the WIPO Performance and Phonograms
Treaty (WPPT), the WIPO Copyright Treaty (WCT) and the TRIPS Agreement).
The treaty would give broadcasters, cablecasters, and, under the U.S.
proposal, webcasters a range of new rights, and substantially expand
both the scope and duration of currently recognised rights for
broadcasting organisations.