[Ecommerce] FromGeneva: Proposed WIPO Broadcasting/Webcasting treaty text: Winners' proposal and Graveyard proposals

[Thiru Balasubramaniam]

      Proposed WIPO Broadcasting/Webcasting treaty text: Winners'
      proposal and Graveyard proposals



http://fromgeneva.blogspot.com/2006/03/proposed-wipo-broadcastingwebcasting.html

FromGeneva
Saturday, 1 April 2006
Thiru Balasubramaniam

The draft texts of the proposed broadcasting/webcasting treaty are out.
There are two documents-a Draft Basic Proposal and a Working Paper. In a
nutshell the draft Basic Proposal can be understood as the repository of
"winners' proposals" and the working paper can be understood as the
graveyard of "alternative proposals" to the draft
broadcasting/cablecasting/webcasting treaty. Interestingly, webcasting
which has received limited support (mainly a US/Yahoo/News Corporation
initiative), has made it into the Draft Basic Proposal as an
non-mandatory "opt-in" provision embedded in the Appendix of the paper.
Despite webcasting's appearance as a "non-mandatory opt-in provision",
its mere adoption by a few key players (US, EC, Japan) would have
deleterious effects on the way the Internet currently operates.

The 14th meeting of the WIPO Standing Committee on Copyright and Related
Rights (1 May-5 May 2006) is tasked with drafting a
broadcasting/webcasting treaty that will affect copyright owners and
consumers by creating a new layer of rights on the internet, threatening
the public domain, and introducing a brand new transmission right.

In preparation for the upcoming Standing Committee, the SCCR Chair,
Jukka Liedes (Director, Culture and Media Division, Ministry of
Education and Culture, Finland) in cooperation with the WIPO Secretariat
have drafted the two aforementioned papers: (1) a Draft Basic Proposal
for the WIPO Treaty on the Protection of Broadcasting Organizations
including a Non-Mandatory Appendix on the Protection in Relation to
Webcasting (SCCR/14/2) and (2) a Working Paper for the Preparation of
the Basic Proposal for a Treaty on the Protection of Broadcasting
Organizations (SCCR/14/3). The two documents raise many issues including
process issues at WIPO. It's all wrapped in good bureaucratic language
but it's still sausage/chorizo/saucisse.

In his introductory notes to the draft basic proposal, Chairman Liedes
cites the decision of the 32nd session of the WIPO General Assembly (26
September - 5 October, 2005) which stated that

    two additional meetings of the Standing Committee on Copyright and
    Related Rights (SCCR) would be scheduled to accelerate discussions
    on the second revised Consolidated Text (SCCR/12/12/ Rev.2) and on
    the Working Paper (SCCR/12/5 Prov.). These meetings shall aim to
    agree and finalize a Basic Proposal for a treaty on the protection
    of the rights of broadcasting organizations in order to enable the
    2006 General Assembly to recommend the convening of a Diplomatic
    Conference in December 2006 or at an appropriate date in 2007.


In plain English the proponents of a broadcasting/webcasting treaty want
to convene a Diplomatic Conference as soon as possible.

According to Mr. Liedes, the November 2005 Standing Committee reached an
understanding that the new consolidated text would be drafted for the
14th session of the SCCR. Ostensibly following the mandate of the
General Assembly, Chairman Liedes and the Secretariat have culled the
consolidated text into a Draft Basic Proposal and dumped the
"alternative proposals" into the Working Paper effectively separating
the "wheat" from the "chaff". The Working Paper also includes new
proposals received at the November 2005 SCCR including the Brazilian
(general public interest clauses) and Chilean (defense of competition)
proposals. The introductory note to the Basic Proposal leaves open the
possibility of elements of the Working Paper to yet be incorporated into
the treaty text and stresses there is no "agreement on any element" on
the content of the Draft Basic proposal and "is open for changes based
on the discussions on the Draft Basic Proposal and the Working Paper in
the Committee".

With respect to the process, it would be interesting to know how the
Chairman and the International Bureau paired down the consolidated text
into the Draft Basic Proposal (SCCR/12/2) and the Working Paper
(SCCR/12/3) considering that certain provisions presented as "clean
draft text" only received support from few delegations. Furthermore,
webcasting, which even the Chair admitted earlier as having limited
support has found it's way into the Draft Basic Proposal as an appendix;
it is presented as a non-mandatory opt-in provision.

An examination of Article 1 of the Draft Basic Proposal, Working Paper
and the Second Revised Consolidated Text underscores the absence of any
logical criteria used in the selection of "clean text" as opposed to
"alternative provisions".

For example, Article 1.1 (Relation to Other Convention and Treaties) of
the Draft Basic Proposal is a sweeping safeguard clause which states
"Nothing in this Treaty shall derogate from existing obligations that
Contracting Parties have to each other under any international, regional
or bilateral treaties addressing copyright or related rights".

This language is NOT present in the revised consolidated text
(SCCR/12/2) presented to the 12th SCCR in November 2004. This language
first makes its appearance in the revised consolidated text (SCCR/12/2/
Rev.2) presented to WIPO Member States in 2005. In the explanatory
comments, the Chair notes that this language is a "new formula" based on
an alternative proposed by 3 Member States-Egypt, Singapore and the
United States of America. The purported purpose of this Article is to
ensure "that the new Instrument would not derogate from any existing
minimum obligations under any other treaty".

Another safeguard clause, less ambitious in scope proposed by Argentina,
the European Community and its Member States, Honduras, Japan, Kenya,
Switzerland, Ukraine, and Uruguay merely referenced the Rome Convention
in terms of derogation from obligations in contrast to the sweeping
safeguard clause presented in Article 1.1 of the Basic Draft document.
My emphasis on Article 1 is to merely illustrate how a "new formula"
based on a proposal tabled by 3 WIPO Member States was incorporated into
"clean draft text" and to raise the question as to why this "trumped" a
proposal tabled by over 30 WIPO Member States. One hopes these opaque
drafting methods were not used in Articles 2 to 29 of the Draft Basic
Proposal.

Another example of this culling process is the Singapore proposal (which
received support from India) which called for a term of protection for
20 years for broadcasters. This proposal was consigned to the Working
Paper (Graveyard slot) in contrast to the proposal calling for a term of
protection for 50 years.

Obligations regarding Technological Protection Measures and Rights
Management Information enjoyed inclusion in the winner's circle despite
strong objection from at least one Member State.

For Member States and public interest NGOs participating in the SCCR
process, attention should be placed on the process of negotiations as
well as the technical minutia. Thus, the general public interest clauses
tabled by Brazil to protect access to knowledge, curb anti-competitive
practices, and protect and promote cultural diversity consistent with
the UNESCO Convention on the Protection and Promotion of the Diversity
of Cultural Expressions and the defense of competition language tabled
by Chile can have the chance to ameliorate a disastrous Treaty.