[Ecommerce] IP-Watch: WIPO Broadcasting Treaty Advances Past Disagreements

[Thiru Balasubramaniam]

<SNIP>

=93The draft basic proposal [the document upon which talks will proceed]
is full of contradictions,=94 Surinder Kumar Arora, India=92s information
and broadcasting secretary and lead delegate to the negotiations, told
reporters afterward. =93It is not the sort of document for a diplomatic
conference [as it is] likely to enhance the risk of failure. It requires
more discussion.=94 (A diplomatic conference is a formal, three-week final
negotiation for a treaty.)

<SNIP>

The other expected beneficiaries, cablecasters, including some which
have their own content such as News Corp and Time Warner, did not
comment on the outcome. Content industry representatives have cautiously
supported the idea of moving to negotiation, but have been careful not
to state unqualified support for the draft proposal.

<SNIP>

US industry was prominent at the meeting, as several representatives
from information and communications technology (ICT) companies were
there in opposition. Jeffrey Lawrence, director of digital home and
content policy at Intel, said it would create a =93whole cloud of
liability issues.=94

=93We have the patent cloud, the copyright cloud, and now we=92re going to
have a broadcast cloud,=94 Lawrence said. He predicted such a treaty would
=93stifle innovation because it creates uncertainty.=94 In addition, it has
significant Internet ramifications, as it could impact cable and home
networking, seen as critical to ICT industries. The movement of content
is the =93next killer application=94 for industries, he said. Lawrence
called on industries to =93stand up=94 to fight the treaty as it is
proposed. Other opposed companies present at the meeting were Verizon
and AT&T.

<SNIP>

For Hayes, a sharp negotiator accustomed to tough diplomatic
environments in her distinguished career so far at WIPO and the World
Trade Organization, this could be a last hurrah at WIPO. She is expected
to leave her office by the end of this year.

=93The Twilight Zone=94: Opponents Voice Procedural Objections

Numerous opponents of the proposed treaty from the ICT industry sector
and consumer and civil liberties groups voiced strong objections to the
outcome. Liedes closed the meeting on time with a =93silence as approval=94
approach as no further debate was possible and the absence of objections
meant consensus.

Hayes told reporters afterward that the approach used by Liedes was
common for international negotiations. WIPO does not formally take a
position on the outcome of negotiations, which are conducted by member
states.

But several key governments, including the India and the United States
had voiced concern about proceeding on the basis of the text with so
many differences.

<SNIP>

"To me, this resembled an episode of =91The Twilight Zone,=92=94 said Thiru
Balasubramaniam of the Consumer Project on Technology. =93Member states
including India, Brazil, Argentina and the United States expressed
concern about going forward with this process for different reasons.=94 He
asserted that the chairman had =93steamrolled over objections.=94

Matthew Schruers of US-based Computer and Communications Industry
Association, said, =93It would appear that given the clear lack of
complete consensus, some unresolved differences have effectively been
punted into the general assembly.=94 Several other industry
representatives signalled disapproval of the process but were not
prepared to make statements.

Gwen Hinze of the Electronic Frontier Foundation said, =93It was extremely
disappointing that there was such little understanding and no discussion
of the significant policy implications of the treaty for innovation and
the Internet community.=94

Robin Gross of IP Justice said, =93We are really concerned about the lack
of consensus in the room about going forward with a diplomatic
conference. It is my understanding that WIPO is a consensus-based
organisation. If disagreements are voiced, we don=92t go forward until
these are ironed out. At least eight delegations voiced concern. I=92m
puzzled by what does consensus mean.=94




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      WIPO Broadcasting Treaty Advances Past Disagreements

4:27 pm

By William New

A proposal to negotiate a treaty to expand the rights of broadcasters
and cablecasters cleared a key committee of the World Intellectual
Property Organization on 13 September despite outstanding disagreements
among committee members.

=93The draft basic proposal [the document upon which talks will proceed]
is full of contradictions,=94 Surinder Kumar Arora, India=92s information
and broadcasting secretary and lead delegate to the negotiations, told
reporters afterward. =93It is not the sort of document for a diplomatic
conference [as it is] likely to enhance the risk of failure. It requires
more discussion.=94 (A diplomatic conference is a formal, three-week final
negotiation for a treaty.)

The recommendation to proceed to a make-or-break treaty negotiation next
summer will be put before the WIPO General Assembly, which meets on 25
September to 3 October.

WIPO members have worked for nearly 10 years to resolve differences on
the idea of modernising the protection broadcasters have under the 1961
Rome Treaty. The majority of governments said this year they now are
willing to move to a formal negotiation.

Long-time WIPO copyright committee Chairman Jukka Liedes, who informally
consulted with the WIPO secretariat during the 11-13 September meeting
<http://www.wipo.int/meetings/en/details.jsp?meeting_id=3D11264>, guided
the governments to a form of consensus in order to proceed to the final
negotiation. Liedes said remaining differences could be addressed in a
=93special meeting=94 before the negotiating conference.

It was agreed that in January, before the diplomatic conference proposed
for 11 July to 1 August, 2007, there will be a two-day special meeting
to address remaining issues as well as an adjacent preparatory committee
meeting. It was also stated that new proposals may be introduced along
the way.

WIPO Deputy Director General Rita Hayes was positive after the event.
She told reporters afterward that there =93certainly are some reservations
that are outstanding issues,=94 but said member states want a treaty on
traditional broadcasting and cablecasting. Key issues to be resolved
include the length of the term of protection (currently suggested at 20
years); treaty scope (webcasting and simulcasting have been taken out
for now); and what rights will be given to broadcasters, she said.

In addition, some governments have raised concerns about the inclusion
of technological protection measures used to control the flow of content
such as music and film, and a number have suggested they would prefer
the treaty to be explicitly limited to signal piracy only. Other key
concerns are the potential liability for technology companies and
telecommunications service providers, and the inclusion of references to
broadcasters=92 exclusive rights over retransmissions =93by any means=94
including over computer networks.

=93What we have now is a basic draft proposal that has everybody=92s
concerns in it,=94 Hayes said. =93That was what they wanted.=94

Positive Outcome Cited By WIPO, Proponents

According to a WIPO press release, Director General Kamil Idris
=93welcomed the positive outcome of the meeting as well as the political
will demonstrated by member states to conclude the negotiations.=94

=93The positive spirit that has characterized these discussions will
further strengthen consensus on these issues in the months leading up to
the diplomatic conference,=94 Idris said. =93The success of this process
hinges on the continued inclusiveness of the debate which seeks to reach
an agreement that is balanced and serves the common interests of all
stakeholders.=94

Broadcasters, who have argued for help against rising signal piracy and
other concerns, also were positive. Tom Rivers of the Association for
Commercial Television in Europe said, =93It was a difficult process, but
in the end we=92re pleased it was a success. We=92ve waited a long time.=94

The other expected beneficiaries, cablecasters, including some which
have their own content such as News Corp and Time Warner, did not
comment on the outcome. Content industry representatives have cautiously
supported the idea of moving to negotiation, but have been careful not
to state unqualified support for the draft proposal.

The New Broadcast =93Cloud of Uncertainty=94

US industry was prominent at the meeting, as several representatives
from information and communications technology (ICT) companies were
there in opposition. Jeffrey Lawrence, director of digital home and
content policy at Intel, said it would create a =93whole cloud of
liability issues.=94

=93We have the patent cloud, the copyright cloud, and now we=92re going to
have a broadcast cloud,=94 Lawrence said. He predicted such a treaty would
=93stifle innovation because it creates uncertainty.=94 In addition, it has
significant Internet ramifications, as it could impact cable and home
networking, seen as critical to ICT industries. The movement of content
is the =93next killer application=94 for industries, he said. Lawrence
called on industries to =93stand up=94 to fight the treaty as it is
proposed. Other opposed companies present at the meeting were Verizon
and AT&T.

During the week, a letter of concern by podcasting organisations was
circulated by the Electronic Frontier Foundation.

It is conceivable that allowing proposals to be introduced along the way
to the diplomatic conference could lead to the re-inclusion of the US
proposal on webcasting or the European proposal on simulcasting. But a
number of delegations have said the removal of webcasting was what
allowed them to be able to support a diplomatic conference.

For Hayes, a sharp negotiator accustomed to tough diplomatic
environments in her distinguished career so far at WIPO and the World
Trade Organization, this could be a last hurrah at WIPO. She is expected
to leave her office by the end of this year.

=93The Twilight Zone=94: Opponents Voice Procedural Objections

Numerous opponents of the proposed treaty from the ICT industry sector
and consumer and civil liberties groups voiced strong objections to the
outcome. Liedes closed the meeting on time with a =93silence as approval=94
approach as no further debate was possible and the absence of objections
meant consensus.

Hayes told reporters afterward that the approach used by Liedes was
common for international negotiations. WIPO does not formally take a
position on the outcome of negotiations, which are conducted by member
states.

But several key governments, including the India and the United States
had voiced concern about proceeding on the basis of the text with so
many differences. Some participants afterward said by comparison, the
opposition of the United States and Japan to the development agenda
process earlier this year had been sufficient for a recommendation of no
agreement to the General Assembly.

Industry and non-governmental groups who attended the meeting were not
given a chance to contribute during the week.

=93To me, this resembled an episode of =91The Twilight Zone,=92=94 said Thi=
ru
Balasubramaniam of the Consumer Project on Technology. =93Member states
including India, Brazil, Argentina and the United States expressed
concern about going forward with this process for different reasons.=94 He
asserted that the chairman had =93steamrolled over objections.=94

Matthew Schruers of US-based Computer and Communications Industry
Association, said, =93It would appear that given the clear lack of
complete consensus, some unresolved differences have effectively been
punted into the general assembly.=94 Several other industry
representatives signalled disapproval of the process but were not
prepared to make statements.

Gwen Hinze of the Electronic Frontier Foundation said, =93It was extremely
disappointing that there was such little understanding and no discussion
of the significant policy implications of the treaty for innovation and
the Internet community.=94

Robin Gross of IP Justice said, =93We are really concerned about the lack
of consensus in the room about going forward with a diplomatic
conference. It is my understanding that WIPO is a consensus-based
organisation. If disagreements are voiced, we don=92t go forward until
these are ironed out. At least eight delegations voiced concern. I=92m
puzzled by what does consensus mean.=94

This is not the first time Liedes=92 chairing style has led to complaints.
In a November 2004 meeting of the committee on the same broadcasting
treaty issue, Liedes was criticised by some governments for closing the
meeting after calling for a show of hands and implying that
near-consensus was sufficient to proceed with the issue in the future.
WIPO=92s procedure is based on consensus.