[Random-bits] Interview With WIPO Deputy Director General Rita Hayes on Broadcast/Webcast treaty

[James Love]

Below is an interview of WIPO Deputy Director Rita Hayes on the
proposed Broadcast/webcast treaty

**IPW: Can you explain how rights holders would benefit from giving
more rights to broadcasters? Why do broadcasters need new rights?

***RH: The updated protection of broadcasters would not be to the
detriment of other content owners. On the contrary, the updating of
broadcaster rights will complement and enhance the enforcement of
other content owners=92 rights. When a broadcaster obtains an
injunction against unauthorised use of the broadcast signal, the
order to cease necessarily stops equally unauthorised use of the
program content. Broadcaster control over signal piracy will have the
positive effect of legalising the content distribution marketplace to
the benefit of all stakeholders. That said, rights holders have
indicated that they will wait until they see the final proposal.

(CPTech note:  why don't the broadcasters pay the copyright owners,
or at least ask for right to seek injunctions on the copyright
owner's behalf?  Why would WIPO make the 'broadcaster's right'
automatic?  And why would it last 50 years?  And why would extend to
reselling fixations of a broadcast of a copyrighted work?  And if
this is so good for the copyright owners, why do they oppose the new
economic rights for the broadcasters?)

***RH:  "A working paper prepared by the SCCR [Standing Committee on
Copyrights and Related Rights] chair takes into account the need to
find a compromise between the request of the majority of countries to
leave the question of webcasting aside and the growing understanding
of the importance of this matter. Webcasting and simulcasting issues
have been taken out from the main draft treaty and the paper provides
for optional models of protection. The first alternative is an =93opt
in=94 approach. The treaty would include language on webcasting which
would only become a binding part of the treaty if the signatory
nation submitted a separate =93notification=94 to WIPO indicating its
desire to be bound to those additional provisions. The second
alternative is an =93opt out=94 approach. Again, the treaty would include
language on webcasting. Signing the treat would bind the signatory
nation to the webcasting provisions. However, a country could opt out
by submitting a =93reservation=94 declaring that it will not extend
protection to webcasting. The third alternative calls for the
creation of an optional =93protocol", a separate legal instrument
subject to its own administrative and ratification procedures.
Signatories could either submit the protocol when agreeing to the
broadcasting treaty, or attach it to the treaty at some point later
on. Every model enjoys some support. The additional time given to us
will allow for further discussions to see where member states stand."

(CPTech note:  After Rita Hayes gave a press conference in 2004
saying webcasting was out, WIPO then prepared a new set of options,
which are three different ways of having a treaty on webcasting.
The secretariat won't even say what content or acts are covered by
the proposed treaties, and it has done zero economic analysis of the
impact of any of the treaty proposals on consumers or copyright
holders, and zero analysis of the impact of the new layer of rights
on the problem of orphan works, and ignores completely the impact of
the new layer of permissions on parties seeking to make new works).

***RH: "On this question, take the example of China, which will host
the Olympics in 2008. World broadcasters will have to acquire
expensive exclusive rights from the Olympic organisers. If the signal
is not protected you can imagine that the providers of program will
be reluctant to license broadcasters who do not have adequate legal
means of protection against unauthorised use abroad of their signal.
Highlighting the importance of a treaty for his country, the Minister
of Justice of Antigua and Barbuda told the General Assembly that in
light of the fact that the cricket World Cup will be hosted by the
Caribbean region in 2007, =93'and that the protection of rights for
broadcasting, simulcasting and webcasting are issues that are
addressed in the various agreements and supporting legislation in
relation to the forthcoming World Cup, we recognise the urgent need
for the immediate update of the rights of broadcasting organisations
through an international instrument.'=94

(CPTech comment.  WIPO is suggesting there won't be any TV coverage
of the Olympics or World Cup cricket without the new treaty?  Not a
very empirical observation).

***RH: The member states lobby most. This is a member state concern.
The negotiating process is a transparent and inclusive process where
all parties, whether they are members states or NGOs [non-
governmental organisations] can make their voice heard. A large share
of the overall discussions was allocated to NGOs at the last SCCR
meeting as well as in the regional meetings.

  (CPTech comment.  As far as we know, in all of the regional
meetings, 2 NGOs representing consumer interests (EFF and CSC/
CPTech)  only were given 10 minutes to speak in one of the (many)
regional meetings, a tiny fraction of the participation provide for
NGOs representing broadcasters and webcasters in the regional
consultations.)


-----------
http://www.ip-watch.org/weblog/index.php?p=3D99

10/10/2005
Interview With WIPO Deputy Director General Rita Hayes
posted by William New @ 1:56 pm

Member governments of the UN World Intellectual Property Organisation
at their 26 September to 5 October General Assemblies agreed on a way
to proceed with negotiations for a treaty on broadcasters=92 rights.
They will prepare a =93basic proposal,=94 or draft negotiating text,
during 2006 with an eye toward holding a high-level negotiation,
known as a diplomatic conference, by mid-2007. WIPO Deputy Director
Rita Hayes is the highest-ranking official at the organisation with
responsibility for copyright and related matters. She spoke with
Intellectual Property Watch at WIPO headquarters near the end of the
assembly.

Intellectual Property Watch (IPW): What is the role of the
secretariat during the broadcasting talks?

Rita Hayes (RH): =85 I think the responsibility of the secretariat is
to help the member states to get where they want to go. The decision
taken [by the General Assembly] is clear - that we move forward, that
we accelerate our work. In the period leading up to next year=92s
General Assembly, we will have two standing committees, and working
sessions [informal consultations]. The basis for these talks will be
the second consolidated text presented by the chairman and also the
working paper on webcasting [broadcasting over the Internet] and
simulcasting [broadcasting over the Internet only at the time as
original broadcast]. In addition, some delegations have also said
that they might have some other proposals. There are still some
points that member states would like to clarify. This is part of the
process of preparing a basic proposal - you have to look at what the
sixteen member states have already put forth in the consolidated
text. More discussions are clearly needed both for talks at WIPO and
within national governments.

IPW: How would you characterise the decision taken by the General
Assembly?

I think [the] decision was very wise. I think it was a decision that
will help to move the process forward. The decision also demonstrated
that there was a large majority of member states that want to move
forward to a conclusion on the protection of broadcasting
organisations. So we=92ve got what I would call a very clear mandate
for what=92s ahead. We will have to make sure that we listen to what
the member states have said and have the consultations and
discussions that are necessary to iron out the remaining issues and
focus on what the member states consider to be important.

IPW: I understand they decided they have to have an agreement on a
text to use as a basis for negotiations by the next General Assembly.
What does that mean? Could it be as simple as compilation of all
proposals put into brackets?

RH: We=92ll have to see. I don=92t want to speculate on what it=92s going
to be. The process so far has been to compile the proposals that have
so far been submitted by 16 member states. These proposals will be
put into a consolidated text that will become a =93basic proposal=94. The
basic proposal put before the diplomatic conference includes the
substantive issues where there is some agreement, but it=92s also the
issues that are still outstanding. Each provision is accompanied by
explanatory comments. So what we have been trying to do over this
period of time is to try to find where there is agreement and then
leave aside the outstanding issues that still haven=92t been discussed.

That=92s what a basic proposal is =96 a document from the member states
to their ministers saying that we have narrowed everything that we
possibly can and here are the outstanding issues. We hope that when
we get to that point, there will only be very few outstanding issues.
To give you an example: there is one issue that I don=92t think will be
decided until we get to the ministerial - and that is the duration of
the rights. You know, for a good little while, there was an agreement
that it would be 50 years and then Singapore submitted a proposal for
20 years, and there is some support for that. That will have to be
looked at to see how we can find a middle ground and that will
probably be left up to the ministers.

You certainly have other issues, like the rights to be granted to
broadcasters. And those all need to be talked about, you=92ve heard a
lot about that. So we will have to go through each one of the
proposals very clearly and have an understanding of what is there and
what is the feeling of member states.

IPW: In looking at the agreed-upon text, is it your interpretation
that this is an agreement to have a diplomatic conference, or only if
there is agreement on a basic proposal?

RH: Well, I think that when looking at the text, it is saying that we
go obviously to the 2006 assemblies in the hopes that there would be
a diplomatic conference in December 2006. It also says that if there
is not an agreement on a December 2006 date, then we look at a date
in 2007. You heard the chairman say when several people said the
first half of 2007, that it was his understanding that if the 2006
December date couldn=92t be, then hopefully it would be in the first
half of 2007. I also want to clarify another misunderstanding. The
General Assembly doesn=92t say that there is going to be a diplomatic
conference, it recommends the convening of a diplomatic conference.

IPW: On webcasting, as far as I know, it remains the case that the US
remains alone in wishing that it be included. How would you
characterise the status of webcasting in the context of the
broadcaster rights talks?

RH: Webcasting was put forward by the US, which is the only country
which formally submitted a proposal including webcasting in the scope
of the treaty. Although most of the countries are against extending
protection to webcasters, some became interested when European
negotiators later proposed extending broadcasting protections to a
narrow class of webcasting-Internet simulcasts by traditional
broadcasters. During the regional meetings, we found there was a
significant number of member states that are interested in protection
for webcasters even though they are not ready to grant that
protection today. It is also clear that the longer they wait the more
the technology will develop.

A working paper prepared by the SCCR [Standing Committee on
Copyrights and Related Rights] chair takes into account the need to
find a compromise between the request of the majority of countries to
leave the question of webcasting aside and the growing understanding
of the importance of this matter. Webcasting and simulcasting issues
have been taken out from the main draft treaty and the paper provides
for optional models of protection.

The first alternative is an =93opt in=94 approach. The treaty would
include language on webcasting which would only become a binding part
of the treaty if the signatory nation submitted a separate
=93notification=94 to WIPO indicating its desire to be bound to those
additional provisions.

The second alternative is an =93opt out=94 approach. Again, the treaty
would include language on webcasting. Signing the treat would bind
the signatory nation to the webcasting provisions. However, a country
could opt out by submitting a =93reservation=94 declaring that it will
not extend protection to webcasting.

The third alternative calls for the creation of an optional
=93protocol", a separate legal instrument subject to its own
administrative and ratification procedures. Signatories could either
submit the protocol when agreeing to the broadcasting treaty, or
attach it to the treaty at some point later on. Every model enjoys
some support. The additional time given to us will allow for further
discussions to see where member states stand.

IPW: Can you explain how rights holders would benefit from giving
more rights to broadcasters? Why do broadcasters need new rights?

RH: The updated protection of broadcasters would not be to the
detriment of other content owners. On the contrary, the updating of
broadcaster rights will complement and enhance the enforcement of
other content owners=92 rights. When a broadcaster obtains an
injunction against unauthorised use of the broadcast signal, the
order to cease necessarily stops equally unauthorised use of the
program content. Broadcaster control over signal piracy will have the
positive effect of legalising the content distribution marketplace to
the benefit of all stakeholders. That said, rights holders have
indicated that they will wait until they see the final proposal.

On this question, take the example of China, which will host the
Olympics in 2008. World broadcasters will have to acquire expensive
exclusive rights from the Olympic organisers. If the signal is not
protected you can imagine that the providers of program will be
reluctant to license broadcasters who do not have adequate legal
means of protection against unauthorised use abroad of their signal.
Highlighting the importance of a treaty for his country, the Minister
of Justice of Antigua and Barbuda told the General Assembly that in
light of the fact that the cricket World Cup will be hosted by the
Caribbean region in 2007, =93and that the protection of rights for
broadcasting, simulcasting and webcasting are issues that are
addressed in the various agreements and supporting legislation in
relation to the forthcoming World Cup, we recognise the urgent need
for the immediate update of the rights of broadcasting organisations
through an international instrument.=94

The issue is not about =93sharing the revenue pie=94 but about increasing
the size of the pie. Control over signal piracy will increase the
revenue pie to the benefit of all stakeholders and of the global
marketplace. Online TV piracy impacts not only broadcasters but all
content owners. In September 2005, the Industry Trust for IP
Awareness in the UK reported that more than 1.6 million people are
estimated to be downloading illegal films and TV programming every week.

A broadcaster can only license a program to a third party for the
rights which he holds. If content rights holders do not wish to
license their material contained in the broadcast program, the use of
the program-carrying signal will therefore not be possible. There is
no overlap. As an example, an accumulation of different rights exists
in the case of phonograms where the rights granted to the phonogram
producer over the phonogram are separate from the rights authors have
over the musical work contained in that phonogram or that performers
enjoy over the execution of that same work.

There is a need to discuss digital rights. This will be an
international instrument which will essentially benefit developing
countries that do not have that protection. There might be some
countries, like the US or in the EU, which have national protection,
but others don=92t have the protection they need. But these laws are
national and do not adequately cover what we are here talking about
here, that is to say cross-border piracy.

The treaty is not about granting new rights but about updating
existing rights and preventing acts of piracy that modern technology
allows and facilitates. More than 40 years have passed since the
adoption of the Rome Convention [for the Protection of Performers,
Producers of Phonogram and Broadcasting Organizations]. The
protection granted corresponds to the broadcast technological
infrastructure we had in the 1960s. Just to give you an example, it
does not grant protection against cable distribution or satellite
transmissions. The decision was made a long time ago that
broadcasters would have certain rights, this assessment was made by
the member states. In a large number of countries in the world,
broadcasters enjoy a neighbouring right to protect them against
illegal or unauthorised use of their programme-carrying signal,
either by their competitors or other third parties hoping for a free
ride. This protection goes back to the 1961 Rome Convention.

IPW: Who is lobbying on this and how is it done?

RH: The member states lobby most. This is a member state concern. The
negotiating process is a transparent and inclusive process where all
parties, whether they are members states or NGOs [non-governmental
organisations] can make their voice heard. A large share of the
overall discussions was allocated to NGOs at the last SCCR meeting as
well as in the regional meetings.

IPW: Will you hold regional meetings again this time?

RH: Regional meetings are something that WIPO has done for years,
like technical assistance. After the last SCCR meeting, several
invitations were received from member states from different parts of
the world to host regional meetings. These meetings which were held
with the technical experts from capitals allowed for a detailed and
thorough discussion of the revised consolidated text and of the
working paper. This was an entirely member state driven process,
coordinated by the member states for the member states. Now, it is up
to the member states to tell us where and how they want to carry on
the discussions. Member states guidance has been decisive in moving
the process forward. The request for two additional meetings of the
SCCR was one of the clear messages of these assemblies. These SCCR
meetings will be the cornerstone of the discussions for paving the
way to the diplomatic conference.

IPW: Technologies are converging rapidly at this point in history.
How would you incorporate this broadcasting treaty notion aimed at
giving more rights to a specific sector into the bigger picture?

RH: I think we have the responsibility to look at issues when the
member states ask us to look at it. Take the broadcasting treaty. As
I said, it was the member states that wanted to move forward with
this. So we had these standing committees, we listen to them, they
felt that for eight years we=92ve been talking about this, since 1997,
and it=92s been 40 years since the original agreement, and you think
about the technology [that has evolved since then]. Your question
about the new technology and everything, you get into well, maybe you
shouldn=92t be protecting this, maybe this shouldn=92t be protected. But
someone had to create that technology, and then somebody is going to
have to be accountable for that new technology. Some think there
should be no protection on this. That=92s fine to say, but who is also
in the very end going to be accountable for it? It works both ways.

It=92s the same thing with a lot of these comments in the academic
world where they say there shouldn=92t be copyright on things. Well,
that=92s fine, they have another salary. They=92re teaching. They=92re
publishing articles and every time they publish articles they get
credit for it as part of the academic world. But that doesn=92t help
the creator that is out there also trying to make a living by this
particular publication.

So there are two sides, and you know I think the great thing about
where we are now in IP field is that people are talking about it, and
that there are two sides. People realise not only the economic value
of it, but they also realise it helps not only national governments
move forward in their overall wealth creation but it is a situation
by which everybody realises the importance of intellectual property
now, whether you are on one side or the other. So when people say,
gosh, nobody even talked about these issues so many years ago =96 I
mean who would think there would be an IP-Watch here? And you just
hired somebody new, your publication grows =96 is because people know
how important it is.

END

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William New, the author of this post, may be reached at wnew@ip-
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---------------------------------
James Love, CPTech / www.cptech.org / mailto:james.love@cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040