[Random-bits] WIPO xcasting treaties -- next steps

James Love james.love@cptech.org
Mon May 8 15:23:01 2006 

http://onthecommons.org/node/888
Published on On The Commons (http://onthecommons.org)
WIPO xcasting treaties -- next steps
By James Love
Created 05/08/2006 - 12:20pm

Last friday the UN's World Intellectual Property Organization (WIPO)
concluded five days of tense discussions on proposals for a treaty
giving new intellectual property rights for broadcasting/cablecasting
and webcasting organizations. I have reported on these negotiations
extensively elsewhere, and persons who want to follow the treaty
debates can look at CPTech's web page on the treaty [1], which has
links to many documents and stakeholder views, or the archives of the
A2K listserve [2], where the negotiations are often discussed.

Here are some follow-up to my earlier comments on Huffpo [3] and this
blog [4] on the treaty negotiations.

On Friday, the last day of the negotiations, the WIPO Standing
Committee on Copyright and Related Rights (SCCR), made a decision to
break the treaty negotiations into two separate tracts -- one for
"traditional" broadcasting, which was defined to include newer forms
of broadcasting such as cable or Satellite TV, and another tract for
the technologies that would deliver content over the Internet
(originally referred to as the "webcasting" issue).

This was my analysis at the end of the WIPO session on Friday, May 5th.

-------------
     It's over. Here are the basics. They have split the "traditional
broadcasting" and the Internet technologies into two separate treaty
projects. They will have separate meetings and separate documents,
separate paradigms, and different schedules. The traditional package
goes first, and they will try to get the Sept GA to order a dip conf.
for 2007. If that blows up, all bets are off. But if the GA approves
the traditional broadcasting treaty (still not a done deal... with
more negotiations and drafting)... the "new" internet technologies
have a separate work program, which may well die, once the Internet/
tech community sees a standalone Internet transmission treaty and
begins to focus, but who knows for sure.

     CPTech instant statement...

     "Today WIPO finally took a step back from forcing a restrictive
Rome Convention intellectual property right on Internet publishing...
This is a victory for everyone who has opposed linking webcasting to
the broadcasting treaty. There is still a lot of work to be done.
There is a strong likihood the traditional broadcasting treaty will
move forward, and the EU will clearly push to expand this to cases
where broadcasters use the Internet.... and there are considerable
problems with many of the proposals for the broadcasting treaty,
including some very strong rights, TPMs, and other problems. However,
there is now also a growing movement away from granting IP rights in
the content of transmissions, in favor of theft of services
protections, which is a very positive development, and a new project
to examine the impact of TPMs on limitations and exceptions, which is
quite important. The Internet is far safer now than before, because
the threat of a new treaty for Internet middleman is now much less
likely."
-------------

A number of other groups, such as EFF, IP-Justice, and OKF, have also
issued statements, many of which are available on the A2K listserve
archives.

So, where do things stand today? There will apparently be a WIPO SCCR
meeting in September 2006, before the WIPO General Assembly, which
also meets in September 2006. At these meetings, WIPO member states
will try to pull together a text of a treaty for "traditional"
broadcasting organizations, and get approval and terms of reference
for a diplomatic conference, some time in 2007. There are many
different issues at stake -- the types of rights given to
broadcasting organizations, the allowed (required or technically
feasible) limitations and exceptions to those rights, obligations for
technological protection measures (TPMs) and digital rights
management systems (DRMs), and the extent to which the European Union
will succeed in extending the broadcasting rights to simulcasting on
the Internet.

A number of NGOs, copyright owners, tech companies and some
governments will push for a "thin" treaty that only addresses "theft
of service" issues, and which does not create a layer of intellectual
property rights in the content of materials that are broadcast. This
would be a big change from the 1961 Rome Convention that this treaty
is supposed to "update."

It will be interesting to see if WIPO delegates can be persuaded that
it is mistake to create or expand intellectual property rights
associated with distributing works. Will there be support for new
paradigms for addressing "theft of services," that do not create new
layers of "owners" of works, and which do not create obligations to
obtain multiple permissions to use works?

On the topic of TPMs/DRMs, we will also be interested in seeing if it
is possible to avoid a new global legal regime that goes beyond that
already included in the WCT or WPPT treaties, for copyrighted
materials. But if they do proceed with a new TPM/DRM framework, would
they consider a new approach that requires TPM/DRM regimes be "least
restrictive" of Access to Knowledge (A2K), create the fewest problems
for consumer privacy, and do not unduly conflict with the public's
legitimate rights to use works -- something we are exploring
elsewhere [5].

Right now there appears to be a strong coalition of civil society
NGOs, library organizations, tech companies and developing country
negotiators that are trying to move things in the right direction.
There are also, on some issues, common interests between this
coalition and copyright owners, who are opposed to giving
broadcasters rights in their works.

If the broadcasting treaty advances in September, then the "new
technologies" treaty proposals (the rights for Internet middlemen)
will still be alive, but in its own tract. This presents problems,
because it could still move ahead with the wrong paradigm (IP rights
in content), and even if it does not move, it will have the
unfortunate effect of eliminating or reducing time to discuss other
more important proposals, such as minimum copyright limitations and
exceptions for the visually impaired, libraries, education, or other
groups, or a broader discussion of possible elements of a treaty on
Access to Knowledge.

On the other hand, if the traditional broadcasting treaty blows up in
September, all bets are off, and the US could come back and push to
include webcasting in a broader and more dangerous treaty, or the
whole thing could collapse, and we could have no treaty at all.

At this point, anything is possible.

At a higher level, this is a test of WIPO. Will WIPO address issues
from the perspectives of (a) supporting development and creativity,
or (b) responding to self-serving lobbying efforts by (undeserving)
right-owners? Will WIPO even consider evaluating the impact of the
treaty proposals on the public or copyright owners? Will there be any
critical economic analysis of the need for the treaty in the first
place? Will WIPO create a precedent that "investment" alone is
entitled to "protection" from competition, for a term of 50 years?
Can WIPO ever admit that any expansion of intellectual property
rights was a mistake?

Will the European Union continue to push a highly anticompetitive
model for this treaty, giving incumbent broadcasters these special
rights in content they transmit? Will the US government accept the
Rome IP-in-content approach, which has been rejected in the US for 45
years? Will the US or the EU ever publish any analysis of their
positions, or justifications for their proposals? Will the US ever
publish an analysis of how the treaty would change US law? Will the
US or the EU ever hold a public consultation on the treaty, before it
is sent to a diplomatic conference? Will Canada [6], New Zealand or
Australia engage in public consultations? Will UNESCO play any role,
given the subject matter?

All of these questions are important, not only for this treaty, but
as a measure of our capacity to protect the public interest in global
norm setting for polices on intellectual property and Access to
Knowledge.
-->
Trackback URL for this post:
http://onthecommons.org/trackback/888
Source URL:
http://onthecommons.org/node/888

Links:
[1] http://www.cptech.org/ip/wipo/bt/index.html
[2] http://lists.essential.org/pipermail/a2k/
[3] http://www.huffingtonpost.com/james-love/wipo-carves-up-the-
intern_b_20336.html
[4] http://onthecommons.org/node/886?
[5] http://basicresearch.blogspot.com/2005/12/tpmsdrms-how-should-we-
regulate-them.html
[6] http://michaelgeist.ca/component/option,com_content/task,view/id,
1236/Itemid,0/

---------------------------------
James Love, CPTech / www.cptech.org / mailto:james.love@cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040

"If everyone thinks the same: No one thinks."  Bill Walton