Bridges Weekly Trade News Digest • Volume 10 • Number 16 • 10th May 2006
WIPO Moves Forward On Broadcasting Treaty, Webcasting Talks Split Off
World Intellectual Property Organisation (WIPO) members have agreed to split off webcasting from their ongoing discussions on a potential new treaty intended to define the rights of broadcasters over their transmissions.
The compromise was reached during the 1-5 May meeting of the ‘Standing Committee of Copyright and Related Rights (SCCR),’ the WIPO technical body that is considering the controversial draft proposal for a WIPO treaty on the protection of the rights of the broadcasting organizations (SCCR/14/2). Talks on the issue started in 1999; the first draft basic treaty proposal was tabled in 2004 (SCCR/11/3).
Webcasting put onto separate track
The driving force behind the negotiations has been broadcasting organisations’ desire to obtain a level of protection for their transmissions similar to the rights accorded by the 1961 Rome Convention to performers and the recording industry for their works — albeit updated to account for decades’ worth of technological advances, notably the switch to digital transmission. (see BRIDGES Weekly, 30 November 2005). The draft treaty proposes to grant the organisations exclusive rights to authorize the distribution and re-transmission of their broadcasts.
During the course of the negotiations, the issue of webcasting — which refers to transmission by wire or wireless means over the internet — entered the debate, primarily backed by the US. The notion of whether to grant webcasters rights comparable to those given to more traditional broadcasters that do not use computer networks has been particularly explosive, drawing heavy opposition from developing countries in particular. These countries fear that doing so would constitute an obstacle to the free flow of online information, and only benefit ‘middlemen’ rather than those who hold the copyright on the content being transmitted. They are also concerned that people’s access to educational materials, online scientific data, and other forms of information in the public domain could be restricted.
Nevertheless, webcasting made its way into the ‘draft basic proposal’ text that was presented to the SCCR by Chair Jukkas Liedes (Finland). The "non-mandatory appendix" on the rights of webcasters was harshly criticised by many developing countries, and it became apparent that progress on discussions would be impossible unless webcasting were dropped from the scope of the prospective treaty.
Eventually, negotiators agreed to divide the issues into two separate tracks.
The primary track will deal with the protection of traditional broadcasting (wireless transmissions) and cablecasting (transmission by wire). For this Liedes will revise the current draft basic proposal by 1 August, based on existing drafts and proposals, as well as comments made during the recent meeting. Another session of the SCCR will be held prior to the late-September meeting of WIPO’s decision-making General Assembly, WIPO’s senior decision making body. At this SCCR meeting, negotiators will attempt to finalise the debate and agree on a draft treaty to send to the General Assembly, which will in turn decide whether to call for a diplomatic conference to adopt the new treaty in 2007. In order to increase their chances of agreement on a basic draft proposal for the General Assembly, Brazil suggested that members could discuss the text article-by-article at the gathering.
Webcasting and simulcasting (which refers to traditional broadcasts shown simultaneously over the internet) will be considered under another track. Countries will be able to submit proposals on these issues to WIPO until 1 August. The chair will put together a revised document based on the submissions and comments made during the recent SCCR, which will then be discussed in future sessions of the committee.
The relationship between the two tracks was the subject of some disagreement. The US sought to establish a conditional relationship, so that if the first track were to fail, the two would be discussed jointly in the future. Others, such as India and Argentina, countered that the two tracks should be dealt with independently. Under the eventual compromise, discussions on webcasting will continue independently of those on traditional broadcasting, but will be the subject of subsequent sessions of the SCCR.
Future remains uncertain
Several issues remain unresolved, even with respect to the less contentious first track issues. Some countries want broadcasting and cablecasting organisations to only receive protection against signal theft, while others want the actual broadcasts to be protected.
Furthermore, the current draft basic proposal also refers to the protection of broadcasters’ rights to transmissions "over any means," thus including the internet. For example, Article 6 of the current draft would give exclusive rights to broadcasters "for retransmission of their broadcasts by any means, including rebroadcasting, retransmission by wire, and retransmission over computer networks." Countries including Argentina, Brazil, and India have strongly argued for taking all references to computer network- based means of transmission out of the text. Whether the draft basic proposal that the chair produces on 1 August will do so remains to be seen.
Negotiators also found that simply defining a wide range of terms, even those such as ‘broadcast’ or what constitutes a ‘programme,’ would require further discussion. Some countries expressed concerns about the draft treaty’s obligations to prevent the circumvention of technological protection measures such as the locks that aim to prevent the unauthorised use or recording of digital content, for example ‘broadcast flags.’. Describing the scope of the rights granted by the potential treaty as far-reaching and inexhaustible, a number of developing countries have also called for sufficient limitations and exceptions from obligations, to safeguard for instance the use of broadcasts by educational establishments and the disabled.
Finally, members continue to disagree on the duration of protection that a future treaty should offer to broadcasters. While India and Iran argue for limiting protection to a 20 year period, others, including Korea and Egypt, would prefer 50 years.
ICTSD reporting; "WIPO: Separate treatment for traditional broadcasting and webcasting" SOUTH NORTH DEVELOPMENT MONITOR 9 May 2006; "WIPO Copyright committee discusses simulcasting/webcasting and mulls way forward," THIRU BALASUBRAMANIAM, 5 May 2006; "WIPO carves up the Internet (and the Broad Spectrum)," JAMES LOVE, HUFFINGTON POST, 4 May 2006; "Blogging WIPO: Webcasting out of WIPO Broadcasting Treaty, At Least for Now," CONSUMER PROJECT ON TECHNOLOGY, ELECTRONIC FRONTIER FOUNDATION, THE OPEN KNOWLEDGE FOUNDATION AND THE YALE INFORMATION SOCIETY PROJECT; "US Retreat Opens Way for Treaty on Broadcasting," FINANCIAL TIMES, 9 May 2006.