One of the major issues that arose in yesterday’s was how to come to an agreement on a treaty. The existing draft from last year runs over a hundred pages long, with each significant provision having several alternative versions suggested by different delegates and embodying different values. Since the WIPO General Assembly has instructed the Committee to come up with a document that can actually serve as the basis for a treaty, trimming this behemoth draft down to size is a priority.
The Chair yesterday attempted to accomplish this by condensing and abstracting some of the provisions of the treaty into several “non-papers,” which he introduced in the hopes that the member nations could decide upon the general outlines of the treaty, instead of plowing into discussing the details of 15/2 directly. Many delegations had some problems with this approach, since they had been preparing positions and statements based on the draft treaty, and would have to conduct detailed analyses anew on the new non-papers.
Some delegations, such as Bangladesh and the Asian Group, simply requested clarification on the process, while others, like Algeria, specifically wished to narrow 15/2 by analyzing it in the Committee one article at a time.
The comments on this dispute also allowed for some debate about the terms within the non-papers as well. Brazil, for example, noted that while the non-papers did help to focus the scope fo the discussion, they left out some of the broader public interest provisions that had been included as alternatives in 15/2. Colombia came out in support of the non-paper’s lists of objectives (with its focus on the signal) and scope of protection (not overlapping copyright).
The EC took the opportunity to provide the factual background on signal piracy that they had suggested yesterday, noting that most signal pirates today do not merely reflect an intercepted signal; they typically capture the signal as it arrives, and rebroadcast the signal simultaneously from the fixation. The EC also supplied some of the investments that broadcasters make in the course of their business, including building infrastructure, paying for upstream IP rights, and setting up recording equipment in a unique way. The EC held out these investments as a rationale for providing broadcasters a property right.
India also addressed the question of property rights, but noted the difference between IP rights (like copyright and patent), which grant broad ownership in ideas, and related rights, like broadcast rights, which have more of an economic, rather than a moral purpose. These rights tend to serve not only the interest of promoting an industry, but also of creating good competition policy. The delegation also pointed out that related rights also tend to be more limited than full IP rights.
For example, the Indian delegation suggested that only rights that were truly exclusive should be enforced with exclusivity. For example, a broadcaster that licensed with a sports network to show a game in a given area should not be able to claim that someone transmitting the broadcast outside that area, since someone else may have acquired that right.
The Canadian delegation stated that in preventing piracy, the treaty need not grant broadcasters retransmission rights in all signals. Since Canada allows the retransmission of free, unencrypted over-the-air broadcasts, the delegation proposed that the treaty contain a reservations clause or an opt-out for member countries with a similar regulatory structure. The delegation noted that they had previously presented this idea, and were renewing it. However, Canada granted that such a provision would not allow retransmissions outside the borders of a country in which a signal originated, so that countries with such a provision would not be granting retransmitters the right to exploit the broadcasts of countries that did not opt out. The exception to this territorial rule would be the Internet and similar public networks, which the delegation found to be by nature extraterritorial.
Australia expressed some doubts about India’s position regarding exclusivity in certain territories. The delegation argued that even in broadcasts of things that had no copyrights—such as public events or nature scenes—the broadcaster who set up cameras had made creative decisions and an investment in the broadcast, and that rebroadcasters would be free riders on that investment. On the other hand, if a potential competitor wanted to have a broadcast of the same event or scene, they would be perfectly capable of setting up cameras of their own, and distributing their own signal. Australia also made the case that Rome needed to be updated in order to take into account new technological developments like cablecasting and internet retransmissions. Australia did note that not all WIPO members were members of the Rome Convention, and suggested that the widely accepted standards of the Rome convention could be adopted by reference.
After the various nations had voiced their opinions, NGOs had the opportunity to give a two-minute statement. A wide variety of organizations, representing civil society, technology and communications industry, broadcasters, copyright holders, and library associations took advantage of this opportunity.
The Arab States Broadcasting Union advocated a treaty that would act as an update to the Rome Convention, necessary in order to account for new technologies.
The IFPI, a trade group representing international record companies, referenced a joint statement they had issued with other copyright stakeholders. IFPI wanted a treaty that would cover Internet retransmissions, but that would not conflict with or undermine exiting IP rights, such as copyright. IFPI was particularly concerned that the three-step test for exceptions and limitations remain, and that technical protection measures (TPMs) would not hamper existing rights.
The IFTA, the Independent Film and Television Alliance, approved of a signal based approach, confined to traditional broadcasting. The treaty should supplement, but not negate, existing rights, and should either protect or provide remedies for broadcasters’ live signals.
IP Justice reminded the Committee of the concerns that led up to the General Assembly decision last year, which mandated a signal theft approach. Specifically, they noted that broadcast rights could be modeled not just on the Rome Convention and TRIPs, but on the Brussels Convention on satellite transmissions. That convention, instead of creating exclusive rights, took a signal theft approach—the approach the most delegates at this meeting supported. Merely changing the definition of “signal-based” to include exclusive rights would not solve the conflicts between the member states—only a truly signal theft-based approach would work. Besides this, the latest draft and non-paper summaries of the treaty had major problems remaining. For one, they would continue to threaten Internet transmissions, such as podcasters and other user-creators. The draft treaties also included mandates for TPMs, which have been shown to have harmful effects on artists, the public domain, and on users.
ACTC, representing Canadian cable, satellite, and telecom industries, expressed support for the Canadian delegation’s position in favor of a reservations provision.
The European Broadcasting Union wanted the treaty to act as an update to Rome. Though signals haven’t changed since 1961, or even 1923, what has changed is the ways in which signals can be carried, including cable, satellites, broadband, and wireless telephony. The EBU wanted the treaty to cover these new means. The main threat of signal piracy comes from the Internet, so broadcasters should have an exclusive right to protect against such piracy, just like authors, performers, and phonogram producers.
FIA, which represents performers’ unions in 75 countries, called for the members to find a common denominator in fighting the misappropriation of signals. They also called attention to the unfinished business of audiovisual rights.
FIM, the International Federation of Musicians, also supported a treaty that would prohibit signal theft.
The EFF referred to the joint statement which they and many other civil society and industry NGOs had signed. In addition, they were concerned that the treaty draft and the Chair’s non-papers included protections that would apply after the broadcast, including TPMs. The EFF stated that rights granted to broadcasters, including protections for TPMs, restricted access to the public domain, restricted the usage of limitations and exceptions, and allowed broadcasters to control the market for devices that could receive their signals. Despite attempts to create compromise language, the non-paper actually broadened the scope of TPM provisions, with a wording that could even make personal computers prohibited devices. EFF maintained that a treaty should not give broadcasters the right to control broadcasts after fixation, as this hurts the ability of legitimate users to make legitimate uses of broadcasts.
CRIC, the Copyright Research and Information Center, is a Japanese organization representing broadcasters. CRIC emphasized that the object to be protected in the treaty was the program-carrying signal, not content. The treaty should be an update of the Rome Convention, accounting for technological development. Unless broadcasters were armed with new rights, CRIC said, the basic economic structure of broadcasting would be damaged, leading to the deterioration of broadcasting itself, with an attendant harm to the public in a widening digital divide, with especially bad effects on developing countries.
The Civil Society Coalition said that the treaty should address theft of service, but shouldn’t affect the uses of content by users who receive legitimate services. The ability to copy or use a broadcast work should only be limited by copyright law, not by the broadcast treaty. CSC said that a “Brussels-plus” model, creating a minimum standard of signal theft prohibition, would be the ideal, as opposed to a “Rome-plus,” exclusive rights-based model. CSC said that such an approach was mandated by the General Assembly decision. CSC also noted that although many delegates had expressed support for such a formulation, none had yet been willing to step forward and introduce alternative language that would lead to a Brussels-plus treaty. CSC also said that there were too many changes constantly occurring in technology and business models, and that the time might not be ripe for a treaty at all. Broadcasting profits are high, and sports and news programs can be protected via copyright law.
The Yale Internet Society Project noted that the varying types of protection that countries provide for broadcasts depends fundamentally upon the structure and economics of the broadcasting industry within each economy. They informed the Committee that they were undertaking a comprehensive study, scheduled for completion before the diplomatic conference at the end of the year. The report, entitled “Broadcasters’ Rights: Regulatory Choices,” will compare differing approaches such as exclusive rights, signal theft, and unfair competition, alongside any other proposals that might arise during discussions of the treaty.
European Digital Rights also referred to the joint NGO statement, and expressed alarm that there was no common vision as to why a treaty was needed. As for concrete provisions of the drafts, EDRi opposed the inclusion of TPMs. If TPMs did, however, become part of the treaty, the treaty must provide for access to information that would allow legitimate circumvention of TPMs. Further, the proposals’ breadth could mean that computers would be considered violations of the treaty.
NABA, representing North American broadcasters, networks, and cable services, preferred a treaty that provided protection for TPMs besides encryption, since protections like the broadcast flag should be considered. Protections for TPMs would be particularly necessary since the treaty would be signal-based.
The Asia-Pacific Broadcast Union supported the categorization of broadcasters’ rights into rights in the “live signal” and rights following the broadcast. The ABU said that the treaty should protect against all means of unauthorized retransmission, including unanticipated future means. Therefore, the ABU called for signals to be protected regardless of the platform for distribution. The ABU also indicated that protections following usage were important, since signals are stolen not for the signals themselves, but in order to reproduce or distribute works.
EIFL.net, Electronic Information for Libraries, alongside the International Federation of Library Associations, argued that the treaty must be limited to its intent. That means that the focus should be on the protection of live signals and on signal theft. The organizations noted that if the treaty were to include broader rights for broadcasters, the exceptions and limitations to those rights should be correspondingly broad. However, given the limited time in which the Committee has to come to consensus, a treaty with broad rights and exceptions was not possible. The library associations noted that exceptions and limitations can also become outdated, and in the case of copyright law, often are. They said that libraries often must go to ludicrous ends in a digital age to avoid running afoul of laws written for a paper-bound world.
The International Music Managers’ Forum noted that the current draft treaty explicitly stated that it would not affect the rights of copyright holders. However, since the broadcast treaty does not precisely define terms like “broadcast,” “signal,” “fixation,” and “transmission,” it still can create rights in conflict with copyright. The IMMF concurred with India’s earlier proposal.
The International Affiliation of Writers Guilds represented screenwriters for television and cinema. IAWG opposed the creation of new rights that could conflict with traditional copyrights. The IAWG also was concerned with the current draft treaty’s lack of clear objectives and intentions, and in the absence of better proposals, urged the Committee not to adopt a treaty. No treaty is better than a bad one, they said.
FIAF represents international filmmakers. Like other content creators who spole earlier, FIAF advocated for a signal theft approach to the treaty, which should combat piracy without weakening the standards attached to other international agreements on IP and their limitations and exceptions, including the 3-step test.
USTelecom, representing a large number and a wide variety of telecom companies, was also unconvinced that a treaty was necessary. However, an anti-signal theft treaty could be valuable.
The National Association of Broadcasters endorsed the EC’s statements, saying that the treaty was necessary to prevent freeriding. Signal piracy, they said, can take a number of different forms, and could be caught at a number of different stages, such as when the sign al is intercepted, when it is made into a fixation, and when it is retransmitted. Such unauthorized retransmission could happen either simultaneously with the interception, or in a deferred fashion. The NAB gave an example of an on-demand service that provided retransmissions of TV over the Internet, and said that without a treaty, broadcasters would be unable to effectively stop such activity. NAB also said that TPMs were essential, and that without them, the treaty would create a right with no remedy.
The Computer and Communications Industry Association wanted to move the discussion awa from whether the treaty would be an increase or a decrease of protections in the Rome Convention. Instead, CCIA believed that the treaty should create strong protections against signal theft, which would be entirely congruent with the Rome Convention.
The National Assocaition of Broadcasters - Japan said that fears that the public domain would be impacted by a rights treaty were unfounded. The treaty, NAB Japan said, was asking for signal protection, not rights over content. Users should be able to access contents freely on the TV, even if contents are public domain. Signal protection was not in conflict with the public domain or access to material, they said.
At this point, the meeting continued into the evening in “informal” mode, meaning that continuing negotiations were carried out between government delegations, with NGOs excluded from the room. These negotiations, at last word, have been proceeding quite slowly.
More details and an overall analysis after the session concludes tomorrow.
