WIPO Debate Hot & Heavy

May 5, 2006 , ,

The WIPO Broadcasters Treaty is being debated this week, as the Standing Committee on Copyright and Related Rights meets in Geneva. Among other things, this treaty would give broadcasters and possibly webcasters a 50 year right in their transmissions, a right that would be on top of a copyright holders rights. Of course, there are also provisions that would require tech mandates like the broadcast flag. Here are a full list of our concerns. What troubles us most is that this debate is taking place under cover of night – without coverage by the press, or awareness by the public and key US policymakers.

Here is a report from Jamie Love of CPTech about what has been going on in Geneva. Clearly, the debate has been fierce, with the US delegation once again trying to make new laws overseas that do not exist here:

WIPO discussions on xCasting Treaty
By James Love
Created 05/05/2006 – 3:17am

Geneva, May 3, 2006

Today is the fourth day of a 5-day negotiations on a new treaty for broadcasting and webcasting organizations. I posted a long discussion [1] about it today in the Huffington Post. Most US citizens are unfamiliar with the notion of a “broadcaster right” because unlike 83 other countries, the United States never signed the 45-year old Rome Convention (on the protection Rome Convention on the protection of performers, producers of phonograms and broadcasting organizations.). We have a copyright law, but that's it. In Europe and many other countries, they give broadcasters a property right in information they transmit. They call it a “related” or “neighboring” right to copyright. Europe also has something like this for uncopyrighted elements of databases.

The European broadcasters and databases owners rights are not part of US legal traditions, but here in Geneva, today, the US government is not only advocating a new broadcasters right treaty, but also wants to expand this right to the Internet — to areas where even Europe has not ventured, let alone the US.

Think about this. The US government sends negotiators to Geneva, to cook up a new treaty, that would create legal protections that the Congress has never accepted, considered, or even discussed.

There is no way Yahoo (the main proponent of the webcasting treaty provisions) would ever get something like webcasting through the US Congress. How can we let a handful of WIPO negotiators create this new IP right in a major international treaty? At least in 1996, the US government held real consultations, and provide a number of papers to justify its actions pushing for the WCT and WPPT. This administration has done exactlyy the opposite. They won't have public meetings. They don't have a single public document explaining what they are doing, or why, or how it would change US law. USTR is far far more transparent…… It is a measure of how screwed up US politics are that stuff like this happens routinely, and no one in the White House, the Congress, or the news media is that interested.

All week long the US government, together with the European Commission and some other countries, has opposed efforts by developing countries to exclude webcasting, or to include in the treaty language that would ensure that countries could control anticompetitive practices, protect access to knowledge, and provide greater lee-way in terms of excerptions for libraries, education, access for disabled persons, and other public interests.

The EU is right now unloading on Chile's proposal to have language similar to TRIPS Article 40 concerning the control of anticompetitive practices, which is pretty surprising given the fact that the EC's copyright chief Tilman Lueder formerly worked for the competition authority. The EC complained that it might be used for compulsory licenses, which the EC was opposed to. The US also is opposing this proposal, even though strong language on this topic is already part of the WTO TRIPS agreement, and part of the US/Chile FTA accord.

The US and the EC both wanted only a single “three step test” provision covering the possibility of exceptions to rights, which they believe will be more restrictive than the proposals by several Latin American countries that the the treaty provide certain named exceptions, with a three step test for additional exceptions countries may want to consider later. There are also debates over whether or not the “casting” exceptions can go beyond those used in domestic copyright laws, or even if the exceptions can be limited to those used in copyright on the day the treaty is accepted by a member.

At one point the EU however offered as an alternative an “exhaustive” list of exceptions that are found in the EU copyright directive. This has not gone over well with NGOs because it does not permit any future flexibilities in exceptions, which may be particularly necessary as technologies and business models changes. Of course, the EU copyright directive can be changed much easier than is the case for a treaty.

Chile is responding by noting the treaty is TRIPS plus (involves protections not mandated by the WTO TRIPS Agreement), and drew attention to provisions in the Rome Convention and the Berne which provide more certainty regarding the availability of some limitations and exceptions.

This is pretty depressing regarding the values of some of these negotiators, because they want a treaty that is more dangerous, as it would be more difficult to address unintended or unwanted consequences or problems.

The anti-consumer positions of the EU and US negotiators are often backed up by delegations such as New Zealand, and rarely rebutted by any OECD country. One would hope we could get more out of the Canadian delegation on these topics.

Now we are starting discussions on technical protection measures.

Basically, the hardliners are the same people, lead by the US and the EU, with considerble pushes from the very non-neutral chair, Jukka Liedes from Finland. The EU delegation gives almost no hint of the considerable backlash against DRM/TPMs in Europe, and neither does the US. Canada, Chile, Peru, Brazil and some other delegations make a number of comments about the mis-use of DRM/TPMs in connection with public domain materials, or make it impossible to use legitimate exceptions to rights. The linkages between L&Es and DRM/TPMs are quite important, but not addressed very deeply.

EU copyright chief Tilman Lueder claims that since the protection is to only the signal and not to the content, it can never exceed the 50 year term. At which point Brazil asks what many are thinking, why does a signal need a protection term of 50 years? This is a an issue that has been raised on and off for a couple years (including an excellent presentation by India earlier in this meeting) but it is becoming more obvious to delegates that there should be no term at all in the treaty, if it is only about protecting broadcasters from signal theft, and not a IP right in the content.

Many other issues are then discussed. When they return to the webcasting issue, it appears as though the EU thinks it can get the US to accept an approach that would provide a back-door webcasting right in as retransmissions over computer networks. We will explore this Friday morning.

On Thursday, a group of 8 right-holder groups, including the IFPI (the major trade group for publishers of recorded music), EUROCOPYA, FIAD, FIAPF, GIART, ICMP/CIEM, IFPI, IFTA, IMPALA issued a joint statement on the negotiations, which among other things, called for removing webcasting from the scope of this treaty, and also that any future work on webasting should not start with the an assumption that webcasters would get the same rights that broadcaster have. Also, USTelecom issued an excellent statement, which among other things, said the broadcaster rights should be limited to signal theft, and that webcasting should be deleted from the treaty.

There is a lot of uncertainly and drama here now. It seems as if the US, EU and most developing countries would like to find a way to kill the treaty, as long as they can blame it on someone else. But that may not be enough, given the way this institution is so committed to enacting new treaties, as its primary mission, and main measure of achievement.

There has to be a better and more realistic mission for WIPO than dreaming up higher and higher IP standards.