24th January 2007

GOVERNMENTS REMAIN DIVIDED ON WIPO BROADCAST TREATY

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The future of a potential global treaty expanding the rights of broadcasters remains unclear, after a World Intellectual Property Organisation (WIPO) committee failed last week to pave the way for formal negotiations on finalising an accord at the end of this year. Sources report that government negotiators were unable to reach any agreement whatsoever, and that the talks are far from consensus even on basic issues like the objectives of the eventual treaty.

The ‘Standing Committee of Copyright and Related Rights (SCCR)’, the WIPO committee responsible for the broadcast treaty, met from 17-19 January. This was to be the first of two sessions charged with clarifying outstanding disagreements about the proposed accord, in order to enable member governments at WIPO’s autumn General Assembly to agree to proceed with a ‘diplomatic conference’ from 19 November - 7 December. The last stage in a WIPO treaty negotiation, this conference would make final changes to the draft agreement and adopt it as a new international treaty.

The diplomatic conference had been provisionally scheduled at last September’s meeting of WIPO’s senior decision making body - on the condition that it would be held only if member governments were able to resolve their differences in the interim and accordingly agree on revisions to the basic treaty proposal to be considered there (see ,BRIDGES Weekly 4 October 2006). However, the recent SCCR meeting did not move the negotiations any closer to agreement, with countries including India and Brazil arguing that it might be best to call off the diplomatic conference altogether.

Chair: “now or never” for treaty

During the committee meeting, SCCR Chair Jukka Liedes (Finland) claimed that it is “now or never,” suggesting that if governments cannot agree on a treaty this year, they may never do so.

In an attempt to “stir debate and move the process forward,” Liedes issued a number of non-papers (unofficial documents) that he had drafted with help from the WIPO secretariat. He stressed that they were only intended to contribute to finding consensus on a treaty.

These documents provide guidelines as how to define the objectives and scope of the prospective treaty, as well as the specific protections it would offer. In accordance with the views of a majority of WIPO members, they follow a ’signal-based approach’ that targets the unauthorised interception and redistribution of broadcast signals. Nevertheless, they noted that the status of so-called ‘post-fixation’ rights (covering, for instance, signals that have been ‘fixed’ by posting them on the internet) still needed to be determined. Developing countries have generally opposed including ‘post-fixation’ rights in the treaty. Their earlier opposition to extending the accord to cover ‘webcasting,’ which refers to live internet transmissions, helped ensure that the issue was split off from the main broadcast treaty talks last May (see , BRIDGES Weekly10 May 2006).

Another non-paper specified that “the signal-based approach by no means precludes granting some exclusive rights to broadcasting organizations.” This touched upon one of the principal fault lines in the negotiations. Since discussions on a treaty started in 1997, broadcasters (wireless transmissions) and cablecasters (transmission by wire) have been seeking exclusive rights to prohibit or authorise the use of anything they transmit - implying rights over both transmissions and the content of works being transmitted. They claim that this would be a level of protection comparable to the rights enjoyed by performers and the recording industry under the 1961 Rome Convention.

Critics warn that such rights over recording and retransmission could substantially raise the costs of using broadcasted material for personal or educational purposes, inhibit creativity, and restrict the entry of information into the public domain. They argue that such a ‘rights-based approach’ goes well beyond what is necessary to simply prohibit the theft of signals, which has cost broadcasters and cablecasters advertising and sales revenues. Most governments have come around to supporting the signal-based approach - including the US, after a recent shift in its position.

Purpose of treaty remains unclear

During the SCCR meeting negotiators asked several questions about precisely what was meant by a ’signal-based approach.’ “How do you go about stealing a signal?” the EU repeatedly asked.

It is still not clear what the term “broadcast” should entail. For instance,is it the mere signal or does it include the content carried by it as well? Content, which is the expression of an idea, is supposed to benefit from copyright protections. But should transmissions receive similar protections?

In principle, the EU remains committed to its initial position in favour of a ‘rights-based’ approach at least as strong as the Rome Convention. Brussels would ideally want the treaty to give broadcasters far-reaching rights over retransmission. It is also seeking to weaken the legal significance of the draft treaty’s provisions for exceptions that allow governments to promote access to knowledge, address anti-competitive practices, and protect cultural diversity, by moving them from stand-alone articles into the preamble.

Despite the fact that members have only one more substantive meeting left before they are expected to formally convene the diplomatic conference to finalise the treaty, many delegations complained that there is no consensus about the proposed accord’s basic objectives. India said that before considering changes to the text of the existing draft proposal, governments should reach consensus on what its ‘objectives’ are. The EU said that negotiators “were left in the dark as to what the objectives of a treaty might be.”

Much debate during the three-day committee meeting focused on procedural issues, rather than a substantive review of the provisions in the non-papers or the basic draft treaty proposal (SCCR 15/2 Rev). To take an illustrative example, some suggested renaming the chair’s ‘non-papers’ as ‘working papers’, and discussing the issues that they raise. Brazil opposed this, arguing that calling them ‘working papers’ would imply that the unofficial documents had some sort of formal recognition as a basis for negotiation.

The non-papers only seemed to add to delegates’ confusion about what constituted the basis for discussions at the meeting, as well as in the future. Some countries, including Colombia, Algeria, El Salvador and Mexico said that negotiators should focus on the basic draft treaty proposal (SCCR 15/2 Rev.), which has been approved by all members. . Nevertheless, the chair decided to proceed with the non-papers.

Many officials share the opinion that the proposed draft needs to be shortened from its current length of 108 pages before a diplomatic conference.

There were also several questions about terminology. Algeria, speaking for the Arabic group, warned that unclear terms may delay the process of negotiating a treaty. Many countries asked for more technical assistance to help them understand the terms used.

Conclusion: chair to draft new ‘non-paper’

On the last day of the committee meeting, the chair issued a set of draft conclusions that said that ‘considerable progress’ had been made. However, most countries objected to this, prompting the removal of the word ‘considerable’.

India and Brazil emphasised that they were unhappy with Liedes’ conclusions, and argued that since none of the procedural or substantive issues have been resolved, it would be best to call of the diplomatic conference. Both India and Brazil said that further negotiations to prepare a new document for the diplomatic conference should be based on the draft treaty proposal (SCCR15/2 Rev.). This view was supported by El Salvador, which reiterated that all WIPO members had contributed to making the basic draft.

Several countries agreed that the substantive differences on the treaty remained unresolved, and stressed that suggestions the chair made in his non-papers had no official status.

How to proceed with the negotiations? India emphasised that discussions should be driven by members rather than the chair to avoid similar confusion with regard to future non-papers. Bangladesh, on behalf of the Asian group, proposed appointing a regionally representative drafting committee to prepare a new document that would go to the next SCCR meeting. The chair welcomed the idea, but responded that at the moment it was unfeasible due to time and budget constraints.

Members ultimately agreed that Liedes should prepare a single revised non-paper to supplement the basic draft treaty proposal, with input from the various country groupings tin the negotiations. Negotiators will examine both during the next SCCR meeting, scheduled for June.

ICTSD reporting; “WIPO Committee Seeks Footing For Broadcasting Treaty Talks,” INTELLECTUAL PROPERTY WATCH, 17 January 2007.