Questions Loom For WIPO Broadcasting Negotiation

By William New
With one meeting left before a decision at the World Intellectual Property Organization to proceed with formal negotiations on a treaty boosting the rights of broadcasters and cablecasters, the prospects are unclear, according to officials.

The WIPO Standing Committee on Copyright and Related Rights met from 17 to 19 January but struggled to resolve outstanding issues necessary for the September General Assembly to agree to hold the planned November diplomatic conference. The second meeting will be held over an unspecified five days in June.

Key remaining issues include how to address rights over activity after the “fixation” of a broadcast, what exclusive rights to give to broadcasters, how to protect broadcasters’ use of technological protection measures such as encryption, and what to do about signals distributed over the Internet.

Committee Chairman Jukka Liedes of Finland faced resistance to efforts to engage negotiators through informal “non-papers” he circulated during the three-day meeting. The final paper from the January meeting, available here, is a combination of his earlier papers, and covers: object of protection; relation to other treaties; general principles; cultural diversity; competition; definitions; application; beneficiaries; national treatment; rights in the broadcast; protection of uses after broadcast; protection of pre-broadcast signal; limitations and exceptions; term of protection; and protection of encryption.

The meeting started slowly and much of it took place in informal status, which excluded the dozens of non-governmental, intergovernmental and industry observers from the room. In the end, the governments decided to give Liedes another chance at a new draft, which he will present by 1 May. Governments may send further ideas to the chair before then.

The committee is under mandate from the October General Assembly to sufficiently resolve issues on a text for a signal-based treaty so as to allow the diplomatic conference to be held. Michael Keplinger, former United States official and new WIPO deputy director general for copyright and related rights, said his interpretation of the assembly’s mandate is that the diplomatic conference would not occur if negotiators do not “achieve agreement on a suitable text as a basis” for negotiations.

The United States took the position at the meeting that there is a recognised need for better protection against signal piracy, as long as it does not impinge on content holders’ rights or negatively impact technological development or consumer use.

The European Union has insisted that the treaty not derogate from the Rome Convention. But one government participant said that by the end of last week the European Union showed some flexibility. For instance, it may be willing to soften its stance on inclusion of post-fixation rights, but it has not relented on some exclusive rights.

Exclusive Rights ‘By Any Means’?

On rights in the broadcast, the chair’s text would give broadcasters the exclusive right of authorising “the simultaneous or deferred transmission of their broadcasts by any means, including rebroadcasting, retransmission by wire, and retransmission over computer network; and the fixation of their broadcasts.”

The inclusion of “by any means” is likely to face significant further debate, sources said. And Keplinger told reporters on Monday that retransmission over computer networks is “still a very hotly contested issue.”

“The new concern is that because of new technological measures, we have to be careful about the rights a broadcaster has so that we allow him to protect his rights but not inhibit the development of new technologies that may rely on that signal,” Keplinger said. A rising concern in the treaty talks, he added, is the possible negative impact on consumers and technological innovation.

Keplinger said he is “reasonably hopeful” that sufficient agreement will be reached for a diplomatic conference to take place. But there are still “significant differences” between countries, he said, citing for instance the decision on whether protection should apply to the retransmission of intercepted broadcasts by third parties over the Internet and far the protection should go. The question remains as well whether broadcasters should be able to prohibit further acts like redistribution or sale of broadcasts.

Where there is agreement is that the treaty should address “pre-fixation” signals, and the interception of signals between stations, such as in the case of a sports event, Keplinger said. Currently, no international law offers this protection, he said.

A government participant said the proposal for a non-exhaustive list of exceptions and limitations (such as for libraries, schools and disabled users) also faces further debate as proponent governments are concerned about undermining the substance of the treaty too much.

If no diplomatic conference is held this year, the negotiation reverts back to the underlying 108-page document for the negotiation, the draft basic proposal, SCCR/15/2. Some governments worked to ensure that document remained intact while talks continue. One official described it as an “insurance policy” against an undesired outcome, as there is so much disagreement on the underlying document that it would prevent a diplomatic conference.

This year is seen as the last hope for the foreseeable future for a treaty to update the broadcasting element of the 1961 Rome Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organizations.

Webcasting Negotiations Next?

Keplinger said in his short time in the position he has been approached “very little” by lobbyists in industry or elsewhere outside of the meeting context.

But a negotiation on webcasting, sought most by the United States, and simulcasting is on the horizon after these treaty talks reach their conclusion. Keplinger said there is “great interest” in the issue. “I imagine [WIPO] will be asked to begin to look at that.”

William New may be reached at wnew@ip-watch.ch.