The Broadcast Treaty at the 17th Session of WIPO’s Standing Committee on Copyright and Related Right
The Broadcast Treaty at the 17th Session of WIPO’s Standing Committee on Copyright and Related Right
The Broadcast Treaty at the 17th Session of WIPO’s Standing Committee on Copyright and Related Right

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    The World Intellectual Property Organization's Standing Committee on Copyright and Related Rights just finished meeting in its seventeenth session. On the agenda are three major areas of work: exceptions and limitations to copyright, the protection of audiovisual performances, and the protection of broadcasting organizations.

    The audiovisual performances and broadcasting treaties have remained in a somewhat moribund state, with years'-long deadlock on the broadcast treaty, and the audiovisual treaty receiving only cursory attention over the past several sessions.

    That status didn't seem to change much at this meeting—although pretty much every member country expressed a desire to keep both of those items on the agenda, there were constant references to the lack of agreement on the issues.

    The Broadcast Treaty

    The statements by the various countries were mostly made in reference to an informal document (meaning it has no official status) prepared by the Chair of the Committee, Jukka Liedes of Finland, who summarized the status of broadcast treaty negotiations to date. (available online here) The informal paper also outlined a couple of possible ways forward on the treaty—either continuing negotiations as they had been for the past ten years (option A), or adopting something that looked more like a narrow signal theft treaty (option B). Alternatively, the paper notes:

    Finally, if after consideration of the options above (A/B) and possible other options, it
    will not in the present situation be possible to decide on the establishment of a new treaty, the SCCR should end these discussions through an express decision in order to avoid further spending of time, energy and resources to no avail. Such a decision could include a timetable for later revisiting and reconsidering the matter.

    The lack of consensus noted in all of this was the established split among the member countries, with European countries and Japan pressing strongly for broad exclusive rights in a signal, and many developing countries, such as India, which supported a narrower treaty that would have prohibited signal theft without granting broad exclusive rights.

    France (speaking on behalf of the European Union) among the most vociferous proponents for a treaty; one that includes exclusive IP rights for broadcaster in their signals and extends to post-fixation rights. This means a broadcaster has the right to prevent anyone from retransmitting, recording, or doing anything with that recording of their broadcast—regardless of who (if anyone) owns the copyright in the transmitted work. This position was echoed by Japan.

    On the other side, India and Egypt were among the most definitive in noting their conceptions of the treaty as a signal protection treaty—one that would prohibit the misappropriation or theft of signals, while not extending rights to what happens after the work carried by a signal is fixed into a copy. Both countries also appeared concerned that extending broadcast rights to Internet retransmissions of traditional radio and TV broadcasts would have unintended consequences.

    However, that was not the only conflict in evidence. Pakistan, for instance, speaking on behalf of the Asian Group of member states, proposed not picking any of the options mentioned by the informal paper, instead proposing additional study of the matter before making any decisions.

    Brazil was even a bit bolder, noting that, even though it supported keeping the treaty on the agenda, rushing back into negotiations on such a contentious topic might be, as the paper put it, a spending of time, resources, and energy to no avail.

    This same phrase was echoed by the United States, which dropped a bit of a bombshell by resurrecting a much larger potential conflict. The US noted that early drafts of the broadcast treaty included protection for webcasters—something the US was very interested in. However, this idea had received a lot of pushback from other countries who felt that webcasting was, as a fairly new development, still too unsettled to propose how it should be covered by IP. In the interests of progressing past that conflict, the US agreed to remove webcasting from the scope of the treaty years ago. Keeping webcasting out of the picture had remained a talking point for India, Algeria (here speaking on behalf of the African Group, whose other members also spoke up on this), and China (which was more vocal this session than it was in the past few).

    Now, however, the US mentioned that its earlier agreement to split off webcasting in the interests of compromise might have expired, due to the lack of a diplomatic conference to finalize the treaty in 2007. In other words, the US might well be interested in bringing webcasting back into the scope of the treaty. Obviously, if it did so, there would be even more issues to debate, possibly forestalling a treaty further.

    However, the positions staked out on either side of this divide were mentioned almost in passing. As each delegation took the floor, the same mantra of support for keeping the item of the broadcast treaty on the agenda was repeated.

    Running parallel (or perhaps even underpinning) the delegations' positions were those of the non-governmental organizations (NGOs), which tended to be far less ambivalent. These groups range from industry associations representing broadcasters, record labels, performers, and others, to groups like PK, KEI, EFF, and Consumers International. Those representing broadcasters predictably wanted stronger, exclusive rights, and wanted a broad treaty passed soon. PK, along with its public interest allies, and a number of industry groups, felt that there was no rationale for a treaty that could place an additional layer of IP rights on information. While NGO statements don't have official sway over the process, the groups do represent constituencies of the present delegates, and often these statements (and the lobbying that accompanies them in between meetings) reflect some of the considerations that member states take into account when forming positions.

    Other considerations come from the policies of the present delegates and the decisions made by authorities in the delegates' home capitals. Whatever these may have been, they resulted in no countries actively asking that the treaty be removed from the agenda. And so the broadcast treaty remains.

    Furthermore, Australia had suggested during the course of these statements that there might be some value in convening experts. Statements from the Asian Group, the US, and others supported this. At the end of the meeting, the status of the broadcast treaty is represented by this conclusion of the Chair:

    Protection of broadcasting organizations

    The Committee decided to contine its work on this item in consonance with the mandate of the General Assembly. A number of delegations showed their interest towards the conclusion of a treaty. The Committee reaffirmed that according to the decision of the General Assembly the protection must be established on a signal-based approach, and the convening of a diplomatic conference could be considered only afer agreement on objectives, specific scope and objective of protection has been achieved.

    The Committee took no decision regarding the options presented in the Chair's paper.

    The Committee will continue its analysis of the matter and requested the Secretariat to convene an information meeting on the current conditions of the broadcasting environment in connection with [during?] the next session of the SCCR.

    The matter will be maintained on the Agenda of the next session of the SCCR.

    emphasis in original. NB: This is an unofficial version of the text compiled from my notes. An official version will be released some time from now; I'll likely lost that on the blog when it arrives.

    Extensive discussions of limitations and exceptions also occupied the week, but I'll cover those in (a) later post(s). Suffice to say, though, there was a great deal of tension over, and a disturbing amount of resistance from some member states to, a proposed treaty on copyright limitations and exceptions to give the visually impaired access to copyrighted works.