The WIPO General Assembly told the SCCR last year that it had to prepare a workable signal-based broadcast treaty in the space of two meetings this year. After one of those two meetings, where do we stand?
Not a whole lot further along than when we started, I'm afraid. Even basic questions, such as what the SCCR was supposed to be doing, were the focus of debate. For instance, one debate from last year was over whether the treaty would be “rights-based,” granting broadcasters an exclusive right in broadcasts, or “signal-based,” meaning that the treaty would focus on preventing signal theft. This debate shouldn't have continued over into this year, since last year, the General Assembly mandated that a treaty be “signal-based.” The only problem is that various delegations and the Chair soon insisted that “signal-based” could encompass a system of exclusive rights.
This distinct lack of consensus on the most basic issues meant that this first Special Session was spent mostly setting up procedural structures for revision and drafting of the current draft treaty. In the end, no editing of that draft, known as SCCR 15/2, was done. Instead, the Chair of the Committee issued a series of “non-papers,” so called because they had no official status, and were only intended to serve as discussion points. These non-papers covered some of the key issues under discussion, in the hopes that they could be resolved before attacking the larger draft treaty.
However, this approach didn't seem to generate much progress. First of all, the key issues are also some of the most contentious. Secondly, removing a lot of other issues (like provisions supporting access to knowledge and the public interest) from current discussion led to a lot of suspicion that these issues might be dropped from future drafts. But perhaps the most significant problem caused by the non-papers was that they were issued at the last minute, during the first day of the session. Many of the diplomats present already had detailed analyses of the 15/2 draft, and were not prepared to move discussion and debate to a new document.
The non-papers also had major flaws from a policy standpoint. Even if they were framed as compromise language, or inclusive language taking into account differing perspectives, they seemed to only nod generally in the direction of a signal theft treaty, while explicitly granting broadcasters property rights in both broadcasts and fixations of broadcasts. They would grant these exclusive rights for a 20 year term, and they would require that countries prohibit breaking encryption or removing broadcast flags from broadcasts, regardless of whether or not there was a legitimate reason for doing so.
The session therefore ended without a new document on which to base further negotiations. The old, unwieldy draft, 15/2, remained as it was, and the Chair's non-papers, trying to please all, couldn't get support from anyone. With only one session left, the SCCR is trying to get closer to a draft treaty by producing another document before June.
This document was agreed upon last Friday. It's going to be another non-paper, again drafted by the Chair. Ideally, it will present what the objectives of the treaty are, the scope of the treaty, and the objects to be protected by the treaty. Copies of the document will be distributed to national delegations on May 1, and they will reply with comments on it via email before the June session. Whether this process will result in a more focused discussion, or just another pile-on of alternative provisions remains to be seen.
If it doesn't actually simplify things, though, chances for a treaty are reduced, since we're not supposed to have a finalizing Diplomatic Conference without agreement on these issues. On the other hand, there's always the possibility that the Chair could attempt to cram together a rushed text and call it consensus when there is none. It's happened before. The new non-paper is supposed to be based on the discussions of this past week. If it's based substantially on the non-papers that Liedes issued, though, it's a real problem–granting broadcasters exclusive rights in broadcasts and even fixations of broadcasts and mandating protections for DRM and broadcast flag-like schemes. So what happens in May and June will truly determine the fate of the treaty for another year.