Day 3 ran long into the night, with delegates leaving at 11pm. How much progress has been made is officially unclear, since, after only a couple of hours, the chair called for an “informal” session, meaning that negotiations went off the record, and NGOs got kicked out of the room.
The Chair, Jukka Liedes, undertook this move after holding forth at length, in the morning's formal session, on the need to make swift progress. After all, the only open debate on the proposed text had covered parts of the preamble. Since we only have until the end of Friday to come up with a draft text, Liedes advocated moving to informal sessions where, since all country delegations' comments would be off the record, delegations might debate more freely and openly. India expressed some reservations to this, stating that they had no trouble expressing their opinions on the record, and wanted to ensure that their positions were known. A compromise was reached when India agreed to the informal sessions.
Liedes has every reason to want to speed the process along–he's been Chair of the Committee, and overseeing the broadcast treaty process, for a considerable amount of time, and has a lot invested in getting something done. Of course, there's the danger that a need to do something, anything, will result in an unbalanced treaty that doesn't take all of the stakeholders into account. It also means that whatever is on the table at the time–and right now, that's the (frankly unacceptable) non-paper–runs the risk of becoming the final product. Liedes' sympathies for the European and Japanese position, in favor of an IP right in broadcasts, seemed to suggest that there was little hope that the Committee was actually seriously entertaining a true signal theft approach to the treaty, which would address the alleged problems of signal piracy without harming the rights of users or creators, and without negatively impacting the public domain.
Enough is Enough
With that in mind, an international group of public interest organizations (including PK) collectively put together a statement urging delegates to oppose the treaty altogether. While it's nice to hold out the good faith that others may be willing to come to a suitable agreement, in the end, the proponents of the treaty seem unwilling to compromise with an agreement to combat signal theft. Because of this, we've taken the position that the treaty simply need not exist–the harms claimed by broadcasters are covered by existing copyright and signal theft laws, at local, national, and international levels.
Meanwhile, in the Informal Session…
Meanwhile, the informal session appeared to proceed at a snail's pace, with major disagreements on how to define key terms, as well as the scope of the treaty.
For instance, it's been clear that no one wants this treaty to apply to webcasters (though the US proposed that at one point, they've since decided that it would be better to deal with the issue later, perhaps in another treaty). But how do you decide what “broadcaster” means, and who you want to cover? You want the term to encompass producers of analog TV and radio, digital over-the-air TV, satellite TV and radio, HD radio, digital and analog cable TV, and yet exclude Internet streaming? How do you account for IPTV? Or WiMax? What about content delivered over wireless phone networks? CB radio? And so on.
“By Any Means:” Necessary?
Even more problematic is defining what sorts of activities are prohibited. The stated goal of the treaty is to prevent signal piracy–where an infringer will retransmit a broadcast signal. So you want to be able to say what kinds of retransmissions are covered. Will this, for instance, include retransmissions over the Internet? Some say that it must–that this is the threat broadcasters face. Others note a real philosophical disparity: why are you subjecting the Web to liability under these new broadcast rules, while webcasts remain unprotected?
That debate has been focused around one key phrase: “by any means.” It deals with this provision in the non-paper:
Broadcasting organizations shall enjoy the exclusive right of authorizing the retransmission of their broadcasts, and the deferred transmission by any means to the public of their fixed broadcasts.
As you can see, as it's drafted, broadcasters get the exclusive right to decide not only who can rebroadcast their signals, but who gets to perform recordings made of the signals at a later time. Including the phrase “by any means” means that this includes transmissions over the Internet, which for many countries creates real problems–they hesitate to apply such uneven restrictions to a medium that provides so much access to knowledge and information.
Watch this space for more from the WIPO Broadcast Treaty. And again, for frequent, as-it-happens updates on the process, take a look at the blog from KEI's veteran staff.