Building consensus and emphasizing commonalities are bedrocks of international diplomacy, which is why so many of the statements today, at the first special session on the WIPO broadcasting treaty, focus on working together and common goals. Despite this, there seem to be fundamental differences on how the various countries have interpreted the mandate from last fall's General Assembly.
The body meeting now, the Standing Committee on Copyright and Related Rights (SCCR), was told to meet twice before convening a diplomatic conference that would finalize the treaty. The specific instructions required the SCCR to use these two meetings to come up with a “signal-based” approach to the treaty. The meetings were also to define the objectives of the treaty, the scope of protection (e.g., how much protection do broadcasts get? Should they be dependent upon protections for underlying works?), and exactly what objects are protected under the treaty (e.g., what constitutes a broadcast, and how do you distinguish it from the content carried in its signal?). The last draft proposed treaty, known as SCCR 15/2, was to serve as the beginning basis for negotiations. This is the first of those two meetings, and it's gotten off to a strained start.
The Chair of the Committee, Jukka Liedes of Finland, began by introducing two documents, which he called “non-papers,” that attempted to address the General Assembly's mandate. One (summary by Manon Ress at CPTech) goes through the mandate piece by piece, trying to provide explanations of how the Committee might implement the mandate. The other (CPTech summary) provides proposed definitions for treaty terms that would lay out what was protected and to what extent. [I'll update this post with full versions when they become available.]
As the documents were being distributed, several national delegations gave opening remarks. Algeria began by expressing concern that the documents were being distributed as the session began, and that delegates would need to discuss the new ideas amongst themselves and with officials in their national capitals.
Liedes assured the group that the documents were only ideas for discussion, and not binding on anyone; that if countries did not find them useful, they would be discarded from discussion.
Algeria then proceeded with its formal statement, on behalf of the African Group. They were especially pleased that the negotiations were moving forward without including webcasting in the treaty, since there were a wide variety of issues surrounding webcasting in developing countries, such as access to information. Algeria, and the African Group, made six major points. First, the treaty should be designed only to prevent piracy, without undermining the rights of copyright holders and users. Second, the treaty should clarify provisions that could refer to webcasting or netcasting; all references to webcasting should be removed. Third, the treaty should include statements setting out the importance of the public interest, including access to knowledge, public education, and science. Fourth, the treaty should include exceptions and limitations to any broadcast protection to allow for the public interest. Specifically, the exceptions and limitations should be at least at the level as exceptions and limitations for copyright (like fair use). Fifth, technical protection measures, or TPMs, (like DRM) should be limited only to signals, and not extended to content. They should also not interfere with access to knowledge. Sixth, the term of protection should be limited to 20 years.
These comments reflected the views of several countries and groups that spoke next, including Bangladesh (speaking on behalf of the Asian Group, Bangladesh also emphasized the need for the treaty to have a competition policy purpose), Barbados (speaking on behalf of GRULAC, the Group of Latin American and Caribbean Countries), Chile, El Salvador, and Iran. In each of these cases, the countries specifically endorsed a balance between protecting broadcasts and the public interest.
Other countries more generally endorsed a signal protection-based treaty, including India, which pointed to the mandate set by the General Assembly and applauded the decision to leave webcasting for another treaty. Italy, speaking on behalf of Group B, also generally supported a signal-based treaty.
The United States delegation also called for a treaty with a narrower scope, not only supporting the Group B statement, but also noting the need to prevent piracy while not adversely affecting copyrights or the public interest. However, the US delegation also thought that the treaty should prohibit retransmitting traditional broadcasts over the Internet without authorization.
Germany, speaking for itself and the EU, offered up a noncommittal statement. This was somewhat unusual, since the EC has its own delegation, which has tended to be very much in favor of increasing broadcasters' rights.
In separate statements, the People's Republic of China and the Republic of Korea each indicated support for a signal protection-based treaty, but each also said that the treaty needed to “renew” or “update” broadcast protections. South Korea specifically mentioned the need to update the Rome Convention, an argument frequently cited by supporters of an exclusive rights-based treaty. The Rome Convention grants broadcasters rights in both retransmissions and fixations. However, many WIPO countries, including the United States, are not signatories to the Rome Convention. Nor does the convention explicitly apply to cablecasting.
It was encouraging at first to have so many voices in favor of a signal protection-based treaty. However, as Liedes began to go over his take on the purpose of the meetings, it became clear that the chair and the various delegations each applied their own definitions of a “signal protection” approach.
In the past, the signal protection and exclusive rights approaches were framed as incompatible alternatives–a signal protection treaty would not necessarily grant broadcasters property rights. Instead, it could simply require countries prohibit unauthorized retransmission. This wouldn't necessarily give broadcasters a property right that would conflict with copyrights or users' rights; it would simply mean that signal thieves would face civil or criminal penalties.
However, Liedes's non-paper states a conception of a signal protection-based treaty that doesn't actually preclude exclusive broadcast rights. In introducing the document, Liedes noted that many, himself included, considered the earlier draft treaty, 15/2, to already be signal-based, and that the instructions from the General Assembly simply meant that the new draft should be more signal-based.
The first non-paper also stated that the focus should be on a “live signal.” This would be a good thing: if the treaty focused on preventing people from taking a signal and rebroadcasting it live without authorization, it wouldn't create the sort of overlapping copyright problems that we (and others) have been talking about. But immediately after this, Liedes also says that the treaty could create property rights in fixations made after the broadcast. This basically puts us back to where we started with earlier drafts.
Only a few delegations commented directly upon the new documents–likely many delegations wanted to discuss these developments further in private. The European Community, however, noted that if the treaty were to have an anti-piracy focus, then the Committee should have technical information on how exactly signal piracy works. They suggested that available experts could give a presentation to the Committee, noting that several broadcasting organizations were present.
It should be noted that these broadcasting organizations are the strongest proponents of a treaty, and are hardly neutral experts. Also, government delegations are typically the only attendees allowed to speak during the formal session. So this proposal was an unusual departure, and could give the broadcast industry a chance to speak formally. The Chair took the suggestion under advisement.
Egypt also commented on the second non-paper, noting that the various delegations need to take into account the nature of the relationship between signals and content: since signals, unless they carry content, have no value. The signal itself is not what is pirated or stolen; it is the content within that signal that is stolen. Thus, while the treaty intends to protect broadcast signals, it should be mindful of this distinction, and of the differences between the desired broadcast protection and copyright.
Colombia objected to the focus on live signals, saying that this seemed to diminish the importance of fixations (even though fixations were provided for in the non-paper). The delegation emphasized that fixation protections were already in the Rome Convention. Colombia reiterated the argument that the Broadcast Treaty should act as an update to Rome.
Liedes responded by noting that many WIPO member countries weren't in fact signatories to Rome. He noted that Rome signatories would likely want to keep their level of protection, and that a treaty could easily allow Rome countries to keep their current laws, while requiring a lesser, but still adequate, amount of broadcast protection in non-Rome countries.
There were long silences after this round of comments, with Liedes trying to stimulate debate and discussion. However, few countries actively engaged in the specifics of the documents.
After this, the Secretariat distributed the third and last of Chairman Liedes's non-papers. The third non-paper, which Liedes characterizes as a condensation of all the major alternatives in 15/2, looks very different from what might be expected from the General Assembly's mandate. While it references ideals like a signal-protection-based treaty, it implements the worst of an exclusive rights treaty. It includes mandatory exclusive rights in broadcasts and fixations; mandated protection for “encryption” (instead of “TPMs”); and bans on manufacture, sale, etc. of encryption-breaking devices. Protections for labeling systems like the broadcast flag are also mandated.
The compromise, true to form, leaves no one happy. From our perspective, it reinserts the worst parts of the broadcast treaty, including mandatory exclusive rights in both broadcasts and fixations.
Liedes offered this document as a compromise and as a starting point for discussion, inviting delegates to argue whether it went too far or didn't go far enough. Few delegates took Liedes up on his offer directly, though the EC unsurprisingly advocated for a stronger treaty, one that would include more rights for broadcasters than even the Rome Convention.
Day one of the meetings ends with quite a bit of disagreement in the air–despite the early statements from various countries in support of a narrower treaty that takes into account copyrights, users' rights, and the public interest, the main discussions centered on language not too far removed from what we thought had been rejected by the General Assembly. Not many delegations commented directly on the proposals–but again, there's likely be a number of impassioned discussions among delegations, and with government officials in capitols all over the world. Whether there will be heated discussions on the non-papers tomorrow remains to be seen.
Another issue is whether any non-governmental groups will be heard. The EC suggested that broadcasters might give a presentation on the technical aspects of signal piracy. Also, other NGOs have, in previous SCCR meetings, been allowed a small amount of time to issue statements or submit written comments. Nothing has yet been decided on these points, which should definitely add fuel to the current debate.