TWN Info Service on Intellectual Property Issues (June 07/08)

22 June 2007


NGOS GIVE DETAILED CRITIQUE OF BROADCAST TREATY

Civil society organisations representing consumers, development interests, librarians, internet users and musicians have spoken up against the proposed text for a new WIPO treaty on broadcasters' rights.

Please find below a SUNS report on the statements by NGOs at the Second Special Session of the Standing Committee on Copyright.

Best Wishes
Sangeeta Shashikant
Third World Network
Tel: +41 (0) 22 908 3550
Fax: + 41 (0) 22 908 3551

-----------------------------------------------------------------


NGOS GIVE DETAILED CRITIQUE OF BROADCAST TREATY

SUNS #6276 Thursday 21 June 2007


Geneva, 20 June (Sangeeta Shashikant) -- Civil society organizations representing consumers, development interests, librarians, internet users and musicians have spoken up against the proposed text for a new WIPO treaty on broadcasters' rights.

According to the various CSOs, the draft is against the public interest as it would establish a treaty that creates a new layer of "exclusive rights" for broadcasters, and new barriers for users of libraries, of digital products and new citizen-based broadcast methods (such as pod-casting) as well as affect access to information and knowledge, especially in developing countries.

The CSOs were speaking at a meeting of WIPO's Standing Committee of Copyright which is discussing a draft text of the main provisions of a proposed Treaty on the Protection of Broadcasting Organisations.

The 2006 WIPO General Assembly decided that a diplomatic conference would be convened to finalise the treaty, but on condition that agreement on certain key points be reached, by this week's meeting.

When the meeting started on Monday, the Chairperson, Jukka Liedes from Finland, presented a non-paper containing key draft provisions for the treaty, that he proposed to the basis of negotiations.

The non-paper attracted criticisms from many developing country delegations (See SUNS #6275 dated 20 June). It also met with criticism from many of the NGOs that are participating in the meeting.

Most of the NGOs criticised the non-paper for proposing that the treaty grant "exclusive rights" to broadcasting and cable-casting organizations They said that this is incompatible with a "signal based" approach for the treaty as mandated by the WIPO General Assembly.

Several groups said the mandate meant that the treaty would only deal with the problem of "signal theft". However, the Chair's text went beyond a "signal based approach" by granting the exclusive rights to broadcasting and cable-casting organizations to authorize the retransmission of their broadcasts, and the deferred transmission by any means to the public of their fixed broadcasts.

This approach gives the broadcasters "exclusive rights" to more than "the broadcasts", but to "any means" of transmitting works to the public, including many post fixation rights, including those involving the Internet, claimed the NGOs.

They added the non-paper catered to the demands only of some broadcasting organisations, which were not satisfied with restricting the treaty to the signal theft issue. But in doing so, the non-paper was marginalising the public interest and also went against the negotiating mandate.

The NGOs called on the governments not to accept an "exclusive rights" approach to the treaty. Several asked the WIPO members not to go ahead with a diplomatic convention since there were so many differences among them on the rationale for and scope of the treaty.

Many NGOs suggested that the non-paper include in its operative section some paragraphs on broad limitations and exceptions (L&E), general public interest clauses, provisions on the protection and promotion of cultural diversity, and on the defense of competition. These had been covered in Articles 2, 3 and 4 of the basic paper compiling members' proposals (SCCR/15/2) but had been excluded from the non-paper's operative section.

The NGOs were also against provisions in the non-paper on technological protection measures (TPMs).
Knowledge Ecology International (KEI), a US-based consumer group said that if adopted the non-paper would be used by the broadcaster to exercise its new right to compete against the copyright owner for the downstream marketing of copyrighted content, and this would impose on users and the public a costly additional layer of needed permissions to use works.

KEI criticised the non-paper for eliminating from the operative paragraphs protections for the public found in SCCR/15/2, including the language on defense of competition, cultural diversity and public interest L&E.

The non-paper also provides the narrowest possible set of permissible L&E. Only those that are used for copyright are permitted, and only then if they pass the three-step test. This is narrower than the Rome Convention, the Berne Convention and the TRIPS Agreement, all of which provide for cases where the L&E are not subject to the three-step test.

It suggested the non-paper should first define what a "signal based" treaty would do, and what a "signal" is. It said that a useful model to follow was the 1974 Brussels "Convention on the Distribution of Programme-Carrying Signals Transmitted by Satellite" administered by WIPO and which provides for many definitions, including for "signal", "programme", "emitted signal" and "derived signal".

The Brussels Convention focuses on the measures to prevent use of "programme-carrying" signals by any distributor for which the transmission "is not intended." It was a more useful template for a treaty than the Chairman's non-paper.

The Third World Network said there was "hardly any evidence-based rationale for this treaty". In fact, evidence to the contrary exists, that "broadcasting industries in developed and developing countries have flourished and done very well relying simply on national regulatory frameworks and laws. So the rationale for creating a new set of exclusive rights for broadcasters makes little sense."

TWN said many North-South bilateral free trade agreements require developing countries to ratify WIPO treaties. Thus adoption of norms in WIPO (including the proposed broadcasting treaty) is hardly voluntary for developing countries which have to ensure that norms set do not hinder their development prospects or affect their policy space.

The development dimension should be reflected through broad provisions on limitations and exceptions; the deletion of technological protection measures and the inclusion in the operative paragraphs of the general public interest clauses, provisions on the protection and promotion of cultural diversity and on the defense of competition.

TWN was disappointed that the Chair only consulted with the proponents of the treaty prior to preparing the non-paper, but did not consult other stakeholders, resulting in an unbalanced non-paper.

TWN added that since there is a lack of clarity and much confusion about what this treaty is all about, and its developmental impacts are little understood, it is time to take a step back, and to undertake independent studies and assessments, before embarking almost blindly on norm setting activities.

IP Justice, an international civil liberties organization based in San Francisco, said that after ten years of discussion even the very basic issue of what should be the purpose of such a treaty seems to be unclear.

Some believe that an update of broadcasters' rights is needed because their signals are pirated (especially by using deferred transmissions over the Internet). The most frequently given example is sports broadcast. However, even the Chair had acknowledged that one hardly can find any sports broadcast that is not in some way copyrighted. Thus, broadcasters already have all the means to fight piracy even against deferred transmission over the Internet through copyright law, whether or not the broadcasters are the producers of the content.

IP Justice said it would perhaps be better to have no treaty at all, since on the one hand broadcasters do not want an instrument without exclusive rights, and on the other there is no need for such rights as the mandate of the General Assembly is for a draft-treaty which is narrowed down to a real signal-theft approach which means "no exclusive rights."

Electronic Frontier Foundation (EFF), which has 13,000 members worldwide, said that it remained concerned that the Chair's non-paper is not signal-based (i. e. dealing with signal theft) but is instead premised on creation of rights that apply after fixation of signals.

It said that the public interest and innovation concerns as well as the protection of broadcasters' legitimate interests could be addressed by a treaty specifically focused on intentional signal theft, rather than creating broad retransmission and post-fixation rights.

Giving traditional broadcasters and cable-casters exclusive rights over deferred Internet re-transmissions that apply in addition to copyright is likely to harm emerging citizen broadcasting on the Internet, such as pod-casting, at a time when it is still unclear whether incumbent broadcasters will be displaced by these new modes of Internet media.

On using technological protection measures (TPMs) to enforce broad retransmission rights it said that provisions on this issue would likely override national E&L that would otherwise permit consumers, libraries and students to access public-domain material and make non-infringing uses of transmitted works. This is particularly true of Article 9 of the non-paper which requires no linkage between decryption or circumvention, and infringement of broadcaster and cable-caster rights.

EFF added that the over-broad decryption device ban will ban personal computers and other common devices capable of decryption but which have many lawful uses.
The combination of TPMs and retransmission rights proposed in the non-paper will also harm competition by allowing broadcasters and cable-casters to use TPMs to control the market for transmission-receiving devices such as digital video recorders and networked in-home entertainment devices.

This is contrary to the explanatory note in the Chair's non-paper that the treaty will not encroach on consumers' private uses in their homes, nor hinder innovation in the personal networking device market, said EFF.

It added that the broad scope of the proposed retransmission rights underlines the need for commensurate exceptions and limitations to protect the public interest. At a minimum, any treaty should include mandatory exceptions that are at least equivalent in scope to those in the Rome Convention and TRIPS, including a non-exhaustive enumerated list of exceptions necessary to facilitate freedom of expression, and the ability to create appropriate new exceptions.

The TRIPS Agreement does not condition the creation of exceptions to those rights on the satisfaction of the three-step test; thus there is no reason to constrain Member States' ability to do so in the present treaty.

The Electronic Information for Libraries (eIFL) and the International Federation of Library Associations (IFLA), representing libraries worldwide, said that "any new instrument that affects access to content de facto affects access to knowledge, both copyright and public domain material" and appropriate safeguards are needed to protect the public interest.

It supported the call for the inclusion (in the operative paragraphs) articles on protection and promotion of cultural diversity and the defense of competition. It stressed the need for an enumerated list of exceptions and limitations for public interest purposes, including for news reporting, people with disabilities, education and research, libraries and archives.

Referring to the Chairman's explanation that "transmission" means communication to the public, it said that it understood this to mean that TV or radio programmes could not be used on-site by patrons in a library without a licence.

Without a specific exception, libraries would be placed in an extremely difficult position. Because of the large number of rights owners and corresponding rights to clear in any single production (authors, actors, producers etc), "licensing is not a viable option".

Even if exceptions are given, it questioned how beneficiaries could make use of these exceptions when the content is subject to a TPM. It said that libraries have already experienced how TPMs in electronic books, databases and multimedia products have curtailed users' rights to avail themselves of statutory exceptions and limitations.

Computer specialists who are responsible for long-term digital preservation in libraries, have expressed concern that even if libraries get permission to circumvent TPMs, the fast development of encryption technologies might soon make this impossible in practice. It thus called for the deletion of provisions on TPMs from the text.

Public Knowledge, a Washington-based NGO that protects consumers' rights in the emerging digital culture, said that it did not believe that IP rights were a necessary minimum for protecting broadcasts as a true "signal theft" treaty can protect broadcasters from intentional misappropriation without creating the attendant problems of overlapping IP rights.

If faced with the stark choice between such a treaty and abandonment of the process, it would choose the latter as requiring a rights-based treaty would create serious liability risks for individual users, intermediaries, and other rights holders. Existing copyright laws and international agreements already prohibit the infringement of copyrights on video-sharing sites, and a signal theft treaty will complement this regime without interfering with it.

Public Knowledge also raised concerns over the non-paper's effects on the public domain. which is a rich source of knowledge as its works can be disseminated without legal restriction. Granting broadcasting organizations a right to prohibit distribution of public domain content - based solely upon the route taken by that content - would create barriers to access to knowledge and information that would frustrate the objective of broad dissemination inherent to the concept of the public domain. Therefore, the treaty should not apply to signals containing content in which no underlying copyright or related right exists, it added.

It also registered concerns over the non-paper's TPM provisions. The provisions on encryption prohibit not just those devices used to misappropriate broadcast signals, nor even those devices that are used to circumvent encryption, but all devices capable of decrypting an encrypted broadcast. This provision is too broad as currently and risks prohibiting devices and systems with substantial non-infringing uses, simply because of a speculative capability to cause harm.

Unless these crucial issues are addressed, the treaty will not properly reflect the balance between various rights-holders and the public interest.

The Information Society Project at Yale Law Schools, a center for the study of law and technology and issues relating to the knowledge economy, said that the broader the rights adopted in the treaty, "the harder it will be to harmonize these rights with domestic regulatory frameworks in the implementation stage." To deal with this, a robust set of E&L should be included in the treaty.

The last two decades have seen the emergence of new distribution media, some of which incorporate and complement the features of traditional broadcasting, and others which do not, and to facilitate the growth of industries, both old and new, governments have in stages developed a layered set of regulations and standards. As a result, the environment remains complex and diverse.

The treaty may be seeking through harmonization to minimize this diversity, but research shows that diversity is intrinsic to industry's growth. Moreover, new rights and their modes of enforcement may be incompatible with other parts of the regulatory structure and the domestic needs of individual countries.

It said that telecommunications regulations are centered around two primary objectives: (1) to ensure a fair and level playing field for entrants to and participants in the broadcast industry; (2) to promote the widest possible dissemination of information and access to knowledge via telecommunication networks. To maintain the delicate balance between these two functions of media- a balance that safeguards political discourse and cultural production - a robust set of exceptions to and limitations on any new rights is essential.

European Digital Rights (EDRi) which represents 25 privacy and civil rights organizations in 16 European countries said that despite the mandate for a signal-based treaty, there seems to be "no consensus what that actually means". It questioned the rationale to continue the process further to a diplomatic conference.

The International Music Managers Forum, representing featured artist managers and through them the featured artists, both authors and performers (who are the source of over 95% of the economic activity in the worldwide music industry), said that "to most people, 'signal based' clearly means 'no exclusive rights'.

It cited the Chair's non-paper that "If this treaty is not based on some elementary rights, the treaty should be abandoned" and said this posed a dilemma. On one hand the General Assembly has mandated a treaty based on signal protection (which implies no exclusive rights) and on the other the broadcasters say that without such rights the treaty should be abandoned.

It said that "to abandon this treaty would not be a failure". However, "if with the lack of consensus that currently exists, this committee moves forward to a diplomatic conference and that fails, as many believe is quite likely, this will indeed be a disaster for WIPO and this Committee". It recalled the failure of the last diplomatic conference on Audio-Visual rights. "To have two failures in a row would indeed be a disaster," it concluded.