TWN Info Service on WTO and Trade Issues (Oct05/4)

8 October 2005

Report 3 on WIPO General Assembly

Debate and Divisions over Proposed Broadcasting Treaty in WIPO

One of the major controversies during the WIPO General Assembly which took place on 26 Sept to 5 October) was over the proposed new treaty on broadcatsing organisations' rights.

Below is a report of the debate that took place on this topic on 28 September at the Assembly.

It was published in the SUNS (South North Development Monitor).

With best wishes
Martin Khor


WIPO Members divided over proposed Broadcasting Treaty

By Sangeeta Shashikant (TWN), Geneva, 29 September 2005

The WIPO General Assembly heard divided views on Wednesday 28 September between Members that wished to hold a diplomatic conference (to negotiate a new treaty) on the protection of broadcasting organizations in 2006 and those that felt that discussions on the treaty had not yet matured sufficiently to warrant a diplomatic conference.

Informal consultations were held by the Assembly Chairman, Ambassador Enrique Manalo of the Philippines, with a view to bridging the gap and come up with appropriate language agreeable to all Members, but the consultations were unable to reach a conclusion. Argentina and the United Kingdom were appointed as facilitators of the Chair to try and reach a solution.

Advocates claim that broadcasters' rights have to be protected, as present copyright laws do not adequately cover these. Those who are against or are cautious of the proposed treaty say it creates a new layer of rights for organizations (broadcasters and web-casters) that are not creators, add on costs to the consumers, and hinder access to information and knowledge.

At the Assembly discussion, many developing countries criticised what they said was the un-transparent and non-inclusive process by which the WIPO Secretariat had organized regional consultations on the issue. The process by which the treaty is being pushed has become as big an issue as the treaty's contents.

Rita Hayes, WIPO Deputy Director-General in charge of the Copyright and Related Rights and Industry Relations Division, introduced the document prepared by the International Bureau (i. e. the WIPO Secretariat) on the protection of broadcasting organizations (WO/GA/32/5).

The issue has been discussed at the Standing Committee on Copyright and Related Rights (SCCR) at its past 12 consecutive sessions (from 1998 to 2004). According to the Secretariat document, the idea to launch a diplomatic conference was first mooted at the SCCR in June 2004. The venue for deciding on this shifted last year to the General Assembly, which did not make a decision.

A revised version of the Consolidated Text for a Treaty on the Protection of Broadcasting Organizations was prepared for the 12th session of SCCR in November 2004. At that meeting several developing countries (Argentina, Brazil, Chile, Honduras, India and Iran) had indicated that they were not in favour of regional consultations on the issue but preferred "open-ended inter-sessional" consultations that allowed all Member States and observers to participate.

However, no open-ended meeting was convened. Instead, the Secretariat organized six regional consultation meetings between May to July 2005. A second revised version of the Consolidated Text (SCCR/12/2/Rev. 2) and the working Paper on alternative and non-mandatory solutions on protection in relation to web-casting (SCCR/12/5) (released after the November SCCR and not discussed at any SCCR meeting) were the basis for discussions at the regional meetings.

Norway also organized an informal consultation in Brussels (13-14 September) for representatives of WIPO member states that were not represented in the regional consultations. Most of the participants came from developed countries.

According to the Secretariat document, the regional consultations produced broad agreement that a Diplomatic Conference be convened. The paper recommends that the WIPO General Assembly (GA) "approve the convening of a Diplomatic Conference" (to take place in the second quarter of 2006) and "approve the organizational and procedural matters" for the Conference. It also proposes that the 13th SCCR session be convened on 21-22 November, before the diplomatic conference to discuss the remaining issues, and that the Chairman of the SCCR, Mr. Jukka Liedes, in cooperation with the International Bureau, be requested to prepare the Basic Proposal for the Diplomatic Conference.

The legitimacy of the consultations was questioned by many developing countries who said that invitations had been issued to selected countries and to officials to participate in their personal capacity. An African delegate said that his country and many other African countries had not been invited to participate in the African Regional consultations. At the meeting Wednesday, many countries severely criticised the process of convening of the regional meetings for not being transparent or inclusive.

WIPO members that support the convening of a diplomatic conference next year are the Group B (comprising developed countries), the European Community, and some of the members that participated in the regional consultations.

On the other hand, those opposed to the holding of a diplomatic conference in 2006 (and instead want further discussions at the SCCR on the text and an assessment of the implications of such a treaty) include the Asian Group, and many members of the Group of Friends of Development (Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Iran, Peru, Sierra Leone, South Africa, Tanzania, and Venezuela) and Chile.

The Czech Republic speaking on behalf of the Central European and Baltic states said that the consultations led to useful exchange of information and came to the understanding that it is possible to move forward, and so supports the holding of a diplomatic conference.

Group B (comprising developed countries) supported the holding of a diplomatic conference. Norway and New Zealand supported this. The UK (speaking on behalf of the European Community) said that it is timely to hold the conference. The remaining outstanding issues can be resolved in the SCCR meetings.

Morocco said that progress on the protection of broadcasting organizations had been made over the years. It had hosted a consultation for Arab states in May. It said the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty do not include broadcasters' rights. There are many important aspects, for example, to prevent illegal use of broadcasting signals. It said the consultation's participants asked the Assembly to take necessary steps.

Moldova and Russia briefed the meeting about the regional consultation held for countries of Central Asia, Caucasus and Eastern Europe in June in Moscow. They supported a diplomatic conference in the first half of 2006.

Kenya, which hosted an African regional consultation in May, said that the current legal framework is inadequate, that the consultation recognized the significant social and economic role of broadcasting and the importance of protection of broadcasting organizations, and it supported the convening of the diplomatic conference in 2006.

Benin on behalf of the least developed countries also supported the convening of the diplomatic conference in 2006.

Antigua and Barbuda, supported by St. Vincent and the Grenadines, Jamaica and Trinidad and Tobago, said it approved the holding of the diplomatic conference. Similar support was expressed by Mexico, Nicaragua and Colombia.

The United States also stated that it was timely and appropriate to convene the Diplomatic Conference in 2006.

On the other hand, many other countries said that it was premature to convene a diplomatic conference, and wanted further discussions at the SCCR, including an assessment of the implications of a treaty.

Iran on behalf of the Asian Group said the complexity and cross-cutting nature of the issue and its implications means that the issue is sensitive and of serious concern to member states.

It criticised the organizing of the regional consultations, and the putting forward of the second text to regional consultations as there was not even any consensus on the holding of such consultations in the 12th session of SCCR. It stressed the importance of transparency in the process.

The Asian group, said Iran, feels that there is need for sufficient time for members to address the second consolidated text in depth during at least two further SCCR sessions in 2006. The SCCR would then report its progress to the next GA. The holding of any diplomatic conference is premature.

It added that web-casting is an evolving and unknown issue for member states and the implications for developing countries are not clear. The Asian group is of the opinion that web-casting should be excluded from the process of SCCR and the issue should not be raised in any form during any diplomatic conference in this process.

Brazil (speaking on behalf of Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Iran, Peru, Sierra Leone, South Africa, Tanzania, and Venezuela) said that WIPO as a UN body is expected to operate as a Member-driven institution. Brazil said the Secretariat's document does not fully reflect the decision taken by Member states on the issue a year ago, in particular the request put forth to the SCCR to accelerate its work on the protection of broadcasting organizations "with a view to considering the possibility of convening a diplomatic conference in 2005". [The Secretariat Document states "with a view to approving the convening of a diplomatic conference ."]

The expectation was that the SCCR would afford WIPO members an opportunity to engage in an in-depth consideration of the complex legal and technical issues involved in the proposed new broadcasting treaty, added Brazil. Only by these means could the GA be in a position to take a fully informed decision on whether to convene a diplomatic conference to conclude negotiations on the treaty.

Notwithstanding the decision to accelerate the work of SCCR, only one meeting was held between the last GA and the current GA and this did not provide a number of developing countries with an opportunity to grasp the difficult and multifaceted issues involved.

It added that the SCCR in November 2004 did not allow proper examination of the various provisions contained in the consolidated text of the Chairman.

NGOs were also given little space and time for interventions. The call by some developing countries for an inter-sessional meeting of the SCCR to allow for a narrowing of differences went unheeded. Instead regional consultations were held although few regional groups had actually agreed on the need and convenience of holding such consultation during the 12th Session of the SCCR, said Brazil.

It added that there was a clear lack of consensus on whether regional meetings should be convened as several Member states felt that the issue as a whole needed further clarification and debate in an appropriate formal multilateral setting, with the presence of official government representatives assigned to represent their countries' interest in WIPO in Geneva.

It noted that not all countries belonging to their respective regional groups attended the regional meetings. It gave examples of the African consultation, which was attended only by 13 of the 53 Members of the African Group, and the GRULAC consultation, attended by only 15 of the 33 nations.

Invitations were issued directly to capital officials in their personal capacity without going through the normal diplomatic channels. Thus, obviously the outcomes of these consultations are not binding and cannot be invoked as a basis on which Member states should make their decision.

The group expressed the view that discussions had not progressed to the point where a consensus on a diplomatic conference can be achieved. The debate at the November SCCR showed that significant differences persist among Members on several crucial substantive issues and proposed clauses, including the scope of the treaty, duration of protection, the nature of the rights conferred, technological protection measures, digital rights management, the inclusion of web-casting, and the relationship between the proposed new treaty and other WIPO conventions.

In some areas, positions have actually grown further apart from each other, said Brazil, as the group is not prepared to go along with the inclusion of "web-casting" as a subject matter of negotiations.

It is particularly important to have more in-depth substantive discussions on the several complex and difficult provisions that have been proposed and to assess the potential development impact of such a major international treaty.

It suggested that at least two other meetings of the SCCR be organized in the coming year to consider the second consolidated text, and they should devote more time to the issues of exceptions and limitations. It also pointed out that the "Basic Proposal" of a Diplomatic Conference would have to be discussed and approved by the SCCR and not be elaborated under the sole responsibility of the Chair and the Secretariat.

South Africa agreed with Brazil and said a diplomatic conference will take place in future but it would be too optimistic to call it in 2006. It expressed dissatisfaction with the regional consultations which reflected a process that is not member-driven and registered concern about lack of balance and transparency.

It concurred with Brazil that invitations were issued to personnel in their personal capacity and gave the example of the African regional consultations which was attended by a handful of African countries. It agreed with Brazil that there was no agreement on many issues, stressing that the rights of other stakeholders are still being discussed and to reach a conclusion while these issues are not resolved would be counterproductive. In addition, no empirical studies have been conducted. The GA should take a principled position that development impact assessment be conducted. It did not support the holding of a diplomatic conference in 2006 and suggested that the issue be decided at the next GA.

Chile shared the concerns about the consultations and did not think that the time was ripe for a diplomatic conference. Much work needs to be done and there needs to be independent studies. Egypt said that despite favouring a broadcasting treaty, it felt that more vital work needs to be done prior to taking a decision to hold a diplomatic conference.

India urged the holding of SCCR meetings to consider the unresolved issues and expressed the view that the various procedural aspects on diplomatic conference is premature. It said that the draft treaty will create a new layer of rights and this would have a negative impact on the content. It would affect access to information and the public at large. India is willing to consider the protection of broadcasting signals but opposed the granting of exclusive rights to broadcasters that include the content. It also opposed the inclusion of "web-casting" in a treaty.

India said the time is not ripe for the treaty as the implications are not fully understood. It had raised the matter in UNESCO as the issue goes beyond intellectual property. It had also requested that universal access to knowledge not be hindered by a draft treaty.

Although the broadcasting industry in India had reached a certain level of sophistication, it still felt that the current treaty grants broad rights to broadcasters. India expressed its support for the statement by the Asian group, the statement by Brazil on behalf of the 12 members of the Group of Friends of Development and by Chile, Egypt and South Africa.

Peru said that there was insufficient information and requested that the time-frame be extended before a decision on a diplomatic conference. Venezuela said that it was invited to the GRULAC regional consultation but its representative left after realizing that it had not been properly convened. It said that NGOs that were against the treaty had not been invited, whereas the private sector that supported the treaty was present. It proposed the postponement of the diplomatic conference.

While making their general statements to the Assembly, a number of NGOs made comments on the broadcasting rights issue.

The Civil Society Coalition (CSC) (comprising 28 NGOs from 12 countries) urged WIPO to take more seriously its role in supporting development, and protecting the public interest. The CSC opposed the convening of a diplomatic conference on a proposed treaty for broadcasting, cable-casting and web-casting organizations since the process for consideration of this treaty is flawed.

The views of consumers and the technology community on the radical and restrictive web-casting proposal has not been taken account of, and there has been no economic analysis of the impact of the treaties on consumers, or on copyright owners, said the CSC delegate.

Further, the treaty is being sold by its advocates as something that is necessary to address piracy. But in reality, said CSC, it has little to do with piracy. Instead it provides for extensive commercial rights to broadcasting organisations, lasting 50 years, to make reproductions and redistribute the works.

This new right is on top of the copyright in copyrighted work, and applies even to works in the public domain. If this is extended to the web and to web-casting organisations, it will harm access to knowledge.

If rights are given to one group after another that asked for it, where would it end? Multiple rights would be given on the same works. The end result is that there will be no public domain left. There would also be the curtailing of the free movement of information, higher prices for information, and less access to knowledge. It ends with a less informed and less equal society, added the CSC.

The Electronic Frontier Foundation (EFF) registered concern about the proposed broadcasting treaty. In the US, thousands of people have protested to the government about the treaty and requested a thorough investigation of its potential impacts.

The EFF said it was concerned mainly with the broad scope and questionable necessity of the treaty, adding: "For example, why would an instrument intended to protect against signal piracy include post-fixation rights for broadcasters and web-casters? Why does it cover web-casters at all, when the incredible proliferation of web-casting companies seems to indicate no need for new monopoly rights? Are there any economic justifications for such a radical new form of intellectual property?"

EFF pointed out that there is no consensus among American web technology companies that web-casters would benefit from new monopoly rights. The web-casting proposal has been rejected by 20 web technology companies. A letter by them to WIPO was signed among others by Mark Cuban (operator of the largest digital HDTV network in the world - HDNet), the owner of a major league sports team whose matches are web-cast (Dallas Mavericks) and owner of half a billion dollars' worth of digital content.

The EFF said in view of these basic questions, the discussion on the broadcasting treaty should be in plain view and WIPO members should not turn the treaty over to a diplomatic conference in 2006.