Key Issues Unresolved, WIPO Diplomatic Conference Looks Likely

The SCCR may request a diplomatic conference. As of last night delegates seemed to be moving toward consensus on a 2007 conference, said NAB Senior Assoc. Gen. Counsel Ben Ivins. Most issues probably could be resolved there, he said, with none “intractable.” On Tues., broadcasting and rightsholder groups endorses a 2007 diplomatic conference. They told the SCCR their differing views on what the treaty should be like doesn’t negate their acknowledgement of the need for a thriving global IP system that such a treat would serve, Ivins said.

Other SCCR delegates meeting Tues. voiced cautious optimism that the text would be approved Wed. and forwarded to the WIPO general assembly, which can convene a diplomatic conference to negotiate the treaty’s final text. The WIPO general assembly meets Sept. 25. One European delegate said she thinks the proposed text will be approved Wed. and that there won’t be calls to focus the text narrowly for traction before it goes a diplomatic conference -- if ever. S. Korea wants a diplomatic conference, said Jeong Bae Kim, dir. of the copyright team at the Ministry of Culture & Tourism. If delegates can’t agree Wed. to send the text to the general assembly, the assembly could convene a meeting of the SCCR later this year or early next to discuss remaining issues, a delegate said.

Three issues are hanging, Childs said. The proposal applies to retransmissions broadcast “by any means.” Though webcasting -- now dubbed “netcasting” by the U.S. -- and simulcasting safeguards are to be gone over individually later, the draft still has language relating to computers. Supporters want to retain the text, arguing broadcasters need control over transmissions stolen and posted online, Childs said. India, Brazil and other delegations, however, worry the wording is so broad it effectively will give broadcasters a webcasting right.

A 2nd dispute involves defining what the treaty guards. Brazil wants to add a definition of “broadcast” as well as of “broadcasting organization,” Childs said. The 3rd hang-up is the draft’s handling of copyright limitations and exceptions. The U.S. and others want them treated as the WIPO Performances & Phonograms Treaty does -- that is, left to each country to decide. The EU wants exceptions and limitations listed explicitly. Brazil, Chile, Australia and others want a middle ground that includes mandatory and optional exceptions/limitations, Childs said.

Talks are focusing on “updating of the rights of broadcasting organizations, specifically, traditional broadcasting and cable casting organizations,” said Samar Shamoon, head of WIPO’s media relations and public affairs section. “This meeting is in particular looking at the question of recommending a date for a diplomatic conference in 2007.”

One criticism of the talks is that in a recent public consultation, the U.S. Copyright Office asked 40 interested parties to speak on the treaty’s pros and cons without any indication of the U.S. position, said an official who was at the meeting: “There’s no clear view of the delegation’s position,” the official said. While it may provide maximum flexibility for U.S. negotiators, the fear is that the U.S. position is being developed and negotiated behind closed doors. One statement made by the U.S. delegation before press time Tues. included favoring technological protection measures, a huge concern for telcos, but said nothing about the proposed treaty’s scope, the official said. One fear is that incorporating technical protection measures (TPMs) will limit consumer use of content and retard innovation. But if the scope is kept to signal theft, TPM would be appropriate, the official said.

Telcos, Others Weigh In

In a joint statement, some civil society, industry and rights holders said the treaty, “as currently drafted, would harm important economic and public policy interests” and questioned if a new treaty is needed. The group, which includes AT&T, Cingular, Dell and European Digital Rights, said “the current rights-based approach of the treaty must be abandoned… the treaty should include a provision excluding coverage of fixations, transmissions or retransmissions across a home network or personal network… network intermediaries would face the threat of direct or secondary liability for infringement of the broad rights granted in the current Draft Basic Proposal.” The draft’s broad rights- based approach is seen by some in the group as a way for broadcasters to get new licensing opportunities and fees and may impede competition in emerging markets, they said.

USTelecom and others in the group questioned the draft’s broad nature, wrote Kevin Rupy, USTelecom dir.-policy development: “The goal of these meetings is to encourage WIPO member nations to request a more limited signal theft approach to the Treaty.”

Another concern is that the proposed treaty has no provision to carve out intermediate liability, which could leave telcos liable for retransmission of illegal content. Communications players must pay attention, said Sarah Deutsch, vp-assoc. gen. counsel at Verizon, because the proposed broad-based rights regime will have unintended consequences on the new devices and services people are expecting from telcos and the high-tech sector.

RIAA backs the idea of a signal-theft treaty but finds some elements of the proposal “problematic,” said Exec. Vp Neil Turkewitz. The bumps involve its “ambiguity as treaty text, but this is more a matter of where we are in the process rather than ‘defect’ per se,” he told us. Many issues included or absent from the text need refinement, including those on limitations to and exceptions from liability, and TPMs, he said. Many delegations want TPMs stripped from the treaty, Childs said, on grounds they'll render useless any exceptions and limitations.

“The U.S. and the EU are showing some flexibility,” CPT Exec. Dir. James Love wrote. The African delegation urged a diplomatic conference, and many delegates “seem inclined to move ahead to get this issue behind them.” Love said TPM measures are likely to relate only to protecting the signal, not its content.

For the U.S., Canada and many other nations, the short- term outcome will “effectively be a new treaty for cablecasting,” Love said. No one has really considered what that will mean, since cable companies haven’t been at SCCR meetings and everyone is focused on broadcasting and webcasting, he said. But most Americans get TV primarily through cable, not over the air.

“Who are the beneficiaries of a ‘cablecasting’ right?” Love asked. Many delegates think it’s the cable channels, not the local cable company. News Corp. and Time Warner, both at the meeting, will be defined as cablecasters for their cable channel offerings, he said. How will this play out if a cable company provides Internet access? “I think this is not well thought out either,” Love said.

Webcasting protection isn’t on the table, but 100 plus podcasting groups and individuals said Tues. they're “extremely concerned” about the draft broadcasting treaty and its possible extension to the Internet. New rights created by the proposal will stifle innovations in online communications and podcast-related technologies, individuals and organizations said in a statement to WIPO.

Podcasters oppose the treaty for 3 reasons: (1) It’s unneeded, since podcasting has flourished without it. (2) It would hinder development of tools by forcing technology developers to obey govt. TPM mandates on device design. (3) It will layer “a new and overbroad set of rights on top of copyright,” requiring more rights clearances for materials transmitted via podcast and hiking transaction costs for podcasters.

Delegates were still meeting at our deadline, and the “wheeling and dealing” continues, Ivins said. The SCCR meeting ends today (Wed.).