WIPO Broadcast Treaty Said Gaining Ground, but big Issues Remain
Talks on a treaty updating broadcasting protections crept forward again at the May 9-13 Geneva meeting of the World Intellectual Property Organization Standing Committee on Copyright and Related Rights (SCCR), some following the discussions told us. There appears to be growing consensus that, to be meaningful to broadcasters, any accord will have to encompass the digital environment, said European Broadcasting Union Head of Intellectual Property Law Heijo Ruijsenaars. Support for pure webcasting remains limited, while the possibility of covering simulcasting is still under discussion, said Carole Croella, WIPO senior counselor-culture and creative industries sector.
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Conclusions from SCCR Chair Martin Moscoso Villacorta, not available yet, are expected simply to say delegates debated a revised consolidated text on definitions, object of protection, and rights to be granted (available here). The SCCR asked Moscoso Villacorta to consider the text proposals and clarifications made during the session on definitions and the object of protection, with the idea of incorporating them into the consolidated document, and said it will consider that newly revised version of the document at the next meeting.
The discussions were productive, Croella emailed. They addressed mainly definitions of broadcasting and the object of protection, "and provided a better understanding of issues such as how to address the inclusion in the scope of protection of cablecasting/cablecasters" in the treaty as a couple of delegations favor flexibility or optional protection, she said. Several issues remain unresolved, Croella said. They’re the rights to be granted and how they’re structured (exclusive rights, right to prohibit), including whether any retransmission right should cover only live and near-simultaneous transmissions or also deferred, she said. In addition, one country wants protections for pre-broadcast signals deleted, she said.
There's limited support for protecting pure webcasting or purely Internet-originated programming, Croella said. Most delegations, however, "agree that the new instrument should be forward looking and address all forms of signal piracy faced by ‘traditional’ broadcasters. The possibility of covering ‘simulcasting’ is still under discussion," she said.
“On paper nothing has changed” in that the chair's conclusions simply will refer to the discussions held and to keeping the item on the SCCR agenda, Ruijsenaars said. But "I think there is a growing consensus that in order to make this Treaty meaningful for broadcasters, it will have to encompass the digital age," meaning that among other things, draft proposals or positions advanced by countries some years ago will have to be reviewed and probably updated to be more future-proof, he emailed. The challenge will be to draft such a modern instrument "while explaining what digital broadcasting is all about, but without losing too much time," he said. Ruijsenaars predicted the focus of the next SCCR session likely will be on the protection of online signals from broadcasters.
“Quite a bit of progress" was made on the text, Knowledge Ecology International Director James Love said in an interview. People underestimate how quickly things have moved along because many smaller issues that had to be resolved before the bigger issues could be tackled have now been sorted out, he said. Many countries support the U.S. position that the treaty be limited to protection against signal piracy, with no post-fixation (use of content recorded from a broadcast) or other rights, he said. European broadcasters, however, want those rights, and it's possible the accord will move forward only when EU and U.S. negotiators agree on a "landing zone," he said.
The underlying problem is that "Europe wants to create a replica of its broadcasters' rights regime which includes a large array of rights that don't exist in the United States, and the U.S. won't accept that," said Electronic Frontier Foundation Senior Global Policy Analyst Jeremy Malcolm. In addition to the question of post-fixation rights, outstanding issues include, he said: (1) whether cablecasting should be included alongside wireless broadcasting or perhaps be optional; (2) whether there should be protection for deferred transmissions, which are usually Internet-based retransmissions of broadcast content at a time and place chosen by the user and, if not, whether simultaneous/near-simultaneous retransmission over computer networks should be protected or optional.
EFF opposes the treaty altogether because of concerns that once protections are extended to Internet-based transmission, independent of the underlying copyright in the broadcast, "then there's no stopping it," Malcolm emailed.