Last friday the UN’s World Intellectual Property Organization (WIPO) concluded five days of tense discussions on proposals for a treaty giving new intellectual property rights for broadcasting/cablecasting and webcasting organizations. I have reported on these negotiations extensively elsewhere, and persons who want to follow the treaty debates can look at CPTech’s web page on the treaty, which has links to many documents and stakeholder views, or the archives of the A2K listserve, where the negotiations are often discussed.
Here are some follow-up to my earlier comments on Huffpo and this blog? on the treaty negotiations.
On Friday, the last day of the negotiations, the WIPO Standing Committee on Copyright and Related Rights (SCCR), made a decision to break the treaty negotiations into two separate tracts – one for “traditional” broadcasting, which was defined to include newer forms of broadcasting such as cable or Satellite TV, and another tract for the technologies that would deliver content over the Internet (originally referred to as the “webcasting” issue).
This was my analysis at the end of the WIPO session on Friday, May 5th.
It’s over. Here are the basics. They have split the “traditional broadcasting” and the Internet technologies into two separate treaty projects. They will have separate meetings and separate documents, separate paradigms, and different schedules. The traditional package goes first, and they will try to get the Sept GA to order a dip conf. for 2007. If that blows up, all bets are off. But if the GA approves the traditional broadcasting treaty (still not a done deal… with more negotiations and drafting)… the “new” internet technologies have a separate work program, which may well die, once the Internet/tech community sees a standalone Internet transmission treaty and begins to focus, but who knows for sure. CPTech instant statement…
“Today WIPO finally took a step back from forcing a restrictive Rome Convention intellectual property right on Internet publishing… This is a victory for everyone who has opposed linking webcasting to the broadcasting treaty. There is still a lot of work to be done. There is a strong likihood the traditional broadcasting treaty will move forward, and the EU will clearly push to expand this to cases where broadcasters use the Internet…. and there are considerable problems with many of the proposals for the broadcasting treaty, including some very strong rights, TPMs, and other problems. However, there is now also a growing movement away from granting IP rights in the content of transmissions, in favor of theft of services protections, which is a very positive development, and a new project to examine the impact of TPMs on limitations and exceptions, which is quite important. The Internet is far safer now than before, because the threat of a new treaty for Internet middleman is now much less likely.”
A number of other groups, such as EFF, IP-Justice, and OKF, have also issued statements, many of which are available on the A2K listserve archives.
So, where do things stand today? There will apparently be a WIPO SCCR meeting in September 2006, before the WIPO General Assembly, which also meets in September 2006. At these meetings, WIPO member states will try to pull together a text of a treaty for “traditional” broadcasting organizations, and get approval and terms of reference for a diplomatic conference, some time in 2007. There are many different issues at stake – the types of rights given to broadcasting organizations, the allowed (required or technically feasible) limitations and exceptions to those rights, obligations for technological protection measures (TPMs) and digital rights management systems (DRMs), and the extent to which the European Union will succeed in extending the broadcasting rights to simulcasting on the Internet.
A number of NGOs, copyright owners, tech companies and some governments will push for a “thin” treaty that only addresses “theft of service” issues, and which does not create a layer of intellectual property rights in the content of materials that are broadcast. This would be a big change from the 1961 Rome Convention that this treaty is supposed to “update.”
It will be interesting to see if WIPO delegates can be persuaded that it is mistake to create or expand intellectual property rights associated with distributing works. Will there be support for new paradigms for addressing “theft of services,” that do not create new layers of “owners” of works, and which do not create obligations to obtain multiple permissions to use works?
On the topic of TPMs/DRMs, we will also be interested in seeing if it is possible to avoid a new global legal regime that goes beyond that already included in the WCT or WPPT treaties, for copyrighted materials. But if they do proceed with a new TPM/DRM framework, would they consider a new approach that requires TPM/DRM regimes be “least restrictive” of Access to Knowledge (A2K), create the fewest problems for consumer privacy, and do not unduly conflict with the public’s legitimate rights to use works – something we are exploring elsewhere.
Right now there appears to be a strong coalition of civil society NGOs, library organizations, tech companies and developing country negotiators that are trying to move things in the right direction. There are also, on some issues, common interests between this coalition and copyright owners, who are opposed to giving broadcasters rights in their works.
If the broadcasting treaty advances in September, then the “new technologies” treaty proposals (the rights for Internet middlemen) will still be alive, but in its own tract. This presents problems, because it could still move ahead with the wrong paradigm (IP rights in content), and even if it does not move, it will have the unfortunate effect of eliminating or reducing time to discuss other more important proposals, such as minimum copyright limitations and exceptions for the visually impaired, libraries, education, or other groups, or a broader discussion of possible elements of a treaty on Access to Knowledge.
On the other hand, if the traditional broadcasting treaty blows up in September, all bets are off, and the US could come back and push to include webcasting in a broader and more dangerous treaty, or the whole thing could collapse, and we could have no treaty at all.
At this point, anything is possible.
At a higher level, this is a test of WIPO. Will WIPO address issues from the perspectives of (a) supporting development and creativity, or (b) responding to self-serving lobbying efforts by (undeserving) right-owners? Will WIPO even consider evaluating the impact of the treaty proposals on the public or copyright owners? Will there be any critical economic analysis of the need for the treaty in the first place? Will WIPO create a precedent that “investment” alone is entitled to “protection” from competition, for a term of 50 years? Can WIPO ever admit that any expansion of intellectual property rights was a mistake?
Will the European Union continue to push a highly anticompetitive model for this treaty, giving incumbent broadcasters these special rights in content they transmit? Will the US government accept the Rome IP-in-content approach, which has been rejected in the US for 45 years? Will the US or the EU ever publish any analysis of their positions, or justifications for their proposals? Will the US ever publish an analysis of how the treaty would change US law? Will the US or the EU ever hold a public consultation on the treaty, before it is sent to a diplomatic conference? Will Canada, New Zealand or Australia engage in public consultations? Will UNESCO play any role, given the subject matter?
All of these questions are important, not only for this treaty, but as a measure of our capacity to protect the public interest in global norm setting for polices on intellectual property and Access to Knowledge.