WIPO Urged to Give Up On Broadcast Treaty, Database Protection

The SCCR has debated the broadcast treaty more than 3 years, said Rogier Wezenbeek, administrator-copyright & related rights in the EC’s Internal Market directorate- gen. The various proposals submitted have now been combined in a consolidated text which, he said, already reflects a “high level of convergence” and would be an “excellent” way forward. However, he said, developing countries, consumer groups and others are worried about the term of protections, the scope of the instrument and its provision on technological protection measures, among other things. In Nov., SCCR will have to decide whether the draft should go to diplomatic conference, Wezenbeek said. When WIPO’s general assemblies meet later this month, it’s important they take the first step toward sending the treaty to conference, he said.

WIPO wants to see the proposal move forward, said Richard Owens, dir.-copyright, e-commerce, technology & management division. The U.S. and the EU have offered language that would protect broadcast signals but not create additional rights for broadcasters, said Michael Keplinger of the U.S. Patent & Trademark Office, the U.S.’s principal negotiator at WIPO. The U.S. also wants the treaty to apply to webcasters, he said, a “controversial proposal” the U.S. considers “absolutely fair” to avoid discriminating among technologies. The U.S. approach is a “minimal” one, he said.

But several speakers panned the treaty. There’s no reputable argument that broadcasters need more protection, said James Boyle, a law prof. and co-dir. of Duke U.’s Center for the Study of the Public Domain. WIPO shouldn’t waste resources giving more rights to broadcasters who only transmit others’ materials over the Internet, said Bernt Hugenholtz, IP law prof. at the U. of Amsterdam. His list of proposed future agenda items for WIPO included “stop work on the broadcast treaty immediately.”

An equally prickly SCCR issue is whether nonoriginal databases should continue to receive copyright protection under a 1996 directive. The EC believes the item should remain on the committee’s agenda because such protection would spur availability of nonoriginal databases, Wezenbeek said. At the SCCR’s last meeting, in June, several countries urged the item be deleted, but Wezenbeek said more time is needed for discussion.

Wezenbeek was asked about studies indicating protection for nonoriginal databases would have no advantage over no protection. In the U.S., govt.- generated data are free, and there’s some evidence that system works better than the EU’s, an audience member said. WIPO has done 6 studies, not all supportive of the need for database protection, Wezenbeek said. The EC is now awaiting a decision in the European Court of Justice on a case concerning the U.K.’s interpretation of the EC’s database directive, he said. One element required under the directive for copyright protection for a nonoriginal database is that it involve “substantial investment,” he told us. But “substantial” has yet to be defined. The court is also expected to rule on whether such issues should be decided on the European level or left to member states’ courts, he said. The U.K.’s interpretation will be “authoritative,” he said. It’s the first consideration, at the EU level, of the sui generis database right.

The directive requires the EC to report on its effectiveness, a study that’s “a few years late,” Wezenbeek said. It will take into account all criticisms of the law as well as the court’s decision, he said. Developing countries don’t yet understand how databases can work as development tools for them, he said, but among those who represent the copyright side, there’s strong support for the directive in member states.