Proposal to Protect Webcasting Signals Gains Support

Key decisions included: (1) WIPO will organize consultation meetings in Geneva, and regionally as requested by member states. (2) SCCR Chmn. Jukka Liedes will prepare a 2nd revised version of the consolidated treaty text and a working paper to address whether and how protection should extend to webcasters. (3) Consensus will be sought on the scope and duration of rights under the treaty. Some delegations want signals protected 20 years, while most delegations called for 50, WIPO said. (4) At its next meeting, the SCCR will discuss a proposal by Chile concerning exceptions and limitations to copyright rights for education, libraries and disabled persons.

U.S. webcasters were “exceedingly pleased” with the European Commission’s (EC’s) enthusiastic support for addressing Webcasting in the primary treaty, said Digital Media Assn. Exec. Dir. Jonathan Potter. Both delegations argued that webcasting is enough like broadcasting, at least regarding piracy, to be included in the treaty, he said. Potter expects Liedes to propose that webcasting be addressed in a protocol attached to the treaty. Webcasters were also happy that, for the first time, several dozen countries acknowledged that webcasting is important and must be addressed. Those that didn’t, Potter said, tended to have more of a regulatory than an antipiracy enforcement perspective. Developing countries sometimes aren’t informed enough about the Web, he said.

NGOs, Developing Countries Unhappy

The decision to hold consultation meetings infuriated civil liberties and consumer groups, which have steadfastly opposed both the proposal to broaden the treaty to protect broadcasting signals and a U.S. move to include webcasters under that protection. IP Justice called the decision to convene regional meetings “possibly illegal.”

Developing countries, including Brazil, Indian, Argentina, Egypt and Iran, wanted the SCCR to hold between-session meetings in Geneva where all member states could be present, IP Justice said. Such meetings would allow developed and developing countries to air differences and would make it possible for public interest groups to participate, IP Justice said. Regional consultation meetings, on the other hand, will allow WIPO to “more easily pressure individual countries into accepting the treaty through a ‘divide and conquer’ strategy,” the group said. While nongovernmental organizations (NGOs) like IP Justice aren’t allowed to attend, it said, the U.S. and the European Union have been allowed to participate at other regions’ meetings to convince those countries to adopt WIPO treaties.

India and the others were also frustrated by Liedes’ refusal to include in his draft an option to delete the treaty’s proposed anticircumvention provisions and other developing countries’ proposals, said IP Justice. WIPO procedural rules were violated when Liedes served as chairman 7 sessions in a row, IP Justice said, rendering the decision on regional meetings invalid.

But broadcasters accused the delegates of India and the other countries of being “unhappy with the outcome” of the meeting despite participating fully. The delegates’ procedural questions were “unsubstantiated attempts to challenge the procedural basis for ending the meeting on the basis of conclusions drawn up the Chairman, which they did not like, but which, as demonstrated by the show of hands at the end, did indeed reflect the position of the large minority,” said Moira Burnett, legal adviser to the European Broadcasting Union. However, she said, conclusions prepared by the chairman are “standard practice in most committee meetings these days.”

IP Justice accused developed countries of using “bully tactics” on delegates from developing nations. In an update e-mailed during the meeting, NGOs complained that piles of their briefing documents were thrown in the trash overnight, and that their participation in the meeting was being severely curtailed. When the NGOs informed WIPO Deputy Dir. Gen. Rita Hayes of the alleged theft and requested assistance, IP Justice said, they were told she couldn’t provide help because she was unhappy about “the Internet publication of daily reports from civil society representatives on the substance of the debate during the meetings.” A WIPO official told us Hayes “deplored the incident and emphasized the importance of NGO contributions to the discussion.”

The meeting was “dramatic and chaotic,” said Manon Ress, of the Consumer Project on Technology. The good news, she said, was: (1) The agreement to discuss limitations and exceptions for the visually impaired and others. (2) A “loud and clear” statement by 14 performers’ and other content holders’ groups that “they are not against the proposed treaty but against almost everything in it” except technological protection measures (TPMs). Content owners “do see the problems with giving the ‘casters competing rights,” Ress said, but there are some “tricky conflicts” among them since some are both content owners and broadcasters. (3) More public interest groups participated, and despite the lack of time for them to speak, and the loss of their briefing papers, “we managed to make our points somehow and got many good vibes from delegates who welcomed our input.”

On the down side, Ress said: (1) There was no substantial discussion of TPMs. (2) There was the “dangerous” proposal for “flexibility” regarding inclusion of webcasters in the treaty. The U.S. wants them given the same rights as broadcasters. The EC prefers giving rights to simulcasters; under the 3rd proposal, webcasters would be completely excluded from the treaty. Countries would have the option to choose what level of protection to give webcasters, Ress said. “This is the worst possible situation, since it will lead to bilateral pressure.” The dispute between the chairman and the developing countries meant the day ended “with harsh words,” Ress said, and “a vote that did not seem quite right.”