Council of Europe Mulls Updating Broadcast Signal Protections
Council of Europe (CoE) decision-makers will vote Feb. 20 on whether to draft a treaty updating broadcast signal protections, Kasper Holst, administrator of the Media and Information Society Division, said Friday. The Committee of Ministers, made up of foreign affairs ministers from all CoE countries or their representatives, is expected to decide whether to create an ad hoc working group to look again at the matter and perhaps draft the convention, Holst said. Its starting point could be a document produced but never finalized by the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights, he said.
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The CoE’s 47-member size might make negotiations less fraught than among WIPO’s 184 members, Holst said. The CoE signalled that it might tackle the controversial agreement in November, when its Steering Committee on Media and New Communications Services agreed to ask the Committee of Ministers to give it ad hoc terms of reference to set up a working group, he said. SCCR attempts to negotiate a treaty foundered last summer when delegates failed to recommend the scheduling of a diplomatic conference (CD June 25 p6).
Broadcasters “would most decidedly not like to see this effort start where the SCCR draft left off” since that no longer was a rights-based treaty, said NAB Senior Associate General Counsel Benjamin Ivins. Broadcasters believe any such treaty should start with provisions parallelling the WIPO Performances and Phonograms Treaty, Ivins said.
The WIPO process suffers from personnel problems and fitful progress no matter what the topic, said Heijo Ruijsenaars, legal adviser to the European Broadcasting Union (EBU), one group endorsing the CoE initiative. The EBU has the “strong impression” that treaty talks stalled when a few non-European countries resisted going to diplomatic conference, he said.
Broadcasters can’t wait until all corners of the globe are ready to agree on updated signal piracy protections, Ruijsenaars said. Europe, including EU and non-EU nations, is ready to move ahead and there’s consensus on the kind of convention needed, he said. The CoE is the most suitable forum in which to develop it, he said.
In 2002, the CoE recommended that governments adapt broadcasters’ neighboring rights to the digital age by granting them exclusive rights to authorize or prohibit fixed or wireless retransmission, fixation or reproduction of their broadcasts or pre-broadcast program carrying signals. CoE members were asked to ensure adequate legal protection of and enforcement against circumvention of effective technological measures and deliberate removal or alteration of electronic rights management information, and to consider granting broadcasting organizations a 50-year term of protection starting from the end of the year in which a particular transmission occurred.
Among the main hurdles to drafting the recommendation was disagreement over whether to define “broadcasting,” an explanatory memorandum said. Because a definition might lead to unforeseeable complications and delays in seeking a definition accounting for technical advances since the Rome Convention, the committee decided not to define the term. However, the recommendation aims primarily to respond to the urgent need of traditional broadcasting entities for better antipiracy protection, it said.
Broadcasters don’t want to start from scratch, said Ruijsenaars. The WIPO approach should not be abandoned, but it’s more logical to begin with a European effort because the region has agreed on terms, he said. A CoE convention would not preclude a WIPO treaty as well, he said. The issue is on the March 10-12 SCCR agenda.
The CoE recommendation is less palatable than the WIPO language, said Knowledge Ecology International Director James Love. It doesn’t embrace the language on limitations and exceptions considered at WIPO and appears “clearly designed to extend the protection to the Internet in ways that are not covered by the Rome Convention,” he said.
The CoE is being asked to embrace stronger and more restrictive forms of intellectual property rights for broadcasters at a time when “the world is looking for more freedom rather than less freedom to use works,” Love said. There will be efforts to push new entitlements to webcasters and maybe to the next forms of online communications, he said, when the value today for the Internet is in user- generated content, search engines, “remixes and mashups,” and so on.
Public interest groups likely will oppose the CoE proposal, Love said. But it might be possible to suggest that the CoE take the lead in a new direction, such as a convention on access to knowledge or smaller initiatives to protect open standards, he said.