Broadcast Treaty on WIPO Agenda; U.S. Interested in Webcast Protection

Treaty talks collapsed last year amid discord over crucial provisions, such as whether the proposal merely would protect broadcast signals or widen copyright protections (CD June 25/07 p6). Delegates agreed to leave the matter on the committee’s agenda but not to set it for diplomatic conference.

In an informal paper for last week’s meeting, committee Chairman Jukka Liedes said that despite widespread disagreement on several points, “all delegations, without exception, have recognized the need for a modernized protection of broadcasting organizations, and confirmed their commitment to negotiate and conclude a new treaty.”

Liedes said options include taking another stab at the treaty based on previous work or trying for a different model, like the Brussels Satellite Convention’s. Adopting that model, he said, could achieve the main goal of protecting against signal theft by requiring countries to outlaw unauthorized retransmission and fixation under their laws on domestic copyright or unfair competition or by administrative or criminal penalties. If neither alternative works, the commission should expressly end its discussion so it doesn’t waste more time and resources, Liedes said.

The panel made no decision on the options, Liedes said in draft conclusions Friday. Several delegations “showed their interest towards the conclusion of a treaty,” but the committee repeated the need to set up protection on a signals-based approach -- a diplomatic conference to be considered only after delegates agree on the aims and scope of intended protection, he said.

The committee “will continue its analysis of the matter,” the draft said. It asked WIPO to set up an information meeting at its next session on current conditions, particularly in developing and least-developed nations.

The U.S. wants to shield broadcast signals from piracy, protection it wants to extend to online activities similar to broadcasts, Michael Shapiro, the U.S. Patent and Trademark Office’s acting senior counsel for copyright, told us Monday. WIPO members differ widely on the issues, and in the U.S. view, “the prospects of bridging those differences remain remote,” he said. The U.S. is willing to keep talking -- but with the committee’s failure to agree last year on a treaty limited to conventional broadcasters, the U.S. reaffirms its right to revive the webcasting proposal, he said.

The U.S. statement was “a bit of a bombshell,” Public Knowledge staff attorney Sherwin Siy blogged after the meeting. But, he said, the positions “staked out on either side of this divide were mentioned almost in passing” as each delegation repeated the “same mantra of support” for keeping the broadcast treaty alive.

“It defies logic” that after a decade of talks and clear lack of consensus, WIPO would “decide once again to devote resources… to what can only be described as a Sisyphean exercise,” said Sarah Deutsch, a Verizon vice president and associate general counsel. The only silver lining appears to be agreement on a signal-based rather than rights-based agreement, she said. The U.S. has a signal-based system under state “theft of service” laws, she said. The EU, which has a rights-based model, failed last time to agree on anything else, she said. Also unclear is how the exercise would benefit many other WIPO nations with neither model, Deutsch said.

Nongovernmental organizations criticized continuing treaty talks, saying during the meeting that the panel should take up important matters such as copyright limitations and exceptions, particularly for the benefit of users who are blind or visually impaired or have other disabilities, and orphan works.

Limitations and exceptions are the crucial copyright issue, Consumers International, the Trans Atlantic Consumer Dialogue, International Federation of Library Associations and U.S. Library Copyright Alliance said. Considering the divisions in the committee over broadcasting, consumer groups said, the both could usefully study the nature of the broadcasting industry. It might want to know more about the current status of sports broadcasting protections, or how much a new treaty would extend intellectual property rights to cable or satellite channels owners and how those rights would affect creators, they said. The Electronic Frontier Foundation rejected the current draft, saying its proposals would endanger public access to knowledge and the future of citizen broadcasting and Internet user-generated content.

The International Music Managers Forum expressed surprise that the treaty remains unresolved after 10 years. The committee should be taking up the urgent need for an audiovisual treaty to protect and compensate AV performances, collective-management reform, orphan works and “progress on new compensation structures for all copyright stakeholders in the anarchy that is currently going on on the Internet,” said David Stopps, director of copyright and related rights for the Music Managers Forum UK.

Future committee work should include discussion of the artist’s resale right, the EU said. The resale right gives artists or their heirs royalties based on prices obtained for any resale of original works after their first transfer by the artist, when art-market professionals take part in a sale. The EU urged discussion of orphan works, collective management and “applicable law” -- the national law applying to copyright-relevant acts. Information technology and networks mean works are often used cross-border, creating questions of court jurisdiction, the EU said.

The committee meets again May 25-29.