AW: [WSIS CS-Plenary] UN Steamrolls Member States and Insists on Controversial Broadcast Treaty

Thu Sep 14 07:45:40 BST 2006

Thanks Robin,

well done. Good background information. Helps to understand the issue much better. Move foreward. 

wolfgang

________________________________

Von: Robin Gross [mailto:robin at ipjustice.org]
Gesendet: Do 14.09.2006 06:22
An: plenary at wsis-cs.org; wsis-pct at fsfeurope.org
Betreff: [WSIS CS-Plenary] UN Steamrolls Member States and Insists on Controversial Broadcast Treaty

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IP Justice Media Contact:
IP Justice Executive Director Robin Gross
+1 415-553-6261 robin at ipjustice.org

*UN Steamrolls Member States and Insists on Controversial Broadcast Treaty*
*WIPO to Outlaw Internet Transmissions of Cable and TV Programs*

Over the objection of Member States, the WIPO copyright committee
Chairman Jukka Liedes called for convening a diplomatic conference to
draft a treaty to create unprecedented new rights for broadcasting
companies. At the end of the 15th session of the WIPO Standing Committee
on Copyrights and Related Rights (SCCR), which was held in Geneva on
11-13 September 2006, Chairman Liedes dropped the gavel to conclude the
meeting after announcing there would be no time for further discussion
on the controversial treaty.

"Rather than address legitimate concerns about theft of broadcast
signals, the treaty would create 8 new intellectual property rights over
broadcasts that are so broad they will stifle technological innovation,
freedom of expression and access to knowledge," said IP Justice
Executive Director Robin Gross.

India was the loudest objector to the proposal and made several attempts
to remind the Chair that there was no consensus among Member States to
hold a diplomatic conference based on the Chair's draft proposal. Other
Member States who expressed a lack of consent regarding a diplomatic
conference included Brazil, Argentina, Chile, Bolivia, Iran, and South
Africa. In a surprise move, the United States changed its previous
position and also stated its opposition to calling for a diplomatic
conference based on the existing draft - although for entirely different
reasons than developing countries.

"Despite WIPO's claim that it is 'member-driven' and 'consensus based'
in its decision making, SCCR Chairman Liedes unilaterally decided it
would be the recommendation of the Committee to the WIPO General
Assembly to convene a diplomatic conference in July 2007 to finalize the
treaty," said Robin Gross, who was present at the meeting in Geneva.

The 2004 proposal for a "Development Agenda at WIPO" designed to reform
WIPO's practice of favoring special interests and creating new IP rights
that harm the public interest was prevented from moving forward in 2005
based on the objection of only two Member States, the US and Japan. In
an inexplicable stark contrast, numerous Member States' objections to
Liedes' proposal for a Broadcasting Treaty have been ignored and Liedes
continues to steamroll Member States into accepting his treaty.

Besides the dissent from Member States, public interest groups and major
technology companies were also in Geneva to voice their concern with the
dangerous provisions in the Chairman's draft proposal. At a lunch-time
briefing session during the SCCR meeting, Intel's Global Policy Director
Jeffrey Lawrence explained how the treaty will prevent the roll out of
home networking technologies because permission will be required from
broadcasting companies for consumers to access and use the cable and
television programs that they have already paid for in their own homes.
Verizon Vice-President Sarah Deutsch said that Internet service
providers and other intermediaries also face significant legal liability
under the treaty for transmitting programming. "A broadcaster's right of
control should stop at the front door of the home," Deutsch said.

Proponents of the treaty are mainly large cable and broadcasting
companies like Ralph Murdoch's News Corp. subsidiary, Fox News, which
was also in Geneva to lobby for the new rights that would allow it to
control the way in which the public consumes news and other entertainment.

"Member-States must stop passing treaties that only benefit narrow
special interests like major broadcasters," Gross added. Small and
community-based broadcasters have ardently opposed the treaty, as have
artists and other performers, who will need to obtain permission from
broadcasting companies to use the footage of their own performances.

An unpopular proposal from the US to include web-casting within the
scope of the treaty was almost unanimously rejected by Member States at
the May 2006 SCCR meeting. Nonetheless, the draft treaty still regulates
Internet transmissions of media because Article 9's retransmission right
and Article 14's right of transmission after fixation makes explicit
that broadcasters can prevent transmission "by any means including
computer networks."

During the meeting, Liedes re-iterated the US' threat from the previous
SCCR meeting that if the Committee did not call for convening a
diplomatic conference at this meeting, then the US would insist that the
earlier webcasting prohibitions be included back in the treaty again.

Rather than create 8 new intellectual property rights for broadcasting
companies, the majority of Member States argued for taking an approach
that outlaws the theft of signals. It is already illegal to steal cable
television under existing law in all countries. This proposal, however,
will give broadcasting companies the power to control what consumers can
do with those programs.

This creates a problem for a growing number of consumers who use
technology to copy, edit, comment on, and re-use media in otherwise
lawful ways. Internet bloggers and websites such as YouTube where people
post snippets of media programming based on copyright law's fair use
privilege are also at risk. Since this is not copyright, but rather a
brand new type of IP right, traditional fair use privileges would not
apply to protect consumers. Television programs like Jon Stewart's
"Daily Show," which uses short video clips of politician's speeches and
other news to provide political commentary on them, can also be
prevented from re-using the footage if this treaty is passed.

One of the most dangerous provisions in the treaty is the proposal to
grant broadcasters the right to lock up public domain programming using
technological restrictions that it will then be illegal to bypass in
order to access the public domain information. South Africa called for
WIPO to conduct an impact assessment study to weigh the potential social
and economic costs of these technological restriction measures.

There is also a growing trend at WIPO to restrict public-interest
groups' access to Member State delegates. For example civil society was
not allowed to give any intervention statements during the meeting and
some civil society members were told they could not take pictures of the
proceedings. Strict new rules are also being enacted at WIPO to control
the press' access to the proceedings and journalists' ability to share
information with Member State delegates.

Sometimes referred to as "chairman for life," Liedes of Finland has
presided over WIPO's copyright committee for over 10 years. "Member
States must take some of the responsibility for their unhappiness with
the way things are done at WIPO," said Gross. "Despite the SCCR Chair's
unwillingness to respect the expressed wishes of numerous countries,
Member States continue to re-elect him to preside over their meetings
and impose his views on the entire committee."

The WIPO General Assembly will decide whether to accept Liedes'
recommendation at its annual meeting which takes place 25 September - 3
October 2006.

More Information on WIPO Broadcasting Treaty:
http://www.ipjustice.org/WIPO/broadcasters.shtml

Chairman's current draft proposal [SCCR/15/2]
<http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=64712>

*SCCR Chairman's Conclusions
SCCR 15th Session
11-13 September 2006*

*Recommendation on the diplomatic conference.*

A diplomatic conference on the protection of broadcasting organizations
be convened [11 July - 1 Aug 2007] in Geneva. The objective of this
diplomatic conference is to negotiate and conclude a WIPO treaty on the
protection of broadcasting organizations, including cablecasting
organizations. The scope of the treaty will be confined on the
protection of broadcasting and cablecasting organizations in the
traditional sense.

*Conclusions on the preparatory steps*

*Basic Proposal*

A basic proposal for the diplomatic conference will be prepared on the
basis of the revised draft basic proposal [SCCR/15/2]
<http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=64712> and the
discussions in the September meeting of the SCCR, as well as the
drafting instructions below, adopted by the SCCR. The basic proposal
shall be distributed to the Member States of WIPO, the European
Community, as well as to the observer organizations by 15 December 2006.
All Member States may make new proposals at the diplomatic conference.

*Preparatory Committee*

There will be a 2-day meeting to clarify outstanding issues in
conjunction with a Preparatory Conference. The meeting of a preparatory
committee will be convened for January 2007, to prepare the necessary
modalities of the diplomatic conference. The preparatory committee
considers the draft rules of procedure to be presented for adoption to
the diplomatic conference, the lists of states, as well as IGOs and NGOs
to be invited to participate in the conference, as well as other
necessary organizational matters.
*
Consultation and information meetings*

The Secretariat of the WIPO will organize, in co-operation with the
Member States concerned, and at the request by the Member States,
consultations and information meeting on the matters of the diplomatic
conference. The meetings will be hosted by the inviting Member State.

*Instructions for the Preparation of the Basic Proposal*

The following is provided in order to allow consideration of whether the
items should be retained, reformulated or deleted.

*General*
The basic proposal will be designed to clearly indicate the nature, the
focus and the scope of the instrument, i.e. the treaty will provide
protection for the signals of the broadcasting and cablecasting
organizations without affecting or addressing the rights on content
carried by the signal.

*Preamble*
- A revised preamble will be prepared in order to clarify the objectives
of the treaty. Explanatory notes shall further amplify these issues.
- Regrouping of provisions on certain general principles in the Preamble.

*Definitions*
- definition of "signal" will be added
- concept of "broadcast" will be explained or defined

*Scope*
- provisions on the scope will be refined (signal, broadcast)

*Rights and protection*
- a broad-based exclusive right of retransmission
- exclusive right of (the initial) fixation
- post-fixation rights

*National Treatment*
- the main principle
- in areas where different levels of protection are allowed, possibility
for reciprocity.

*
Limitations and exceptions*
- the WPPT type of provisions on limitations and exceptions
- list approach

*
Technological measures*
- as in the revised draft basic proposal
- certain conditions

*Term of protection*
- at least 20 years

*Eligibility*
- unconditional, open for all Member States of the WIPO, as well as for
inter-governmental organizations

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