WIPO Stumbles on Broadcast Treaty

Geneva: The specialized UN Agency known as the World Intellectual Property Organization (WIPO) is meeting this week to finalize an eight-year negotiation on a new treaty for the protection of broadcast organizations. The treaty comes at a time when our whole concept of what constitutes a broadcast or a broadcaster is undergoing profound changes.

Many now follow news events from youtube videos clips (including apparently President Bush, who told 60 minutes he watched the cell phone video of the Saddam Hussein hanging on the Internet). The proliferation of low cost video cameras and editing software, higher bandwidth cable, satellite and Internet connections, are creating a highly diverse and dynamic environment for creating, distributing, redistributing and remixing information. To this exciting world the UN's specialized agency for intellectual property wants to impose a new legal regime. The problem is, no one here has a clue what the legal regime should look like.

One faction in the negotiations wants to revamp provisions in a 1961 treaty (one that the United States and 80 other countries never signed), with new or expanded intellectual property rights for anyone who "broadcasts" third party content. Relying upon the current 108 page draft of the treaty, they propose that anyone who qualifies as a "broadcaster" or "cablecaster" would get a set of exclusive rights to prevent others from re-publishing or using the information, including on the Internet, without permission from the broadcaster or cablecaster. This right would be in addition to the rights and permissions (if any) associated with the copyright in the work, and would apply even to works that are in the public domain, or where the copyright owner was willing to freely distribute the work. It would create an entirely new set of liability problems for companies that aggregate third party content, a fact that lawyers for Yahoo and News Corp (treaty supporters) have apparently not explained to their CEOs.

One of the big beneficiaries of this new treaty would be the giant companies that own the major cable channels, like TBS, FX, Bravo, TCM, Discovery, Sci-fi, Spike, etc. If the treaty is extended to the Internet, as some have proposed, it would extend this "distributor" right to every web page that "scheduled" access to video clips of any kinds. Attending this meeting are lobbyists for cable channel owners like Viacom, Time-Warner and News Corp, as well as many technology companies and non-profit groups like CPTech, EFF, or the Third World Network (TWN).

Opposing this scenario are a growing group of countries that want the treaty to take a much narrower approach, only prohibiting the "theft" of programing signals, but not extending an intellectual property right in other people's copyrighted works. The problem is, no one can explain why such protection is needed, since it is already illegal to steal cable or satellite service under many existing laws, including existing copyright laws.

Wednesday was supposed to be the day when the WIPO negotiators would adopt a new, narrower, approach for the treaty. However, none of the countries in the negotiation could explain how a narrower treaty might work, or why it is really needed, and the Finnish Chair of the negotiating committee proposed new language that was seemed to worse than the 108 page draft.

SCCR Chair, Jukka Liedes

Today we might hear from NGOs, like mine.

The negotiations are taking place in the WIPO Standing Committee on Copyright and Related Rights, known here as the SCCR. If WIPO can find an exit strategy from this marathon negotiation, it will have to do something else. Chile has asked the SCCR to consider a treaty that provides for minimum safeguards (limitations and exceptions to rights) for uses of copyrighted works, particularly for libraries, schools and the handicapped, and 16 countries have called for a broader treaty on access to knowledge -- quite different directions than the current treaty proposal.