ENDitorial: Undead WIPO treaty resurrected in Council of Europe

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Deutsch: [ENDitorial: Europarat belebt untotes WIPO Abkommen wieder | http://www.unwatched.org/node/1706]

On January 28 and 29, the Council of Europe held a consultation
meeting on the launch of work on a new international instrument that would
create neighbouring rights for broadcasting organisations. The purpose of
this initiative is to take up the work of the World Intellectual Property
Organisation (WIPO) which, following twelve years of negotiation has been
unable to reach any agreement on the objectives and scope of a proposed
treaty for the protection of broadcasters and cablecasters. The draft WIPO
treaty has been proposed as the basis for negotiations at the Council of
Europe.

Negotiations at WIPO have stalled over two issues concerning the scope of
the proposed treaty. First, the majority of WIPO’s Member States want any
treaty to be limited to protecting broadcasters’ signals, rather than
creating 50 year intellectual property rights to the content carried by
those signals, which in most cases, is already protected by copyright.
Second, many countries oppose the extension of the treaty to the Internet
because that would restrict freedom of expression and the free flow of
information on the Internet. Despite this, broadcasters have continued to
press for treaty based on IP rights, and want exclusive rights over Internet
retransmissions of recorded broadcast and cablecast programming. The current
draft WIPO treaty also includes a number of other elements that raise
concerns for consumers’ existing rights under national copyright laws,
competition policy, and innovation, including obligations for legal
entrenchment of broadcasters’ and cablecasters’ technological protection
measures and an overbroad ban on decryption devices that would extend to
personal computers.

The recent discussions at the Council of Europe were similarly broad. In
addition to what is being sought at WIPO, broadcasters also appear to be
seeking protection for “catch-up” services and video on demand services.

The basic logic presented by broadcasters is:

– they need protection for their broadcast signals
– therefore they also need protection for intra- and inter-broadcaster
signals before they are broadcast
– to be thorough, they need protection for all pre-broadcast signals, even
if they are not broadcast
– to be future-proof, they need protection that is technologically neutral
– if there is protection for non-broadcast pre-broadcast signals, this
protection should extend to programming when it is made available as an
“add-on” service for online news services;
– as there would be protection for those short-term on-demand signals,
online “catch-up” services should also be protected;
– since catch-up services are to be protected, all on-demand services
should be protected; and
– broadcasters’ on-demand services are different from other on demand
services (for reasons not yet articulated), so this protection should be
granted exclusively to broadcasters and cablecasters.

Although negotiations have been under way at WIPO for eleven years, WIPO has
undertaken very little empirical analysis of the problems being experienced
by broadcasters and cablecasters that might justify the need for a new IP
rights based treaty. WIPO commissioned a study last year on the economic and
social aspects of neighbouring rights protection for broadcasters, which is
expected before the next WIPO Copyright Committee meeting in June.

The Council of Europe has also not yet undertaken any independent
research on the nature of the problem which the new instrument purports to
solve, nor any analysis of existing legal protections for transmission of
digital data over computer networks that may provide some or all of the
protection that broadcasters claim to need. The lack of empirical evidence
justifying the creation of the new instrument, together with the absence of
many stakeholders who would be affected by the proposed instrument (artists,
sports organisations, equipment manufacturers, telecommunications operators,
Internet access providers, etc) are likely to be barriers to the agreement,
as they have been at WIPO.

If WIPO is unable to successfully conclude its treaty negotiations and the
EU Council of Ministers provides the Commission with a negotiating mandate,
the Council of Europe is likely to establish an ad hoc drafting group in
June. Once an initial draft is prepared, it is likely that a consultation
will then take place.

However, a core problem remains. The existing IPR regime has so many
problems in Europe that countries like France, the United Kingdom and Poland
are proposing legislation which puts fundamental freedoms protected by the
European Convention on Human Rights under severe threat. Given this, it
would seem imprudent for the Council of Europe to begin work on the
preparation of another IPR instrument in the complete absence of evidence
demonstrating that this is needed.

2004 NGO Declaration on WIPO negotiations
http://www.eff.org/files/filenode/broadcasting_treaty/20040608_Draft_Joint_Position_v1.3.pdf

EFF Position Paper on WIPO negotiations
http://www.eff.org/files/filenode/broadcasting_treaty/EFF_position_paper_jan_2007.pdf

EDRI-gram: The broadcast treaty stalled by WIPO General Assembly
(11.10.2006)
http://www.edri.org/edrigram/number4.19/broadcast

EDRi-gram: The broadcasting treaty resuscitated by the Council of Europe
(19.12.2007)
http://www.edri.org/edrigram/number5.24/coe-broadcasting-treaty

(Contribution by Joe McNamee – EDRi)