WIPO broadcasters treaty approaching controversial conclusion

The World Intellectual Property Organization (WIPO) is marching toward a new treaty on broadcasters’ rights despite a controversial new U.S. proposal on protecting webcasters’ rights, as well as Canadian opposition to extend exclusive retransmission rights to free over-the-air television transmissions. The chairperson of WIPO’s Standing Committee on Copyright and Related Rights has served notice that February will be the final deadline for the submission of new draft treaties and that he hopes outstanding issues can be wrapped up at a summer 2003 meeting to work toward a diplomatic conference to finalize a document in May or June 2004. Before a 10-year process on broadcaster rights can be culminated, however, two thorny issues still on the table must be hammered out. This May, a group of program rights-holders let the committee know they opposed the extension of various rights, including an exclusive right for signals, being extended to broadcasters. In a communiqué, the group said proposed treaties submitted both by the United States and the European Union go beyond what is strictly necessary to protect those signals from piracy. The group wrote: "Despite repeated statements about the objective of the possible new treaty being the fight against signal piracy, we see proposals on the table that clearly go beyond this stated objective. The clearest examples of such unnecessary and problematic proposals are those calling for broad transmission and communication to the public rights that go well beyond what is needed to fight signal piracy. The justification for granting such broad rights and the effects they would have on the exploitation and licensing practices of the underlying content have not been examined at all." The group, made up of authors, music publishers, performers and producers, says broadcasters would enjoy higher protection than they would. Erica Redler, general counsel and senior VP of policy and legal affairs at the Canadian Association of Broadcasters, and who participates in the WIPO meetings as a representative of the North American Broadcasters Association, says those fears are unfounded. "We have never seen any concrete demonstration of how it would interfere. It’s not diminishing their rights at all," she tells Canadian NEW MEDIA. "What it is doing is giving broadcasters a right over their signal. But it doesn’t mean that we can sell their programs or anything like that. What it means, essentially, is that we can control who does what with our signals which, the other scenario and the one I’ve put out there and many broadcasters have, is essentially that the content owners should be pleased that there would be this additional layer of protection on the broadcast signals because the reality is that if a broadcast signal gets pirated, often the broadcaster is more likely to take action against the pirate either because they’re more motivated or because they have more money or whatever, to shut down the pirate service than is the small program owner. So when you’re dealing with piracy what it means is that the content owner could sue the pirate, but if there was a broadcast treaty, so also could the broadcaster." The point may well end up being a minor one, however. While Canada has explicitly opposed the extension of exclusive retransmission rights to free over-the-air transmissions, as has the Canadian Cable Television Association through its representative, senior counsel Jay Kerr-Wilson, it appears the measure enjoys broad support at WIPO. If the right becomes part of a new broadcast treaty and Canada ratifies that treaty, then a compulsory licence in Canada to retransmit foreign over-the-air signals would be lost. Domestic signals would be unaffected by the proposed treaty. A more important point, however, and one which may sink the treaty process, is a controversial American proposal to include a new class of webcasters in its provisions. In its draft treaty submission, the U.S. has added the word "webcast" to each of the proposed new protections, something both Redler and Kerr-Wilson adamantly oppose. Says Kerr-Wilson: "Certainly, Canada in a couple of its comments, and Australia, have said a webcaster could be a guy in his basement putting stuff up over the web. Are we saying that every country in the world that signs on to this document now has to extend international protection to that very small level of activity? Is that what we mean by webcasters? Everyone who supplies audiovisual material over the web? Does it mean something more in terms of minimum amount of investment or that sort of thing?" Redler agrees the webcasting industry is too new to begin contemplating new international rights. "There’s huge opposition from other countries to this," she says. "We should not include it in this round. Subsequently, there can be a protocol to add webcasters to the treaty…It was brought up to the U.S. delegate on the wording of the U.S. proposal that some guy with a camera in his house who is webcasting on his web site would be given international protection, you know? Is that what people wanted? There’s just so many uncertainties with respect to the web and protection of copyright on the web and the distribution of rights on the web that we just don’t want to go there at this point in time. It’s premature." Negotiations will continue at the committee meeting in June in Geneva.

WIPO broadcasters treaty approaching controversial conclusion

News | 12/20/2002 5:00 am EST

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