[LINK] Fwd: [A2k] NGOs give detailed critique of broadcast treaty

[Janet Hawtin]

Thought these thoughts on broadcasting treaty negotiations
at WIPO were interesting given the thread on broadband and access.

SUNS #6276 Thursday 21 June 2007

Geneva, 20 June (Sangeeta Shashikant) -- Civil society organisations
representing consumers, development interests, librarians, internet users
and musicians have spoken up against the proposed text for a new WIPO treaty
on broadcasters' rights.

According to the various CSOs, the draft is against the public interest as
it would establish a treaty that creates a new layer of "exclusive rights"
for broadcasters, and new barriers for users of libraries, of digital
products and new citizen-based broadcast methods (such as pod-casting) as
well as affect access to information and knowledge, especially in developing
countries.

The CSOs were speaking at a meeting of WIPO's Standing Committee of
Copyright which is discussing a draft text of the main provisions of a
proposed Treaty on the Protection of Broadcasting Organisations.

The 2006 WIPO General Assembly decided that a diplomatic conference would be
convened to finalise the treaty, but on condition that agreement on certain
key points be reached, by this week's meeting.

When the meeting started on Monday, the Chairperson, Jukka Liedes from
Finland, presented a non-paper containing key draft provisions for the
treaty, that he proposed to the basis of negotiations.

The non-paper attracted criticisms from many developing country delegations
(See SUNS #6275 dated 20 June). It also met with criticism from many of the
NGOs that are participating in the meeting.

Most of the NGOs criticised the non-paper for proposing that the treaty
grant "exclusive rights" to broadcasting and cable-casting organisations
They said that this is incompatible with a "signal based" approach for the
treaty as mandated by the WIPO General Assembly.

Several groups said the mandate meant that the treaty would only deal with
the problem of "signal theft". However, the Chair's text went beyond a
"signal based approach" by granting the exclusive rights to broadcasting and
cable-casting organizations to authorize the retransmission of their
broadcasts, and the deferred transmission by any means to the public of
their fixed broadcasts.

This approach gives the broadcasters "exclusive rights" to more than "the
broadcasts", but to "any means" of transmitting works to the public,
including many post fixation rights, including those involving the Internet,
claimed the NGOs.

They added the non-paper catered to the demands only of some broadcasting
organisations, which were not satisfied with restricting the treaty to the
signal theft issue. But in doing so, the non-paper was marginalising the
public interest and also went against the negotiating mandate.

The NGOs called on the governments not to accept an "exclusive rights"
approach to the treaty. Several asked the WIPO members not to go ahead with
a diplomatic convention since there were so many differences among them on
the rationale for and scope of the treaty.

Many NGOs suggested that the non-paper include in its operative section some
paragraphs on broad limitations and exceptions (L&E), general public
interest clauses, provisions on the protection and promotion of cultural
diversity, and on the defense of competition. These had been covered in
Articles 2, 3 and 4 of the basic paper compiling members' proposals
(SCCR/15/2) but had been excluded from the non-paper's operative section.

The NGOs were also against provisions in the non-paper on technological
protection measures (TPMs).

Knowledge Ecology International (KEI), a US-based consumer group said that
if adopted the non-paper would be used by the broadcaster to exercise its
new right to compete against the copyright owner for the downstream
marketing of copyrighted content, and this would impose on users and the
public a costly additional layer of needed permissions to use works.

KEI criticised the non-paper for eliminating from the operative paragraphs
protections for the public found in SCCR/15/2, including the language on
defense of competition, cultural diversity and public interest L&E.

The non-paper also provides the narrowest possible set of permissible L&E.
Only those that are used for copyright are permitted, and only then if they
pass the three-step test. This is narrower than the Rome Convention, the
Berne Convention and the TRIPS Agreement, all of which provide for cases
where the L&E are not subject to the three-step test.

It suggested the non-paper should first define what a "signal based" treaty
would do, and what a "signal" is. It said that a useful model to follow was
the 1974 Brussels "Convention on the Distribution of Programme-Carrying
Signals Transmitted by Satellite" administered by WIPO and which provides
for many definitions, including for "signal", "programme", "emitted signal"
and "derived signal".

The Brussels Convention focuses on the measures to prevent use of
"programme-carrying" signals by any distributor for which the transmission
"is not intended." It was a more useful template for a treaty than the
Chairman's non-paper.

The Third World Network said there was "hardly any evidence-based rationale
for this treaty". In fact, evidence to the contrary exists, that
"broadcasting industries in developed and developing countries have
flourished and done very well relying simply on national regulatory
frameworks and laws. So the rationale for creating a new set of exclusive
rights for broadcasters makes little sense."

TWN said many North-South bilateral free trade agreements require developing
countries to ratify WIPO treaties. Thus adoption of norms in WIPO (including
the proposed broadcasting treaty) is hardly voluntary for developing
countries which have to ensure that norms set do not hinder their
development prospects or affect their policy space.

The development dimension should be reflected through broad provisions on
limitations and exceptions; the deletion of technological protection
measures and the inclusion in the operative paragraphs of the general public
interest clauses, provisions on the protection and promotion of cultural
diversity and on the defense of competition.

TWN was disappointed that the Chair only consulted with the proponents of
the treaty prior to preparing the non-paper, but did not consult other
stakeholders, resulting in an unbalanced non-paper.

TWN added that since there is a lack of clarity and much confusion about
what this treaty is all about, and its developmental impacts are little
understood, it is time to take a step back, and to undertake independent
studies and assessments, before embarking almost blindly on norm setting
activities.

IP Justice, an international civil liberties organization based in San
Francisco, said that after ten years of discussion even the very basic issue
of what should be the purpose of such a treaty seems to be unclear.

Some believe that an update of broadcasters' rights is needed because their
signals are pirated (especially by using deferred transmissions over the
Internet). The most frequently given example is sports broadcast. However,
even the Chair had acknowledged that one hardly can find any sports
broadcast that is not in some way copyrighted. Thus, broadcasters already
have all the means to fight piracy even against deferred transmission over
the Internet through copyright law, whether or not the broadcasters are the
producers of the content.

IP Justice said it would perhaps be better to have no treaty at all, since
on the one hand broadcasters do not want an instrument without exclusive
rights, and on the other there is no need for such rights as the mandate of
the General Assembly is for a draft-treaty which is narrowed down to a real
signal-theft approach which means "no exclusive rights."

Electronic Frontier Foundation (EFF), which has 13,000 members worldwide,
said that it remained concerned that the Chair's non-paper is not
signal-based (i. e. dealing with signal theft) but is instead premised on
creation of rights that apply after fixation of signals.

It said that the public interest and innovation concerns as well as the
protection of broadcasters' legitimate interests could be addressed by a
treaty specifically focused on intentional signal theft, rather than
creating broad retransmission and post-fixation rights.

Giving traditional broadcasters and cable-casters exclusive rights over
deferred Internet re-transmissions that apply in addition to copyright is
likely to harm emerging citizen broadcasting on the Internet, such as
pod-casting, at a time when it is still unclear whether incumbent
broadcasters will be displaced by these new modes of Internet media.

On using technological protection measures (TPMs) to enforce broad
retransmission rights it said that provisions on this issue would likely
override national E&L that would otherwise permit consumers, libraries and
students to access public-domain material and make non-infringing uses of
transmitted works. This is particularly true of Article 9 of the non-paper
which requires no linkage between decryption or circumvention, and
infringement of broadcaster and cable-caster rights.

EFF added that the over-broad decryption device ban will ban personal
computers and other common devices capable of decryption but which have many
lawful uses.

The combination of TPMs and retransmission rights proposed in the non-paper
will also harm competition by allowing broadcasters and cable-casters to use
TPMs to control the market for transmission-receiving devices such as
digital video recorders and networked in-home entertainment devices.

This is contrary to the explanatory note in the Chair's non-paper that the
treaty will not encroach on consumers' private uses in their homes, nor
hinder innovation in the personal networking device market, said EFF.

It added that the broad scope of the proposed retransmission rights
underlines the need for commensurate exceptions and limitations to protect
the public interest. At a minimum, any treaty should include mandatory
exceptions that are at least equivalent in scope to those in the Rome
Convention and TRIPS, including a non-exhaustive enumerated list of
exceptions necessary to facilitate freedom of expression, and the ability to
create appropriate new exceptions.

The TRIPS Agreement does not condition the creation of exceptions to those
rights on the satisfaction of the three-step test; thus there is no reason
to constrain Member States' ability to do so in the present treaty.

The Electronic Information for Libraries (eIFL) and the International
Federation of Library Associations (IFLA), representing libraries worldwide,
said that "any new instrument that affects access to content de facto
affects access to knowledge, both copyright and public domain material" and
appropriate safeguards are needed to protect the public interest.

It supported the call for the inclusion (in the operative paragraphs)
articles on protection and promotion of cultural diversity and the defense
of competition. It stressed the need for an enumerated list of exceptions
and limitations for public interest purposes, including for news reporting,
people with disabilities, education and research, libraries and archives.

Referring to the Chairman's explanation that "transmission" means
communication to the public, it said that it understood this to mean that TV
or radio programmes could not be used on-site by patrons in a library
without a licence.

Without a specific exception, libraries would be placed in an extremely
difficult position. Because of the large number of rights owners and
corresponding rights to clear in any single production (authors, actors,
producers etc), "licensing is not a viable option".

Even if exceptions are given, it questioned how beneficiaries could make use
of these exceptions when the content is subject to a TPM. It said that
libraries have already experienced how TPMs in electronic books, databases
and multimedia products have curtailed users' rights to avail themselves of
statutory exceptions and limitations.

Computer specialists who are responsible for long-term digital preservation
in libraries, have expressed concern that even if libraries get permission
to circumvent TPMs, the fast development of encryption technologies might
soon make this impossible in practice. It thus called for the deletion of
provisions on TPMs from the text.

Public Knowledge, a Washington-based NGO that protects consumers' rights in
the emerging digital culture, said that it did not believe that IP rights
were a necessary minimum for protecting broadcasts as a true "signal theft"
treaty can protect broadcasters from intentional misappropriation without
creating the attendant problems of overlapping IP rights.

If faced with the stark choice between such a treaty and abandonment of the
process, it would choose the latter as requiring a rights-based treaty would
create serious liability risks for individual users, intermediaries, and
other rights holders. Existing copyright laws and international agreements
already prohibit the infringement of copyrights on video-sharing sites, and
a signal theft treaty will complement this regime without interfering with
it.

Public Knowledge also raised concerns over the non-paper's effects on the
public domain. which is a rich source of knowledge as its works can be
disseminated without legal restriction. Granting broadcasting organizations
a right to prohibit distribution of public domain content - based solely
upon the route taken by that content - would create barriers to access to
knowledge and information that would frustrate the objective of broad
dissemination inherent to the concept of the public domain. Therefore, the
treaty should not apply to signals containing content in which no underlying
copyright or related right exists, it added.

It also registered concerns over the non-paper's TPM provisions. The
provisions on encryption prohibit not just those devices used to
misappropriate broadcast signals, nor even those devices that are used to
circumvent encryption, but all devices capable of decrypting an encrypted
broadcast. This provision is too broad as currently and risks prohibiting
devices and systems with substantial non-infringing uses, simply because of
a speculative capability to cause harm.

Unless these crucial issues are addressed, the treaty will not properly
reflect the balance between various rights-holders and the public interest.

The Information Society Project at Yale Law Schools, a center for the study
of law and technology and issues relating to the knowledge economy, said
that the broader the rights adopted in the treaty, "the harder it will be to
harmonize these rights with domestic regulatory frameworks in the
implementation stage." To deal with this, a robust set of E&L should be
included in the treaty.

The last two decades have seen the emergence of new distribution media, some
of which incorporate and complement the features of traditional
broadcasting, and others which do not, and to facilitate the growth of
industries, both old and new, governments have in stages developed a layered
set of regulations and standards. As a result, the environment remains
complex and diverse.

The treaty may be seeking through harmonization to minimize this diversity,
but research shows that diversity is intrinsic to industry's growth.
Moreover, new rights and their modes of enforcement may be incompatible with
other parts of the regulatory structure and the domestic needs of individual
countries.

It said that telecommunications regulations are centered around two primary
objectives: (1) to ensure a fair and level playing field for entrants to and
participants in the broadcast industry; (2) to promote the widest possible
dissemination of information and access to knowledge via telecommunication
networks. To maintain the delicate balance between these two functions of
media- a balance that safeguards political discourse and cultural production
- a robust set of exceptions to and limitations on any new rights is
essential.

European Digital Rights (EDRi) which represents 25 privacy and civil rights
organizations in 16 European countries said that despite the mandate for a
signal-based treaty, there seems to be "no consensus what that actually
means". It questioned the rationale to continue the process further to a
diplomatic conference.

The International Music Managers Forum, representing featured artist
managers and through them the featured artists, both authors and performers
(who are the source of over 95% of the economic activity in the worldwide
music industry), said that "to most people, 'signal based' clearly means 'no
exclusive rights'.

It cited the Chair's non-paper that "If this treaty is not based on some
elementary rights, the treaty should be abandoned" and said this posed a
dilemma. On one hand the General Assembly has mandated a treaty based on
signal protection (which implies no exclusive rights) and on the other the
broadcasters say that without such rights the treaty should be abandoned.

It said that "to abandon this treaty would not be a failure". However, "if
with the lack of consensus that currently exists, this committee moves
forward to a diplomatic conference and that fails, as many believe is quite
likely, this will indeed be a disaster for WIPO and this Committee". It
recalled the failure of the last diplomatic conference on Audio-Visual
rights. "To have two failures in a row would indeed be a disaster," it
concluded.


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