WIPO Broadcasting Treaty - June 19, 2007

It’s been a hectic and inconclusive time at WIPO on the Broadcasting Treaty over the last couple of days.

Brazil etc. wants to enshrine A2K and cultural diversity in the body of the treaty and not relegate them to the preamble.

The US opposes this and is also very cool towards the exclusive right approach.

Canada has taken a decisive position that recognizes that there will be costs and consequences of the proposed treaty and allows for an opt-out from exclusive retransmission rights. Canada has stated:

Canada recommends that Contracting Parties which did not give broadcasters a right to authorize simultaneous retransmission immediately prior to joining the treaty be allowed to opt out of simultaneous retransmission right with respect to unencrypted broadcasts (i.e. unencrypted wireless transmissions) provided that the retransmission is:
• not to another country (i.e. is not to a third country or back to the country of origin).
• not over a computer network accessible in another country
• not by unencrypted satellite signal

This would allow for the continued retransmission of free over the air “local” signals within Canada, including those from US border stations - which have always been retransmitted “for free” in Canada as long as they are within the definition of “local.”

This has gotten some good attention and coverage at the influential IP-Watch site. Personally, I think Canada is to be commended for taking a clear and constructive position that is consistent with the rest of CDN policy, e.g. CRTC and was arrived at after extensive consultation.

Apparently there was much talk about what “deferred” means in the context of a deferred retransmission right.

The Chair - Jukka Liedes - who has much personal investment in this effort (10 years of chairing these meetings and holding the drafting pen) - somewhat mysteriously returned to Finland on day 2, although he is presumably expected back in Geneva on day 3. He has been under much criticism from many quarters for not listening to the clear signal to stay away from an “exclusive rights” approach and to focus on a minimal "signal protection" conception.

The meeting has basically only dealt so far with the preamble. It is supposed to get through the whole substance by Thursday.

The US is sending strong signals that it isn’t out to get a treaty “at any cost.”

This is supposedly a “do or die” meeting. Not only Mr. Liedes but WIPO itself has a great investment in this process. WIPO has become much less influential in recent years in terms of norm setting and has failed to achieve any meaningful treaty results since the 1996 WCT and WPPT treaties, which still suffer from minimal actual ratification by major developed countries. The last thing WIPO needs now is a failed diplomatic conference, or another treaty that doesn’t enter into force due to lack of support or doesn’t have any importance. Just think integrated circuits and audio-visual - not to mention data bases and patent law harmonization.

Even the content owner friendly Hollywood Reporter seems to radiate pessimism about treaty prospects - and has some good coverage of the heavy corporate opposition in the USA, which is clearly why the USA has become lukewarm if not outright cool or cold to the whole effort.

HK