Monday, June 26, 2006

Notes of WIPO Barcelona Seminar


On June 21, 2006, I was a panellist at an all day seminar in Barcelona entitled “The Proposed WIPO Treaty on the Protection of Broadcasting Organizations: From the Rome Convention to Podcasting"

For details see:

It was organised by WIPO, the Catalan Broadcasting Council and the Barcelona Bar Association and ‘supported’ by several other EU broadcasters organisations (.Association of Commercial Television in Europe (ACT), Association of European Radios (AER), Association of Spanish Commercial Radio (AERC), International Association of Broadcasting (AIR), European Broadcasting Union (EBU), and the Audiovisual Producers Rights Management Organization (EGEDA). )

While the meeting was in theory open to all, only one weeks notice was given, so it made it very difficult for civil society to attend, and I was the only representative there from consumer/ public interest groups. In addition my talk was cut from a promised 10 minutes to five, though I was allowed to question some of the speakers. Despite the title there was little detail discussion of podcasting, most speakers focused on justifications for the Treaty itself.

By the time I arrived ( due to travel delays I missed the opening ceremony and general introductory panels) there was quite a small audience , about 20 or so people. It was worth attending though to hear the coded and not so coded messages from EU Broadcasters, the EU Commission and the WIPO Secretariat on how they think the discussions on the Broadcasting Treaty should play out at the next WIPO meeting in September.

Key themes coming out of the meeting:
· EU broadcasters very keen to get the Treaty finalised quickly –broadcasters reps spoke of the need to deal with webcasting separately, but to get on with ‘their’ treaty.

· EU Broadcasters also want simulcasting included ( i.e protection for the simultaneous transmission on the Internet as well as on terrestrial cable and satellite systems )- without such a right their broadcast protection is ‘meaningless’.

· WIPO secretariat see the removal of the controversial webcasting proposal from the main text as removing the final obstacle to agreement to a Diplomatic Conference (DC), at the September meeting. Their message was that it was a time for compromise, on the basis that no one opposes a Treaty , just its contents(!).The final details can be resolved at the DC, where as in past years, many proposals could be made.

· EU Commission- All 25 member States ‘without demur’ support a DC. Support for simulcasting is a compromise position given different legal traditions ( see below), not on the principle of granting protection but on extending protection to a new class of beneficiaries.

· There is clearly a split between the US and EU on extension of rights to the Internet. Given the strong lobbying from EU broadcasters, it is possible that the Commission could push more strongly in September for the inclusion of simulcasting , but not webcasting in the main text of the treaty. This may be opposed by the US as its excludes pure webcasters such as Yahoo.

· Several Delegates mentioned linking the Broadcast Treaty to signing up to the Rome Convention ( which the US has not done)

I couldn’t take a verbatim note of proceedings and some notes are based on the translations from the original languages , so double check directly with the speakers if you wish to quote their views. With that caveat (!) below are some points of interest from some of the speakers.

The second panel was on Broadcasting in the 21st Century : scenarios and challenges’:

One of the speakers was Yahoo Europe ( the main lobbyist for the inclusion of webcasting) represented by its Legal Director , Mr Ventura Barba . In essence he argued that:

The only difference between webcasters and broadcasters was the technology used, the business model was the same as was the experience for consumers. They were in the same field and needed the same protection against potential signal pirates. In addition they already dealt with radio and TV broadcasters who were putting pressure on them to guarantee protection.

Given that his justification focused on protection against signal piracy I asked him if Yahoo would therefore support a the proposed webcasting treaty which was limited to signal piracy without the broader protections in the proposed Broadcasters Treaty. He said that the signal piracy approach was a start but not the end and not what ‘we deserve’.

Other panellists spoke about the need for a Broadcasting Treaty and the need to show that Broadcasters were creators too. They mentioned that Spain's new broadcasting law will give protection to simulcasting, webcasting and podcasting.,( IP Director, PRISA group Madrid.)

The copyright Counsel for Alfa- Redi, Lima While suggesting that additions to the Treaty should not be limited to webcasting/simulcasting but`also included 3G radio broadcasting and Digital Terresterial Televison . Care should be taken over identifying the problem. People called pirates in Spain centuries ago were called lords in the UK. It was important not just to think of IP but also consider data protection, civil liability, cultural diversity( especially the UNESCO convention)and the rights of other performers. The Internet is different but the same principles on these issues must apply.

This was followed by 30 minute session from Mr Ficsor, Chairman, Central and Eastern European Copyright Alliance (CEECA) Budapest a well known supporter of the Treaty and always dismissive to opponents. True to form he started off by criticizing the reactionaries of the Copyleft movement who exaggerated the effect of the Treaty. A strong defence was needed against those who opposed the Treaty. The Treaty was essential and its adoption urgent as the Rome Convention was old fashioned. However he said the Treaty was only worth having if it had proper protections for broadcaster which included TPMs. (He did acknowledge that the Treaty would also have to have exemptions for public interests if TPMs were included). It should also include simulcasting, webcasting should be dealt with separately.

I questioned him on the difference between simulcasting and webcasting, wasn’t it just seeking to protect a limited class of beneficiaries ( traditional broadcasters) rather than any real difference in activities between webcasters and simulcasters ? As such . didn’t all the concerns about the chilling effects of extending protections to the Internet apply to simulcasting as much as to webcasting?

He replied with a circular argument. If simulcasting was not protected then Broadcasters would not have signal protection if they choose to simulcast (!), as even though the traditional broadcast signal would be protected, the signal on the Internet would not be. In practice it would be ‘meaningless’ if broadcasters don’t have protection of simulcasting.

I spoke on the next panel. This was broadly split between broadcasters who supported the Treaty and artists representatives concerned about the lack of protection of their rights.

The European Broadcasting Union appeared to be worried about the future of the Treaty, repeating that the Treaty needed to be finalised urgently , to include simulcasting, but that webcasting should be dealt with separately.

Mediaset wanted the Treaty but said that webcasting should be included. There would be no threat to others rights as ‘fair rights’ would be included.

I explained the consumer concerns about the Treaty eg for non signatories to Rome, on TPMs , limitations and exceptions and repeated my belief that there was not a substantive difference between webcasting and simulcasting. I pointed out that NGOs had been supportive of a pure signals based Treaty and had provided a draft text.

A representative of the artists organisation, Artistas Interpretes Sociedad de Gestion (AISGE) , Madrid opposed a broad treaty, they wanted it limited to a signal based approach. As drafted it could cause conflicts between broadcasters and rightholders. The Treaty was seeking to regulate the highway before the car ( content = car) as artists did not have appropriate international regulation of their rights.

The legal representative of Artistas,Interpretes, Ejecutantes (AIE), Madrid supported the Treaty and its extension to simulcasting. She sought to draw a distinction between simulcasting and webcasting. Simulcasting was exactly the same as traditional broadcasting just on a different medium , whereas webcasting goes into other fields e.g podcasting, mobile phones. ( I pointed out that the current draft does not limited it just to simultaneous transmission but allows delayed transmission which could include, VOD, podcasting. ) . She also suggested that it should be a requirement that all countries join the Rome Convention.

The EBU rep was questioned about the concerns of artist and consumers. He said it was a ‘dialogue with the deaf’ as there were no concerns, as there were no threats to either groups rights.

The final two panels were directly on the WIPO Broadcasting Treaty. The first panel was a pretty fair overview of the discussions to date at WIPO by Professor Delia Lipszyc from Buenos Aires University.

The final panel was chaired by Jukka Liedes ( in fluent Spanish), Chair of the SCCR charged with taking forwarded the Broadcasting Treaty.

· He was a great pains in a lengthy introduction to make the point that the current document was just a draft and not the final document ( I assume to head off criticisms that he had not included several Latin American proposals in the previous draft.)

· But what was clear` was that the need for updating the protection of Broadcasters had been proved, to protect against signal piracy ,and, that the basis of the protection was the investment that broadcasters had made.

· There was concern to ensure separation between content and signal. There was a clear demand that there should be no interference with the content system from content holders. There needed to be a balance between multiply stakeholders and the framework must be acceptable to the majority of Governments. (noticeable that he didn’t say all)

The Panel included a representatives from the EU Commission, the Permanent Mission of Brazil in Geneva, and IP offices in Bogota, Lima and Mexico. It seemed like it was a last push by Europe through Spanish/Portuguese speaking interlocuters to convince Latin American delegates how great the broadcasting treaty would be.

Lima, Mexico and Bogata IP reps supported the Broadcasting Treaty but all made comments on concerns about TPMs and limitations and exceptions. There were several comments about previous Diplomatic Conferences where ‘hundreds’ of new proposals had been made. I assume to make the point that concerns about wording should not delay the DC as changes could still be made at the conference.

Julie Samnadda from the EU Commission ( one of the two person team negotiating the Treaty at WIPO) gave a detailed explanation of the EU’s position ( building on the previous Commission response to the Transatlantic Consumer Dialogue’s resolution on the Treaty It appears to be pretty inflexible on the substantive points.

She spoke very quickly so I don’t have all the points. However she is open to the idea ( subject to approval) to provide a briefing at WIPO to civil society on the commissions position, which I will be following up.

She gave bullet points on four areas.

1. Commissions Position in the negotiations

· The Commission represents all 25 member States plus two Accession States, Bulgaria and Romania at WIPO.

· All 25 have agreed ‘without’ demur to go forward with the Broadcasting Treaty, as its important to broadcasters and consumers.

· [It is even a virtue!] Commission deeply committed to the multilateral approach rather than a bilateral approach. Many Member States are firm supporters of the UN and WIPO

2. Relationship between the documents as they stand and the Community aquis.

· Most of the exclusive rights in the draft Treaty are already a part of Community Law . E.g right of reproduction, making available right, distribution right, legal protection of TPMs. Others are in addition to Community law but not to some of the laws of Member States e.g protecting the pre broadcast signal, a broad right of retansmission.

· There is a distinction between the approaches taken between Member States. A number of ‘Northern ‘ MS including Ireland, UK, Denmark, Finalnd , Austria, Sweden, Cyrus and Malta have based their laws on a technology neutral approach – this means that webcasting is already covered in their laws.

· ‘Southern’ States including France have a more restrictive approach to creating a new class of beneficiary. As a result a compromise position has been reached on simulcasting. They accept that simulcasting is covered by community law ( as the right of reproduction refers to any form including the Internet) but the caution is over the creation of a new category of beneficiary.

· Whether the definition of the protection is based on a description of the beneficiary of the activity is therefore irrelevant to Northern MS as its already covered in their national laws but it is a critical issue for Southern MS.

· At an international level Member States are willing to include simulcasting as this is most important to EU Broadcasters. ( Though she didn’t say this the implication is that webcasting would not be acceptable as it creates a whole new class – pure webcasters- rather than just an extension to an existing class).

3.Rights and exception as they are expressed in the present draft and a possible way forward drawing on the community approach

· Strong supporters of Berne 3 step test will not move away from that.

· EC prepared to export and discuss at WIPO their approach to balancing TPMs and Exceptions and limitations, once have approval of Member States to do so. This refers in part to the ‘2 step test’ in the Copyright Directive in relation to the restriction of the exercise of exceptions and limitations by a TPM. Only if voluntary measures fail can a beneficiary of the E &L appeal to a body who then may remedy the problem. ( note this appeal mechanism approach is strongly criticised by consumer groups in Europe )

4. Relationship between the Treaty and other areas e.g cultural diversity.

· Cultural diversity important issue for Europe as many languages and ethnic groups, do not see it just as developing country issue. Signatory to UNESCO Convention on Cultural diversity.

· Do not see protecting broadcasters rights as necessarily in conflict with UNESCO convention. Do not favour provisions inserted into Treaty on this issue which seek to create a hierarchy of norms. eg which Treaty trumps another.

Guilherme de Aguiar Patriota, Brazils representative at WIPO made a number of broad points:

· Had the impression that the Broadcasters wanted a quick Treaty. They appear latecomers to technological change. They need to adapt their business models to the new reality of the Internet. He does not think that the legal framework will determine the pace of change.

· Negotiators at WIPO should be aware that a return to the 96 Treaties - ‘WIPO Internet Treaties’ was not feasible on technological or political terms and because of the involvement of other groups , such as civil society groups , who are attentive to the impact of any new Treaty. Developing countries are aware of the different affects on different levels of development and that new rights may limit their policy space.

· The signal in digital form was too important and widespread to be controlled by a very narrowly defined set of broadcasters with exclusive rights. It was important to ensure that the philosophy behind the Treaty was correct and that the object and subject of protection was clearly defined.

· 2 main proposals to deal with the Internet. 1) Simulcasting supported by Europe. This option favours the traditional broadcasters, who are attempting to hold onto their business role in a new technological world, which challenges it. 2)Webcasting supported by the US. Seeking to widen beneficiaries to newcomers, who just work on the Internet. Questions about whether such protections should also apply to telecom companies. These rights are untested.
· There are however a whole range of other stakeholders e.g authors and public interests whose interests need to be safeguarded. Also concerns about exceptions and limitations.

· Broadcasting has an important public and social role in Brazil and there are special regimes that broadcasters have to abide by. Concerns that international treaties override national regulations.

· It is not clear what equilibrium will come out of this Treaty. The range of rights and protections for example TPMS are untested in developing countries. It gives greater protections to broadcasters and also need limitations and exceptions for consumers and others. Won’t bind ourselves to the 3 step test as that test was part of the copyright balance this is a new treaty.

· A Rome criterion for eligibility is relevant. The US is not a signatory to the Rome Convention. This should be looked at.
· Support cultural diversity provisions.
· Need to study the duration of the rights given. When do they end- how are they exhausted?

Rita Hayes, Deputy Director of WIPO closed the seminar .

· She felt there had been a good discussion on the framework for a Treaty. Leave people with one thought, Where do you think we are going? She hadn’t heard anyone say they don’t want a treaty. Calls for different levels of treaty and different ideas about how it will be done. She highlighted the fact that someone ( me) had said that they would agree to the protection of signals , so all were in agreement to a Treaty (implying I assume that NGOs could not object to a DC as we had agreed to signal based treaty – though such a draft has not yet been agreed)

· The chair of the SCCR had been given the task of preparing the next draft. This would be prepared on the basis of the documents previously submitted and on new and existing proposals and the discussions at the previous SCCR, which took a full five days. She knew that those discussion included calls for proposals not included to be put in. She was looking forward to what the chairman would do about this (!)

· The next draft would be prepared for August so that delegates would have time to review before the next SCCR in September, with a view to making a recommendation for a DC in 2007.

· Proposals on webcasting and simulcasting have to be with the Chair by 1st August, who will then prepare a revised document on the two issues. Discussions on this will take place at a SCCR after the General Assembly.

· On the Broadcasting Treaty there has to be the will to move forward. Many more proposals are\ likely to be made and can be discussed at the DC , as in past DCs. Issues have been discussed and there is a realisation that there is a need to look at broadcasting organisations and to deal with their rights. Need to compromise can’t deal with all issues at SCCR but can move forward to DC in 2007 and deal with them there. She is though, speaking as a member of the Secretariat and realises that it is a member driven organisation and it is for Member States to agree (!).


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