WIPO Broadcasting Treaty Talks Edge Forward, With Status of Important Provisions Unclear

Progress on a treaty to update broadcasting protections inched forward during the Dec. 7-11 World Intellectual Property Organization Standing Committee on Copyright and Related Rights (SCCR) meeting in Geneva, some of those following the talks told us. Broadcasters said they feel better now that several forward-looking options are on the table and delegates are discussing the text of a possible agreement. But those we spoke with said key issues such as what signals should be protected and what rights broadcasters should be granted remain unresolved.

The SCCR meeting mainly discussed a document prepared after the last SCCR meeting by Chairman Martin Moscoso Villacorta. The consolidated text covered definitions, the object of protection and rights to be granted. Delegates said some progress was made as the consolidated text focused the discussion, said Carole Croella, WIPO senior counselor, culture and creative industries sector. There were clarifications on definitions for signals, programs, cablecasting and broadcasting, she said. Delegations considered different options on the object/scope of protections, with some wanting broad safeguards for retransmissions including deferred retrans, and others seeking to limit the retransmission right to cover only simultaneous or near-simultaneous retrans, she said.

The question of protection of pre-broadcast signals is also still open, Croella said in an interview. Broadcasters define these as signals between two broadcasting organizations that aren't intended for transmission to the public but are solely for the purpose of the subsequent public transmission, she said. Broadcasters are concerned that those signals, which they say could have some economic value, could be intercepted and used, she said.

The U.S. and other countries "engaged in a detailed exchange of views" on the draft treaty, including its definitions, object of protection and rights, Patent and Trademark Office Senior Counsel Michael Shapiro said. The U.S. was "pleased by both the substantive nature of the discussions and the progress made on these complex issues," he emailed.

The two most important unresolved issues for Europe are the extent of protection and the rights to be granted, an EU source said. Europe wants any agreement to be adequate for what broadcasters are doing now with new technologies, so they are pushing to have it cover simulcasting on the Internet as well as other transmissions such as catch-up TV, she said. That would be the EU's "ideal plan," but at the very least it wants simulcasting included, she said. But neither simulcasts nor catch-up TV protections are getting much support in the negotiations, she said. On the question of what rights broadcasters should be granted, the EU wants them to be able to prohibit retrans, including simultaneous, deferred or near-simultaneous, by any means, a position broadly backed by many delegations but opposed by the U.S., which wants protection for simultaneous or near-simultaneous, but not deferred, transmissions, she said.

The mood of the talks was "quite constructive," said Erica Redler, who represented the North American Broadcasters Association at the meeting. Pure webcasting carried out by organizations other than broadcasters seems to still be off the table, she said in an interview. When the issue arose 12 or 13 years ago, there was agreement to leave webcasting out because the time wasn't right and to focus on traditional broadcasters, said European Broadcasting Union Intellectual Property Head Heijo Ruijsenaars. Now that traditional broadcasters are also using webcasting, the issue is being seen differently, he told us. There's consensus that online music shops or people uploading webcam content shouldn't be covered by the treaty, but if broadcasters use Internet technology to deliver their programming to the consumer, they should be protected, Ruijsenaars added.

Progress on the treaty "remains very slow," said Jeremy Malcolm, Electronic Frontier Foundation senior global policy analyst. The question of whether cablecasters should be deemed equivalent to broadcasters is "one of the main sticking points" because in some legal traditions, cablecasters aren't part of the same regulatory regime as over-the-air broadcasters, he emailed.

A more significant issue is whether on-demand transmissions should be included in the scope of protection of the treaty, providing an exclusive right of "making available" for transmissions, Malcolm said. EFF doesn't think so, because "this could inhibit innovative business models" that let consumers access video content on demand, he said. Assuming the copyright in the content has been cleared or is free of copyright restrictions, broadcasters or cablecasters shouldn't be able to place limitations on such innovative practices, Malcolm said. Europe favors an extended right of making available, but the U.S. opposes it on the ground that the treaty would then no longer be "signal-based," he said. Malcolm noted a continuing lack of consensus over whether Internet retransmissions should be covered by the treaty. Japan suggested that part of the agreement could be optional rather than mandatory, he said.

"The discussions contributed to progress with a view to reaching a common understanding on the protection of broadcasting organizations," Moscoso Villacorta wrote in his conclusions. The SCCR decided to continue talks on the consolidated document and on a revised text that he will prepare before the next committee meeting (scheduled for May 9-13), he said. The question of an additional meeting proposed by the chairman to address broadcasting was deferred to the next session, Croella said.