WIPO Broadcast Treaty Said Stalled Again; Broadcasters Hopeful

Talks on a treaty updating broadcasting protections against signal piracy continued at the World Intellectual Property Organization, but progress at least temporarily stalled, said representatives from nongovernmental organizations Wednesday. Under a new Standing Committee on Copyright and Related Rights (SCCR) chairman, Singapore Intellectual Property Office Chief Executive Daren Tang, it became clear the treaty text wasn't ready to move to diplomatic conference next year, they said. Key issues remain unresolved, but broadcasters hope for some forward movement, European Broadcasting Union Head-Intellectual Property Heijo Ruijsenaars told us.

This week's discussions were to be based on a document produced by the previous SCCR chairman. That text has been replaced by a "committee text," Tang said, according to a partial transcript posted by Knowledge Ecology International (KEI). Tang called for a "a short and sweet" recommendation to the WIPO General Assembly (GA) in October "to the effect that the Committee working document which used to be the Chair's consolidated text can be a basis for further discussions with a view to considering whether this may at some time lead to a diplomatic conference without specifying the time for that diplomatic conference."

The SCCR "has to show some progress," Tang said. He said realistically "we are not going to be able to propose a consensus recommendation to the General Assembly that this is ready to move towards a diplomatic conference." To that extent, the treaty has stalled again, but only until the next meeting, where negotiations will continue based on the committee text, emailed Electronic Frontier Foundation (EFF) Senior Global Policy Analyst Jeremy Malcolm. "This is a setback for the treaty proponents but does not mean that we can expect the item to be taken off the agenda any time soon."

The EU noted the previous document "achieved a certain degree of stability and maturity" and had been refined over many SCCR sessions. "Potentially there would be new elements, elements that may [possibly] have not been discussed," the delegation said in the transcript. "The general sense of direction that we've experienced in the last few sessions ... has been one towards streamlining the text and now we traveling in the opposite direction, which from our point of view is somewhat unfortunate."

The U.S. laid out its general position in a May 1 statement. It said the issues discussed in the past few sessions -- among them definitions of broadcasters, object of protection and rights -- are a reasonable basis for further discussion. The U.S. said "while we have reached a better understanding of each other's positions, and the text has become clearer, there are still significant disagreements among Member States on some of the most fundamental issues," such as the object of protection and rights. Those issues must be resolved before a diplomatic conference is called, the delegation said.

Given the committee discussion, more options are being considered, Ruijsenaars emailed. With the new chairman's guidance, it's become "more obvious" that several elements of the existing text are mainly technical issues on which there's agreement "in principle" but not yet on the exact wording, he said. Tang adopted a new approach in which such technical issues should be "parked" until better solutions are found, said Ruijsenaars.

Outstanding issues are which of the online signals broadcasters transmit should be mandatorily protected and which should be protected on an optional basis, Ruijsenaars said. The question of which rights should be attached has become clear, he said. There is consensus that webcasting organizations shouldn't be covered, but one drafting question is how to distinguish webcasters from broadcasters in the definitions, he said.

KEI disagreed: "We're back to the old text with everything (many alternatives) in it again." Everything from definition to object of protection to rights to term is on the table again, emailed KEI Information Society Projects Director Manon Ress. "There is no consensus on anything. No landing zone. No recommendation to GA."

EFF opposes the treaty because it could limit the use of video online, Malcolm wrote in a Tuesday blog post. The SCCR was closest to agreement when it narrowed the treaty to cover only broadcasting organizations in the traditional sense from signal piracy, he said: When the discussion "is broadened to include transmission over computer networks or post-fixation rights, it inevitably falls apart." It's illogical to grant rights to broadcasters over internet transmissions without giving similar rights to other online video platforms, Malcolm wrote. Such new rights would increase the complexity and risk of licensing video content, raising costs and barriers to innovation that outweigh any benefits to broadcasters, he said.

Ruijsenaars said he's hopeful there will be movement on the treaty after Friday's discussion, and a diplomatic conference next year is still possible. That decision will have be made by the GA, he noted.