Proposed WIPO Broadcasting/Webcasting treaty text: Winners' proposals and Graveyard proposals

Saturday, 1 April 2006
Thiru Balasubramaniam

The draft texts of the proposed broadcasting/webcasting treaty are out. There are two documents-a Draft Basic Proposal and a Working Paper. In a nutshell the draft Basic Proposal can be understood as the repository of "winners' proposals" and the working paper can be understood as the graveyard of "alternative proposals" to the draft broadcasting/cablecasting/webcasting treaty. Interestingly, webcasting which has received limited support (mainly a US/Yahoo/News Corporation initiative), has made it into the Draft Basic Proposal as a non-mandatory "opt-in" provision embedded in the Appendix of the paper. Despite webcasting's appearance as a "non-mandatory opt-in provision", its mere adoption by a few key players (US, EC, Japan) would have deleterious effects on the way the Internet currently operates.

The 14th meeting of the WIPO Standing Committee on Copyright and Related Rights (1 May-5 May 2006) is tasked with drafting a broadcasting/webcasting treaty that will affect copyright owners and consumers by creating a new layer of rights on the internet, threatening the public domain, and introducing a brand new transmission right.

In preparation for the upcoming Standing Committee, the SCCR Chair, Jukka Liedes (Director, Culture and Media Division, Ministry of Education and Culture, Finland) in cooperation with the WIPO Secretariat have drafted the two aforementioned papers: (1) a Draft Basic Proposal for the WIPO Treaty on the Protection of Broadcasting Organizations including a Non-Mandatory Appendix on the Protection in Relation to Webcasting (SCCR/14/2) and (2) a Working Paper for the Preparation of the Basic Proposal for a Treaty on the Protection of Broadcasting Organizations (SCCR/14/3). The two documents raise many issues including process issues at WIPO. It's all wrapped in good bureaucratic language but it's still sausage/chorizo/saucisse.

In his introductory notes to the draft basic proposal, Chairman Liedes cites the decision of the 32nd session of the WIPO General Assembly (26 September - 5 October, 2005) which stated that

two additional meetings of the Standing Committee on Copyright and Related Rights (SCCR) would be scheduled to accelerate discussions on the second revised Consolidated Text (SCCR/12/12/ Rev.2) and on the Working Paper (SCCR/12/5 Prov.). These meetings shall aim to agree and finalize a Basic Proposal for a treaty on the protection of the rights of broadcasting organizations in order to enable the 2006 General Assembly to recommend the convening of a Diplomatic Conference in December 2006 or at an appropriate date in 2007.

In plain English the proponents of a broadcasting/webcasting treaty want to convene a Diplomatic Conference as soon as possible.

According to Mr. Liedes, the November 2005 Standing Committee reached an understanding that the new consolidated text would be drafted for the 14th session of the SCCR. Ostensibly following the mandate of the General Assembly, Chairman Liedes and the Secretariat have culled the consolidated text into a Draft Basic Proposal and dumped the "alternative proposals" into the Working Paper effectively separating the "wheat" from the "chaff". The Working Paper also includes new proposals received at the November 2005 SCCR including the Brazilian (general public interest clauses) and Chilean (defense of competition) proposals. The introductory note to the Basic Proposal leaves open the possibility of elements of the Working Paper to yet be incorporated into the treaty text and stresses there is no "agreement on any element" on the content of the Draft Basic proposal and "is open for changes based on the discussions on the Draft Basic Proposal and the Working Paper in the Committee".

With respect to the process, it would be interesting to know how the Chairman and the International Bureau paired down the consolidated text into the Draft Basic Proposal (SCCR/12/2) and the Working Paper (SCCR/12/3) considering that certain provisions presented as "clean draft text" only received support from few delegations. Furthermore, webcasting, which even the Chair admitted earlier as having limited support has found it's way into the Draft Basic Proposal as an appendix; it is presented as a non-mandatory opt-in provision.

An examination of Article 1 of the Draft Basic Proposal, Working Paper and the Second Revised Consolidated Text underscores the absence of any logical criteria used in the selection of "clean text" as opposed to "alternative provisions".

For example, Article 1.1 (Relation to Other Convention and Treaties) of the Draft Basic Proposal is a sweeping safeguard clause which states "Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under any international, regional or bilateral treaties addressing copyright or related rights".

This language is NOT present in the revised consolidated text (SCCR/12/2) presented to the 12th SCCR in November 2004. This language first makes its appearance in the revised consolidated text (SCCR/12/2/ Rev.2) presented to WIPO Member States in 2005. In the explanatory comments, the Chair notes that this language is a "new formula" based on an alternative proposed by 3 Member States-Egypt, Singapore and the United States of America. The purported purpose of this Article is to ensure "that the new Instrument would not derogate from any existing minimum obligations under any other treaty".

Another safeguard clause, less ambitious in scope proposed by Argentina, the European Community and its Member States, Honduras, Japan, Kenya, Switzerland, Ukraine, and Uruguay merely referenced the Rome Convention in terms of derogation from obligations in contrast to the sweeping safeguard clause presented in Article 1.1 of the Basic Draft document. My emphasis on Article 1 is to merely illustrate how a "new formula" based on a proposal tabled by 3 WIPO Member States was incorporated into "clean draft text" and to raise the question as to why this "trumped" a proposal tabled by over 30 WIPO Member States. One hopes these opaque drafting methods were not used in Articles 2 to 29 of the Draft Basic Proposal.

Another example of this culling process is the Singapore proposal (which received support from India) which called for a term of protection for 20 years for broadcasters. This proposal was consigned to the Working Paper (Graveyard slot) in contrast to the proposal calling for a term of protection for 50 years.

Obligations regarding Technological Protection Measures and Rights Management Information enjoyed inclusion in the winner's circle despite strong objection from at least one Member State.

For Member States and public interest NGOs participating in the SCCR process, attention should be placed on the process of negotiations as well as the technical minutia. Thus, the general public interest clauses tabled by Brazil to protect access to knowledge, curb anti-competitive practices, and protect and promote cultural diversity consistent with the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions and the defense of competition language tabled by Chile can have the chance to ameliorate a disastrous Treaty.

Jukka Liedes

WHO on stockpiles of oseltamivir

Tuesday, 21 March 2006
Thiru Balasubramaniam

According to WHO's pandemic influenza draft protocol for rapid response and containment (27 January 2006), the definition of a "global stockpile" is

a stockpile created to support containment, either directly or by replenishing other stockpiles that were used to support containment, anywhere in the world. Following donations by industry, WHO currently has a global stockpile containing 1.5 million treatment courses of oseltamivir. The stockpile will increase by an additional 1 million doses by end February 2006, and reach a total of 3 million treatment courses by May 2006.

This January 2006 report also notes that WHO's stockpile of oseltamivir

currently contains 1.5 million treatment courses (10 capsules per treatment packet). This supply will expand to 3 million treatment courses by May 2006. Most recently, the manufacturer has announced plans to augment the stockpile by an additional 2 million treatment courses. Three million treatment courses will be held in reserve for containment purposes; use of the additional two million treatment courses is flexible and under discussion. For reasons of security and logistic flexibility, one half of the supply is stored in Switzerland and one half in the USA. Depending on the region and the rapidity with which supplies can be mobilized, this stockpile may be used to directly support containment in a country or to replenish national or regional stockpiles that were used to support containment.

In light of the fact that half of WHO's stockpile of oseltamivir is held in the United States perhaps it may be of interest to recall U.S. Health Secretary Michael Leavitt's testimony to the Subcommittee on Health of the House Committee on Energy and Commerce on 8 November 2005 where he asserted that in the event of an avian flu pandemic every country would want to keep and use whatever stockpiles of oseltamivir it held within its borders and reminded the Subcommittee that the U.S. Government would do everything necessary to protect its citizens during a pandemic.

Dates set for Internet Governance Forum (IGF) in Athens

Tuesday, 14 March 2006
Thiru Balasubramaniam


The dates of the first meeting of the Internet Governance Forum (IGF) have been set by the Greek government from 30 October 2006 to 2 November 2006. The first meeting of the IGF will be held in Athens. Logistical information for the conference will soon be posted on the the host country website.

During the open consultations on convening the IGF held in Geneva from 16-17 February 2006, Mr. Nitin Desai, the UN Secretary-General's Special Advisor asked to participants to reflect upon two questions:

Whether there is a need for a multistakeholder group to prepare for the meeting.

Which public policy issues the first meeting of the IGF should address.

Although the deadlines for submissions to the IGF Secretariat on the "need for a multistakeholder group to assist the the Secretary-General in convening the IGF, what the mandate of this group should be and how it should be formed" expired on 28 February 2006, close watchers of this process have indicated that the Secretariat may be still amenable to suggestions. After all, two governments have made submissions on this topic on 3 March 2006 beyond the official deadline. The contact email is: igf@unog.ch

The deadline for groups to submit their top three public policy issues to be discussed in Athens is 31 March 2006. The submission should give a short explanation detailing the reasoning behind the selection.

The following link shows a short synthesis of the top ten most frequently mentioned discussion issues compiled from the dicussions and submissions. It should be noted that development and capacity building were cited as over-arching goals of this process. According to the IGF Secretariat, the ten most cited topics so far include: (1) Spam, (2) Multilingualism, (3) Cybercrime, (4) Cybersecurity (5) Privacy and Data Protection, (6) Freedom of Expression and Human Rights, (7) International Interconnection Costs, (8) Bridging the Digital Divide: Access and Policies, (9) Bridging the Digital Divide: Financing, (10) Rules for e-commerce, e-business and consumer protection.

The following website shows the submissions made by governments, civil society and business groups during the Geneva consultations as well as more recent comments on the "need for a multistakeholder group to assist the Secretary-General in convening the IGF, what the mandate of this group should be and how it should be formed".

Considering the open process of the IGF thus far, civil society groups should avail themselves of the opportunity to participate in the IGF and make submissions to the IGF Secretariat by 31 March 2006 on their "top 3 list" of public policy issues the first session of the IGF in Athens should discuss.