Friday, March 31, 2006

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