Tuesday, May 01, 2007

New draft, Old exclusive rights

by Manon Ress
Today, WIPO posted the non paper. My quick read:

interesting quote

5. The non-paper endeavors to lend full recognition to the “signal-based” approach, and to the focus determined by the General Assembly and the SCCR.
end of quote

However, you have para 6:


6. During the preparatory process of the non-paper, representatives of the broadcasting organizations have made a very serious point that cannot be omitted. If the Treaty is not based on some elementary and absolutely necessary rights, the process should be abandoned. Therefore the non-paper now includes, as the main operative part of protection, specific related-rights-type rights in two instances where the protection of a signal is most relevant, namely retransmission and deferred transmission.

end of quote

and this:


7. This represents the narrowest meaningful functional protection for broadcasting organizations. If Member States so wish, provisions may be added allowing for optional wider protection, notably of post-fixation rights or protection, which would enable international protection, linked to a clause on national treatment and reciprocity regarding optional rights or protection.

Check out the definition:
Article 2
(e) “retransmission” means the simultaneous transmission for the reception by the public by any means of a broadcast by any other person than the original broadcasting organization; simultaneous transmission of a retransmission shall be understood as well to be a retransmission;
end of quote

If they're serious about excluding the internet, they need to add something to keep the bad on TV and not on the Internet: "for the reception by the public by any means of a broadcast [ADD with the purpose of retransmitting on traditional broadcasting platform] by any other person than the original ..."

And finally, the rights (since no matter what the GA said, they are exclusive rights):


Article 7
Protection of Broadcasts

Broadcasting organizations shall enjoy the exclusive right of authorizing the retransmission of their broadcasts, and the deferred transmission by any means to the public of their fixed broadcasts.
end of quote

So, OK, no more fixation and reproduction but still exclusive rights. We're still beyond the mandate of the GA, the limitations and exceptions are still lame and the good provisions on cultural diversity and competition in the preamble are just "recognized"....

I'm wondering who is going to want this treaty? The Chair? WIPO?

Hopefully, the US delegation (and other non Rome members) will not agree to add exclusive rights to the broadcasters already strong protection.