The proposed WIPO Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations

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See also KEI webpage on WIPO Broadcasting Treaty

About the Treaty
The World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) has met twice a year since 1998, for a total of 16 times. The topic of discussion, up until the Tenth Session, November 3-5, 2003, was a possible database treaty. From then, the discussion has been exclusively about a treaty on the protection of broadcasting, cablecasting and webcasting organizations. The treaty scope was re-defined in May 2006, as covering "only traditional" television and radio broadcasting, the two technologies covered by the 1961 Rome Convention, as well as any combination or representation of "images and sounds" delivered by cable television and satellite.

The May 1, 2007 non-paper will be the basis of the discussion to take place June 18-22 at the special second session of the SCCR. The European Union and other proponents of a Rome-based approach present the non-paper as the narrowest treaty that can be 'accepted'. It is designed to give intellectual property rights for broadcasting content, and it is designed to extend those rights to the Internet. It is not about preventing the theft of signals. It is not about piracy. It is about rent-seeking. It risks the introduction of a thicket of new rights that will harm the Internet. KEI opposes any new treaty that introduces an intellectual property right for merely packaging and distributing works. It is possible to put an end the current negotiations, if Member States reject the the May 1, 2007 draft predicated upon the proposal of the European Commsision. The broadcasting treaty can be discussed at a later date, if and when anyone can identify a compelling reason to introduce such a treaty.

The current draft treaty's exclusive rights-based approach would create a new intellectual property right, such as rights in broadcast signals, which would be layered upon existing copyright in the underlying program material. Many NGOs, IT industry representatives and copyright owners, as well as public interest groups, are opposed to the granting of intellectual property rights in works to parties that simply schedule and transmit works.
Quick Update:
Up until the final moments of the 15th SCCR (Sept 11-13, 2006), there appeared to be growing support for a more narrow treaty that would protect broadcasters and cable casters against signal theft. Outrightly rejecting the Standing Committee's lukewarm "recommendation" for the convening of a diplomatic conference, the General Assembly decided , in October 2006, to convene two meetings in January 2007 and June 2007 to clarify outstanding issues. The convening of a Diplomatic Conference at the end 2007 is contingent upon whether WIPO Member States reach agreement on a revised basic proposal.
Many delegations and NGOs stated that there should be no Diplomatic Conference until WIPO members can agree upon the basic paradigm for the treaty. Do we want a "rights" approach, or a "signal theft" approach? Once this issue is resolved, it may be much easier to convene a successful diplomatic conference.

After the January 2007 special session, the Jukka Liedes circulated a draft non-paper and WIPO received comments on that draft. 15 member states and the European Community submitted comments. 7 member states expressed their support for a signal-theft approach, 4 did not express support for that approach and 4 did not directly address the issue. Following these comments, Chair Liedes submitted the aforementioned May 1, 2007 text which endeavors to export a European Commission rent-seeking regime on broadcast signals to the rest of the world.

What is at stake?
While broadcasting organizations are protected all over the world, countries have different legal traditions on how to provide protection. Given that it is difficult to reduce protection levels once they are created, the 83 countries that have signed the 1961 Rome Convention are unlikely to repeal the broadcaster rights. In the US, broadcasting organizations are protected not under a related rights regime but under other regulatory regimes (Section 325 of the Communication Act from 1934, as amended, 47 USC Section 325 or Section 605 and 18 USC sections 2510-2512). Beyond these direct statutory rights, important additional sources of legal protection under IP law can be used by broadcasters against unauthorized use of a broadcaster's signal such as trademark laws, the Lanham Act, and state competition laws, as well as the Copyright law.
On a global level, in Article 14 of the TRIPS Agreement, broadcasters "shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971)." Furthermore, note that the Internet has never been subject to a Rome Convention type "casting" right. It is possible to avoid the mistake of the 1961 Rome Convention's broadcasting right, because we are starting from a clean slate.
Given the evidence that Rome type transmission rights are not needed for traditional television (the US is one of more than 80 countries that never signed the Rome Convention, but still has a highly profitable broadcasting industry), and they are likely to be quite harmful for the Internet, policy makers should think differently about "parity." The rules for TV should be more like the rules (or lack thereof) for the Internet, rather than the other way around. If this isn't possible for countries that already have given broadcasters an IP "right" in their transmissions, they should not grant the same 'right' for the Internet. As the Internet has shown, freedom can be quite be quite valuable because it permits people to act without permission or remuneration in areas that are critical for creative communication.

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