Subject: CP Tech Summary of Xcasters Treaty After Last WIPO Meeting on it
From: Seth Johnson <>
Date: Wed, 24 May 2006 20:50:05 -0400

(Go to page for internal links.  -- Seth)


WIPO xcasting treaties - next steps

Posted by James Love on Mon, 05/08/2006 - 12:20pm

Last friday the UN's World Intellectual Property Organization
(WIPO) concluded five days of tense discussions on proposals for
a treaty giving new intellectual property rights for
broadcasting/cablecasting and webcasting organizations. I have
reported on these negotiations extensively elsewhere, and persons
who want to follow the treaty debates can look at CPTech's web
page on the treaty, which has links to many documents and
stakeholder views, or the archives of the A2K listserve, where
the negotiations are often discussed.

Here are some follow-up to my earlier comments on Huffpo and this
blog on the treaty negotiations.

On Friday, the last day of the negotiations, the WIPO Standing
Committee on Copyright and Related Rights (SCCR), made a decision
to break the treaty negotiations into two separate tracts -- one
for "traditional" broadcasting, which was defined to include
newer forms of broadcasting such as cable or Satellite TV, and
another tract for the technologies that would deliver content
over the Internet (originally referred to as the "webcasting"

This was my analysis at the end of the WIPO session on Friday,
May 5th.

    It's over. Here are the basics. They have split the
"traditional broadcasting" and the Internet technologies into two
separate treaty projects. They will have separate meetings and
separate documents, separate paradigms, and different schedules.
The traditional package goes first, and they will try to get the
Sept GA to order a dip conf. for 2007. If that blows up, all bets
are off. But if the GA approves the traditional broadcasting
treaty (still not a done deal... with more negotiations and
drafting)... the "new" internet technologies have a separate work
program, which may well die, once the Internet/tech community
sees a standalone Internet transmission treaty and begins to
focus, but who knows for sure.

    CPTech instant statement...

    "Today WIPO finally took a step back from forcing a
restrictive Rome Convention intellectual property right on
Internet publishing... This is a victory for everyone who has
opposed linking webcasting to the broadcasting treaty. There is
still a lot of work to be done. There is a strong likihood the
traditional broadcasting treaty will move forward, and the EU
will clearly push to expand this to cases where broadcasters use
the Internet.... and there are considerable problems with many of
the proposals for the broadcasting treaty, including some very
strong rights, TPMs, and other problems. However, there is now
also a growing movement away from granting IP rights in the
content of transmissions, in favor of theft of services
protections, which is a very positive development, and a new
project to examine the impact of TPMs on limitations and
exceptions, which is quite important. The Internet is far safer
now than before, because the threat of a new treaty for Internet
middleman is now much less likely."

A number of other groups, such as EFF, IP-Justice, and OKF, have
also issued statements, many of which are available on the A2K
listserve archives.

So, where do things stand today? There will apparently be a WIPO
SCCR meeting in September 2006, before the WIPO General Assembly,
which also meets in September 2006. At these meetings, WIPO
member states will try to pull together a text of a treaty for
"traditional" broadcasting organizations, and get approval and
terms of reference for a diplomatic conference, some time in
2007. There are many different issues at stake -- the types of
rights given to broadcasting organizations, the allowed (required
or technically feasible) limitations and exceptions to those
rights, obligations for technological protection measures (TPMs)
and digital rights management systems (DRMs), and the extent to
which the European Union will succeed in extending the
broadcasting rights to simulcasting on the Internet.

A number of NGOs, copyright owners, tech companies and some
governments will push for a "thin" treaty that only addresses
"theft of service" issues, and which does not create a layer of
intellectual property rights in the content of materials that are
broadcast. This would be a big change from the 1961 Rome
Convention that this treaty is supposed to "update."

It will be interesting to see if WIPO delegates can be persuaded
that it is mistake to create or expand intellectual property
rights associated with distributing works. Will there be support
for new paradigms for addressing "theft of services," that do not
create new layers of "owners" of works, and which do not create
obligations to obtain multiple permissions to use works?

On the topic of TPMs/DRMs, we will also be interested in seeing
if it is possible to avoid a new global legal regime that goes
beyond that already included in the WCT or WPPT treaties, for
copyrighted materials. But if they do proceed with a new TPM/DRM
framework, would they consider a new approach that requires
TPM/DRM regimes be "least restrictive" of Access to Knowledge
(A2K), create the fewest problems for consumer privacy, and do
not unduly conflict with the public's legitimate rights to use
works -- something we are exploring elsewhere.

Right now there appears to be a strong coalition of civil society
NGOs, library organizations, tech companies and developing
country negotiators that are trying to move things in the right
direction. There are also, on some issues, common interests
between this coalition and copyright owners, who are opposed to
giving broadcasters rights in their works.

If the broadcasting treaty advances in September, then the "new
technologies" treaty proposals (the rights for Internet
middlemen) will still be alive, but in its own tract. This
presents problems, because it could still move ahead with the
wrong paradigm (IP rights in content), and even if it does not
move, it will have the unfortunate effect of eliminating or
reducing time to discuss other more important proposals, such as
minimum copyright limitations and exceptions for the visually
impaired, libraries, education, or other groups, or a broader
discussion of possible elements of a treaty on Access to

On the other hand, if the traditional broadcasting treaty blows
up in September, all bets are off, and the US could come back and
push to include webcasting in a broader and more dangerous
treaty, or the whole thing could collapse, and we could have no
treaty at all.

At this point, anything is possible.

At a higher level, this is a test of WIPO. Will WIPO address
issues from the perspectives of (a) supporting development and
creativity, or (b) responding to self-serving lobbying efforts by
(undeserving) right-owners? Will WIPO even consider evaluating
the impact of the treaty proposals on the public or copyright
owners? Will there be any critical economic analysis of the need
for the treaty in the first place? Will WIPO create a precedent
that "investment" alone is entitled to "protection" from
competition, for a term of 50 years? Can WIPO ever admit that any
expansion of intellectual property rights was a mistake?

Will the European Union continue to push a highly anticompetitive
model for this treaty, giving incumbent broadcasters these
special rights in content they transmit? Will the US government
accept the Rome IP-in-content approach, which has been rejected
in the US for 45 years? Will the US or the EU ever publish any
analysis of their positions, or justifications for their
proposals? Will the US ever publish an analysis of how the treaty
would change US law? Will the US or the EU ever hold a public
consultation on the treaty, before it is sent to a diplomatic
conference? Will Canada, New Zealand or Australia engage in
public consultations? Will UNESCO play any role, given the
subject matter?

All of these questions are important, not only for this treaty,
but as a measure of our capacity to protect the public interest
in global norm setting for polices on intellectual property and
Access to Knowledge.