WIPO Broadcasting Treaty Dead…For Now

Michael Hedges - June 25, 2007

Major treaties, internationally binding, are consecrated every so often, typically years in the making. In this digital age, that’s a problem. WIPO’s Broadcasting Treaty might be dead, for now, but it remains a problem looking for a place to happen.

Sometime Friday (June 22) WIPO’s Standing Committee on Copyright and Related Rights (SCCR) gave up, unofficially, after nearly ten years of negotiating. A week of mostly closed-door negotiations failed to achieve agreement on a treaty draft that would have been sent to the Diplomatic Conference scheduled for November. The end result might have been a treaty among the 184 WIPO signatory Member States establishing a new range of intellectual property rights, the essential provision being a 50 year right conferred on broadcasters for anything they transmit, content ownership rights being a separate issue.

The World Intellectual Property Organization (WIPO) was established in 1967 to “promote the protection of intellectual property throughout the world.” WIPO became a United Nations specialized agency in 1974, located in Geneva, Switzerland. It primarily functions as administrator of existing treaties, and taking fees (€300 million in 2006) for the effort.

One of those treaties is the mainstay of all international broadcast rights law, the 1961 Rome Convention. Like all treaties, regulations and media-related law written in the last century, it’s hopelessly out of date.

WIPO took up broadcasters rights at the behest of big broadcasters looking for a much stronger anti-piracy treaty. The general intent was to clamp down – or clamp fees – on re-transmission. Killing the fair use principle, Creative Commons and public domain would be a residual benefit to broadcasters. Both re-transmission and fair use became subject of the north-south dilemma dividing ever more developed and developing nations.

European delegates, led by the broadcasting lobby, argued for a new right given to broadcasters over anything transmitted regardless of content ownership. Consumer groups and big telecoms insisted on limiting the treaty to a broadcasters signal rather than the content.

Last weeks’ SCCR negotiations were more or less doomed from the beginning. The draft in discussion was passed last September under “highly unusual” circumstances, according to a WIPO delegate preferring not to be identified. He added, “Intel and Microsoft lobbyists are all over the building.”

“It would be better to abandon the process and admit that ten years’ work at WIPO had been wasted,” said Association of Commercial Television of Europe (ACTE) general director Ross Biggam, quoted by the Hollywood Reporter. “It fails to give broadcasters the rights we need to take action against free-riders in the Internet environment and, outside the European Union, it fails to give broadcasters the right to authorize legitimate exploitation of our services online,"

Those “free-riders” seem to be nasty (and un-billable) consumers uploading and downloading podcasts and, likely, video clips to YouTube.

“Several country delegations began to ask deeper questions about the rationale for the treaty, and examined ways to limiting the scope and nature of the treaty,” said James Love, Director of Knowledge Ecology International, reviewing Friday’s wimpy finale.  “In the end, the broadcasters demanded too much, and made too few concessions, for the treaty to move forward. Delegates at WIPO were no longer willing to ignore issues of access to knowledge, or the control of anticompetitive practices.”

The tech sector, aided by civil society groups, won this round on the argument that the internet’s power trumps all. For the foreseeable future – whatever that’s worth – broadcasters will not have the backing of international treaty to stop a person from uploading a video clip gleaned from a broadcasters transmission and uploading it to YouTube or re-transmitting a broadcast signal within a home network. Perhaps broadcasting industry could take a reality check from the music industry’s attempts at controlling new media technologies.

The biggest loser in this episode is WIPO. Failure to bring the Broadcasting Treaty to a Diplomatic Conference reflects badly on SCCR members and very badly on WIPO General Secretary Kamil Idris. Several developed nations, the United States included, find their constituents better served within the World Trade Organization (WTO) and the General Agreement on Tariffs and Trade (GATT) treaty. Traditional media will continue to chase “free-riders” but international treaties have broad stakeholders evermore diligent in defending common sense content and distribution rights.

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