STATEMENT BY IP JUSTICE

Regarding a Proposal for a Broadcasting Treaty

at the 13th Session of the WIPO Standing Committee on

Copyrights and Related Rights

23 November 2005

Thank you, Mr. Chairman.  I speak on behalf IP Justice, an international civil liberties organization that promotes balanced intellectual property law.  Based in San Francisco, IP Justice also maintains representatives in Switzerland and Italy.

Firstly, we would like to express support for Brazil’s recent proposal to reformulate the existing proposal for a Broadcasting Treaty to more adequately balance the public’s interest with the new rights created for broadcasting companies.

Mr. Chairman, IP Justice is particularly concerned with any proposal to include the regulation of Internet transmissions within the scope of this treaty, whether mandatory or optional. 

 It is worth noting, that such webcasting provisions currently exist no where in any national law.  It would be dangerously inappropriate to “experiment” in an international treaty by first creating those rights in this forum -- without any opportunity to see how such regulation actually works in the real world. 

IP Justice is concerned that broadening the scope of this treaty to include Internet transmissions of media would harm the growth and development of the Internet.  As it would apply to thousands, if not millions, of individual websites around the world, such regulation of Internet transmissions threatens to chill freedom of expression and harm innovation. 

The proposal to regulate only simulcasting is a “red herring”, and is in fact, a back-door means of including webcasting within the scope of the treaty.  All a webcaster would need to do is schedule a time for the original Internet transmission, and all subsequent retransmissions of that webcast, would be regulated under the treaty’s retransmission right.  So webcasting would, in fact, remain within the scope of regulation in this treaty despite attempts to narrow it to simulcasting.

Including a provision on webcasting in an international treaty as an optional feature makes absolutely no sense.  Member States are always free to enact webcasting transmissions in their national law, so an “optional” provision in a treaty adds no value, and will only create dis-harmony among Member States.  If such measures are truly needed, I ask: why hasn’t any country, including the United States, the lone supporter regulating webcasting, enacted such measures in their home countries?

Mr. Chairman, IP Justice is also concerned about the proposals to include a ban on circumventing technological protection measures placed on broadcasts.  These provisions have already been shown to be harmful and overly-broad in the areas where they already exist for copyrighted works, for example the controversial US Digital Millennium Copyright Act. 

Creating an additional layer of rights for broadcasting companies on top of existing rights will make it difficult for artists to use their own performances without obtaining the permission of broadcast companies.  And consumers would be preventing form accessing works in the public domain that are broadcasted by media companies.

Greater exceptions and limitations would need to be included in this treaty in order to protect the general public interest.  Considering the global trend to create new rights for rightsholders, due consideration must be afforded to the exceptions and limitations to those rights in order to ensure the public is able to access and use broadcasted information.

The treaty proposal must be further clarified to ensure that any new rights created apply only to the broadcast signals, and not the content that is transmitted.  It is impossible to separate a broadcast signal from the underlying content transmitted, so intentions to regulate only signals, will inherently regulate access to the content as well.

Finally, Mr. Chair, IP Justice supports the views expressed by several Member States at this meeting and in regional consultations to undertake comprehensive studies of the impact of this treaty on local economies before rushing into a Diplomatic Conference.  Without weighing the costs to society and local economies against the possible benefits of this treaty, we are unfortunately “putting the cart before the horse” so to speak.

IP Justice welcomes the opportunity to further discuss these views as well as those of Member States at any time.  Thank you, Mr. Chairman.