Regarding a Proposal for a Broadcasting Treaty

at the 14th Session of the WIPO Standing Committee on

Copyrights and Related Rights

1-5 May 2006

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.

Mr. Chairman, IP Justice submits that this treaty proposal is no where near ready for a Diplomatic Conference.  There remain too many disagreements among Member States regarding the treaty’s basic provisions.  If the current Basic Draft were proposed today, IP Justice would have to recommend to Member States that it reject the treaty entirely.

IP Justice is particularly concerned with the proposal to include the regulation of Internet transmissions within the scope of this treaty, whether mandatory or optional.   At previous SCCR meetings, the vast majority of Member States expressed discomfort with any type of proposal to extend the treaty’s scope to include webcasting, so its difficult to understand how it could remain a part of this treaty, even as an “optional appendix”.

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

It is worth noting, that no national parliament or legislature in the world has voted to create such ambitious webcasting rights.  It would be dangerously inappropriate to “experiment” in an international treaty by first creating webcasting rights in this forum — without any opportunity to see how the proposed regulation actually works in the real world.

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 measures in their national law, so an “optional” provision in a treaty adds no value, and will only create dis-harmony among Member States, and become a leverage tool for powerful countries against weaker ones.  If such measures are truly needed, why hasn’t any country, including the United States, the main supporter for regulating webcasting, created such rights in its own country?

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 in the areas where they already exist for copyrighted works, for example the controversial US Digital Millennium Copyright Act.  IP Justice supports the recent proposal of Columbia to place necessary limitations on any new anti-circumvention rights to protect legitimate uses.

IP Justice is also troubled by the power this proposed treaty would give to broadcasting companies over artists and their performances.  Creating an additional layer of rights for broadcasting companies will make it difficult for artists to use their own performances without first obtaining permission from 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, 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 broadcast 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 prior meetings 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”.

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

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

More Info:

IP Justice’s Top 10 Reasons to Reject the WIPO Broadcasting Treaty

IP Justice Webpage on WIPO Broadcasting Treaty