WIPO Broadcast Treaty Could Move to DipCon in 2020 if Key Differences Bridged
A treaty updating broadcasting protections could be finalized next year if governments can finally resolve "fundamental issues" such as scope, object of protection and rights to be granted, said delegates at the April 1-5 World Intellectual Property Organization Standing Committee on Copyright and Related Rights (SCCR). They approved a recommendation, set out in Chairman Daren Tang's draft summary, that WIPO's general assembly asks governments to keep working toward a diplomatic conference in 2020 or 2021. Broadcaster and civil society groups were less than enthusiastic about the outcome.
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Conceptual differences seem to involve two areas, Tang said, according to an unofficial transcript of Tuesday's plenary session. Under discussion for years is the "issue of deferred transmission and extent to which if at all we include deferred transmission within the scope of the draft treaty." A new issue was raised by a proposal to create a notification mechanism to let governments declare in some way that "there may be a flexible way of implementing" some treaty obligations, he said. Despite "issues" about such a mechanism, there's a "real spirit" among delegations trying to find middle ground, he noted. Several governments praised the "constructive" talks but said during the final webcast plenary that a decision is needed quickly to keep up with technological developments.
The notification mechanism is part of a proposal floated by the U.S. before the last SCCR meeting (see 1811290002). Broadcasting organizations would have the exclusive right to authorize retransmission of their program-carrying signals to the public. Governments wouldn't have to extend or change copyright protections; and it would be up to each to implement the convention. The mechanism would allow certain uses to be carved out from the retrans right, emailed European Broadcasting Union Head-Intellectual Property Heijo Ruijsenaars. The U.S. defended the mechanism as being part of its communications law, "but for other countries its actual wording" in the text for the WIPO treaty "is too vague," he said. Broadcasters agree with that view, particularly since the retrans right "is the core of the Treaty and we thus need legal certainty on this matter."
"Overall, we have mixed feelings on the outcome" of the session, Ruijsenaars told us. Delegations have made progress on the mutual understanding of their positions on "deferred transmission," but the drafting attempts made in informal sessions didn't yield good results, he said. The SCCR has at most two days to come to joint solutions because "basically every word" must be consulted on by the delegates' regions, he said. "It is also likely that particularly for 'deferred' (which are in fact online, on-demand) transmissions, more than one or two alternatives may be possible."
"In some important ways, things have moved forward, but this was not a leap," emailed Knowledge Ecology International Director James Love. Delegates are slowly working through issues "they barely understand" and the in-depth discussion of the U.S. proposal made political choices more clear, he said.
The discussion was "fairly depressing" because the EU is seeking to push the same type of copyright plus related rights for broadcasters it approved for news publishers in the new EU copyright directive (see 1903260001), and is in denial about how that will play out with big tech companies or the public, Love said. While it will create rights that will have some value for broadcasters for enforcement, it also will create a "big mess" for post-fixation rights, ending up in a "crazy thicket of rights for the very big tech companies that don't need new rights, and the companies that will replace the traditional broadcaster, or merge with them, sooner than the EU negotiators seem to realize."
Tang will revise his consolidated text before the Oct. 21-25 meeting. If the diplomatic conference is to be held next year, that session will have to find acceptable solutions for the main outstanding issues, said Ruijsenaars: "This is not wholly impossible, but requires more drafting time" if it's not to drag on until 2021.