The issue of whether the scope of the proposed treaty on the protection of broadcasting organizations should include "webcasting" (transmission over the web) has dominated much of the discussion so far in the 14th Session of the Standing Committee on Copyright and Related Rights (SCCR).
The issue of "webcasting" is included in a Non-Mandatory Appendix on the Protection in Relation to Webcasting (SCCR/14/2) attached to the Draft Basic Proposal for the WIPO Treaty on the Protection of Broadcasting Organizations, both of which are the basis of discussions at the 14th Session.
The Appendix provides that Members that wish to "opt-in" and be bound would have to deposit a notification with the Director General of WIPO.
Opening statements of members indicated overwhelming opposition to the inclusion of the issue of webcasting as a mandatory or voluntary "opt-in" part of the proposed treaty but the matter still remains on the table for negotiations.
Many delegations are also opposed to any direct and indirect references to the "webcasting" that is found in many parts of the main text of the proposed treaty on the protection of broadcasting organizations.
Since the start of the meeting many delegations have highlighted repeatedly that unless the issue of the scope of protection is resolved, it is difficult to proceed to discuss the other substantive elements of the proposed treaty.
The SCCR is meeting for a second time as mandated by the 2005 General Assembly to accelerate discussions on the proposed treaty on the protection of broadcasting organizations. The outcome of this meeting will determine whether a diplomatic conference on this proposed treaty will be held any time in the near future.
Webcasting has emerged as an acrimonious issue that could stall negotiations on the proposed treaty. The proponents for the inclusion of webcasting are the US, Japan and Korea. The European Community is in favour of "simulcasting" i.e. wherein the broadcaster transmits its broadcasts over the web.
Developing countries are mainly worried that the implications of granting extensive rights to webcasters are unknown and thus it is premature to regulate the internet. They are also concerned that the inclusion of webcasting will hinder access to knowledge and information and widen the digital divide between developed and developing countries.
Several civil society organizations, webcasting organizations as well as corporations (including Intel) have voiced objections on extending the scope of the treaty to include webcasting.
A paper by the Civil Society Coalition states that even though webcasting is framed as an "opt-in" provision, it creates a backdoor for the upward harmonization of webcasting rights. It says that the definition in the current draft text is so broad that if adopted it will burden all World Wide Web content (including text and still images) with a "rights" framework designed for broadcasting and radio waves over the air.
In 2004, 20 webcasting organizations indicated in an open letter to WIPO that they do not desire the protection that is afforded by the proposed Treaty. Said the letter:
"The Internet depends on permission-free access. This is reflected in the exemptions in many countries' copyright laws for online and internet service providers. When authors or rights-holders' permission has been required for fixation, copying, re-transmission or decoding in other situations, the negotiation of licenses from creators and copyright rights-holders have provided ample protection for all parties.
"Adding a new layer of intermediaries, over and above copyright holders, for the re-use of information on the Internet benefits no one - save those intermediaries. If an Internet company has the rights to a work, or need not secure the rights to a work due to a limitation in copyright, or because the work is in the public domain, there is no rational reason to require that the company also seek the permission of a further intermediary whose sole creative contribution to the work is in making it available."
The letter adds that "Internet businesses are famously, legendarily well-capitalized from angels, venture capitalists, public markets, private investors, governments and every other source of capital imaginable".
Intel Corporation has also issued a paper opposing the treaty as currently proposed, stating it has not "demonstrated that the benefits of creating new exclusive rights outweigh the burdens that these new rights impose." The burdens include liability risk to software developers, internet service providers and device makers. It proposes that the proposed treaty be narrowed to focus on signal theft.
When webcasting was discussed on Wednesday afternoon, many developing countries reiterated their concerns and it was clear that they could not accept its inclusion.
Noting the broad resistance against webcasting, the Chairman Jukka Liedes indicated the possibility of having two separate Basic Proposals, one on webcasting and simulcasting and the other on broadcasting and cable casting.
The US said that if the issue of webcasting is not addressed, a great opportunity would be missed. It could remove the uncertainty caused by use of the word webcasting, adding that it was never intended to cover webpages, blogs and common activities over the internet and that the definition could be worked on. Including "webcasting" and making it non mandatory would deal with the concerns about the matter.
Egypt said that its concern had increased on the second reading of the Appendix and indicated that it should not be there. It added that it did not see the differences between the normal use of the Internet and "webcasting", as the discussion is about transmission of sounds and images over the internet for reception by the public. It also added that webcasting is different from radio or television.
The European Communities said there should be no new beneficiaries and that the only entities that should receive protection should be the broadcasters and cable casters that retransmit over internet.
South Africa, referring to the non-mandatory Appendix, said that there seems to be an assumption that both the affected parties reside in one state. It sought clarification on what would happen if one party resided in a state that was a signatory to the Appendix while another party resided in a non signatory state. It also said that the document is silent on the question of liability for broadcasters, although it grants broad rights.
Bangladesh said that the subject was broad and raised the matter of who will control the governance of the internet. It added that there were issues relating to cyber-squatting and security as well and until these matters are resolved it is premature to discuss webcasting.
Brazil said it was premature to negotiate on "webcasting" as there is a rapid process of technology convergence. There should instead be impact studies which takes into account the specific perspectives of developing countries.
It added that there is no specific mandate to regulate the internet and remarked that delegations pushing for regulation of the internet in WIPO were the same delegations that during the World Summit on Information Society process was against regulating the internet.
Australia asked what is the internet equivalent of the "transmitter" (that a broadcasting organization uses), an indication of the different nature of "webcasting" from traditional broadcasting over the wire and wireless means.
India said that it was clear from the interventions from the US and the EU that "webcasting" in the broadest sense was not intended to be in the treaty. It raised certain difficulties and matters that had to be considered even if the scope of "webcasting/simulcasting" is limited.
Due to the nature of the internet, it is difficult to regulate and thus a contracting party would find it difficult to provide protection such as a right to authorise or the right to prohibit unauthorised transmissions.
The protection granted to broadcasting organizations is based on the assumption that there is a head office and a transmitter and thus someone is responsible. But if transported over the internet the situation is much hazier.
It said that the nature of the rights, the limitations and exceptions are issues that need to be revisited in light of the new proposal. Cablecasters like telecommunication companies are just re-transmitters and thus any rights that are being discussed should focus on the rights of original broadcasters.
Argentina said the issue should not be included in the negotiations. In bilateral free trade agreements all sorts of WIPO treaties are included and so the fact that "webcasting" is non mandatory provides no comfort.
It said for the last three years, delegations have been distracted by the issue and this slowed down the progress on other issues in treaty. There should be an impact assessment before embarking on "webcasting" which should be in a separate instrument.
Chile asked whether regulation as proposed in the Appendix was needed for the Internet and Information Society. It added that the burden of proof that these norms were required was on delegations seeking this level of protection.
It asked what would be the effect on software developers, developers of hardware, internet service providers, content providers and what is the impact on access to knowledge?
Following these interventions, US agreed that the focus should be signal theft. It added that the scope of protection granted under the treaty (broadcasters, cablecasters and webcasters) must ensure that they have enough protection to prevent against piracy while not harming content creators and consumers etc.
It added that technology neutrality and competitive parity are guiding principles and that it does not want to limit protection based on the type of organizations. It also added that protection should also apply to other organizations that invest time and effort to schedule and assemble content for dissemination to the public over the Internet.
The European Community said the open public internet is not the scope of the treaty. Some broadcasters transmit over the internet and offer content to only a certain set of subscribers, and these broadcasters should be protected. This is the closed internet and there is no new beneficiary, it added.
Brazil responded that even after all the attempts by delegations to clarify the issue, it was more confused and thus the best thing would be to stick to the original mandate and only focus on broadcasting.
