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Deutsch: ENDitorial: Europarat belebt untotes WIPO Abkommen wieder

On January 28 and 29, the Council of Europe held a consultation meeting on the launch of work on a new international instrument that would create neighbouring rights for broadcasting organisations. The purpose of this initiative is to take up the work of the World Intellectual Property Organisation (WIPO) which, following twelve years of negotiation has been unable to reach any agreement on the objectives and scope of a proposed treaty for the protection of broadcasters and cablecasters. The draft WIPO treaty has been proposed as the basis for negotiations at the Council of Europe.

Negotiations at WIPO have stalled over two issues concerning the scope of the proposed treaty. First, the majority of WIPO's Member States want any treaty to be limited to protecting broadcasters' signals, rather than creating 50 year intellectual property rights to the content carried by those signals, which in most cases, is already protected by copyright. Second, many countries oppose the extension of the treaty to the Internet because that would restrict freedom of expression and the free flow of information on the Internet. Despite this, broadcasters have continued to press for treaty based on IP rights, and want exclusive rights over Internet retransmissions of recorded broadcast and cablecast programming. The current draft WIPO treaty also includes a number of other elements that raise concerns for consumers' existing rights under national copyright laws, competition policy, and innovation, including obligations for legal entrenchment of broadcasters' and cablecasters' technological protection measures and an overbroad ban on decryption devices that would extend to personal computers.

The recent discussions at the Council of Europe were similarly broad. In addition to what is being sought at WIPO, broadcasters also appear to be seeking protection for "catch-up" services and video on demand services.

The basic logic presented by broadcasters is:

- they need protection for their broadcast signals
- therefore they also need protection for intra- and inter-broadcaster signals before they are broadcast
- to be thorough, they need protection for all pre-broadcast signals, even if they are not broadcast
- to be future-proof, they need protection that is technologically neutral
- if there is protection for non-broadcast pre-broadcast signals, this protection should extend to programming when it is made available as an "add-on" service for online news services;
- as there would be protection for those short-term on-demand signals, online "catch-up" services should also be protected;
- since catch-up services are to be protected, all on-demand services should be protected; and
- broadcasters' on-demand services are different from other on demand services (for reasons not yet articulated), so this protection should be granted exclusively to broadcasters and cablecasters.

Although negotiations have been under way at WIPO for eleven years, WIPO has undertaken very little empirical analysis of the problems being experienced by broadcasters and cablecasters that might justify the need for a new IP rights based treaty. WIPO commissioned a study last year on the economic and social aspects of neighbouring rights protection for broadcasters, which is expected before the next WIPO Copyright Committee meeting in June.

The Council of Europe has also not yet undertaken any independent research on the nature of the problem which the new instrument purports to solve, nor any analysis of existing legal protections for transmission of digital data over computer networks that may provide some or all of the protection that broadcasters claim to need. The lack of empirical evidence justifying the creation of the new instrument, together with the absence of many stakeholders who would be affected by the proposed instrument (artists, sports organisations, equipment manufacturers, telecommunications operators, Internet access providers, etc) are likely to be barriers to the agreement, as they have been at WIPO.

If WIPO is unable to successfully conclude its treaty negotiations and the EU Council of Ministers provides the Commission with a negotiating mandate, the Council of Europe is likely to establish an ad hoc drafting group in June. Once an initial draft is prepared, it is likely that a consultation will then take place.

However, a core problem remains. The existing IPR regime has so many problems in Europe that countries like France, the United Kingdom and Poland are proposing legislation which puts fundamental freedoms protected by the European Convention on Human Rights under severe threat. Given this, it would seem imprudent for the Council of Europe to begin work on the preparation of another IPR instrument in the complete absence of evidence demonstrating that this is needed.

2004 NGO Declaration on WIPO negotiations
http://www.eff.org/files/filenode/broadcasting_treaty/20040608_Draft_J...

EFF Position Paper on WIPO negotiations
http://www.eff.org/files/filenode/broadcasting_treaty/EFF_position_pap...

EDRI-gram: The broadcast treaty stalled by WIPO General Assembly (11.10.2006)
http://www.edri.org/edrigram/number4.19/broadcast

EDRi-gram: The broadcasting treaty resuscitated by the Council of Europe (19.12.2007)
http://www.edri.org/edrigram/number5.24/coe-broadcasting-treaty

(Contribution by Joe McNamee - EDRi)