The politics of group B and the WIPO Broadcasting treaty

While some of the news reports have focused on north/south disputes over limitations and exceptions to rights in the WIPO Broadcasting treaty, there is a also a growing divide between North America (US and Canada) on the one hand, and Europe and Japan, on the other, over the nature of the rights in the treaty. The EU position (followed by Japan), which is being pushed by the very non-neutral Finish chair, is for Rome+ rights, to reward investment, not creativity. The US, which has not signed the Rome Convention and which never adopted a sui generis database right, does not normally reward investment with an intellectual property right (except in areas of test data for medicines or agricultural products). While treaty proponents claim they are concerned about stopping piracy, the EU or Japan will not in fact settle for a “Brussels plus” treaty that would provide focus on protection against signal piracy. The EU and Japan are demanding more expansive exclusive rights for broadcasters, the extension of these rights to cable companies, and the application of these rights in retransmissions of broadcasts on the Internet.

If the United States had agreed with the EU on the core issue of the exclusive rights for broadcasters, the treaty would have likely gone to diplomatic conference, given the pressure on developing countries from their own broadcasters and from the WIPO Secretariat.

What is interesting is the role of Michael Keplinger, who was put in the top WIPO copyright job by the United States. Keplinger is pushing for Rome type rights, for broadcasters and webcasters. He is not following the current US government line, but his own pro-rights-for-investment views, which are contrary to US legal traditions.

An interesting question is this. Will the broadcasting industry be best served by rent-seeking related rights regimes, like those pushed by Keplinger, Jukka Liedes, the EC and Japan, or by the less regulated and more free platform that is emerging on the Internet? The tech sector sector seems to think the traditional broadcasters are short sighted, and are missing the strategies and platforms that create the most value. Can WIPO find a way to actually think about this sector in a new way? Maybe WIPO should start hiring a few people that are more geeky, and actually know something about the new information technologies.