The WIPO Broadcast Treaty Negotiations Begin

This week the WIPO Standing Committee is holding a meeting to consider a possible treaty for broadcasting organizations. KEI thought this treaty negotiation had been blocked by fundamental differences over the purposes and scope of the treaty in 2007, but in the past few years the US Copyright office asked to put the issue back on the SCCR agenda, and subsequently Francis Gurry and Ambassador Trevor Clarke from the WIPO Secretariat have pushed to reach a conclusion, and more recently South Africa, Mexico, Japan and some other countries are now quite active, in favor of a new treaty.

As today's meeting starts, only KEI is in Geneva representing consumers, while broadcast and copyright content industry NGOs have a large presence. The technology industry will be represented by CCIA, and unlike the earlier negotiation, there will not be people form the individual technology companies attending the meeting.

This is a frustrating negotiation for all sorts of reasons, but I'll start with the most basic concerns. It has been extremely difficult to get broadcaster treaty supporters to explain why a treaty is needed, in a world where content is already protected under several copyright and related rights treaties. At the last two SCCR meetings KEI was unable to get a single lobbyist for the broadcast treaty to make a public video interview setting out the case for the treaty, or even to answer basic questions about their objectives. We don't know if the rationale is related to piracy or to create a set of new economic rights for people who broadcast (and do not create) content. And, we don't understand why copyright does not already provide mechanisms to address piracy, when it occurs.

There are alleged gaps in copyright protection for works, but other than vague assertions that sporting events are not protected in some countries (which ones?) and some poorly articulated claims that broadcast owners don't have standing to litigate piracy, the "gaps" argument is hard to follow -- even though people are genuinely open minded, and would consider fixes to problems if they could be explained.

Some broadcasters say they don't care about the creation of new economic rights, with others clearly do. But what are these rights, and who gets them? There are proposals to create rights for giant corporations that own "channels" of content, like HBO, ESPN, the Disney Channel, etc, and these new rights would divert revenue from copyright owners to distributors. Since the ownership of distribution of video is much more concentrated than is ownership of video content, this would have distributional impacts that are not well understood. Also, there is likely to be redistribution of incomes out of some countries to a handful of large content distributors, and the impact of this cross country redistribution is not well understood.

WIPO could try to sort our these empirical and policy issues so people could better evaluate the proposals, but so far there has been zero economic analysis, and lots of talking about non-issues, such the interventions that seem to suggest that infringement of copyrighted material that is broadcast is somehow not an infringement without the treaty (Really, where?).

Once these issues are clarified, there is a negotiation over the appropriate limitations and exceptions to rights -- an issue that is directly related to the nature and scope of the rights.

Finally, how does this whole thing play out as broadcasts move to the Internet -- something that is happening quite fast in some countries, and less so in others.

If WIPO was to ask for an economic study of the broadcasting treaty, the study should address the following questions:

1. Who qualifies as a broadcasting organization? Does that include owners of "channels' that distribute content over cable and satellite, and if so, who owns these services?

2. Will the treaty have an impact on consumers, in terms of the money they pay for broadcast content?

3. Will the treaty change the distributions of revenues between copyright holders and distributors of content, and if so, how?

4. Will the treaty change the distributions of revenues between countries, and how?

5. Will the treaty create a new set of permissions (beyond that required for copyright) that people need to negotiate before they can reuse material copied from a broadcast? And if so, how will this impact the distribution of and access to knowledge.

You can follow the negotiations in real time here:

Password: interbroadcasting