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Broadcasting treaty will subvert rights of creators, say critics

The World Intellectual Property Organisation (WIPO) met last week to discuss a proposed treaty on the rights of broadcasters. But critics say the proposals will undermine public interest and subvert the rights of creators in favour of large broadcasters.22 Nov 2004

WIPO's Standing Committee on Copyrights and Related Rights met in Geneva last week for further debate on a consolidated text of proposals for the Treaty on the Protection of Broadcasting Organisations.

Work on the text has been continuing since 1998 and does not yet amount to a draft Treaty. But the proposals submitted so far have stirred controversy.

One of the main criticisms, from civil liberties group IP Justice, relates to proposals to prevent consumers from bypassing technology locks that broadcasting companies place on information and entertainment.

These controversial provisions, similar to the US Digital Millennium Copyright Act (DMCA), have been shown to harm freedom of expression, consumer rights, technological innovation, and market competition, according to IP Justice.

The group, which participated in the meeting as an observer, says that current proposals will grant an additional layer of rights for broadcasters, on top of the rights of copyright holders, to prevent consumer and scientific circumvention of technology locks on broadcasts.

If the treaty passes, argues the group, consumers will be unable to access public domain programming that is locked-up by broadcasting companies. Furthermore, artists will be required to seek permission from broadcasting companies if they want to use their own performances.

Brazil and India had requested at the last committee meeting that the draft allow for the possibility of removing these provisions, but no option to delete the relevant sections of the treaty was included in its latest version.

Activists are also concerned that while the treaty purports to "update" existing laws, in reality, they say, it will create a broad range of new rights for broadcasters that currently exist nowhere in any national law.

For example, observes IP Justice, the US has proposed that the treaty's scope be broadened to also control webcasting – the broadcasting of radio over the internet. This would allow traditional broadcasting companies to squeeze out innovative internet companies, according to the group.

Over a dozen Member States urged that webcasting be removed from the scope of the treaty's regulation at the last meeting, but the provision, supported only by the US, remains in the proposals, according to the activist group.

The proposal has also been attacked for undermining the goals of the "Development Agenda," which was adopted by the WIPO General Assembly in October to shift WIPO's focus away from the expansion of rightsholders' rights and towards the creation of incentives for allowing access to knowledge.

Unfortunately, says IP Justice, WIPO's copyright committee has yet to heed the calls from developing countries and remains focused on "special interest" laws such as the proposed Broadcasting Treaty.

"It is not the role of the WIPO Secretariat to tell Member States what their new laws will be, but rather to facilitate Member States' expressed will," said IP Justice Executive Director Robin Gross in a statement to the WIPO copyright committee.

"Self-determination is an indispensable component of legitimate democratic law-making processes. Unfortunately, it would appear that the 'tail is wagging the dog' in this case," added Gross.

"This treaty will confer upon the transmitters of information a host of 'related' or 'pseudo' copyrights that have the potential to trump true copyright and restrict the flow of information on the internet," said an open letter presented to the meeting by Cory Doctorow, European Affairs Coordinator for the Electronic Frontier Foundation, on behalf of 20 technology companies and organisations opposed to the treaty.

The EFF, together with IP Justice, European Digital Rights and other civil rights groups have presented the Committee with an alternative draft of the Treaty. This sets out their version of the concepts that should be used in any international measure covering broadcasts and broadcasting organisations.

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