Diplomat Conference Recommended to Make Decisions on Broadcast Treaty

The recommendation came quickly late Wed. over concerns raised over procedure and the wide range of options in the revised draft basic proposal for the treaty. The meeting’s conclusion might have seemed quick, “but all of the issues have been talked about over and over again,” said Rita Hayes, WIPO deputy dir. gen., after the talks here. Outstanding issues will need varying degrees of negotiation, “but no one is going to give up on a position until you get a diplomatic conference,” added Hayes.

“A decision was made despite the clear lack of consensus,” said Sarah Deutsch, Verizon vp-assoc. gen. counsel, and will likely result in a very contentious debate during the diplomatic conference. Some industry and non- govt. organization officials were disappointed at the recommendation to convene a diplomatic conference, citing the disparity between positions and the absence of narrowing in positions, and some delegations, including the U.S., and observers said going ahead with a diplomatic conference may risk failure.

Japan, Philippines, Brazil, Australia, Switzerland, the European Commission, Mexico and Indonesia spoke in favor of recommending a diplomatic conference; India, Iran, Bolivia and the U.S. voiced concerns and reservations to making the recommendation, but none halted the procedure to recommend the diplomatic conference. Questions raised were over duration, scope, public interest concerns, economic impact, whether the basic proposal will be used as a basis for the conference.

The U.S. said: “At this point, our conclusion, our assessment is that in our view the document SCCR/15/2 [the revised draft basic proposal] by itself is not a proper basis to go forward towards a diplomatic conference. It requires something more, whether that be revisions to the document, whether that be instructions in the framework you have put before us in the draft document, it requires some more certainty.”

There are many areas which cause “great concern to many delegations, including our own,” the U.S. delegation said: “Principal among them, but not an exhaustive list” are the relation to other conventions and treaties, general principles, and protection and promotion of cultural diversity. “Those are provisions that reach well beyond protection of broadcasting organizations and enter into areas that create great difficulty for us in proceeding forward,” the U.S. said. “Similarly, there is much uncertainty about the scope of the technological measures provision in that document,” and the document needed more work in order to put the diplomatic conference on better footing, the U.S. said.

“Anytime you're working on a treaty and you go for a diplomatic conference, you first of all have to say okay, we have the consensus of the committee to move forward -- and there certainly are some reservations by some delegates that there are a lot of outstanding issues,” said Hayes. But there have been previous diplomatic conferences when all the issues were decided before the diplomatic conference and then it didn’t work, she added.

“So, I think it all comes down to, do the member states want a treaty on traditional broadcasting and cablecasting. And they do,” said Hayes: “But there are different issues that are out there… That’s why we have 3 weeks for the diplomatic conference because it’s going to take 3 weeks. There are positions there that will not take any time, but no one is going to give up on a position until you get a diplomatic conference. There’s duration -- 20 or 50 years. We talked a lot about that… but that is not going to be agreed to. The scope, that’s another thing… The same thing on the rights… What we have now is a basic draft proposal and that was what came out of the last standing committee,” she added.

In a final procedure that used lack of dissent as a means to move the issue forward toward a recommendation for a diplomatic conference, Jukka Liedes, SCCR chmn., said diplomatic conference on the protection of broadcasting organizations will be convened on July 11 to Aug. 1, 2007, in Geneva. The meeting of a preparatory committee will begin in Jan. 2007. The preparatory committee considers the draft rules of procedure to be presented for adoption to the diplomatic conference. A special meeting is expected before the preparatory committee, perhaps in Dec., officials said.

“Everybody has problems and concerns,” with the basic proposal said Liedes. While the final procedure seemed rushed, applause broke out when the meeting concluded without a formal objection to recommend calling a diplomatic conference to negotiate a final treaty. The WIPO general assembly will fix the exact date.

Despite opposition by at least 8 nations, including the U.S., to a diplomatic conference, SCCR Chmn. Jukka Liedes “unilaterally” decided to set one, IPJustice Exec. Dir. Robin Gross told us. She questioned how WIPO, an allegedly consensus-based organization, could proceed amid discord when the recent UN debate over a development agenda stalled when only the U.S. and Japan disagreed with other delegates. “Every issue is still open,” because little substantive work was done Wed., Gross said. Liedes made clear any delegation can offer new proposals at the conference, tentatively set for July 11-Aug. 1, 2007, she said.

NAB is “obviously pleased” by the results, said Senior Assoc. Gen. Counsel Ben Ivins. Broadcasters have waited 8- plus years to get to this point and look forward to the WIPO General Assembly (GA) convening a conference, he said. The meeting’s “overall flavor,” and the decision to put before the GA the extensive document on which this week’s talks were based, shows the talks were “all-inclusive” and “no doors were being closed.” Nevertheless, much work remains, since the assembly could reject a diplomatic conference or the SCCR recommendations, Ivins said.

Ivins predicted “hueing and crying” over the consensus issue. The negotiation was a “difficult process,” he said, but in the end, “no one objected” to the 3-part proposal that emerged. Despite U.S. reluctance to go to diplomatic conference now, Ivins said, NAB shares its concerns about proposals in the document relating to access to knowledge and other issues NAB deems extraneous in a treaty covering only traditional broadcasters and cablecasters.

“A great deal of consensus” arose around the need to define what protection the treaty is creating, and to limit it to signal and not content protection, said RIAA Exec. Vp Neil Turkewitz. There wasn’t time to reach accord on whether the working document circulated earlier in the week -- which would have restricted the pact to signal theft -- should replace the existing rights-based draft, he said. The decision to proceed on the basis of the current text “effectively translates into a decision -- largely by default -- to leave resolution of the key issues and problems to the diplomatic conference itself, or perhaps to the preparatory meeting” in mid-Jan. Turkewitz said hopes the consensus building this week “can be captured” there, he said. Scott Billquist, Dugie Standeford