Some doubts on Broadcast Treaty after assembly decision

Geneva, 2 Oct (Sangeeta Shashikant) -- The WIPO General Assembly has adopted a decision on the protection of broadcasting organizations which goes a few steps backwards on negotiating and finalizing a new treaty on the issue. The decision adopted on 2 October confirmed an earlier proposal (made by WIPO's copyright committee) that a diplomatic conference would be convened, aimed at finalizing and concluding the treaty.

But it significantly postponed the date of the diplomatic conference to 19 November-7 December 2007, instead of the proposed 11 July-1 August 2007.

This means that the next General Assembly (the supreme decision-making body of WIPO) could still consider the issue as to whether to hold the conference.

More importantly, the 2 October decision mandates that two other sessions of the copyright committee be held in the year ahead. One of their tasks is to amend crucial parts of the latest draft of the treaty, and the diplomatic conference will be convened only if an agreement on the amendments is achieved.

There is thus a real possibility that the diplomatic conference will not be convened, or that if it is it would be on a significantly different basis than what seemed to have been approved only a fortnight ago at the last meeting of the copyright committee.

This rather dramatic change has been due to the discontent that several developing countries had felt about the conclusions of the copyright committee's last meeting in September, their serious doubts about the desirability of the broadcasting treaty along the lines envisaged, and more recently to an apparent change of view by the United States (from supporting a diplomatic conference to being reluctant).

The present situation appears very fluid and the prospects of finalizing the treaty has become cloudy, given the conditions set out before the diplomatic conference can be convened.

Several NGOs that have opposed the latest draft of the treaty on the grounds that it went against the public interest and adversely affected access of the public, especially in developing countries, to knowledge, welcomed the sudden shift in the situation.

A representative from a US-based NGO Consumer Project on Technology said that the General Assembly "corrected a mistake made two weeks ago" (referring to the recommendation of the 15th SCCR). The representative added that "it shows that there are some problems with the way the SCCR is run and hopefully, the WIPO leadership will get the hint."

The General Assembly's 2 October decision varies the recommendation made by the Standing Committee on Copyright and Related Rights (SCCR) to the GA at its 15th session held on 11- 13 September 2006.

The SCCR recommended the convening of a diplomatic conference on 11 July-1 August 2007 with the Revised Draft Basic Proposal (SCCR/15/2) being the main negotiating text for the conference. (See SUNS #6099, 15 September 2006).

According to the 2 October decision, the GA approves the convening of the diplomatic conference on 19 November-7 December 2007 under the "conditions set out".

It states that "the objective of this Conference is to negotiate and conclude a WIPO treaty on the protection of broadcasting organizations, including cablecasting organizations. The scope of the treaty will be confined to the protection of broadcasting and cablecasting organizations in the traditional sense".

It adds that the Revised Draft Basic Proposal (Document SCCR/15/2) will constitute the Basic Proposal, with the understanding that Member States may make proposals at the Conference.

Also, there will be a meeting of a preparatory committee in June 2007 to prepare the conference's modalities and rules of procedure.

The conditions set out for the conference are that two special sessions of the SCCR "to clarify the outstanding issues" will be convened in January and June 2007.

It is understood that the "sessions of the SCCR should aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal" (SCCR/15/2).

The Decision adds that "the Diplomatic Conference will be convened if such agreement is achieved", and "if no such agreement is achieved, all further discussions will be based on Document SCCR/15/2".

The recommendation of the SCCR is being amended following concerns expressed by several delegations in particular India, Iran, Indonesia, Chile, Canada, Uruguay and the US that the draft text SCCR/15/2 that is supposed to be the basis for negotiations at the Diplomatic Conference did not command sufficient consensus to guarantee a successful conference.

The GA on 2 October morning debated the draft decision. Mexico said it was not the best solution but it would not oppose the consensus.

India said that while it was inclined to go along with the draft decision, it was of the view that there was a third scenario that had not been included in the decision i. e. if there is "partial agreement" by the second SCCR, the basis of discussion would be the Revised Draft Basic Proposal SCCR 15/2 as amended to the extent agreed to by Members during the SCCR meetings.

India was referring to the inclusion in the draft decision the sentences "The Diplomatic Conference will be convened if such agreement is achieved" (the first scenario, proposed by the US) and "If no such agreement is achieved, all further discussions will be based on Document SCCR 15/2" (the second scenario, proposed by Brazil).

Outside the meeting, an Indian delegate explained that the third scenario i.e. that of "partial agreement", would likely emerge in the second SCCR meeting and that it is why it wanted to place its statement on the record.

However, some delegations would like certainty that if no agreement is reached, discussions will be based on "Document SCCR 15/2", because that document contains all the alternative proposals proposed by developing countries.

This outcome was only achieved after many meetings. There is some worry that in the process of the SCCR discussions (after the GA), several of these proposals will be dropped off and that if there is no agreement, then discussions could continue on the basis of a text that does not contain these alternative proposals.

Some delegations also indicated privately that the fact that the GA decided on 19 Nov-7 Dec 2007 as the new dates for the diplomatic conference would give delegations an opportunity to raise issues pertaining to the convening of the conference, if needed, at the 2007 General Assembly (usually held in September).

This opportunity is important to some delegations as they fear that even if there is little agreement on the draft text by the second SCCR, there will nevertheless be attempts to push forward for a diplomatic conference.

This is what many delegations and observers say happened at the last SCCR meeting held in early September. At that meeting, despite the views expressed by several member states that it was premature to convene the diplomatic conference, the Chair of the SCCR, Jukka Liedes of Finland, steamrolled over these objections and pushed for a recommendation from the SCCR to convene a diplomatic conference.

The GA decision also addresses several concerns raised by developing countries in previous SCCR meetings. In response to concerns that the current draft text SCCR/15/2 contains provisions that goes beyond just dealing with the problem of signal, piracy, the decision specifies clearly that the sessions of the SCCR "should aim to agree and finalise" a text that takes a "signal-based approach".

In addition, on several occasions in the past, the problem of lack of clarity or consensus on what are the objectives, specific scope and object of protection of the proposed treaty have been raised. In this regard the draft text tasks the SCCR sessions next year to agree on these important issues, before the diplomatic conference can be convened.

The Decision suggests that if no agreement is reached on these matters, the diplomatic conference will not be held.

Source: SUNS #6111 3 October 2006