EU Commission meeting on the Draft Broadcasting Treaty
by Michelle Childs
The European Commission’s consultation meeting on the proposed WIPO Broadcasting Treaty- Brussels 19th February 2007.
I attended the above meeting which was the first time the Commission has held a public meeting to discuss the Treaty. The focus of the meeting was an attempt to define what a signals based approach should mean and what issues should be included/excluded. It was well attended with representatives from the EBU, IFPI, MPA, and ISPs. Civil society was represented by BEUC, EFF, and Cptech.
The meeting was helpful as it gave all parties the opportunity to ask questions and test arguments. It also gave an insight into the Commissions thinking, although officials were keen to stress that their position was not yet finalized and they were simply seeking to test the working hypothesis.
Four key points emerged:
1) The Commissions’s working hypothesis is that interception and retransmission over the Internet is a key method of signal piracy. To prevent such piracy post-fixation rights seem necessary. The lack of post-fixation rights was seen as a weakness in the Consensus Coalition approach ( of which KEI/Cptech is a member). The Commission officials did acknowledge, however, that broad post-fixation rights raised issues about TPMS and exceptions and limitations. The Commission is open to receipt of further text from the Coalition on how this issue can be dealt with.
Copy of Consensus Coalition’s statement at the meeting here:
2) ISP liability. The Commission’s position was that this is not an issue as the protection granted is a limited communication right to the public. Inclusion of reference to ISP liability in the draft Treaty is in any event opposed by IFPI and MPA.
During the debate on this issue, there were at times heated exchanges on what the draft Treaty text meant when it referred to ‘exclusive right to authorize or prevent’. The Commission’s interpretation was challenged on the basis that the ordinary meaning of the wording appeared to give both active (right to authorize) and defensive ( right to prohibit) rights. The Commission held to its view that the right was purely defensive in nature with respect to the Internet. They based this view on their assertion that the wording in the Rome Convention ( on which the text was based) covering rebroadcasting was entirely defensive, and that as a consequence the provisions on retransmission protection for Internet retransmission were also entirely defensive.
3) The Commission appeared to agree with the view that Broadcasters needed their own right’ irrespective of whether another remedy existed i.e the copyright owner could sue. The basis for this view was that some copyright owners would not sue and the broadcasters needed to protect the exclusivity they had paid for ( see my notes for more on this).
4) Broadcasters are still pushing for the inclusion of protection for simulcasting. Commission officials appeared to be persuaded that its an issue that needed further consideration- broadcasters arguments made conceptual sense’ ( see Tom Rivers presentation here)
Generally, it was interesting to note that during the discussions the Commission appeared to think that the main purpose of the Treaty was to protect free to air public service broadcasters, despite the fact that PayTV and channel owners are covered under the terms of the draft Treaty. When the issue of protection for channels was raised the Commission seemed to be unaware that they too might be protected and did not appear that keen on their inclusion. The Commission said that they had never been approached about this issue, and they were uncertain that channels would be protected under the laws of all EU Member States. It is an issue that they will have to review.
A further meeting prior to the June WIPO meeting was requested. Commission
officials appeared receptive but needed to check capacity.
The Family lawyers provided a helpful PowerPoint comparing the draft Treaty Text with the Community acquis. Only one right ( pre-broadcast) is not contained in some form in the acquis. EU presentation