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3th WIPO SCCR Meeting on the Broadcast Treaty (Nov 2005): Intervention of the OKF

Intervention of the Open Knowledge Foundation
WIPO SCCR 2005-11-23

In the interests of brevity Mr Chairman we will limit our comments. The Open Knowledge Foundation (OKF) is a non-profit organization based in the United Kingdom, which is dedicated to promoting access to knowledge as well as an open approach to knowledge production and reuse.

Brazil earlier today mentioned a 3-step test for the public interest. We would like to point out Mr Chairman that such a test has already been put forward in the form of the recently released Adelphi Charter on Creativity, Innovation and Intellectual Property. This was produced, after extensive consultation, by a drafting committee consisting of distinguished academics, artists, and Noble Laureates under the auspices of the Royal Society of Arts. Principle nine of the charter states:

In making decisions about intellectual property law, governments should adhere to the following rules:

* There must be an automatic presumption against new areas of intellectual property protection, extending existing privileges or extending the duration of rights

* The burden of proof in such cases must lie on advocates of change.

* Change must be allowed only if a rigorous analysis clearly demonstrates that it will promote people's basic rights and economic well-being.

* Throughout, there should be wide public consultation and a comprehensive, objective and transparent assessment of public benefits and detriments.

What does this mean in the relation to the draft treaty under consideration here?

Firstly, that the burden of proof lies squarely on those seeking new rights: on the broadcasters (and for webcasting: on webcasters). Secondly it means we should ask, for each area in which new rights are granted by the current treaty, what is the evidence that the benefits, for society as a whole, outweigh the costs.

In particular we should ask: What evidence is there that existing instruments, such as the Rome and Brussels convention, are insufficient to ensure adequate investment in broadcasting?

We should also ask: Has a thorough examination been conducted of the costs created by these new rights? For it is inevitable that the grant of any intellectual property right - which, let us not not forget, is at base a monopoly - while conferring benefits on some must impose costs on others. In this case those 'others' include:

* Existing rights-holders who may find that another exclusive right has been created that overlaps with their own.

* Innovators and producers of electronics hardware who now find their design decisions constrained by the need to comply with TPMs mandated by broadcasters.

* The general public who may find their access to material restricted particularly for archival and educational purposes.

To conclude: If new rights are to be granted clear evidence must be provided that the benefits to society, as a whole, outweigh the costs. Such evidence must not consist solely of the views of a narrow section of the possible stakeholders but be based on wide public consultation and a rigorous, transparent, and objective assessment. Where such evidence is lacking for a particular right the decision is straightforward: we should not grant it. Thank you for your attention.

By rgrp at 2005-11-24 18:57 | Broadcast Treaty | News | WIPO | login or register to post comments

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National Association of Broadcasters Intervention

The above produced an interesting interesting response from Ben Ivans on behalf of the National Association of Broadcasters pointing out that WIPO had always been an evidence-free zone in the past so why should it change now, particularly when gathering and evaluating evidence would slow down the rate at which new IP monpolies were granted:

"Parties say that before we proceed, there is a need for further study and analysis of the impact on the public. I expand on Switzerland's remark: you can't go to two weddings at once. After 7 years of deliberations and 13 meetings, it's like the groom turning to the bride on the altar asking for an audit of his bride's finances. There was no call for these studies in 1998-2002. 16 countries submitted proposals without calling for studies. There was no call for such studies for WPPT, for WCT or for Rome or others. Why now? How is this consistent with accelerating the treaty."
[from impressionistic NGO notes http://www.eff.org/IP/WIPO/index.php?f=notes_13th_session.txt emphasis added]

Note that this is an impressionistic transcription and the official version differs in form somewhat (though this transcript is itself fairly inaccurate -- for example it is missing the metaphor about the audit which was definitely in the original intervention):

"The representative of the National Association of Broadcasters (NAB) referred to the request for further studies on the impact of the treaty on the public and considered that the request for such studies had only come after thirteen SCCR sessions, two regional fact finding sessions, seven regional consultations and after seven years of deliberations. No need for studies had been perceived in 1998, or 1999 or 2000, or 2001, or 2002, or even 2003. Sixteen countries had submitted comprehensive treaty proposals without the need of such studies so he questioned why that request was only coming at that point and how it could be consistent with the General Assembly's call to accelerate the work on the treaty. [sccr_13_6_prov.pdf as taken from wipo.int site]

By rgrp at Mon, 2006-06-19 21:10 | login or register to post comments