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September 26, 2006

The Broadcast Treaty's poison pill language, and what to do about it

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There are a number of objections to the proposed Broadcast Treaty at WIPO.

The first group of objections comes from a group of radical activists who either don't believe in property rights at all, don't believe in intellectual property rights, only believe in particular kinds of intellectual property that they themselves have invented, or who believe that anything corporations do is evil.

I discount their objections, as you might guess. They are illegitimate.

The second group of objections comes from those who believe in intellectual property, but who think that there is great danger in "too much" IP rights, and thus are uncomfortable with creating new rights, which the Broadcast Treaty would do.

That's a legitimate debate to have, but it's not really this objection that is threatening the Broadcast Treaty.

A third group of objections comes from strong supporters of intellectual property. These are the objections that seem about to kill the Broadcast Treaty. And since they come from people who otherwise strongly support intellectual property, they are obviously important and worthy of discussion.

There are also objections to the Treaty that are coming largely from U.S. telecom and cellular companies. I THINK I know what their real objection is, but it's not really stated in the published objections they have circulated.

"Poison pill language"

But the objections from pro-IP forces have to do with language that is in the current draft of the Treaty, which contains just about all language that anyone wanted in the Treaty. There was an attempt by the Chairman to come up with text for the Treaty which reflected only that which was widely supported, but that attempt was immediately shot down. Everyone wanted their particular language in the Treaty. So what we have now is a draft that is "inclusive" in nature, which means it includes everything but the kitchen sink.

Some of this language is very problematic. There is language on mandatory limitations and exclusions, which is a really bad idea not only in this Treaty, but also in that it could become a template for every other treaty.

There is also language on cultural diversity, including a specific link to the Convention on Cultural Diversity. This is also problematic, for the same reason.

So we have a Treaty which attempts to address something most observers think genuinely needs protection, namely signal piracy. But it has "poison pill" language in it. Language that is really intolerable, and would pose significant future problems if it infected everything else.

What to do?

The question is, what do you do in a situation like this? Because the current reality is that this kind of language is ALWAYS going to come up in ANYTHING done in a multilateral body. This is the current state of play in the world. There are blocks of nations that are always going to insist that this kind of language be in any international agreement.

And this is the job of negotiation. If something is worth doing, negotiators find a way to get it done.

So one option is to continue to try and finesse and negotiate this language. Move it to the preamble, where it has no real impact. Tweak it so that it has no force of law. Trade it for something else. Negotiate, in other words.

The other option is to quietly walk away, deciding that whatever benefit would be gained from the Treaty is not worth the risk. This is what is apparently going to happen, and I'm not saying that's necessarily the wrong thing to do. It might be the right thing to do in this particular case.

But it seems to me that, if the Broadcast Treaty dies because countries were able to insist on harmful, poison pill language that was intolerable to the U.S. and to other industrialized nations, one has to ask whether WIPO is any longer a functioning organization. There's more important work to be done internationally on IP. I have wonder: If it is so easy for to sink the Broadcast Treaty with poison pill language, will WIPO ever be able to do anything from here on out?

If not, the bad guys have won. My theory behind the Development Agenda has always been that the true intention is to tie up WIPO in order to use it as a bargaining chip in WTO negotiations on agriculture subsidies. If WIPO can't get a treaty done that it has been working on for 8 years because we can't get rid of some language we don't like, I'd say WIPO is already tied up even without the Development Agenda. And that means an end to other important things on the IP agenda, like patent harmonization.

There is one other possibility. It may be that nothing is going to move in any international forum until the agriculture subsidy issues are settled within the trade space. So perhaps it's a matter of waiting until the international environment is more favorable, though of course there are opportunity costs related to waiting.

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