NOTES FROM THE THIRTEENTH SESSION OF THE STANDING COMMITTEE ON COPYRIGHT AND RELATED
RIGHTS
World Intellectual Property Organization
Geneva, November 21-23, 2005
Impressionistic notes by:
Thiru Balasubramaniam, Consumer Project on Technology (thiru [at] cptech.org)
Cory Doctorow, Electronic Frontier Foundation (cory [at] eff.org)
Teresa Hackett: Electronic Information for Libraries - eIFL (teresa.hackett [at]
eifl.net)
Eddan Katz, Information Society Project at Yale Law School (eddan.katz [at] yale.edu)
Rufus Pollock, Open Knowledge Foundation (rufus.pollock [at] okfn.org)
Public-domain dedication:
On November 23, 2005, Cory Doctorow, Thiru Balasubramaniam, Rufus Pollock, Teresa
Hackett and Eddan Katz (The Authors) dedicated to the public domain the work "Notes
from the World Intellectual Property Organization's Thirteenth Standing Committee on
Copyright and Related Rights meeting."
Before making the dedication, the Authors represented that they owned all copyrights
in the work. By making the dedication, the Authors made an overt act of
relinquishment in perpetuity of all present and future rights under copyright law,
whether vested or contingent, in "Notes from the World Intellectual Property
Organization's Thirteenth Standing Committee on Copyright and Related Rights
meeting."
The Authors understand that such relinquishment of all rights includes the
relinquishment of all rights to enforce (by lawsuit or otherwise) those copyrights in
the Work.
The Authors recognize that, once placed in the public domain, "Notes from the World
Intellectual Property Organization's Thirteenth Standing Committee on Copyright and
Related Rights meeting" may be freely reproduced, distributed, transmitted, used,
modified, built upon, or otherwise exploited by anyone for any purpose, commercial or
non-commercial, and in any way, including by methods that have not yet been invented
or conceived.
--
[[CD: Meeting opens at 5:20PM, 1h20m late, for the undertaking of formalities; the
room is full of tired people who are not hugely attentive; this would be a great time
to slip through a loaded agenda]]
[TB;Mr. Jukka Leides from Finland has been elected as Chair of the 13th Session of
the WIPO Standing Committee on Copyright and Related Rights (SCCR).]
Chair: Refers to decision of the General Assemblies to accelerate the work on the
broadcast treaty.
Our first task is to adopt the agenda
Brazil: Congratulations on your re-election. The GA clearly set out the work we
have to do with regard to the broadcast treaty. The terms of the instruction of the
GA should be followed explicitly. We must ensure that our work takes place in a
cordial and constructive manner. To this end, it is crucial that our process is
fair, transparent, that we abide by our rules and the principle of consensus.
[[CD: the last meeting closed with an incredibly acrimonious vote in which India
Brazil, and other nations were steamrollered on the path to divide-and-rule regional
meetings]]
We ask for confirmation that a report be prepared.
[[CD: Lots of people have speculated that the front-loading of the agenda with lesser
issues is a strategy to knock the Broadcast Treaty off the agenda, sending it back to
regional meetings]]
Chair: A report will be prepared as customary in the work of the SCCR.
Iran: We should accelerate our work according to the agenda of the General Assembly.
Change the priority of the agenda. We suggest that agenda item number seven come
after agenda item number four. Please clarify the subject "recordation of copyright".
Chair: Thank you.
India: Support the views of Brazil and Iran.
Chair: Item seven will be dealt with after item four (exceptions and limitations).
The item on recordation will be dealt with at the end of the meeting.
Brazil: We wish to ensure that the issue of the report is clearly stated in the
agenda itself. Add "Adoption of the report" prior to "Closing of the session".
Chair: We shall make that change in the agenda. Item 4 on exceptions and limitations.
We have 30 minutes to go before we close today's session.
Chair: At the 12th session, the Chilean delegation proposed an agenda item on
exceptions and limitations. There was a foreshortened debate without NGO
participation. So now we'll pick this up with the NGOs as well. Do the NGOs have any
comments? Does the secretariat have anything to say? You've done some studies.
Secretariat: Jorgen Blomqvist
A study was made by Sam Ricketson at the 10th Session which dealt with exceptions and
limitations in the digital environment in the context of Berne, Rome and the 1996
treaties. It's still available on our website.
[Ed note: Professor Ricketson's excellent paper is WIPO document SCCR/9/7 ]
Chair: As reflected in para 11 of the report from the November 2004 meeting, Chile's
presentation has been fully reflected. It referred to libraries, distance education
and people with disabilities especially. It also referred to the situation as
regards creation of digital public library services and promotion of cooperation
among those institutions, which seemed impossible without certain limitations.
Problems include freedom of lending.
There was a decision made after the shortened debate to take this item on the
committee. The item is on the agenda of forthcoming meetings as far as this committee
is concerned.
Coordinated Council of Audiovisual Archive Associations:
We are a coalition of international organizations and the key role of our members is
to care for cultural heritage and make them accessible to future generations. With
regard to Chile proposal, we strongly support the general principles of reasonable
exemptions to copyright to enable access by researchers to archival and library
repositories. This is part of a regime that reflects a balance between interests.
Specific examples of the exemptions working within publicly funded institutions in
order to fulfill their mandates.
(1) Recording of broadcast, webcast and terrestrial transmissions (2) (3) play back
in public exhibitions (4) loan to other publicly funded archives for exhibitions (5)
inclusion on website of property acknowledged material
These exemptions should be made to public institutions. They are necessary to allow
for the access to our common cultural heritage. It is also necessary for individuals
with disabilities to gain access to materials.
--
International Federation of Library Associations/FIAB
Mr. Chairman, I am speaking on behalf of the International Federation of Library
Associations and also on behalf of one of its members Electronic Information for
Libraries. IFLA has since 1927 represented the world's major libraries and library
associations in 150 countries. Electronic Information for Libraries represents 4,000
leading academic, research and public libraries serving millions of users in 50
countries in developing and transition countries.
Libraries collect, organize and preserve our global cultural and scientific knowledge
and heritage; the memory of the humanity. The richness of the content we hold is
reflected in the diversity of the media: books, newspapers, journals, audiovisual
material, maps, pictures and music in both analogue and digital formats. The raison
d'etre of libraries is to collect and preserve our knowledge for the purposes of
making the content available and providing access to the public.
Libraries, and the people who use libraries, depend on exceptions and limitations to
copyright without which copyright owners would have a complete monopoly over
learning, and thus control access to knowledge, particularly in the digital age.
Libraries are major contributors to the publishing industry and spend billions of
dollars each year on online databases, expensive reference works and other material.
The vast majority of libraries are publicly funded and paid for by the taxpayer. In
other words, the people who use library services also fund them. Their taxes have
already paid for library materials yet without exceptions taxpayers would in every
instance have to pay a second time for licensing in order to copy for even minor uses
that conform to the Berne three step test.
Without exceptions, people would be severely restricted in the use they make of
lawfully acquired material by libraries. No one would be unable to copy journal
articles or extracts from books for research purposes or for private study without
paying a copyright fee. A lecturer could not use a graph from a textbook to
illustrate their classroom teaching. A journalist could not report a quotation from a
political speech. A print disabled person could not change the text into an
accessible format. Indeed, in many cases finding the copyright owner of older
material is impossible, rendering their works orphaned so permissions cannot be
obtained. The law-abiding user or the library is then left with the choice of
risking infringement and possibly unlimited claims for compensation. Many libraries
can't take that risk so do not use the material and the knowledge remains locked up.
Without exceptions, libraries would be prevented from sharing resources with other
libraries. Resource sharing is done not to reduce costs, but to expand availability
of specialized material, to those who would otherwise not have access to the work.
A modern cost effective policy for the preservation of digital material requires that
preservation activities are undertaken at the point of acquisition. Without
exceptions, libraries could not perform this function. The result is that the content
remains on media that quickly becomes obsolete. Migration to another format later on
becomes technically impossible or highly expensive and the material is then lost
forever even to legal deposit libraries.
Without exceptions, every reproduction and every communication to the public would be
subject to permission and payment. In its recent consultation document on digital
libraries the European Commission said:
"In many cases, the costs of establishing the IPR status of a work will be higher
than the digitization of the work itself...The challenge of successfully dealing with
IPR issues is a key factor for the speed of digitization."
Without exceptions to enable libraries to serve their communities, the effects on
people who cannot afford access to copyright protected works would be especially
damaging. For many people in poor countries, books are a luxury and the payment of
copyright royalty fees is out of the question. Quite simply, they would be denied
access. This would widen the digital divide between developed and developing
countries.
The existing exceptions and limitations need protection in the digital age from being
overridden and eroded by license terms and TPMs, just as rightsholders have been
granted additional protection in the last 10 years due to the advance of technology.
We also need some new provisions. The most important of these is to deal with
orphaned works. In addition we need to establish a presumption that where the author
cannot be traced after due enquiry, the work is deemed to be out of copyright and in
the public domain after a fixed number of years.
Information is a global industry. However currently it is often unclear which rules
apply, and even where it is known, different rules are a barrier to access.
International cooperation is therefore essential.
We call for the establishment of a minimum set of guaranteed international exceptions
and limitations which may not be overridden by national legislation, contracts or
TPMs.
This is probably the only way for the international community to ensure that TPMs
will be developed to facilitate the use of imported material in digital format. The
current situation allows for only the most restrictive rules to dominate and tramples
over national exceptions and limitations. For example, where a broadcast signal is
subject to a TPM, reproduction for preservation or educational purposes would be
prevented if reproduction in digital formats is not permitted by the license for the
product or is limited in a more restrictive manner according to the originating
country's rules.
The minimum set of exceptions and limitations or user rights should inter alia allow
for non-commercial reproduction and communication to the public of protected material
for:
* Private use or personal study * Use by persons with disabilities *
Illustration for education and teaching, including distance education * Research
and criticism, including review, quotation and incidental inclusion in other material
* Preservation and use by libraries and archives
Without such exceptions guarantee, the consequence would be less access, less use,
less transnational collaboration especially on expensive digitization projects, a
less well-informed citizenry, a less educated population and economies which are less
successful.
Why should WIPO be concerned and what can WIPO do to provide for global minimum
exceptions?
The WCT recognizes the need (and I quote) "maintain a balance between the rights of
authors and the larger public interest, particularly education, research and access
to information" .
There are many supporters of strong intellectual property rights today. Media
companies and their trade associations view ever increased rights for copyright
owners as the best way to maximize their potential revenue. However, it is somewhat
harder to find equally prominent defenders of the other half of the copyright
balance, namely the need for the public to have reasonable legitimate access to
copyright material. The wider public interest is more diffuse and usually has no
direct economic motive. The bargaining power between libraries and rightsholders is
unequal.
We would welcome this Committee to:
* be the active custodian of the balance between the rights of authors and the
greater public interest
* recognize that there are special issues for libraries, educators and people with
disabilities
* to monitor the implementation of exceptions and limitations in Member States
* to instruct the Secretariat to take a proactive and proficient role in providing
guidance and raising awareness of the importance of exceptions and limitations,
especially in Wipetechnical assistance programme to developing countries
We believe that this work is urgent and essential and we would respectfully request
the Committee to undertake it as a matter of priority.
Thank you, Mr Chairman.
--
World Blind Union
An acute shortage of accessible books. This is attributable to local, economic, and
legal factors. One such is the territorial nature of copyright exceptions. It does
not help visually impaired people to migrate lawfully acquired works in an accessible
format in one country to another.
We call on WIPO to initiate a survey to examine the perceived and real barriers
between jurisdictions and draw authoritative conclusions which would make
recommendations on the need for changes to national laws and international treaties.
It's vital that material that is rendered in one jurisdiction can be made available
in others. We believe that this fits well with WIPO's current focus on development
issues. WIPO has long recognized such exceptions even though many countries have yet
to implement such exceptions. We urge you to support such exceptions. If not, there
is little prospect of eradicating the book famine experienced by blind and partially
sighted people.
WIPO has recognized this problem by including in its draft copyright law, a
recommendation to permit material that is produced under a copyright exception in one
jurisdiction to be available for lawful import into another jurisdiction.
However, barriers persist. Several powerful governments assert that materials cannot
be exported.
We need export rights, not import rights. This is rare and few governments have
adopted WIPO's recommendation on imports.
--
END OF DAY ONE SESSION -- 6PM, 21 November 2005.
--
WIPO SCCR, 13TH SESSION - DAY 2 November 22, 2005
--
Mexico:
For years we have been committed to the rights of the disabled. President Fox at the
UN GA proposed to set up a special committee to create a convention to protect and
promote the rights and dignity of the disabled. We've met six times and hope to
conclude soon.
The disabled have been neglected by the international community -- there's limited
protection for their rights. The international community needs to monitor and
guarantee the rights of the disabled over the long term. Copyright and related rights
should be no exception.
The World Blind Union proposal for a study on the disabled and the blind is
excellent.
This organization can contribute to the access of the disabled to these fundamental
rights and to prevent their social exclusion. Mexico supports and fully embraces the
WBU's proposal for a study.
--
Switzerland
We need to be sure that copyright exceptions can be adapted to the digital age.
However, the Broadcast Treaty is also important. We have a very interesting and
lengthy and complex paper on this item, the second summary, and this is in
preparation for a diplomatic conference leading to a treaty on the protection of
Broadcasting Organizations.
In Germany it is said that you can't be at two weddings at the same time.
We're considering two very important issues on limited time. I propose, therefore,
that we complete our discussions on Broadcasting Organizations, have a diplomatic
conference and *then* move on to limitations and exceptions.
--
Electronic Frontier Foundation
Statement in Support of Chile's proposal for harmonized International copyright
exceptions for libraries and archives, for the disabled and for educational uses.
Thank you, Mr. Chairman. Congratulations on your appointment. Thank you for the
opportunity to present the views of my organization at this important meeting.
The Electronic Frontier Foundation is an international public interest non-profit
organization, with offices in the USA, the UK and Canada, dedicated to protecting
civil liberties, freedom of expression and the public interest in the digital
environment.
For the first time in human history we have the technology to realize the dream of
making all the published works of humankind available to everyone in the world. We
live in a digital world, and the Internet provides the promise of universal access to
the knowledge that is stored in the world's libraries. There are many international
collaborative projects currently underway focused on making that happen.
These enterprises rely on committed volunteers working across many different
countries, the goodwill of the many libraries that are making their works available
for digitization, the support of national governments and on new technologies that
enable access to digital works to those who live in remote areas, or who have
disabilities. At the moment, many of these public-spirited projects work within a
framework of uncertainty brought about by constraints imposed by differing national
copyright regimes. These projects would all benefit from the greater certainty that
would come from harmonized international copyright exceptions for libraries and
archives, for the disabled, and for educational uses.
There is no single international public domain, so collaborative projects which seek
to make public domain works available online must work as separate national units, or
risk cross-border litigation. There are potential risks for those who make works
available online, for those who want to create local mirror copies of digital
collections to improve access time and reliability in their own countries, and risks
also for the teachers and students who seek to utilize such international knowledge
resources.
For instance, Project Gutenberg, which has made available electronic texts of over
10,000 United States' public domain works, warns readers outside of the United States
not to copy or download texts. And in 2004 Project Gutenberg was threatened with
legal action in the United States when Project Gutenberg Australia, a separate
entity, made available a work that was in the public domain in Australia but not in
the US.
Other projects such as the Open Content Alliance, and the Internet Archive's Open
Library web-page which provide free web access to public domain works in the
important book collections from the libraries of the Smithsonian Institution, the
University of California, Johns Hopkins University, nine Canadian university
libraries, the National Science Foundation and library collections from India and
China, face similar challenges that limit their ability to provide a full range of
services to library patrons around the world. And the Internet search engine Google's
project to create a free electronic card catalogue of the library collections of
Oxford, Harvard and Stanford Universities, the University of Michigan and the New
York Public Library, has been slowed by the threat of litigation in the United
States.
These are public-spirited projects, designed to deliver real benefits to all of
humanity. These entities need to have the ability to know, to a certainty, whether
the work of one can be lawfully built upon by another. They must know whether a work
scanned in to give access to a blind person in Canada can be lawfully archived in
Europe. They must know whether a page scanned in Australia can be translated into
French in Quebec and communicated to Haiti and Francophone Africa. The entities that
develop the technologies that make this all possible also need legal certainty to
continue and expand their efforts to support universal access, and distance
education.
This is not just a question for developing countries. The British Library is just one
of many international libraries undertaking a project to archive and make available
the web-pages produced by its citizenry as a means of capturing and preserving the
quicksilver years at the dawn of the Internet age. However, the British Library lacks
the statutory right to archive, nor to make that archive available. And so they are
embarking upon a Sisyphean labor to contact and secure permission from every British
web-site author, one at a time, in a series of grinding negotiations. A set of
exceptions and limitations for archiving would make this pointless labour vanish, so
that the archivists could get on with archiving.
EFF firmly believes that a mandatory set of common exceptions and limitations is
required to preserve room for socially beneficial activities such as distance
education, and to foster creativity and technological innovation across the world.
Accordingly, we welcome the proposal put forward by the honorable delegate of Chile
to discuss these issues and work towards finding international solutions to the
current restrictions on global access to knowledge. As a first step towards
facilitating that discussion, EFF respectfully recommends that WIPO should commission
a study to be undertaken of the range of limitations and exceptions in respect of
libraries and archives, disabled people and educational uses, that currently exist in
Member States' national copyright regimes, and make it available to delegates prior
to the June 2006 session of the Standing Committee. This study could build on and
complement the important review of the international legal framework for exceptions
and limitations undertaken by Professor Ricketson in 2003 in WIPO document SCCR/9/7.
Thank you for your consideration.
--
Consumers International
CI represents consumer groups and agencies all over the world -- 230 orgs in 113
countries.
Many members of CI are publishers. CI is a strong supporter of copyright. We're also
a strong advocate for a robust system of limitations and exceptions to the rights of
copyright holders. These promote access to works and human rights, to overcome market
failures, excessive prices. And they enable and protect the creation of new works,
and promote innovative approaches to accessing new works.
The issues of limitations and exceptions are complex and important and not only
important for educational institutions and archives, but for the economy as a whole.
The Appendix to the Berne convention has been ineffective at overcoming market
failures in developing nations and is of limited relevance to modern publishing
technologies.
It is important to note that laws in developing countries have very limited
legislation for exceptions and limitations. In the past, many developing countries
have had informal practices that lay outside formal structures.
As the trade pressure increases to enforce in developing countries, we are pushed in
a direction where higher enforcement norms demand new formalized limitations and
exceptions to promote access to knowledge in developing nations.
There are many special trade-related issues for WIPO to consider.
We note and support the comments by the groups working on behalf of the blind, the
EFF, and other groups. It's essential to look at the cross-border problems of
limitations and exceptions.
Restrictions on the export of works are very problematic. In addition to the areas
mentioned, distance education is an exciting opportunity to reach people who
currently do not have many opportunities.
We need harmonization internationally for providing education across borders.
Search engines are another area where there is a need to think about harmonization of
exceptions and limitations that allow search engines to operate in a way that allows
search engines to work properly.
TPMs are a big concern to consumer organizations. They pose the threat that TPMs will
make it impossible for consumers to benefit from normal limitations and exceptions to
copyright, and replace copyright with limited rights imposed on consumers.
These are global systems and so it's appropriate for a global body like WIPO to
consider the regulation of TPMs.
Finally, I think it's important for this body to think carefully when thinking about
limitations and exceptions in the modern age that you begin to think what the work
program of this committee would be. Is it sharing information, further studies,
analytical work or to improve the trade framework or to make it part of a bigger
discussion on a treaty on access to knowledge.
--
CISAC/BIEM
Represent millions of creators around the world.
The image of the creator is the prima donna frivolously spending money is not the
reality. 95% of creators earn less than $3000 year.
Notwithstanding their poverty, creators do understand the need for limitations and
exceptions. However, given our straitened circumstances, we urge balance in these
discussions. This requires consideration of three factors:
1. Copyright is not an act of charity towards the creative community. It is the
incentive to creativity for the artistic community.
2. The wider the exceptions, the greater the threat to the creative community.
3. The creative community accepts that certain areas need special consideration.
However this should not always be interpreted as free use e.g. education and
libraries. Very few of us would be here without the benefit of libraries and
education. Indeed, education and knowledge is key to making poverty history. At the
same time, very few teachers or librarians work for free. We urge those representing
them to act with caution when urging others in other sectors to act for free.
There is a strong tendency to extend exceptions and limitations to extreme limits.
Why should we destroy the balance? We don't want our children to live in a world
where copyright has been subsumed into the concept of information freedom.
[[CD: Oh. Rilly. So what about the authors who can't quote a song quote in their
chapter headings? The documentarians whose backs are broken by the need to clear
every knowledge good captured in-shot? The musicians whose art is banned because they
can't clear their samples?]]
--
IFRRO
The issue at stake is access to knowledge based material. even for the most advance
distance learning technology, we heard that content that is copyrighted is essential.
Access needs to be arranged by licensing.
Licensing may be individual or collective. Creative Commons or similar licensing
systems are all based on copyright. In the UK there is an initiative to give access
to visually impaired.
DRM may secure access to the visually impaired.
Such measures can be more innovative and balanced than mere exceptions and
limitations, e.g. conditional exceptions that we heard about yesterday are a good
example. In some countries with blanket license arranges e.g. Tobago, educational
institutions may photocopy without the consent of the copyright holder if they are
not available for consultation.
Unlike the perception that you may have gotten yesterday, this is the case in South
Africa, where the majority of universities have blanket licenses that cost 5
S.Fr./student/semester. Where parties cannot find agreement, there is an arbitrator.
Legislators may wish to consider facilitating contractual arrangements. In
Scandinavia, we have laws that charge libraries for lending out books. Further uses
are facilitated by licensing. The portfolio of solutions is far wider than exceptions
and limitations.
Sustainable development of indigenous culture industry can't be sustained by
limitations and exceptions. Our members will contribute positively to the survey of
current best practices.
--
IP Justice
STATEMENT BY IP JUSTICE
REGARDING CHILE'S PROPOSAL TO EXAMINE LIMITATIONS AND EXCEPTIONS TO COPYRIGHTED WORKS
AT THE 13TH SESSION OF THE WIPO STANDING COMMITTEE ON COPYRIGHTS AND RELATED RIGHTS
22 November 2005
Thank you, Mr. Chairman. I represent IP Justice, an international civil liberties
organization that promotes balanced intellectual property law. Based in San
Francisco, IP Justice also maintains representatives in Switzerland and Italy.
IP Justice welcomes Chile's proposal to explore a minimum standard of mandatory
limitations and exceptions to the rights granted to copyright owners.
Such a measure would help to ensure that the rights and privileges granted to users
under copyright law are not undermined by the expanding rights granted to publishers.
IP Justice would like to support and draw specific attention to the statements made
by the international library associations last evening and of the Electronic Frontier
Foundation this morning.
Mr. Chairman, Chile's proposal is in line with the WIPO General Assembly's mandate to
pursue a Development Agenda -- because it will aid in facilitating access to
knowledge, particularly in developing countries that do not currently enjoy the broad
range of exceptions and limitations that many developed countries, such as the United
States permit. Indeed it is because the US has historically enjoyed a wide array of
limitations and exceptions that it has become a technological and educational leader
by ensuring the free flow of information and technological development.
Because publishers have been granted new rights under copyright law in recent years,
it becomes imperative that the limitations and exceptions also be updated. Copyright
is designed to maintain a balance of rights between creators and consumers, but this
delicate balance is upset by granting new rights to publishers without also updating
the limitations and exceptions to those rights. Such an updating of user-rights is
particularly relevant in a digital environment because information on the Internet is
subject to a wide range of legal rules providing inconsistent and confusing
standards.
Furthermore, publishers increasingly place technological restrictions on copyrighted
works that prevent users from exercising their lawful rights to use digital media.
The only way to ensure that the public will be able to continue to engage in fair
use, as well as protect their privacy and security, is to permit consumers to bypass
those restrictions for legitimate purposes. Consumers must have legal mechanisms,
such as universally recognized limitations and exceptions that permit circumvention
of technological restrictions for lawful uses in order to prevent against
rightsholder abuse in a digital environment. Limitations on publishers' rights in
order to permit legitimate reverse-engineering of technology are also important to
protect users' rights in an information society. Reverse-engineering is necessary
for scientific study, to permit interoperability between technologies, to ensure
competition, and to enable consumers to exercise their lawful rights to use digital
media.
Limitations on rights that allow space-shifting (or format-shifting) of media are
also necessary to ensure that consumers are able to use and access information in
whatever technology format they use. Many people in developing countries do not have
access to the latest technological formats, so must format-shift their digital media
collections in order for them to be useable.
Importantly, these limitations and exceptions must be viewed a mandatory minimum
standard, not a ceiling on users' rights. Member States must remain free to enact
additional limitations and exceptions that suit the particular needs of their people
and the stage of development for their economies.
IP Justice stands ready and willing to discuss these limitations and exceptions, as
well as any others, with Member States as they further explore Chile's important
proposal.
Thank you, Mr. Chairman.
--
FIAP
Represents 28 film and TV producers all over the world. Yesterday's workshop was an
opportunity to remind ourselves that all systems of limitations and exceptions are
linked to sociological practices.
Some speakers pointed out that limitations and exceptions should never endanger the
legal and economic framework taking into account the balance for consumers. These
should always be looked at in conjunction with the 3 step test in Berne and TRIPS.
Member states need to restrict limitations and exceptions to specific cases in which
the normal use of works is not put in jeopardy.
In other words, limitations and exceptions which lead in worst cases to the piracy of
works can never be justified by the simple aim of making it simple for operators.
As we heard yesterday, to resolve the difficulty of rights in the digital
environment.
Let's not reinvent the wheel. These problems were known before the digital era. I'd
like to give you an example that I have experienced. In 1995, a film was made the
100th anniversary of cinema entitled "A child of the light". The film contains 300
extracts from the history of cinema and lasts 1 hour 40 minutes. 1500 permission
letters were sent out. It was an important part of the history of cinema.
It was made without any limitations and exceptions -- solely through permission from
rightsholders.
--
Civil Society Coalition
We note the leadership of Chile in placing this on the agenda. Academics understand
that limitations and exceptions are essential to the public interest and humanitarian
ends. They set the boundaries where rightsholders rights end, facilitation both
access and new forms of creativity.
The session yesterday focused needed attention on
The issues are much broader and concern everyone who cares about access to knowledge.
Everyone uses search engines like Google, Yahoo and Microsoft. These for-profit
entities make copies of billions of copyrighted works without permission or
compensation. They collect and put the information into databases. This lets you and
me find all the information we need -- we use them all the time.
These only make sense in the context of limitations and exceptions.
Today, Google is involved in a dispute over Google Print, where they'll scan
millions of books, many out of print or otherwise nearly impossible to find, and to
allow the public to search the text of these books using key-words. Google then would
make available small parts of the text, and provide information about where one could
buy the entire work, or sections of the work, either in print or electronic form.
What Google seeks to do is clearly a fantastic service for the public. It is also a
great benefit to authors, who can more easily connect with readers. Sales of works
under Google Books would only be with the permission of the copyright owners, and
Google allows all copyright owners to remove books from the database if they do not
want to participate. But Google Books is under attack from publishers, who want to
make Google first seek permission before including books into their database.
The Google Print case is extremely important. It not only raises questions about the
new service, involving books, but also the older service -- the one that searches web
pages -- which millions of persons use every day, and depend upon for access to
knowledge.
Search Engines like Google, AltaVista, Yahoo, or MSN Search would be far different,
and far less useful, if they only included works for which the search engine first
obtained prior approval. This is clear to everyone.
WIPO should commission a study, and have an information session, on the limitations
and exceptions that are essential for modern search engine services, including but
not limited to Google Print. These efforts should investigate the impact on the
public of different legal regimes, and in particular, consider the role of
limitations and exceptions in promoting investment into services that promote access
to works, including so-called "orphaned" works.
WIPO is an appropriate body to address these issues, because it involves the need for
global standards that promote access to knowledge.
Another area where new technologies are quite important are the cases where digital
works can be protected by technical protection measures -- called TPMs -- and Digital
Rights Management schemes -- called DRMs.
The evidence today is that TPMs/DRMs are being used to redefine consumer rights, and
to completely and radically change the publicworks under traditional copyright law.
This will lead to higher prices, less access, and problems we are only beginning to
understand.
Think about what is at stake. All of the traditional limitations and exceptions for
educators, libraries, the blind, news organizations, can be undone by tough TPM and
DRM laws. Works can be protected beyond copyright terms, and lost forever once the
keys and technologies to unlock them are no longer available. Works that everyone
used to be able to own will now only be available for rent, for very limited and
sometimes temporary uses.
WIPO is an appropriate body to study the impact of TPM and DRM technologies on the
public, because these are global issues. TPM and DRM standards are designed to work
in many countries. The decisions about the TPM and DRM architecture and use concern
us all.
These two examples illustrate why it is so important for WIPO to begin discussions on
a global treaty on Access to Knowledge. --
IFPI
I will begin with one essential truth that we should all recognize. That is copyright
has been built on the concept of balance. Also based on a scope of rights further
delineated by exceptions and limitations. All countries have a range of limitations
and exceptions and take action to regularly update them. It is typical to have
exceptions for education or library use. There are also differences due to historical
and cultural circumstances.
The treaties have provided flexibility, the opposite of the one size fits all
approach which has recently been criticized. Some countries have focused on
technology, some on educational needs. Balance is critical in enacting exceptions.
How should these be defined to accomplish policy goals without undermining creators.
There is balance at every aspect of the international copyright system. We have heard
calls for greater harmonization in exceptions and limitations. There is some loss in
flexibility. It has proved very difficult how to formulate exceptions e.g. search in
1996 to find an exception to the reproduction right for temporary reproductions which
was ultimately unsuccessful. The EU had similar problems.
We must have patience to allow markets to evolve.
We would urge that all of these avenues should be explored. In conclusion, IFPI
welcomes further study of these issues and the gathering information about the
different limitations and exceptions that exist in different laws. We thank the
secretariat for the work already done which can lead to new idea and greater
understanding.
--
IPA
The International Publishers' Association is comprised of 75 associations in xxx
different countries.
1. No publisher organization is against limitations and exceptions. Copyright must
create balances. But exceptions are the crudest tool in a big toolbox, a nineteenth
century solution to twenty first century problems.
2. The three step test enshrined in the Berne convention has been a great success....
It is not imbalanced. The three step test opens up the policy space necessary to
allow the different countries to ....
3. It is false to say the public interest is only served by limitations and
exceptions. There is public interest on both side of the equation. A national
publishing industry cannot be replaced by international publishing.
4. Finally limitations and exceptions cannot replace the .... Creative commons
licenses are an example of an imaginative solution to a specific set of problems. WBU
have given examples where over zealous lawyers have prevailed over precedence over
common sense. Exceptions will not replace common sense.
We believe that it is necessary to have a
1. well established support structure for blind and visually impaired persons 2.
public commitment to supporting this infrastructure: i.e. money 3. history of
stakeholders working together
The same principles apply to libraries, archives, education and search engines. The
current debate on limitations and exceptions implies polarized positions, but let's
not spend our time digging trenches and taking sides.
Google Print is a great example of how cooperation can succeed and many publishers
are part of the project. But the disrespect for publishers and creators shown in the
Google Library project is an example of the way it should not work.
--
UPD
Thank you very much for the opportunity to speak at this meeting.
Although limitations on and exceptions to copyright and related rights are an
integral part of the copyright system, they have never been substantively harmonized
at an international level. As robust copyright legislation is implemented across the
world to encourage the production and protect the dissemination of digital works, the
inclusion of exceptions and limitations occupies the heart of the careful balance of
access necessary for promoting learning and creativity. The preamble to both the WIPO
Copyright Treaty and the WIPO Performances and Phonograms Treaty recognize this need
to achieve a balance between the rightsholders on the one hand and a broader public
interest on the other.
As a consequence of the lack of detailed harmonization however, no minimum standards
exist at the international level deal with research and teaching exceptions. We
applaud the Secretariat for making exceptions and limitations a priority during this
SCCR and are grateful for the opportunity to comment on the implementation of
exceptions and limitations for educational uses. It is in the area of education and
learning that the flexibility of the international copyright system should be most
fully exploited because of the role of schools and research institutions in the
development of fundamental human capabilities.
Education-related general provisions should be implemented for (1) fair use and fair
dealing in research and education. Particular provisions should include, but not be
restricted to (2) adaptation of material for the visually and aurally disabled and
(3) the unique problems associated with translations. These exceptions and
limitations must certainly be narrowly tailored to meet the needs of the special
circumstances of research and education so as not to prejudice the legitimate
interests of the copyright holder. In order to pass the three-step test laid out in
TRIPS, these exceptions must be narrow in both their quantitative and qualitative
scope. Yet it is important not to lose sight of their public purpose when striking
this balance.
For example, an exception to copyright for the purpose of assisting visually impaired
persons will clearly suggest that the exception has a narrow qualitative scope. The
purpose might also suggest that the exception has a narrow quantitative scope because
the beneficiaries of the exception (aurally and visually impaired persons) are few
when compared to the general population. Such carefully circumscribed provisions must
be primarily guided by public policy considerations of increasing access to knowledge
in order to achieve their meaningful purpose.
Thank you very much for your consideration.
--
EDRI
Mr. Chairman,
European Digital Rights represents 21 privacy and civil rights organizations from 14
different countries all around Europe.
Since this is the first time we address this meeting, I'd like to congratulate Mr.
Chairman on his re-election. And since this is the first time since the general
assembly, we'd like to thank the member countries for accepting EDRI as permanent
observer to WIPO.
EDRI warmly welcomes the initiative made by Chile. We also endorse the earlier longer
statements from EFF and IP-justice, which already brought up many of the central
question pertaining exceptions and limitations. Given that time is precious in this
meeting, I'll keep our comments short.
EDRI strongly believe that exceptions and limitations should be as central part of
copyright system as the rights of the authors. Only a truly balanced system can
maximize the value created for the society. In economics the exceptions has been seen
since the early as an effective way to remove excessive transaction costs. The
exceptions also help in the situations, in which the transactions are not even
possible for due opposition from right holder as often happens in case of parody and
satire.
The education sector b this additional effectiveness in those countries, which have
added strong and clear rules on exceptions and limitations. However, these benefits
should also to belong all countries. Thus, EDRI firmly believes that a mandatory set
exceptions and limitations should be in place equally to rights.
Secondly, EDRI is worried that TPMs are making exceptions and limitations effective
meaningless. Luckily, the recent events seem to imply that even if current copyright
legislations do not limit the use of TPMs, the other laws will do. For example, the
Texas Attorney General Greg Abbott has yesterday announced that the state will charge
Sony BMG for including "spyware" software on its CDs. However, EDRI believes that it
should be better to solve these problems inside the harmonized global copyright
system instead of relaying consumer protection and fair trade practices laws, which
differ from one country to other and thus lead easily to excessive transaction costs.
Finally, we like to add one more thing. In the words of professor Peter Jazsi: "As
long as the phrase 'exceptions and limitation' is used instead of 'users' right', no
true balance can exists in copyright."
Thank you.
--
FILAE
International Federation [of what] which covers 16 countries from southern Europe and
Latin America, Spanish and Portuguese speaking countries.
Limitations and exceptions are very important especially for disabled people. We
support Mexico's petition for the blind. it is clear that the three-step test
applies, especially when you consider the special case in these situations.
We should eliminate the physical and legal barriers to this group.
We shouldn't prevent material created under copyright from crossing legal and
technological borders. Music sheets should be included in this discussion. We fully
support the exception for certain cases in relation to sheet music. Thank you very
much Chairman.
--
USA
The United States places great weight on the incentives for creativity in the US
system as well as the value of carefully crafted limitations and exceptions.
US copyright law, as was noted, already provides guarded limitations for archives,
libraries, and for the blind.
There are two matters of interest that we would like to bring to the attention of the
Standing Committee.
1. A Section 108 Study Group has been formed in the US named after the section in the
US copyright act that provides for limitations and exceptions for libraries and
congress to make recommendations by mid-2006 for .... the digital age.
The specific purpose of the section 108 study group is designed to focus on the
exceptions and limitations apply to library in the digital age.
The Group will study how Section 108 may need to be amended and will provide findings
and recommendations on how to revise the copyright law in order to reflect the
interest between creators, libraries and others.
This report will be submitted by mid 2006 to the Librarian of Congress.
2. A study on orphaned works has been undertaken i.e. copyright works whose owners
are difficult or impossible to find. To report back to congress by the end of the
year.
This request to congress was in response to concerns that the uncertainty of locating
the owners of these works might needlessly retard the making available or re-use of
these works.
Some argue that orphan works are being needlessly removed from public access and
their dissemination prohibited. The public access to the work could outweigh the
copyright interest. This is worthy of further study. More information about this
study is available at the Copyright Office's website -- http://www.copyright.gov
--
Benin
I know that you are involved in regional consultations in Africa last year and I know
that you know how important limitations and exceptions are to African countries.
Creators, and Publishers are not philanthropists who invest time and money to make
these works. Nor should we ignore users. ...
Limitations and exceptions should not strip copyright of its substance. My country
has a great concern that IP law should be coherent and that it should meet needs of
both creators and users -- that is why my delegation is ready and willing to
consider any proposal that will uphold that coherence. We also think we should avoid
falling into the trap of excessive rights or excessive limitations and exceptions.
--
China
Limitations and exceptions to copyright is a very important issue to which this
delegation attaches great importance. In copyright there are some regulations on
reasonable use of the copyright. Currently China is elaborating copyright regulation
for the Internet. One of the issues is how to extend the traditional limitations and
exceptions to the digital environment. This delegation hopes that WIPO will continue
to do useful work in this area, especially in transmitting the experience and best
practice from developed countries.
--
Australia
There are a number of studies going on in Australia with regard to exceptions and
limitations and how they might affect legislation.
My main point in my intervention is to express our support on the issues and the
interoperability from one format to another. How the lack of portability could be
overcome to benefit this sector of the population that has these special needs. to
achieve parity for access to people with those disabilities.
--
New Zealand
New Zealand is supportive of the cause of the visually impaired people to get access
to copyright materials. The NZ Act already provides for a special list of people to
get access.
The government has approved a tech neutral communication right. This recognizes the
value of assisting the visually impaired -- the old print laws will be amended to
update them to the twenty-first century.
It's important to acknowledge the role of industry in making works available to the
disabled. The film industry has expanded the availability of captioned films, both in
cities and in rural areas. This highlights that such efforts can make a meaningful
difference.
--
Russian Federation
We'd like to stress the importance of this issue. We've come across problems access
of the RF when we've prepared laws on copy; and related rights. In our country the
relevant laws provide for certain limitations and exceptions for private or legal
means or for the transmission of audiovisual or other materials for education. There
have been recent amendments in 2004 providing for further exceptions for the use of
copyright material for reproductions by libraries and archive services e.g. when
copies have been damaged or for the use of works for research or other study. I'd
like to support the idea introduced by a number of delegations that it is vital at
the international level that we continue working to use electronic copies e.g. used
for distance learning. We must be careful not to damage the copyright holders, we
must make sure it is possible that educational and distance learning material is
available.... We continue to work to improve our laws in the RF. We think it would be
useful at the international level to include such limitations and exceptions. --
Brazil
We've listened with great interest to the observer interventions. We're among those
countries that believe that there's a lot of beneficial work for developing countries
that can be done on this subject at WIPO. We firmly support the maintenance of this
agenda item on the SCCR.
We have heard from some countries who have also made their statements today that
there are a lot of new developments in developed countries like the US and Australia
that take account of evolving tech and their national interests.
They also take into account the need to revise exceptions and limitations -- though I
can't tell whether they want to revise them upward or downward.
There are concerns how certain developments in technology and IP will affect
libraries, archives and the public interest.
The investigations indicate that we're in a period of considerable legal and
technological transition, even in developed countries, without any obvious answers
for the best system for the future.
Therefore this indicates that we should take our time at WIPO when we are concerned
with possible new rights concerned with technological change. One speaker mentioned
that limitations and exceptions are 19th century solutions to twenty first century
problems. But I would say that IP in general is a fifteenth solution to twenty first
century problems. We are affecting the delicate balance between right holders, the
public interest and users as well.
Some have complained that the debate on limitations and exceptions is dominated by
the concept of information freedom. But I believe this debate SHOULD be dominated by
access to knowledge!
There is a lot of support from the interventions this morning that new technologies
offer a means of leapfrogging development.
I think there is a need to have an international instrument to harmonize limitations
and exceptions to minimum standards. If exceptions are harmonized into minimum
standards, then perhaps they'd be more use to developing nations and their
educational programs. We know that education is the key to development in the
knowledge economy.
Another aspect that was raised is that trying to bring International harmony to
exceptions and limitations would amount to a one-size-fits-all approach to IP; which
countries like mine usually complain about. But we have not done so regarding the
flexibilities.
Rarely do we see an equal movement harmonizing the flexibilities.
Developed countries have sophisticated limitations and exceptions. The international
balance is that you should contain yourself when promoting upward harmonization of
substantive norms and rights, but on the other hand, you have to do this ...we have
to have the same balance internationally.
For this balance to be reached we would be supportive of further studies that would
carry forward this idea of having a set of limitations and exceptions; enforced
internationally.
The idea that greater harmonization has costs because of loss of flexibilities is an
argument we've made about the expansion of rights and the creation of new rights.
We've made this argument.
This argument does not apply to limitations and exceptions. It's just rhetoric. When
you are globalizing limitations and exceptions, you are globalizing flexibilities.
They tell us to wait for the market to solve this, to be patient. That patience would
be nice to see when it comes to creating and expanding rights. That's where we need
patience -- the markets are evolving and technology really is creating new
unforeseen consequences in many fields that may have many implications for
countries' national interest.
Having said this, the debate is very rich and the interventions made by member
countries and by observer delegations have brought in many new elements. We support
moving forward with this issue.
Finally: point of order -- we're concerned with your practice of closing the list of
speakers early in our deliberations. My concern is that this could prevent an actual
debate from occurring on issues of interest to the committee. Without debate, it's
hard to come to decisions. We'd like you to have flexibility in speaker lists so
countries can interact -- rebutting and so forth -- so that we can actually try to
agree or disagree to things and be in a position to take a decision at the end.
--
European Community and its member states
We strongly support further study on the status of goods produced for the blind and
the visually impaired. We have listened with great interest to the WBU and the
problems of non-harmonization they experience.
We think it important that it is important not just to look at national and
territorial limitations and exceptions; but that we should go further and look at the
actual accessibility of products available. .
We in the EU have a set catalogue for limitations and exceptions; and one item in the
catalogue are those with disabilities. Within the Community, we have achieved a
certain level of harmonization for products that render access to blind and visually
impaired people. We think the WIPO is the best place for studies.
To conclude we strongly support more study and better circulation of products for
accessibility, though obviously within the limit of WIPO's existing financial
provisions.
--
Cameroon
As you know Chairman we will leave no stone unturned in our efforts to complete our
work successfully to have a diplomatic conference in order to successfully produce an
instrument that will reflect all interests.
At the WIPO GA we heard a variety of statements concerning limitations and
exceptions;. We think national laws already contain the correct balance. We are ready
to hear all proposals in order to reconcile all the parties involved.
--
Chile
I'd like to join others and support Mexico and Australia in their support for the
proposal of the WBU.
--
Iran
Copyright from the beginning has played a role in the development of nations.
It is important not to underestimate the importance of limitations and exceptions;
for access to knowledge in developing countries.
[[broadcast treaty comment about balance]]
In this context the question of limitations and exceptions; this should not just be
the subject of national legislation.
--
Nigeria
We acknowledge the importance of encouraging authors and creators and of the
continuing relevance of the copyright system. But we also believe that the future of
the copyright system depends on the careful demarcation of public space.
It is unthinkable that that public interest should be subsumed under the narrow
interests of rightsholders. We're interested in achieving the balance of interests.
As has been so well articulated by delegates, the need for exceptions and limitations
has been demonstrated in the copyright system.
Existing copyright exceptions and limitations should reflect the situation where many
countries have found themselves at the cutting edge of new technologies.
For many countries the new delivery channels have already posed challenges to the
educational system. Nigeria has just re-opened its distance-learning system and we
know what it means to the copyright system.
While we will do everything to respect copyright, we will ensure that distance
learning is available to those who need it.
While the approach in previous international instruments for exceptions and
limitations was commendable, they aren't adequate for present realities. We support
the call for a further study on limitations and exceptions at international level.
We need to pay special attention to the needs of disabled individuals, but we also
suggest that special limitations and exceptions should be developed to address the
specific needs of developing countries.
The delegation of Nigeria supports the call for a study on the availability on
exceptions and limitations. Whether or not they exist within the legislation of
developing countries.
We also want to examine the extent to which limitations and exceptions exist in
developing countries and how they have worked in practice. Many countries have some
provisions, but some are inadequate -- sadly, even where they exist the use of them
in practice has not always met the spirit of the international provisions. We also
believe that the limitations and exceptions should not be left to contractual or
licensing mechanisms.
Many developing countries, particularly in Africa, now have TPM laws. It would be
useful to have a specific impact assessment on how the use of TPMs affect the
exceptions and limitations to copyright. Developing countries also have to cope with
the constraints of poor infrastructure. The delegation of Nigeria supports the idea
of balance in copyright, but wants the public interest to be adequately provided for.
--
Morocco
We are of the view that limitations and exceptions are extremely important in
ensuring that we have a smooth transition in to the digital age. For the spread of
knowledge we believe that exceptions and limitations should be just that, exceptions,
and that they shouldn't be the rule. We also believe that the needs of certain groups
should be considered especially for libraries and institutes of learning.
Download and photocopy parts of certain works. That is allowing those works to be
used for educational purposes without allowing them to become commercial activities.
The same is true for archives. Archives comprise the cultural heritage of countries.
Chairman, we need to maintain a balance. It is for this reason that exceptions and
limitations should be monitored to preserve that balance. The aim is to strengthen
copyright and to preserve this balance. We should be cautious until we have further
studies that show us what the impact will be of further limitations and exceptions to
copyright. We should be cautious but of course we believe there should be limitations
and exceptions; for libraries, education and other groups.
In Morocco we are currently amending the copyright law to this effect and we are also
seeking to protect educational institutions from legal action as long as their
activities are within the realm of education and public knowledge. We do think that
studies should be conducted to ensure that rightsholders' interests are not harmed
and that the public access also is not harmed.
--
Bangladesh
Least-developed countries have difficulty adopting exceptions and limitations because
of economic constraints. My delegation believes that special and differential
treatment should be given to Lease Developed Countries. Balance between the public
interest and commercial interests must be found.
--
Kenya
In the interests of brevity my delegation would like to state that we have listened
to the various interventions. We believe that there is a lot of work to be done and
we support the proposal of the WBU for a study. My delegation would like to caution
against the introduction of drastic changes. Technological change is a big issue but
is different in the developing world.
This delegation would be supportive of changes that would allow flexibility and allow
for the adoption of minimum standards that suit the needs of individual countries,
particularly in relation to educational programs.
The new government in Kenya has introduced free primary education. This has huge
implications for the provision of learning resources. Developing countries require
flexibility in implementing copyright laws.
--
Jamaica
Jamaica would like to go on record in supporting the proposal of the WBU.
--
Bahrain
We reaffirm that creators do everything to reach the public, of course we must also
think about the culture of broadcasting. In this area, there is always a need for an
authority that can provide protection.
My country's government has in national legislation provided L&E to address all of
these issues. We support the delegation of Morocco on the subject of flexibility in
this area.
--
Chair
There were references to developments in the national and regional developments in
this area including references to how the limitations and exceptions are applicable
in the digital environment.
There was a reference to the fact that there is indeed a need to monitor and follow
up on the developments and suggestion on a survey to be made on a national level on
the use of exceptions and limitations for the benefit of education, for handicapped
people, libraries and archives and how they are used. How these exceptions can be
identified.
There was a request and suggestion made for studies to be continued in this area and
this certainly takes the importance of this area in the state of development. We
should consider what kinds of studies and on what kinds of basis should these studies
continue. There was also mention made of taking into account the needs of the least
developed countries and for the developing countries generally as well.
So when we come nearer the end of the meeting, we will think about what conclusions
we might take into the overall conclusion of the meeting.
================================================================
Broadcast Treaty discussion
I propose two rounds of intergovernmental discussions, with outstanding issues
grouped into two groups.
Hopefully in such a way that those 2 rounds with take 2-3 hours each and then one
session for NGOs. This will then leave us time to tackle items left on the agenda
after addressing the issue of the protection of broadcasters.
1st round: scope. webcasting and what kind of method, whether traditional
broadcasting only.
2nd round: centered round rights. article 12, which can be characterized as rights
following the first fixation. L&E; and term could also be included.
NGOS: tomorrow morning.
Lunch tomorrow: meetings to discuss conclusions then afternoon will be conclusions.
--
Brazil
Your suggestions are most welcome and give us some structure for the consideration of
this issue. I'd like to point out that as far as we're concerned, all issues to do
with the Broadcast Treaty are outstanding. This is a single undertaking. The whole
document has to be put forth for consideration. The 2nd revised edition was put forth
after the last meeting so this is the first time members are having a chance to look
at it. I want to make sure that your organization of this meeting won't prevent this
meeting from dealing with all components of the text. ... In our proposal, we propose
changes and additions to your text. We want to be sure that your structure won't
preclude this kind of discussion.
--
Chair
I want to have the Brazilian proposal on the table, of course. No item is excluded.
There shall be the understanding that whatever proposals we have on the table now, 17
proposals have previously been given to us, and the consolidated text isn't created
from scratch, it merely organizes those proposals as we have received them. Most of
the nuances in the proposals are reflected in that document.
It is only a working paper, nothing is agreed, and even in those areas where there
are no alternatives, that's because there has been substantively similar proposals or
broad support for certain solutions.
The whole text is within big square brackets if you so wish. Nothing is agreed and
nothing will be agreed until we come to the conclusion of the work.
--
India
I think your suggestion to organize our discussion in 2 groups: (1) technologies
covered (webcasting, etc..) and (2) substantive rights is very welcome and will help
us to sort out issues our in a very logical and rational manner. My only reservation
is the allotment of time for discussion that you have indicated for
inter-governmental discussion on the subject. Yesterday we were discussing the
adoption of the agenda. It was pointed out that out of the 3 days of this meeting we
would be allocating the broadcast treaty item to the last day of this meeting. You
kindly moved it up.
I appreciate your concern for time, but please consider allocating more time to
intergovernmental discussions, which might spill over to tomorrow -- so that everyone
can make their viewpoints clear and be understood.
--
Chair
You expressed what I was thinking. We should allocate the time available in the right
way. We have half an hour available this morning and another 3 hours this afternoon.
[...] We may have to reorganize later today given progress.
My guess is that the two remaining items -- Databases and Recordation Systems -- will
be short. Recordation Systems will take 5-10 minutes and no one has asked for the
floor on databases. That might also take 5-10 minutes. We'll work on that assumption
unless we see other actual needs. If you plan on taking the floor about databases,
let the secretariat know during lunch.
Now we have 25 minutes left. [[12:37PM]]. Brazil, how much time do you need?
--
Brazil
10 minutes
--
Chair.
OK, I'll go 15 minutes and then turn it over to Brazil.
As Brazil noted, this is the first time you've seen my consolidated text and my paper
on webcasting, though they've been available for several months. So I expect you've
all looked at them and organized your consultations, seminars, etc, and now you're
all ready to exchange positions and information and questions and concerns on those
documents.
Let's prepare the next set of working papers to even better reflect the state of our
discussions.
Last November, we elaborated on the first consolidated text. The drafting and prep of
the second version took place in the context of the GA asking us in Sept 04 to look
toward a diplomatic conference and to continue the work. The 2004 GA asked us to
accelerate our work.
This is a relative concept when you're in a huge process like this. There was a clear
need to separate the protection of signals and not to interfere with the
rightsholders to the content carried by the transmission.
There was also a clear need to look at Webcasting/simulcasting and take a close look
at them. The vast majority of delegations who've taken the floor to put forward a
position on webcasting have said that webcasting shouldn't be tackled or covered by
the instrument. There's a proposal by the US and the EU. The US says all webcasting
should be covered -- that's still in the working paper.
The EU proposed a half-way solution where simulcasting, i.e. where the webcasting is
done by the broadcaster itself is done at the same time as the broadcast, should be
covered. So this kind of thing, now nicknamed simulcasting, under the proposal of
the EU would be covered.
If simulcasts aren't covered, then broadcasts would be protected, but transmission
over the web would be outside of the protection. All elements that are found in the
first consolidated text were put aside in the working paper, to make it easier to
consider how a treaty on traditional broadcasters' rights looks without the
webcasting elements -- it was evident that so many delegations were not ready to
consider this, and did not recognize the need to do so.
Then last November 2004, something happened, there were a series of interventions
that developed at the end of the meeting, and a separate working paper was prepared.
The delegation of China said that webcasting should not be protected, not in a
mandatory way. Then there was the Russian delegation who developed the ideas further.
If there were to be a special structure, how would the webcasting and simulcasting be
included in a non-mandatory way, providing for options for the contracting parties to
allow for adhering to the treaty. That kind of two or three-tiered structure should
be included.
Then there was the delegation from Senegal, who said that we don't want to cover
webcasting and simulcasting. Why should webcasting and simulcasting be excluded in
the draft?
[[CD: Lots of people saw this coming. At the Nov 2004 SCCR the Chair proposed holding
a series of regional consultations to make progress on discussions. This was
controversial and opposed at the time by several Member States including Brazil and
India, who expressed concern about the procedural irregularities at the end of the
meeting. Over summer, WIPO held seven regional consultations, to which very few NGOs
were invited, and cancelled the regular plenary June 2005 SCCR meeting in Geneva. By
dividing the developing nations up who opposed webcasting through regional meetings,
discussion on how to include Webcasting in the treaty were able to continue in the
closed-door regional meetings. See EFF's notes of the 13 September 2005 meeting with
NGOs and Group B Member States for more details.]]
* There's a new proposal to separate out the content and the signal
* Technical changes have been made in national treatment and other infrastructural
articles
* Articles 9-12 on rights following fixation -- reproduction, making available, etc
-- the right to prohibit, as found in the US and Egypt proposals, has been presented
as proper proposals and not only footnotes -- reflects interest in right to prohibit
as an alternative to exclusive rights
* Term of protection: art 15, no change but note to show interest by 6-7 delegations
in shorter term
* Article 16 on TPMs: Brazil has proposed, 1.5 years ago in June, and was supported
in November by some, to strike this, has been presented
Those are the main changes in the working paper. Article 24 has been modified
slightly.
A couple of words only on the separate working paper on webcasting and simulcasting.
We have presented in that document 3 possible solutions to consider in the line
suggested by the delegations of the Russian Federation that the treaty would provide
for different solutions at the same time. The first two are based on the scope of the
application. If delegations would consider that optional and non-mandatory protection
could be taken and included in the treaty then model 1 or 2 could apply.
1. Based on "opting in." The treaty would in principle cover simulcasting and all
other webcasting, but with no obligation to apply this part; only when a contracting
party makes a notification when ratifying or later, that they have opted to apply it.
Then a country could enact just for broadcasting and cablecasting and then later,
maybe many years later, could extend it to cover webcasting and simulcasting.
2. Has the same end-result, but this is based on classical "reservation." Again, this
covers all webcasting initially, but those who don't want to extend protection to
Webcasting or to extend Webcasting only simulcasting can provide notice that they are
reserving from applying this part of the treaty.[Ed note: Working Paper states that
Member States can then later withdraw that reservation - i.e. webcasting is in unless
a country opts out, and even then can opt back in to cover webcasting by withdrawal.]
3. Attaching a protocol to the instrument. This would by its nature be a separate
instrument by the Vienna Convention on the law of treaties. The subject matter of
webcasting and simulcasting would be included in that separate protocol and would be
adopted at the same time. And then all people joining the treaty would have the
choice of whether to do just the treaty on its own or to also accede to the
protocol.
One more word about the protection of webcasting. Because this is important and has
to be solved. I would draw your attention to the explanatory notes to the definition
of webcasting in the alternative solution number 1 in the working paper and also to
the definition of broadcasting in the consolidated text. You will also find in the
consolidated text definition of cablecasting which is almost exactly the same as for
broadcasting but rather than taking place over the Hertzian waves takes place over a
cable.
Webcasting definition: Very narrow. Only those areas of Webcasting would be covered
where the act of Webcasting is very similar to traditional broadcasting, where there
is a signal, a prefixed program schedule, an investment in the programming and the
organizational requirements are similar to broadcasting. All web-transmissions based
on on-demand or which are interactive are excluded from the scope of this protection.
This only covers when you have just another form of broadcasting but over the web
[Repeated for emphasis]. Simulcasting is just like broadcasting, but where material
is simultaneously transmitted over the Web. We can use this if you'll consider adding
webcasting to the treaty, in a non-mandatory way. And if this doesn't make it into
the treaty, maybe we can use it as the foundation of a separate Webcasting treaty.
Sorry, we've run out of time. Time for lunch.
Broadcasting definition: "(a) "broadcasting" means the transmission by wireless means
for public reception of sounds or of images or of images and sounds or of the
representations thereof; such transmission by satellite is also "broadcasting."
Wireless transmission of encrypted signals is "broadcasting" where the means for
decrypting are provided to the public by the broadcasting organization or with its
consent. "Broadcasting" shall not be understood as including transmissions over
computer networks;"
Cablecasting definition: "(c) "cablecasting" means the transmission by wire for
public reception of sounds or of images or of images and sounds or of the
representations thereof. Transmission by wire of encrypted signals is "cablecasting"
where the means for decrypting are provided to the public by the cablecasting
organization or with its consent. "Cablecasting" shall not be understood as
including transmissions over computer networks;"
--
Lunch: 1303h-1520h.
-- {{SLIDE}}
Broadcasters' Treaty SCCR 13 - Work Programme
Discussion Round 1
SCOPE etc * Web/Simulcasting - (1) Opting in - (2) Opting out - (3) Protocol *
Pre-broadcast signals * TM/RMI * Eligibility
Discussion Round 2
RIGHTS etc * Rights - Retransmission - Communication - Fixation - Art. 9-12
post-fixation rights * Limitations * Term
--
Brazil:
Discussing Brazil's proposal
[SCCR/13/3: ]
Our proposal is by and large self-explanatory, but we stress a few points:
* We're a member of the Rome Convention, we hate signal theft. Let's update Rome to
cover it.
* Let's be sure to keep a balance with the public interest
* Signal theft should not be addressed at the expense of copyright owners
* In many countries, broadcasters have to be public service/social entities
* Our proposal searches for the balance needed for any new instruments
* Ensure that new instruments contain safeguards to preserve policies that stop
encroachment on public domain, and to preserve exceptions and limitations
* We propose new general public interest clauses and a general article for exceptions
and limitations.
* Renew our call to delete the TPM article
* Lack of balance in a broadcast treaty can mess up cultural diversity, so we propose
to protect it in our instrument
* Protection of rights of broadcasting organizations. New issues such as webcasting
are outside of the scope of this discussion.
--
Chile
We've just submitted a document that complements the Brazilian proposal, enriching
the consolidated text.
[Chile's proposal is SCCR/13/4:
]
The Chilean text has contributions in 3 areas:
1. National Treatment -- similar to TRIPS (without prejudice to proposals in draft)
2. Defense of competition along the lines of TRIPS agreement. Article 40.
3. Exceptions and Limitations -- refers to Rome's exceptions, along with some new
self-explanatory ones for use by disabled people and libraries, museums and archives
for non-profit purposes
We reserve the right to come back to the updated text.
--
Iran, speaking for Asian Group
We are facing a discussion on one of he most serious and important areas of WIPO's
work that affect Member States in general and developing states in particular. Aim is
to have a balanced treaty. Access to knowledge and dissemination of technology is
crucial to development. Thus in any norm-setting process we should take into account
all stakeholders. In this context and policy space, the legal situation should ensure
that the rights of all stakeholders are considered.
Latest stats show that while a member state may have 80 percent Internet access,
global access is below 40 %. There's a long way to go. In this context the
technological distance on broadcasting, webcasting and cablecasting is clearly
evident. The Asian group expresses its concern in this regard and does not want to
deepen the divide.
The Asian group only supports the protection of signals and is not in favor of
protecting non-IP issues.
Some articles need more discussion. The term of protection as in Rome and TRIPS
should be 20 years.
The exceptions and limitations are of concern to developing countries and crucial for
the balance of rights.
The Asian group is willing to discuss this. This all needs more discussion.
The Working Paper should reflect the views of Member States. The three tier structure
on Webcasting doesn't reflect the views of developing countries. Linking Webcasting
to the chairman's draft is not consistent with the expressed views of the Member
States.
The group expresses its intention to discuss this further. In regard to requirements
for becoming party anyone should be allowed [?]. Regarding document 12/5, noting the
discussions here at SCCR and the views of many states on excluding Webcasting,
believes that the GA has deliberately adopted the title "working paper" for this
document.
The seriousness of the issue of digital divide between developing and developed
countries has resulted in the UN to hold two summits addressing this problem. [WSIS]
In SCCR, the rules on Webcasting, which is a complex and evolving issue, should not
be created in a way that widens the gap.
In para 13 of the working paper, it says that the working paper could determine the
working of the treaty; but in article 3 we see an "optional" solution being proposed
with the same level of legal credibility as broadcasting, despite the views of member
states.
In fact, the nature of webcasting is different from broadcasting so the same rules
would not be applicable. We object to the inclusion of webcasting in the treaty. All
reference to webcasting should be removed from the second revised consolidated text.
--
India
Under TRIPS broadcasting organizations already have a bunch of rights. We must
consider consequences expanding these rights would have, particularly upon existing
rights-holders. These concerns have led to many developing countries - including
India - to ask for an in- depth study.
With dynamic and fast-growing television/radio output, consumed in India and abroad,
we want protection of broadcasting signals.
We'd like a draft that provides adequate protection to casters.
We've raised this matter at UNESCO. We want to create a treaty that builds the
knowledge society, freedom of expression and freedom of access.
India joined others earlier in objecting to webcasting. Any inclusion of webcasting,
in any form, is opposed by us. The treaty still references webcasting -- 2, 6, 11,
etc. They need to be removed. Time is not right to introduce norms of protection for
an area which is not yet fully understood.
We need a rigorous, clause-by-clause analysis of the proposed text to resolve the
objections of India and other developing countries.
Many developing countries are struggling to meet obligations under TRIPS, WCT, and
WPPT.
We need a balanced text that is equitable to all stakeholders.
--
South Korea
My delegation shares the views that we need to update rights of broadcasting
organizations to reflect technological changes (internet etc). Given the level of
protection considered in proposed treaty need to consider other rightsholders
particularly in relation to WPPT.
We're prepared to participate in the discussion.
--
USA
We appreciate Brazil and Chile's contributions to debate on the proposed treaty.
These proposals, especially that of Brazil, does raise serious concerns for us that
require further analysis and we will want to examine this much more carefully back at
the Capital. We will also give the Chilean proposal consideration.
We appreciate the contributions, but we have concerns.
Re Webcasting: you made a great point, Mr Chairman. This isn't about protecting
everything on the Web. We're talking about protecting the investment that
organizations make in putting together the programming that serve to enrich the
cultural values of the general public.
They may make it over the air or over cable. But an increasing number also make it
available over the web to everyone. Whatever treaty we adopt should provide a level
playing field for everyone in the business of communicating to the public, regardless
of whether they're broadcasters, cablecasters or webcasters
We do remain committed to webcasting being in this treaty.
--
Iran
Dissemination of info and access to knowledge are important. The role of a
broadcaster is clear in this regard. If the role of a broadcaster in society is
considered, then related rights could work against the public interest. In the second
text, there is some recognition of this, but the next version should put more
emphasis on the rights of the public at large.
Exceptions and limitations, from the beginning, have been important in intellectual
property rights in establishing a balance between the rights of owners and the
general public interest.
Diverse levels of technology and diverse judiciary systems requires that these rights
be preserved in the treaty.
The protection should be focused on signals and non-IP issues like TPMs should be
removed from the treaty, as should Webcasting. Edit the document to reflect this.
The consolidated text needs editing. Brazil talked about exceptions and limitations
-- include Art 15 of Rome.
Taking into account the different cultural considerations in the members and
limitations in the final text.
--
Bahrain
Firstly: talk about regional meeting in Rabat earlier this year where we touched on
some special technical issues and then talked to experts in broadcasting who said how
important it was to have protection and to address new technological developments
such as the internet.
In this context must be aware of Brussels treaty which protected signals. Considering
this we should think about new technological developments.
--
Japan
Reserve right for further interventions. Discuss UNESCO convention on the diversity
of cultural expression. Made great contribution for its adoption but that treaty
stated that it was not supposed to impact on other treaties. It is therefore the
view of Japan that it is not necessary to refer to the UNESCO convention in the
Broadcasting Treaty.
Japan is opposed to provisions such as article Y by Brazil.
Regarding webcasting, TPMs, and exceptions and limitations, we need to have
compatibility with the WPPT.
--
EU
It's great we have a structure to this debate. Want to discuss scope and the rights
at issue. Under scope would come the question of which activities would be covered
and under pre-broadcast rights and of post-fixation rights.
EU and its member states have always been supportive of work on this treaty. It is
worth going back to first principles, as for example, laid out in the preamble. EU
emphasize that preventing the unauthorized use of signals, the anti-piracy measure,
is absolutely central.
This treaty should not compromise the rights of other owners of content. --
Chile
Want to make a general comment about what subjects should be protected. This morning
we were told we couldn't going to 2 weddings at once. We believe that broadcasters
should get a very big wedding but it could be quite complicated if webcasters were to
come to the same wedding. Thus I really think we need to clarify what we are
discussing here: is it just broadcasters or webcasters as well.
--
Morocco
We believe the Rome Convention is insufficient to protect today's broadcasters; it is
poorly adapted to modern tech, especially since casters' activities have become
widespread.
We want to strengthen casters' rights so that they are up challenges presented by
modern technology. However, to strengthen such a protection, we need guarantees that
the protection will be effective. I have to emphasize that my country has contributed
to preparing the cultural diversity protocol at UNESCO, and we don't see any need to
move that agreement to our discussions here.
Regarding casters' rights -- we need to provide measure to enable protection of
programs and signals. We emphasize this frequently, we're doing so now.
Urgent need to have TPMs to protect broadcasting organizations from piracy. If we
want these orgs to serve the public, they need TPMs.
It's the right of every country to join the broadcasters' treaty, so there's no need
to tie accession to this to other treaties.
We'll come back with detailed comments later.
--
Colombia
We thank Brazil for its proposal. We've analyzed it and we ask Brazil to clarify two
concerns we have about it:
1. In (f) 1, the legal framework establishes limits to the prerogatives of copyright
for creators
2. In (g) deals with non-copyright works, but broadcasters could ask for rights to
sell? Is this about sports matches?
--
Russian Federation
At the Moscow regional meeting with EC countries, we confirmed our position as
expressed: we need alternatives to the provisions in the treaties.
Russia can't see any barrier to preparing this draft text as it was submitted at the
previous SCCR.
[[CD: I think this lost something in the translation]]
--
Uruguay
We think that Chile's proposal on national treatment and authorized exceptions is a
useful one. We've renovated our copyright council recently and we think there is a
need to have a study of the costs of these proposals would affect different groups.
--
Egypt
We support the idea of a Broadcast Treaty. This is a good document. It will help
broadcasters in the digital era. The treaty will limit piracy.
Regarding webcasting -- as with most states, we think there should be no link between
the treaty and Webcasting. We fear that if you keep trying to create such a link when
there's no consensus on the need for it, we'll end up in a dead end and never get to
a diplomatic conference.
Finally, thanks to Brazil for its proposal. It's constructive. We're sending it to
Cairo for study. We agree that we need a balance between protecting casters and
protecting general interests. We need to increase our attention to the public
interest in all of WIPO's efforts.
--
Mexico
We'd like to thank Brazil for its proposal. We welcome those in article X and
elsewhere.
We'd like to have a formal proposal on Brazil's document, but we haven't had time to
prepare something official. Can this be kept on the agenda until the next meeting so
that Brazil and Chile's proposals can be evaluated properly?
--
Ukraine
We've adopted a decision to recommend a diplomatic conference. The present draft is
good -- there's room for improvement, but there's no absolute perfection. We've had
such lengthy discussions on this, and it's topical, so I support Russia -- please
accelerate work on this.
--
Moldavia
I'd like to highlight the importance of signing this treaty -- as highlighted by
regional meeting in Moscow. In this context Ind Ukraine. Hope we can speed up work on
a consolidated text and have a diplomatic conference as soon as possible.
--
Brazil
Point of clarification regarding our proposal:
They are to be incorporated into the revised text of the current draft. They are not
intended to be part of a new agenda item. They are part of the current agenda item.
--
Benin
This discussion should lead to a diplomatic conference (as agreed at the GA). But
remember that 50 years after the Rome Convention was adopted, tech has developed, as
have the technologies for using casts. We're in favor of adopting the treaty without
conditions that oblige WIPO states to join any other treaty before joining this one.
This is in line with the position that emerged from the African regional meeting in
Nairobi.
--
Switzerland
The Swiss position on the protection of broadcasters is well known in this room. We
were the first to make a proposal for a broadcast treaty. It has been a long time
since then and we are still hoping for a diplomatic conference.
It has been said that the purpose of this exercise is to provide adequate protection
to broadcasters against piracy because of new digital technologies. It was also
recalled that one of the principles to be followed when adopting such a treaty, is to
make sure that it does not prevent the rights of authors, producers of phonograms, or
other interests.
I'd like to add a third principle to that list. This treaty should be along the same
lines as the 1996 treaties -- it should provide protection at the same level to
broadcasters as it gives in the Internet treaty to rightsholders.
I have doubts about the Brazilian proposal. The UNESCO Cultural Diversity treaty
20(2) says, "Nothing in this convention may be interpreted as modifying the rights
and obligations of signing parties to other treaties to which they are party."
Therefore, it can't bind us here.
If we say the opposite in this treaty, then we have complicated the legal landscape.
[[CD: What? It's certainly possible to say, "The broadcast treaty shouldn't subvert
the UNESCO treaty" even though the UNESCO treaty doesn't insist on this.]]
--
Cameroon
I agree with Switzerland on the UNESCO convention question. I hope the UNESCO rep
here will confirm Brazil's statement that the 23d UNESCO conference expressed concern
about broadcasting organizations.
Brazil's proposal seems to replace SCCR/3/3 -- bearing in mind that it's just been
introduced, I don't think we'll have the necessary time to examine it during our
work. It has implications for our revised text.
In conclusion, I suggest examination of this at a future session.
--
Chile
We want to support Uruguay's suggestion about conducting a study on the impact of
webcasting on developing countries.
Will NGOs get a chance to speak on this after the delegations finish, or will they
have to wait until the end? Their inputs are very important and they have much to
contribute.
--
Chair
NGOs will be given the floor. But the plan was that after this initial round we'd
have two rounds of governmental discussion, then one NGO round. As I said to India
when they asked how to make best use of the time, we can work on the basis of this
work-plan until day's end and re-calibrate tomorrow morning to cover all the needs
and to make sure we give the floor to NGOs.
Even if we can't manage two full rounds, at least we'll cover most of it and then we
can figure out how to incorporate NGOs. Everyone here is aware of our
time-constraints.
We can't continue past 6PM [[it's 1633h now]].
We can't afford coffee breaks either. Time is too precious. I don't know if you're
allowed to bring coffee in here, but you can smuggle it in. I didn't say that.
--
Brazil
Regarding Switzerland's statement -- I think it's important to take a closer look at
the UNESCO treaty. The paragraph is not applicable here. It only binds on treaties to
which you are already a party. No one is a party to this treaty. This treaty doesn't
exist yet.
On the other hand, there are parts of the Convention applicable to the issues at
hand.
In 21(b), it's stated that when applying other treaties, or when entering into other
obligations, parties should take into account the relevant areas of this convention.
It's important to see 21, referring to international consultation, etc, parties
undertake to promote the goals of these objectives in other international fora.
Some delegations who've made comments on this should refer to the UNESCO convention
on cultural diversity; they've proposed no linkage to UNESCO, but they're happy to
link to the WPPT. Help me understand, Japan and Switzerland -- do you want linkage to
other treaties or not?
Second point, while the work programme proposed by the Chairman is very good, it is
rich and would benefit from the contribution of the NGOs. Giving them the floor only
at the end of it all isn't a fair means of integrating them into the debate. It would
be better to have their positions known at some mid-term of the program, so that we
can have interaction and respond to their concerns.
--
Switzerland
Let me clarify my previous statement. It's clear that Unesco 22(2) only applies to
existing treaties and therefore not this one. I was referring to the three which are
in part the same as those provided for in, for example, the Internet treaty, e.g.,
the right of making available, which is in the WPPT. If we give that right to
broadcasters then we'll have a contradiction in the interpretation of these rights
under the UNESCO treaty.
If we adopt the Brazilian proposal, we'll be interpreting these rights for
broadcasters and that's a legal contradiction.
[[CD: Translation: We'd be giving different rights to casters and to phonogram
producers.]]
--
EU
We love the work program. Let's get on with it, and discuss all this within its
framework.
--
USA
We are concerned about the intervention of Brazil. The logic is somewhat circular.
This WILL be a convention in the near future, so it's appropriate to look at the
requirements of these articles. We're concerned with the use of this article. The
introduction talks about mutual supportiveness as defined in 20(1)(a) in the UNESCO
treaty, but they don't mention the non-derogation language in 20(2). The UNESCO
convention must not be interpreted as modifying rights in other treaties, including
ones like these.
The broadly worded cultural diversity clause could be misused to modify rights in
this treaty.
Such use of the UNESCO convention could diminish cultural diversity. For developing
countries, broadcasting is the most important engine of cultural and economic
development. Limiting piracy will encourage investment and so promote development.
Article 21 encourages nations to promote the aims of the UNESCO convention, it
doesn't require that. But UNESCO's goals are already reflected in the Broadcast
Treaty.
Brazil has also mentioned that they don't want to do anything that would derogate the
rights of other rights holders. That is why we have proposed membership in the WPPT
is prerequisite to membership in this treaty.
[Ed note: the US withdrew from UNESCO in 1984 and rejoined in 2002] --
Japan
Switzerland speaks for us. If you support UNESCO inclusion in the Broadcast Treaty it
will require UNESCO inclusion in the WPPT, and it's too late for that.
--
Brazil
We appreciate the different interpretation of UNESCO by different members. The US
interpretation of the UNESCO convention is circular and fuzzy in its structure. The
UNESCO convention doesn't only encourage, but parties undertake to do this.
Another concern is that while trying to establish that Article 20 is applicable, the
US delegate is suggesting that we already have a broadcasting treaty. We don't even
have a basic proposal for the treaty is the position of our delegation. We are trying
to constructively reach such a point, but currently we have only draft language,
alternative texts, and a work programme before us.
For me it's difficult to respond to the intervention to Colombia. Not sure what it is
that they want us to further explain.
----
UNESCO
Brief intervention asking the delegation of Cameroon to clarify its question.
---
Cameroon
We wanted confirmation that the 33rd conference of UNESCO that expressed concern over
the work that is being done. I can read out the paragraph. The 33rd general
conference of UNESCO adopted a resolution expressing concern that members of WIPO may
impact the work of UNESCO on Access to Knowledge.
--
UNESCO
The convention was adopted 20 Oct 2005 with 148 member states voting for, 2 against
and 4 abstentions. It needs 30 ratifications before entering into force.
The text still hasn't gone through standard editing prior to official publication.
The authoritative text will be certified by the chairman of UNESCO and posted to our
website.
Brazil makes reference to UNESCO's resolution to take an active role in the
negotiation of the Broadcast Treaty at WIPO to ensure that freedom of expression and
access to information won't be hindered at WIPO.
This draft of the resolution was proposed by India and was discussed in depth by the
Commission 5, which is responsible for the communication and information structure.
It was discussed between member states, both developing and developed nations and was
adopted by the general assembly with a small edit.
Yes: UNESCO's General Conference has adopted the convention on cultural diversity,
and taken a reservation to actively participate in the Broadcast Treaty to ensure
that freedom of expression and access are not hindered by this treaty. ]
--
Chair
Brazil accurately characterizes the UNESCO resolution.
Regarding the relations between treaties and agreements: the analysis will continue
and we should ensure that there will be no clauses in the Broadcast Treaty that
violate other international obligations. That's always been in our minds. Now that
there's a nearby organization with a more general remit, we'll need to be even more
careful.
I had the honor of leading the group that drafted these articles at UNESCO.
--
1700h
--
Chair
Should we give NGOs the floor now? We learned this morning that NGOs talk from 7-10
minutes. Governments speak from 2-3 minutes, rarely 4. Average length of speeches in
the limitations and exceptions talk was 4 minutes, but only after averaging in the
government talks, because governments appreciate how precious time is.
Can we afford to have two rounds of discussion? We have 1h left. We could have one
round for governmental debate.
Let's open the debate on package one and see how it goes.
Discussion Round 1
SCOPE etc * Web/Simulcasting - (1) Opting in - (2) Opting out - (3) Protocol *
Pre-broadcast signals * TM/RMI * Eligibility
Chair emphasizes that this ground was already covered last year so you would only
need to intervene if there was something new. Chair asks whether there is growing
interest in webcasting/simulcasting but then adds that we have already heard repeated
opposition this idea today.
--
Iran
Reiterate Asian group position on webcasting and simulcasting which is that they
shouldn't be in the treaty. So what is the logic of the SCCR/13/5 [?]? Webcasting and
simulcasting are different: for example in webcasting it is the receiver who
activates the transmissions while in broadcasting it is the broadcaster. Similarly in
relation to the definition of the public (as in art 7) where for broadcasting it is
the whole public for webcasting it is the individual. So I think we should not look
at this as a decided framework. In relation to 'optional' there is some ambiguity. In
the context of this document it means each member state has the choice to sign up but
that is the same option as with the main treaty. Furthermore since we are concerned
with harmonization but introducing this option could reduce the harmonization.
Secondly regarding eligibility we don't think there should be any precondition.
Regarding my national position on pre-broadcast signals. This is a treaty for
'broadcasting' organizations. But pre-broadcast signals are just the content prior to
broadcast. So we don't see how this is relevant [[comment on relation to art 1 that
was missed]]
Regarding TPMs - it has an impact on access to knowledge as well as innovation so we
support the removal of this from the treaty.
--
India
I would first like to highlight the difference between the content and the signals
that carry the content. Secondly, piracy is at the heart of this treaty. Now piracy
can be of the content, it can be of the signals and it can be of both.
This treaty, I presume doesn't protect casters against the public or against
creators. It only protects them against pirates. Now broadcasters can be content
owners of have the rights assigned to them. Now if this has happened then they
already have the necessary rights under existing treaties.
If they are broadcasters and not rights owners, the extent of their assigned rights
from copyright holders will have to be defined, and their rights will be limited to
those contracted over by the rights owners; additionally we propose to give them new
rights over the signal.
Many of us have been advocating that we should actually focus only on giving
protection against the piracy of the signals of the broadcasters as the rights of
content owners are already well-protected.
Our position: the scope of this treaty should be confined to protecting broadcasters'
signals for pre-broadcast or during broadcast.
Secondly, regarding webcasting. We've heard the three options, and I reiterate what
Iran said: his national and the Asian region's position is that webcasting should not
be included in the scope of this treaty. He has talked about the optional nature of
the treaty and the optional nature of the protocol.
The point I would like to add to what he has already said is that the reason why we
are not in position to include web/simulcasting is that we are not yet sure about the
technology and its implications for developing countries and we would like to know
more before we start legislating on these matters. So I believe it is putting the
cart before the horse to have a protocol that we could opt for or not when we are not
yet in position to know what the implications are. Joining and not joining is of
course a decision for governments but how would we be in a position to properly draft
that protocol when we don't know about these areas yet?
Third: Regarding TPMs: depending on the scope, they should be limited to protecting
rights that are given to broadcasters in relation to the pre-broadcast and during
broadcasts. They need flexibility and safeguards to ensure that access to knowledge
is not hindered.
Regarding UNESCO: UNESCO's mandate is to ensure that freedom of expression and right
of access to knowledge is not hindered in any way. So whatever protection we give to
casters should incorporate this.
The reason we are asking for these caveats is to prevent the duplication of rights
that can then lead to endless litigation.
--
Chair:
You indicated contentment with the inclusion of pre-broadcast signals which is
interesting as for many it is the same whereas for others they see the broadcast only
as occurring from the 'aerial' and hence have a need to talk of pre-broadcast
signals.
--
New Zealand
We support an updated treaty. We welcome the webcasting proposal from the chair as a
means of facilitating discussion. For this reason, while NZ thinks simulcasting is
important, it should be considered in conjunction with webcasting, possibly at a
later time.
[[CD: Translation, "We want a separate treaty on Webcasting"]]
--
Brazil
As we've said, Webcasting shouldn't be part of this. It presents problems and
difficulties. It's a new area of protection. We're striving to update protection in
an area already recognized by WIPO -- Rome. Webcasting isn't why we're here.
This touches the Internet, a new medium. The Internet is important to development and
many countries until now have considered it off-limits to government interference.
Webcasting proponents have been major opponents of accepting the role of developing
nations in Internet governance [[CD: ZING!]] They want the Internet untouched by
governments, especially of developing nations. For example at the WTO they have
opposed any imposition of duties on eCommerce.
At WSIS, the Webcasting proponents have greatly resisted any kind of
multilateral/multi-stakeholder democratic Internet governance. They're happy to have
the Internet at the hands of a private institution that works under contract from the
US Department of Commerce -- ICANN. We see how difficult it is to get countries to
accept a multilateral means of Internet governance.
But here, when we're talking about private rights, governments should jump in and
commit themselves, creating new rights for private entities?. Even if those rights
need to be enforced in a new medium that developing nations are still not clear on
how to govern?
We think that all of this is still very undefined and vaguely worded. As far as
Brazil is concerned this is out of the scope of the treaty. Having said that, we note
that there are still some Webcasting leftovers in the revised text. These need
closer looks, but see Art 6, regarding retransmission, it still mentions "over
computer networks." This could be referring to previous drafts where they referred to
Webcasting.
Regarding the working paper -- in addition to not considering Webcasting acceptable
as part of any treaty, there are still difficulties. These three options only differ
in form, but not in the ensuing legal results, which would all be basically the same.
No matter which solution you adopt, webcasting becomes part of the treaty. Even part
iii has a sentence that says the protocol becomes an integral part of the treaty for
those members who sign it.
If you analyze this, you will see that the issue of webcasting will be covered by the
treaty and this would be applied on a reciprocal basis for those that have signed
under the protocol.
If they haven't signed the protocol, countries would not be given protection for
webcasting, but if they sign they will.
This is unusual, it challenges the idea of national treatment, a fundamental of IP
agreements and the TRIPS.
My delegation has the same problems with the national treatment clauses in i and ii,
which aren't really national treatment, they're reciprocity. National treatment means
that you treat foreigners the same as your own nationals.
This leads to a network of reciprocal arrangements that lead the agreement to be
applied in different ways at different countries. We think that a national treatment
clause should be adhered to in any treaty that is proposed by this body.
--
Chair
Your analysis is completely correct, including on national treatment. The current
revised text includes provisions for qualified national treatment. The majority of
the members here would probably not want to see this in the treaty.
--
US
Internet governance is irrelevant to this. Since the start of WIPO, we've always
argued that IP should always be extended to the digital world. There's no
contradiction in our position.
In any case let me clarify our position: we think it is crucial to address webcasting
since in the future this the way broadcasting will be done. We want to see
technological neutrality in this treaty. We are willing to consider all possibilities
including this optional idea: be it via a protocol, an appendix, an article with
reservations etc. Just as Brazil has pointed out the result would be exactly the
same. It will confer adequate protection on the computer equivalent of broadcasting.
Re TPMs: We believe that they are as important to broadcasters as they are to
rightsholders. International pay TV systems depend on encryption to ensure that casts
are only available to their subscribers.
--
Switzerland
Confine myself to discussing scope. As regards Swiss law there is no definition of
broadcaster. Our priority is to give protection to traditional broadcasters not to
enlarge it to an entirely new category about which we know little. We thank you for
your paper: perhaps it will help break the deadlock and provide a solution that will
make everyone happy. Who knows what technology will bring. Perhaps this extension to
webcasting is something that should be considered.
Regarding the alternatives -- we agree with the preceding speakers that the result is
the same and that the procedures are different. In this context we have problems with
putting webcasting in the same basket as simulcasting. A traditional broadcaster that
does simulcasting should be protected. We wonder whether we should make this clear in
a future treaty, and whether there might be a gap for traditional casters.
What happens if the pirate says, "Well, I've stolen the signal from the net, and not
the radio waves," will the signal still be protected?
How do we protect traditional broadcasters with new technologies? If the treaty
manages to provide protection to casters for simulcasting then we would prefer a
protocol.
If we don't manage to open the basket and put webcasting and simulcasting in it
together then we would like to find a solution in the context of the scope.
--
Korea
We are living in the era of a digital revolution which impacts on copyright and
related rights including those of broadcasters.
With respect to the webcasting issue, member states might not include the provisions.
Contracting parties could exploit the possibility of reservation. We are not against
the relevance of provisions for the new instrument.
Member states need to review whether the exclusion of webcasting is wise. If they are
not going to include such provision, we will go along with exploiting these
provisions.
Regarding TPMs -- these are already in the WCT and the WPPT. This isn't a new issue.
--
Nigeria
Re scope: We want to protect broadcasters. We don't understand the full amplitude of
webcasting. We don't grasp the full implications for developing countries. Even in
developed nations, we agree that the full implications of what might happen down the
road isn't well appreciated.
I'm not sure that if we tried to devise an appropriate framework that it would be
good for Webcasting.
To be on the safe side and to move the discussion forward, we should limit this to
the protection of broadcasters.
We acknowledge the effort the chairman has made to create different options. But
they're three doors that could lead to the same room or different rooms.
There must be some agreement on the foundational question of whether we want to
extend this kind of treatment to webcasters.
How do we separate webcasters and simulcasters? Once you do that, you've accepted in
principle the need to protect webcasting. Let's pick a side of the road and drive on
it.
Webcasting is the way of the future. We agree. The solution is likewise in the
future. Most of these countries will still be around when we get to that point down
the road.
Pre-broadcasts shouldn't be separated. Let's merge them with regular broadcasts.
Regarding the term: more is not always better. There's a huge burden on developing
nations, especially least developed countries, on protecting rights.
When you put layers of protective regimes, then you allow countries to force people
to recognize these layers of regimes. This should be looked at with the backdrop of
the exceptions and limitations.
While Nigeria generally isn't against TPMs and RMIs, they have to be considered in
light of limitations and exceptions.
Finally, on the issue of eligibility. It might not be necessary to limit the
eligibility to the WIPO Internet Treaties would necessarily protect the rights
holders . There could be some sort of pressure on states to do a somersault, by
capturing both instruments at once.
Our thinking on the protocols. If you have accepted in principle that you want to
protect this subject matter, it will work as a distant pressure on some countries to
go along with the treaty and be in line with other countries.
--
Morocco
My country has more than once emphasized the importance of protecting broadcasting
(traditional broadcasting). This was reflected in the regional consultations in Rabat
last May which recommended upgrading existing rights to protect broadcasters.
In relation to scope: we don't see any need to expand the scope of this convention to
encompass webcasting and simulcasting (not that we don't think that those areas will
be important due to technological advance). only once we know what the future will
present will we be able to add
All this leads me to speak about the scope of the convention. The matter deals with
broadcasting organizations We don't see any necessity to expand the scope of this
convention so that it may encompass webcasting and simulcasting. Despite the fact
that we are convinced of the importance of webcasting, we consider this a new topic
and only the future will be able to show us the different aspects of this process.
--
1804h
--
Chair
Good night
--
DAY 3 OF WIPO SCCR 13th SESSION
November 23, 2005
China:
Our law has clearly integrated cablecasting into the scope of protection thus this
delegation agrees that the draft treaty should include that. On webcasting: we think
this should be left out and discussed later. However in view of the different views,
in the spirit of compromise we would consider an optional, opt-in solution. Regarding
eligibility we don't think there should be any preconditions.
--
EU:
On the scope of the treaty the EU thinks that there should be no no-go areas: all of
the options in the Chairman's Working Paper are worthy of discussion. [praise for
chairman's wisdom] The overarching goal of concluding an international instrument to
protect against signal piracy is to protect all things that include significant
investment. On pre-broadcasting signals, and post-fixation rights we are open-minded.
Technological neutrality and setting a substantive standard is the way forward.
--
Australia
In principle Australia supports proceeding to a diplomatic conference.
Webcasting/simulcasting: we support the further consideration of such activity
separately. We are still considering whether any of the 3 positions are appropriate.
We are also considering the point raised by the Swiss regarding retransmission of a
broadcast where it is taken from a simulcast.
Given that the definition of retransmission in article 2(d) is restricted to
simultaneous retransmission, article 12 refers to later [fixed] retransmission and
seems to provide for a new term of protection at that point: is that intended?
Art 13: provides for protection of a broadcasting organizations /own/ signals. But
does this mean that the broadcaster does not have protection where transmitting
someone else's signals?
Because of the interpolation of the words 'prohibited by the broadcasters' before
.....
Prefer art Z.
Regarding Brazil's concern on compatibility with Rome we suggest that this is taken
care of by Art 1.1
--
Uruguay
We believe the treaty should be limited to traditional broadcasting. Brazil was very
eloquent and my delegation shares many of their views. With regard to the substance
and the procedure, while webcasting may be very important, from an international
point of view we think it is premature to consider this. We need to study this
matter, particularly given that national treatment of webcasting differs greatly.
From a procedural point of view my delegation does not think this group has the
necessary mandate to consider webcasting as this group was formed to discuss
protection for broadcasters. Webcasting was introduced but it has never received
consensus.
My delegation would have difficulty considering the 3 options you have put forward.
It would be difficult as we believe considering them would be deviating into
webcasting, and we believe that is inappropriate.
--
Argentina
Scope: like other delegations when we agreed to negotiate we assumed that we would
negotiate broadcasting not other stuff. ....
There never was any agreement to discuss webcasting and never had a mandate to deal
with this. The discussion started came about as a result of a request by one
delegation [US - see WIPO document SCCR/9/4 Rev.] and this is now the 3rd year we
have been discussing this.
There is great resistance to this by other members. Our original proposal shouldn't
be turned into a new international instrument that we haven't agreed to beforehand.
There is no agreement on the desirability of extending this to webcasters.
We also heard proposals from Brazil and Chile yesterday and just because they might
be rejected, this shouldn't preclude future proposals to balance IP with the public
interest.
The discussion here might produce a new instrument on the public interest.
Nigeria and Brazil have made good points regarding the chairman's paper on
webcasting. You've asked for our views on Brazil's proposal and our delegation is in
favor of article X on public interest, and could accept public interest as part of
this negotiation.
With regard to eligibility we can be flexible on this and we too support the
Brazilian proposal.
--
Brazil
Wish to speak on the other issues as well as webcasting. Like other delegations we
note that there is significant opposition to the inclusion of webcasting. So we don't
think there is support for the submission of an item on webcasting to a diplomatic
conference. Would like to echo comments of other delegations, especially Nigeria,
that inclusion of webcasting would be the same as inclusion of webcasting.
We reserve our position regarding cablecasting. We're still considering the
implications of extending this to cablecasting in Brazil.
Regarding pre-broadcast signals we also have our doubts whether they should be dealt
with specifically. Like the delegate from Nigeria we think we should just deal with
signals and not distinguish between pre, post and normal broadcast signals.
Pre-broadcasting signals present a much greater challenge, since it's difficult to
tell who the owner of these might be, which means that developing countries will have
a hard time enforcing this.
Regarding TPMs, in our written proposal we have indicated our opposition to the
inclusion of this in the agreement. TPMs give the rightsholder the right to
self-enforcement. This is counter to the traditional balances of IP. It's like giving
citizens a gun to enforce the law by their own standards -- TPMs give the
rightsholder the ability to take enforcement of his rights into his own hands. It
undermines the balance of private rights, government protection thereof, and the
public interest. We oppose legitimizing these measures. We think that DRM is
something that is similar to TPMs so we reserve our position on that as well.
On eligibility: Article 1 of your draft doesn't meet our concerns. This is an update
to the Rome convention, therefore there's no major difficulty in saying that members
should also be party to Rome given that the intent of this exercise, as we understand
it, is to update Rome.
--
Norway
We support working toward this treaty to give casters rights comparable to the
neighboring rights granted in the WPPT. We support the grant of TPMs in analogy with
the WPPT.
On the same basis, we believe in allowing any WIPO member to join.
We support the inclusion of simulcasting.
Earlier we were of the view that webcasting should be left out of the treaty. However
given the proposals that are now on the table we think webcasting should be left on
the agenda.
--
Cameroon
Broadcasting is important to public access to education and information and
contributes to cultural heritage. That's why we support having the scope only cover
terrestrial and cablecasting.
With regard to webcasting we would have great difficulty supporting this. Like others
we think this should be dealt with at a future time.
Re. eligibility: think opt-in should not be restricted and all WIPO members should be
able to join.
--
Bulgaria
There's no change in our position.
Regarding webcasting -- we've already agreed to this at our regional meeting in
Moscow. It satisfies all countries; those who don't want to adopt it can opt out. We
can see what emerges from those countries who apply simulcasting and then others can
see what to do.
We think your compromise is wise: let's leave it there and people can choose whether
to opt-in or not. Ultimately it is a piece of judicial technicality.
The most important thing in your proposal is that it solves the controversy;
webcasting supporters can get webcasting; doubters can eschew it.
Regarding pre-broadcast signals: they should be included. They are often the object
of piracy To protect broadcasting orgs, we need to include this.
Regarding TPMs: should be included. They're the only way to protect rightsholders,
especially broadcasters.
For eligibility: should be open for all member states without preconditions.
--
Chair: emphasizes that we should try and close out so we can move on to section 2
--
Kenya
Broadcasting is important to culture, education, access to information and
development. As the African countries said at the Nairobi regional meeting, we
support a broadcasting treaty. This should take into account the rights of the public
and of rightsholders and balance them.
However Mr chairman we believe that the proposals on webcasting are premature and
should not be included.
Regarding TPMs, we support them as they'll protect investments and deal with piracy
like unlawful program decoding. It should be limited to the signal before and during
broadcasting.
On eligibility: no preconditions and anyone from WIPO may join.
--
Columbia
Essential to have protection for broadcasting and cablecasting. Would be in favor of
including simulcasting but we don't support webcasting. With regard to pre-broadcast
signals think we need appropriate, effective protections.
Regarding Article 16 on TPMs, we believe it is essential to establish mechanisms for
implementations that don't detract from exceptions and limitations in the digital
environment.
--
Chile
Scope: We think that other legal bodies can protect casters; it needn't fall under IP
laws. We exclude cablecasters. We support including pre-broadcast signals. We want to
leave the door open for other kinds of protection.
Re TPMs we share the concerns of other delegations regarding the negative effects of
excessive protections especially in relation to public domain material and the
development of new technologies.
Finally I would like to address the scope of national treatment: we think it is
essential for countries to have greater freedom to promote local industry and the
granting of national treatment should be limited to those rights recognized by
parties under this treaty.
--
Benin
We believe it's necessary to protect broadcasters, but to what extent?
Webcasting: Not everyone favors this. I come from a developing country and many young
people are investing in broadcasting with public support; our public authorities
believe that broadcasting promotes democratic values. In Africa, in a country
democratic elections can only be transparent and valid if broadcasters can follow
them. Thanks to them, my country can follow certain events online. We aren't hesitant
to ensure adequate protection for broadcasters and to ensure that their rights and
the rights of rightsholders are protected.
As you know in this area artists and rightsholders are covered by a rights-management
organization and they wouldn't want to be restricted from reaching out to their
public but would also want to get adequate remuneration. I know there is interest in
Creative Commons and this is an avenue to explore.
Simulcasting: Webcasting is similar to making available to the public; Simulcasting
is carried out by a broadcaster that can be located. In Nairobi, we wanted these
subjects to be included in the treaty, but as you said yesterday there is not yet
unanimity in this.
We hope that the SCCR will adhere to the established timeline. We support openness.
We want further study on this issue.
--
Mexico
My delegation wants to reiterate its position: want protection for casters and should
convene a diplomatic conference ASAP.
TPMs are essential tool for the protection of broadcasting organizations.
Eligibility: should have no restrictions on accessions
Protection of pre-broadcast signals is essential. The misuse of signals comes up
again and again in relation to broadcast near the frontiers of our country.
--
Dominican Republic
First time to speak. Protection of broadcasters under Rome is very important. Do not
think that a clause on webcasting is appropriate in a broadcasting convention. Thank
you for the alternatives but this area should be discussed later.
On pre-broadcast signal we don't know very much and are still thinking but we support
Uruguay's request for impact studies so that we know the implications of this
agreement.
We would also like to have more study on L&E;
Eligibility: support either all can accede or the position of Brazil that only those
acceded to Rome can join.
--
Chair
We're opening the second set of items; if you still have anything to say about round
1, say it during this phase, too.
RIGHTS etc * Rights - Retransmission - Communication - Fixation - Art. 9-12
post-fixation rights * Limitations * Term
We'll let the governments talk for an hour, then have the NGOs speak.
--
Iran
Want to put forward position of Asian group: * Retransmission: all stuff on
webcasting and simulcasting related to retransmission should be removed (art 6 which
mentions retransmission over computer networks for example) * Support 20 years term
(option EE in art 15)
--
Australia
Notes that Canada has requested a reservation right for art 6. Argentina has also
brought this up. Reserve our position
Suggests removal art 7 [rt of communication to public] in toto. If it is kept in,
then insist on right of reservation.
Art 10: para 10, alternatives p and ii refer to copies; while other refers to
"reproductions" -- is there meant to be a difference between "reproduction" and
"copies"?
Art 11: 'by any means' should be inserted after transmission consistent with art 2(d)
'retransmission'
Regarding Brazil's document:
* Article 14(c)2 -- concerns an exception on which a broadcasting organization would
rely, rather than an exception to a broadcaster's rights
Join with Colombia subparagraph (b) of para (2) to ask whether this is supposed to
cover sports broadcasts If so, (g) would deprive such organizations of all such
protection. It could not therefore comply with the 3-steps test under Berne.
--
Chile
Would like clarification re. proposals that consider that right granted is a
provisional right. Would like to know what the difference between that right and the
right of authorization?
--
Chairman
I was listening to the translation and I didn't quite understand your question, but
it should be directed to the US and possibly Egypt.
--
India
In general: we're not in favor of granting exclusive rights. We prefer the right to
prohibit certain activities, particularly those that result in signal theft.
Confining the rights to prohibit should be consonant with the TRIPS.
We oppose extending rights post-fixation on pre-broadcast or broadcast signals. This
goes beyond the necessity for broadcasters to protect themselves.
Articles 6-13, remove references to simulcasting and webcasting, e.g. references to
computer networks.
Specifically:
* Article 6: as worded, it includes webcasting, "by any means including
retransmission over computer networks" along with the definition in 2d) of
retransmission means that Article 6 is about webcasting. Delete this phrase.
* Article 6: Need for a provision to support access to knowledge in case this is
restricted unreasonably by broadcasting organizations
* Article 7: Piracy of signals for communication to the public can be tackled by
collecting fees and by technological developments in the home. This article should
not be in the treaty. We want it deleted.
* Article 8: right to prohibit to fixation are only needed in relation to protection
to signals. So need to limit this right to stop access to knowledge and public
information being unnecessarily restricted.
* Articles 9-12: India is opposed to the new post-fixation rights. They're not about
signal piracy. They extend to computer networks, through words like "in any manner or
form" (article 9), and "transmission by other methods" (article 11), and "by wire or
wireless means" (article 12). This tries to control the use of the content, impinging
on the rights of content creators. We want explicit provisions to protect content
creators in each of these clauses.
* The 2 tier level of protection envisaged in the alternatives may result in
different levels of protections. This may result in different states setting
different standards.
* These problems of drafting may arise because of the introduction of webcasting,
simulcasting.
* We would like freedom for members to be able to introduce any relevant l&e;
including compulsory licensing to protect public access to knowledge
* Art 15: think term should be same as TRIPS: 20 years
--
Colombia
consider that the exceptions in art 6 are exclusively on the subject of simulcasting
which we think should be included in the future text of the treaty.
Bearing in mind the contents of the definitions of rebroadcasting and retransmission
we don't think this is relevant to webcasting. So we think art 6 should be kept how
it is bearing in mind this excludes webcasting but includes simulcasting.
--
EU
Not taking a position but wishing to clarify.
Art 6: retransmission. Any form of retransmission needs permission. Does this mean
broadcaster must authorize webcast of its original webcast? If this is the case where
a broadcaster is authorizing a third-party to transmit broadcasts over the web does
this mean the webcaster gets a right (which would mean webcasting was included)?
Art 11: retransmission post-fixation. If we look at explanatory comments it says that
this includes cablecasting and broadcasting. Thus it excludes webcasting
(implicitly). We would like an explanation why original right (art 6) seems to
include webcasting but this article does not.
Are these provisions technologically neutral? We are open to any debate on the
substance. But we need clear enough wording so that there are no (unintentional)
anti-competitive results from the wording chosen.
--
Russian Federation
Maintain our previous position:
* Arts 9-14: need to look at the alternatives
Art 9: HH Art 10: Art 11: KK Art 12: LL Art 14: support alt U.
This would allow us to take greater consideration of national differences. As regards
timelines support our original position.
--
Chair:
Art 6: right to authorize retransmission by any means. Does indeed imply right to
authorize retransmission over the web of the original broadcast. Obviously the body
involved would be different from original broadcaster. However this organization
would not get any rights since they are simply a re-transmitter.
Art 11: new transmission post-fixation. Why a difference? If things were perfect this
should be include: 'new transmission by any means' and the explanatory notes would
point out this included over the web.
[Ed note: in which case, broadcasters and cablecasters would be granted webcasting
rights - the right to control fixations in Article 8 and the right to control
transmissions of fixations over the Internet under Article 11]] --
Republic of Korea
* Term: support minimum 20 years but should allow it to optionally be longer (e.g. 50
years as it is in Korea)
--
US
* should provide exclusive rights as provided by the Rome Convention.
* must respond to current world of technology. thus believe that the discussion
regarding retransmission and communication. If we only want to talk about
conventional broadcasting then we ignore the existence of computer networks -- which
is simply not realistic in today's world. Transmission of broadcast signals over the
Internet is a reality and is a very cheap and easy way to steal someone's signal. If
we ignore this we are burying our head and simply ignoring the real world. If we
don't prohibit the unauthorized transmission by Internet then we simply invite
pirates to switch media: don't do it over the air or via cable do it via the
Internet.
* I appreciate your clarification that it wouldn't give a webcaster rights but simply
would allow broadcasters to prohibit retransmission via web.
* Post-fixation rights: purpose merely for the broadcaster to have right to prohibit
it is not intended to give them new rights. Just there to stop piracy. Post-fixation
rights should merely be right to prohibit this unauthorized activity.
* Limitations and Exceptions: 3 step test is good. Good in past and fine for future
and it provides all we need. It provides policy space that governments need to
respond to domestic concerns.
--
Ukraine
On Arts 9-14 support Russian Federation as we did at regional meeting
Art 15: we consider that it should be 50 years as it says in WPPT. Because 20 years
is very short (it was adopted in 1961).
--
Chile
Still have some doubts regarding post-fixation. We don't see why this wouldn't allow
the broadcaster to charge for payment since they would have a right to prohibit.
* Specific delimitations regarding competition: need protection against unfair
competition. Under Berne there are specific protections against unfair competition
and this is clearly enshrined in TRIPS. This is a new treaty which will establish new
obligations and rights and so we think it appropriate to introduce these explicit
delimitations.
* Exceptions and Limitations: We implicitly import Rome's specific exceptions, and
add specific exceptions for disabled people, libraries. Add the flexibility from
Berne's 3-step test. There is uncertainty regarding the scope of limitations
involved. For the benefit of society, states should have the legal power to set
limitations and exceptions that reflect their domestic priorities We also suggest
that other exceptions be allowed that fall within the scope of the three-step test.
--
Cameroon
In favor of what was agreed at Regional meeting in Nairobi on Articles 9-12.
* Rights-holder should have exclusive rights
* Article 6: posed certain problems for us. We would like further explanation. After
deleting last phrase: 'over computer networks' the draft still contains: 'by any
means' which would seem to include other methods which have not been specified. So we
would like more detail on this.
* Article 7: We support alternative L
--
Brazil
There are certain rights in the draft text that are also contained in Rome (for
example arts 6-9) of which we are members. We would prefer adherence to the Rome
convention where possible. We would also agree with India that the text needs to be
cleansed of references to webcasting and simulcasting.
Arts 10-13: these would be new rights and we aren't sure that they are necessary.
They would seem to enhance protection far beyond the protection of the signals. So it
would seem to create rights that encroach upon creators and authors which would
result in considerable problems for the management or rights of authors and creators
(copyright holders).
They refer to non-simulcast programs over computer networks, which reimports the
concept of webcasting. We support India's insistence on striking this.
We know that technology has developed. We know that some members think this treaty
should solve problems with webcasting. But we have different problems in the
developing world and we have no idea what the social and economic impacts will be of
extending protection to webcasting. We believe that we could benefit greatly from
impact studies regarding the application of broadcasters rights to developing
countries.
In Brazil's constitutions, broadcasting organizations have a social role and we think
that giving them these additional rights would require an additional enhancement of
L&E; that would have to apply in a clear and absolute manner across the board.
The Berne three-step test tends to undermine the limitations and exceptions in the
treaty. We need a three-step test on the enforceability of rights. They should not
disturb the social role of broadcasters, nor prevent access to knowledge, nor
encroach on the public domain and the public interest.
There is an issue of balance here that is quite dramatic and that can have quite big
effect on developing nations.
Some members support "technical neutrality" but we want different kinds of
neutrality: on developing the public interest and on access to knowledge. Technical
neutrality isn't the only relevant form of neutrality.
We would like to comment on term: we have not defined yet a position in Brazil though
we believe in principle 20 years would be best. We would like to mention TPMs again
as they would undermine any choice of term put into this treaty since the TPMs are
effectively permanent and they don't expire. So we think this is an additional reason
for excluding TPMs as they grant broadcasters an everlasting and undefined rights
over the subject of protection.
Limitations and Exceptions: We have a proposal in SCCR13/3. Our views are clear. We
want clear limitations and exceptions that are a commitment among treaty members,
without nuance arising from the application of the three-step test, which can
undermine the application of limitations and exceptions in national law.
Regarding para 2(c) of art 14 in our proposal which was referred to by Australia. It
just repeats the same exception put into the Rome convention so I recommend looking
there.
Regarding (g) we would like to explain that our objective is to protect subject
matter that is in the public domain, that is not the subject of any particular
copyright, or substantive right, and to prevent it being unduly appropriated or
removed from the public domain. We appreciate this may need improvement and
appreciate any comments.
We support Chile's proposal on limitations and exceptions. The Chilean proposal on
national treatment is the right one for this treaty -- they capture real national
treatment. Curbing anticompetitive practices is appropriate: we're creating new and
enhanced rights these should not lead to new and enhanced monopolies and
anticompetitive practices.
--
China
Exceptions and Limitations: We don't propose anything concrete. We reiterate that in
considering these questions, we must consider not only the interests of the
rightsholder but also the general public interest. We should avoid giving more
protection to broadcasters than to copyright holders of programs.
China already provides 50 years of protection to broadcasters, which is why we
support (dd).
--
UNESCO
Our mission is to promote peace and security through collaboration on communication
and justice. We collaborate on mutual knowledge. We promote the free-flow of ideas by
word and image. We're a fresh impulse to popular education and the spread of culture.
We ensure the spread of knowledge and access to museums, etc.
Based on the principles and objectives under our constitution we are promoting the
concept of the knowledge society. There are 4 principles:
1. Respect for human rights including freedom of expression applicable to both old
and new technologies
2. Access to knowledge
3. Pluralism, inclusion and tolerance
4. Education for all
The opportunities created information technologies create new possibilities for
dynamism ....
What are the preconditions for enhancing access to knowledge?
Broadcasting is critical to knowledge sharing. In some regions, it is the only such.
Public service casters carry knowledge to large groups and promote the free flow of
information.
To continue to perform this mission, it is necessary to afford casters an
appropriate, updated IPR framework to combat signal piracy, so that their losses are
transformed into resources invested into the creation and sharing of quality program
that serves everyoneas important as the treaty's acceleration is, it's equally
important that government analyze the provisions in the new consolidated text and in
future texts in the light of universal principles that underpin the growth of
knowledge society; as approved by 199 UNESCO member-states.
This will maintain the balance of rewarding investors while safeguarding public
interest.
Provisions relating to copyright restrictions, use of public domain, use of works by
their owners and TPMs all bear careful examination to ensure that they're in
compliance the principles above.
Appropriate freedom of expression safety valves should be included.
3 reference points:
1. This treaty should clearly be about signal piracy and shouldn't affect authors and
other neighboring rights owners;
2. A balance should be struck by the rights in this treaty and the general public
interest
3.[??]
--
Chair
You spoke for 8m22 but you represent 190 governments.
--
CESAC/BEAM
Our position has not changed. Our concern is to ensure that economic and other
interests of authors, composers and publishers are protected.
Purpose of intervention is not revisit that but is to urge member states to move on
on this issue.
There's unanimity on the need to protect broadcasters in the digital environment.
Given this, there should be some movement towards a diplomatic conference.
Webcasters are a different matter. The debates on webcasters have been rich and long.
What to do when an irresistible force meets an immovable object? Compromise. Take
alternative 3.
WIPO needs to make this treaty so it can move on and take on other issues.
--
CRIC
Copyright Research Information Center, Japan. Broadcasters are members.
On behalf of Japanese broadcasters:
* We agree with most of Brazil's proposal.
* Yes broadcasters should contribute to public interest -- they have done and are
doing so.
* we broadcasters have a strong interest in the public interest and in playing role
in the basic communication infrastructure.
* To realize this goal, we need updated protection against newly arising piracy owing
to digital technological development
* To transmit to the public various information, sports, news etc is our purpose.
Unless we have a law against rampant piracy our operations will surely be damaged and
people will lack for public information. Broadcasters also promote cultural
diversity.
* No need for link with UNESCO convention. Our aim should be to have a broadcast
treaty as soon as possible.
--
IFTA (Independent Film and Television Alliance)
Notwithstanding the public service mission of broadcasters we should bear in mind
that much of their content carried on their signal is produced by others. We should
not overstep protection of the signal and engage a wholesale redrawing of
redistribution rights.
Oppose simulcasting if it negates Berne 11 (bis). Authors must retain the right to
contract for all kinds of transmission including simulcasts.
In passing, non-linear delivery, by computer networks are rightly excluded from the
treaty.
Support Art 16 on TPMs should be included and do not agree that it imposes
unreasonable barriers to access to public domain content ....
--
CSC
We will submit a longer statement for the record.
We oppose the creation of rights that protect investment instead of creativity. This
is a new system of Internet regulation. This doesn't protect copyright -- it
radically changes the ownership of knowledge goods, shifting it to those who transmit
information, not those who create it. Why not give Amazon the right to the books they
make available?
The US doesn't have webcasting. No one does. Why create an international obligation
to adopt a right that no national government is willing to create?
The definition of "webcast" includes webpages. Every Internet user is also a
publisher. People remix and share information in ways that are not the same as the
way that they use broadcast information. We need to keep this -- don't impose
unwanted regulation on the Internet.
--
EBU
We're the most interested party in this room. Broadcasters from 54 countries are
unanimous on this. The broadcast right is to protect the investment of broadcasters.
Protection isn't extended to the content of the broadcasts -- no more than phonogram
producers' rights are. This is about entrepreneurial effort and investment. The BBC
is the best known caster in the world, spending $5BB/year making work available to
the public. The rights cost for next year's FIFA football in Germany has been $2BB,
$200MM for Brazil alone. This is what's at stake and this is what we want to protect.
What need is there for protection? If you put out a broadcast today, it can be
pirated in many ways. Look at the world cup, there are 24 time-zones. Live
transmission isn't convenient. Many casters' broadcasts will be on a non-live basis.
Lots of space for pirates to come in and pirate it by cable and terrestrial. They
put it on the Internet. They repackage it and offer it on broadband and mobile phone
networks.
To protect the investment, you need to include the pre-broadcast signal and the
simultaneous use of the cast in other media. Why protect the free-to-air but not the
simulcast over cable or the Internet. What sense does that make?
One further requirement is giant-screen exhibition. If casters can't control this
then all those who prefer to watch this in public places and not at home won't be
counted when it comes to counting them for advertising.
Broadcasters must be able to control this viewing in public places to stop ambushing
by competitors and others.
TPMs: If you wish to receive Swiss German casts, you need a satellite dish and a
smart-card. Why? It's because this is imposed by the rightsholders, especially the
movie studios. They presume that once the films are on the satellite, they're
available all across Europe. Smart-cards can limit reception to Switzerland.
If Swiss broadcasters have no ability to go against the pirates who takes these
smart-cards and put them on the market then this will just kill the market here: film
producers just won't allow us to broadcast films.
(5m44s)
--
URTNA
Re TPMs: We are appalled by the proposal to cut TPMs. This will cut into
broadcasting in Africa and around the world. In the current consolidated text,
broadcasting includes transmission of encrypted signals, as with satellite and cable.
This form of broadcasting depends on specific TPMs to encrypt and decrypt signals.
This involves huge amounts of investment.
For instance, an African Pay-TV operator recently spent US$1BB for World Cup rights
in 2006. This will complement the offering from free to air (FTA) casters. In most
countries, FTA casters can't be encrypted. In Africa and in most developing
countries, free to air broadcaster don't cover rural parts.
In Kenya, pay-TV operators provide educational material in regions where FTA is not
available.
So we don't subscribe to the view that TPMs result in informational feudalism as
submitted by some delegates. TPMs will act as an incentive for further investment in
this field.
--
FIM
International Federation of Musicians.
Music performances dominate worldwide radio and are substantially represented on TV.
* Art 3.0 -- protection should only cover the signal. What's a signal?
* Oppose inclusion of webcasters though we support a treaty that protects against
signal piracy. These are 2 different issues. On the Internet it is the consumer who
pays and initiates the transmission this is very different from traditional
broadcasting.
It's possible for anyone to Webcast, so where's the investment? It's in content.
Drawing a line between protected and unprotected services presents a serious
possibility of discrimination. Should webcasters get a preferred position on the
Internet?
From a practical point of view on the World Wide Web platform having a system where
some countries protect 3 levels, some protect 2 and others one will simply lead to
more confusion rather than less.
* We oppose the reference to fixation -- if it's necessary to refer to fixation, then
it should only be to unauthorized fixation
We support the recommendation of some NGOs on signal protection.
[3:04]
--
NAB JAPAN
What we have been asking for is only for a way to fight against piracy of our signal.
We are not seeking profits at the expense of others.
Broadcast signals are a vehicle to carry content. If Broadcasters' rights are
protected, that will in turn protect the rights of the content owners. If
broadcasters fight piracy, we get synergy in the fight against piratical deeds.
Broadcasters have been playing the role of principle social medium of communication
for many decades. We have been serving the public interest.
Updating our protection in no way conflicts with the public interest.
We want to fight piracy. If we don't get the new treaty, we can't do that.
We have been discussing caster rights for over 7 years (since 1998). During that time
the trend in digitization has been accelerating. We no longer can tolerate the threat
of signal piracy. There is an urgent need to update our rights. Thus in line with the
request of the GA we wish to see a diplomatic conference convened in 2006.
[2:30]
--
CBU (Caribbean Broadcasting Union)
As reps of Caribbean broadcasters, we have an authentic understanding of development
needs. We're at the center of the debate on cultural diversity, but that should be
left in UNESCO.
Broadcast signals are to broadcasters as content is to creators. Our principal asset.
Restricting information access: Expanded audiences are the currency in which we
trade.
Access to information needn't be done by sacrificing legitimate rights. We believe
both interests can be met at once [access to information and protection of casters].
We have suffered from signal piracy and economic and reputational damages. The worthy
should be rewarded and the guilty punished. Without a treaty, this will be reversed.
It will be a travesty.
Please move to a diplomatic conference.
--
EDIMA (European Digital Media Association)
Speaking on behalf of EDIMA and DIMA. We represent companies that provide audio and
AV works online. We're webcasters. Webcasting is presently a reality. We transmit
millions of hours of Internet radio every month across the globe. One need only look
at the Live8 concert a few months ago to see the reality of webcasting. Webcasting
isn't nascent. It exists. In the EU, it's vibrant and growing, as it is in the US.
Webcasting and simulcasting should be included in this treaty. We need the same
protection against pirates as broadcasters and rightsholders.
I've listened with amusement to the differences between webcasters and broadcasters.
We compete directly on many platforms for the same consumer. We have direct
relationships with rightsholders, just like broadcasters
The broadcasters invest a huge sum of money, as do we.
Consumers want content, and can't give a toss how they get it. That's why we're
competing with broadcasters. The EU rep mentioned a competitive distortion concern if
the scope of this is limited to broadcasting. I welcome and support this. We compete
for the same consumers.
If the treaty offers piracy protection to one set of competitors and not another,
then that is competitive distortion.
What should be interesting to developing countries: webcasting provides tailored
services to particular groups, including developing nations. Webcasters should be
afforded the type of protection that other cultural disseminators are granted.
As to "let's not do anything until the issue is settled" by that reasoning, no
constitution would be drafted until 200 years after the country is founded.
We need a framework, a framework in which webcasting is protected against piracy
and allows them to develop their business and provide content to consumers.
This isn't about another layer of rights. It's about signal piracy. We want equal
treatment for exactly the same activity. This should be technology neutral.
--
FILAE
In Madrid, there's a Goya painting of Chronos eating his son. I'm representing 15
countries with 90,000 members and I want to state that what we're discussing is
signal protection and protection for broadcasters against piracy. The GA gave us a
mandate for this treaty on traditional broadcasting.
There is WPPT which has 13 articles on this subject. One article gives governments
the right to grant protection under IP, unfair competition or using penalties. If we
only talk about signal theft then we are going down the wrong road.
Though Switzerland and Brazil have made reference to WPPT we are concerned about
scope particularly when the law must be applied by judges who don't know much about
IP law.
In June the US Supreme Court struck down Grokster. We want to cooperate to promote a
treaty that covers only commercial broadcasting.
-- ACT (Association for Commercial Television in Europe) [Text provided by Tom
Rivers]
I want to speak today about a single topic -- sports rights.
In much of the world the rights held by sporting organizations as such are rather
thin. The United States does treat sports events themselves as qualifying for
intellectual property protection but that is an exception albeit a large one to the
general rule.
Of course the owner of a sports stadium has rights as the owner of land or premises:
to exclude trespassers, to impose conditions on admission including payment of an
entry fee, to eject those who fail to observe conditions.
An event like the Marathon, much of which is run on a public highway, places the
business model under a certain strain since one cannot sell tickets to people who
stand on the public pavement. Thus sports organizations need to supplement their
revenues with other sources such as sponsorship and broadcasting.
If then you ask what rights sporting organizations offer broadcasters the answer is
that broadcasters are in effect paying tickets of admission to the stadium for the
rest of the world - those who cannot be present. (And that nexus between broadcasters
and sporting organizations has led directly to a vast increase in the public's
ability to participate in such events, to the benefit both of the public and of the
sporting infrastructure all over the world).
What the broadcasters are acquiring - just to underline the point - is the right to
come onto the land under the control of the sporting organizations and to set up
their cameras - a right of access.
The sporting organizations themselves (outside the United States) have no
intellectual property rights and neither do the athletes in the football match, the
100 meters race, and the boxing fight. These events have not been thought appropriate
objects of protection either at a national or an international level.
There is another difficulty.
The fixation of the coverage itself may well not be protected either - as a work of
authorship - because such coverage is regarded in some jurisdictions as an unmediated
transcript of current events lacking the necessary creativity.
This problematic state of affairs has been solved by the sports organizations and the
broadcasters who have a common interest in ensuring the maximum possible access for
the public but at the same time protecting the legitimate as opposed to the illicit
and unauthorized use of the coverage.
The solution depends on the broadcasters having appropriate rights not only in its
transmissions but also in post transmission fixations.
These rights can then be shared or even transferred to the sporting organizations
consideration for the rights of access.
This system functions well in areas such as the European Community where the
broadcasters have been treated pari passu with other owners of related rights - and
this without apparent injury to the rights of other rights-owners. In other parts of
the world where the protection of broadcasters' rights are more restricted the risk
of undermining the value of sporting organizations' offer is increased -- to the
detriment of the public at large.
Finally a proposal which would allow by way of exception to the broadcasters'
exclusive rights the free use of any broadcast whether the content itself is not
protected would have the effect of destroying the business model I have described and
which is the basis of the current arrangements between sporting organizations and
broadcasters.
I am sure that is a wholly unintended consequence of such a proposal but it seems to
me to indicate the need for the terms of such proposal to be carefully considered.
--
IFPI
Broadcasters and webcasters are among our most important business partners.
SCCR should move forward.
Take this to a diplomatic conference.
1. Catalog of rights: Delegates doubt that the "right to prohibit" is different from
an exclusive right. This difference results from a small twist. See Rome(7): the key
phrase is "from unauthorized fixations." This is meant to prevent bootstrapping
anti-piracy into defending your own business model. Of course there's an implied
right to fixate. If casters are given the exclusive right over retransmission, this
could prejudice the interests of other rightsholders.
Regarding TPMs, Limitations and Exceptions: Possible to import them from the 1996
treaty. They are the result of intense and painful debate.
Regarding Webcasting: Chairman's proposal is a middle way. We see benefits in
optional protection for webcasters and for simulcasters. The protocol (option iii) is
the best option.
Close ties to WCT/WPPT are essential, overriding concerns over explicit tying to
other treaties. The declaration that the treaty must not prejudice other
rightsholders' interests can't be mere lip-service. Other rightsholders may want to
design the marketplace in a manner different from the broadcasters.
--
NABA
We've been here for years and the need for treaty has only grown. TV programs are
unlawfully retransmitted and downloaded daily. Digitization vastly increases ease and
convenience of piracy. Competition in free-to-air has threatened these casters'
ability to go on existing.
TPMs: Deletion of TPMs is unacceptable. Removes a key means of doing business. TPMs
are practical. They have the advantage of being self-enforcing. There are not costs
to enforcing them. Many nations have TPM rules. Even Brazil! TPMs are important to
casters in the same way they are to other rights owners. No reason not to include
them here. Other rights-owners, like IFPI, support this.
The TPM debate includes misrepresentations of the dangers thereof. Our proposal is
flexible, it allows casters to choose which TPMs they want. These don't prevent
access to signals under limitations and exceptions.
--
FIG
International Federation of Journalists
World's largest journalists' rights orgs. Promote free speech and independent press.
We defend strong authors' rights protections for journalists. Don't compromise the
rights of journalists over works that are in broadcasts.
Protection should extend only to traditional broadcasters' signals. Rights should be
limited to those laid out in Rome (13). Some of the rights in the consolidated text
are greater than those given to authors.
Regarding eligibility: membership should be subject to WCT and WPPT.
Exceptions: Journalists rely on exceptions when covering events. We believe that the
inclusion of lists of exclusions should be very carefully considered.
Audiovisual performance protection should remain on WIPO's agenda.
[2:38]
--
UPD
Union for the Public Domain
Opposes Webcasting's inclusion. The Internet delivers things the public value and
makes it accessible.
The 1996 treaties were matters of first impression -- countries are now struggling to
create them.
Webcasting is untested. The US doesn't have these provisions. It's off-putting that
the US is pushing for this when they've never considered including this in their own
countries.
UPD asks WIPO to not engage in piracy of the public domain by giving broadcasters
ownership rights.
UPD asks WIPO not to create barriers to works that are licensed under Creative
Commons, etc.
[1:30]
--
ASBU (Arab ... Broadcasting Union)
We want a diplomatic conference.
Our organization was created in 1955 by Arab League broadcasters. We're listed as a
governmental organization.
My organization is currently negotiating with FIFA for the world cup in 2010, 2014.
The amounts proposed are exorbitant and in addition to those amounts we have to make
other expenditures for on-site coverage and satellite broadcasting.
We are spending all this money to meet the public demand for this event. We are aware
of our public service role.
We fear that in spite of these efforts and investment there will be one entity that
will not spend any money and which will be able to illegitimately take pre-broadcast
signals and we'll be unable to defend our rights under copyright or related rights.
In our country, sports-casts are not creative activity and have no protection.
In recent years, dozens of sat channels in the Arab world have competed among
themselves. They take a lot of advertising. That's why it's important that we get
international legislation to afford us effective protection against piracy, without
undermining the public's right to information and culture.
We reiterated this concern at WSIS, just a few days ago. All the casters supported
this. We gave Kofi Annan our statement at the end of WSIS. To be effective,
broadcasting orgs must be granted certain rights, the same rights as other
organizations. Broadcasting orgs must have the right to prohibit and the right to
authorize if we are to enjoy full protection.
[6:50]
--
EFF
EFF STATEMENT ON THE PROPOSED BROADCASTING TREATY TO THE WIPO STANDING COMMITTEE ON
COPYRIGHT AND RELATED RIGHTS, NOVEMBER 21-23, 2005
EFF wishes to address two issues that can restrict access to knowledge will harm
Internet innovation because they require the creation of technology mandates over the
design of receivers and PCs as with the failed US Broadcast Flag.
Broadcaster TPMs have questionable relevance to signal protection. Many nations
already have signal protection regimes that protect against unlawful reception of
signals. Legal protection for TPMs that control uses after lawful reception are about
control of the program, not the signal.
TPM regimes can override consumershts. Seven yearsgime in the US has shown TPMs to be
wholly ineffective at preventing unauthorized copying, but harmful to the carefully
balanced rights in copyright law.
Sony/BMG is currently facing at least seven international and class-action suits for
infecting hundreds of thousands of computer networks with a TPM called a "rootkit"
most commonly employed by criminal organizations. There are indications that Sony's
rootkit has infected US military and government networks, and a second Sony TPM, a
piece of spyware called MediaMax, has been deployed even farther afield. And for all
the damage these TPMs have wrought -- compromising PCs and blocking lawful uses --
they've failed to keep even one of the songs they protect from showing up on P2P
networks. Songs protected with the iTunes TPM show up on P2P 180 seconds after they
have been posted to iTunes -- so the TPM doesn't prevent unauthorized access.
However, the iTunes TPM has been used anti-competitively to block interoperable
products from competitors.
We welcome Brazilasonable exceptions that allow Member States flexibility to balance
the publicss with the new rights for broadcasters.
Exclusive rights for webcasters will limit access to knowledge and harm Internet
innovation. We have prepared a paper for delegates analyzing the likely impact of
the webcasting and simulcasting proposals, which we have provided to the WIPO
Secretariat, and wish to incorporate by reference.
(1) Yes, the Internet is already subject to TPM measures under the 1996
treaties. But webcaster TPMs regime will have a far broader impact because they can
restrict access to transmissions of works which may not be copyrighted or are in the
public domain.
(2) There is no meaningful distinction between simulcasting and webcasting. The
Chair's Working Paper seemingly limits webcasting to scheduled transmissions, but it
is ineffective. If a webcaster schedules a single web-transmission, say, at 2AM, she
can fix the transmission and retransmit it under Article 11, or make it available
under 12, as part of an on-demand service, thus eliminating the distinction between
"on demand" and "scheduled" webcasts.
(3) Article 6transmissions of casts creates potential liability for a range of
Internet intermediaries, who would have to contend with broadcast exceptions
different from copyright's exceptions. No analysis appears to have been undertaken
about the potential impact of this provision on all entities involved in Webcasting.
(4) There is no consensus amongst web companies that exclusive rights for
webcasters are beneficial. Webcasting has been expressly rejected by 20 web
technology companies who presented an open letter to the Twelfth Session of the SCCR.
Amongst others, the letter was signed by Mark Cuban, the operator of the largest
digital HDTV network in the world.
EFF supports a study of the likely impact of the new rights regime, including
potential liability for intermediaries, before the General Assembly considers whether
to hold a Diplomatic Conference in 2006.
Thank you for your consideration.
[EFF's paper is available at
] --
IMMF
I am here representing the International Music Managers Forum. We are encouraged by
some of the developments. We suggested 2 years ago on an optional non-mandatory
protocol for webcasting. A year ago our entire intervention dealt with protection
only of the signal.
I draw your attention to our paper available outside. If we would only adopt these
recommendations we could go home early.
Fair balance of rights. Imbalance of rights: performers don't get a fair deal.
Performances in videos: working twice but if this is shown on MTV all money goes to
phonogram producer.
In US performers get nothing when works played on the radio.
US not willing to back down on webcasting. But let's cut a deal. We'd be happy to
have webcasting if the US would give performers what they deserve.
--
AIR
Negotiations have been hard in the past but have led to treaties such as WPPT, WCT.
When we did those treaties we spoke of need to update broadcaster's rights. In 1998
the GA decided to incorporate into it into the agenda of this committee. Now for five
years we have been discussing it for 5 years. Yet we still see governments making new
proposals. Some governments say that the issues haven't yet been properly discussed
and we need to continue studying the issues at hand.
The Swiss delegate said yesterday: we are simply to provide protection for
broadcasters that the 1990 WIPO treaties provided for others.
And yet for such a simple thing we are discussing these issues at length. It is
constantly said we should continue discussions and see new proposals. I would like to
point out this is a simple matter -- it is comparable to the 1990 treaties, it is
just updating Rome.
I would like to make 2 points:
1. Broadcasters have never claimed to appropriate the content of our broadcasts.
There are clear safeguards in the proposals to protect the copyrights of others. We
are only seeking protection for our actual broadcasts
2. It is very important to us for there to be protection for the program itself
whatever the copyright may be. I won't go into this in detail as this point has
already been made -- particularly in relation to sports. But it would be a point
backward
Want to say 2 things:
1. Radio and television industry in Latin America is very important with many major
companies and the industry has great weight in the production of culture as well as
for trade and industry. Not that i am saying anything about development We have to
defend our industry which is very important
2. Cultural diversity. It was suggested that a provision be included that would tie
in with UNESCO. Broadcasting companies stand the most to gain from freedom of
information and cultural diversity: they are the key instruments for these things in
our countries. But we don't believe that the broadcast treaty should be linked to a
convention which is not yet even ratified -- perhaps it will never even come into
effect (it requires at least 30 signatures). [Reiterates this several times]
[8 minutes +]
--
Chair
[[1608h]]
These interventions are getting too long. Perhaps we need to move these interventions
to the end.
--
ABU (Asia and Pacific Broadcasting Union)
Members in 55 countries with audience of 3 billion people.
We attend to ensure that we provide the necessary information for better
understanding by governments of the urgent need to upgrade broadcasters' rights.
Rights of traditional casters must be upgraded at the international level.
Theft of signal has resulted in loss of revenue and increased cost.
Many countries have real signal theft. One country in our region is a hotbed of P2P,
streaming TV over the Internet. An ordinary PC can enable a viewer anywhere in the
world to watch TV, satellite, or cable anywhere in the world. They're delayed by a
minute before they show up on computer screens.
A basketball game drew 50,000 viewers on P2P. Another claims to have supported 100K
simultaneous users.
[[CD: 100k streams simultaneous? That sounds pretty fishy to me -- maybe the company
promised their investors they could deliver that, but I won't believe it until I see
it.]]
Why should we make these heavy investments if their signals can be stolen with
impunity. Why should we continue to provide the public with culture, education and
entertainment?
The upgrading of 'caster rights would allow us to:
1. Continue to provide the public with knowledge and information
2. Continue to use public domain works [[CD: Huh?]]
--
EDRI
European Digital Rights
Mr. Chairman,
European Digital Rights represents 21 privacy and civil rights organizations from 14
different countries all around Europe.
EDRI warmly welcomes Brazilthe existing proposal. EDRI also endorses the earlier
statements from CSC, FIM and EFF.
To reiterate shortly our own position: - The inclusion of webcasting and
simulcasting ally the same -does not really make sense at this point since nobody
really knows to what direction the technology and business models are moving in the
future. Even worse, the current proposals seems to discriminate against grass root
activities like podcasting and thus favor the big existing traditional organizations.
- The period of protection should be atents, which require typically
significantly higher investments, enjoy that term of protection. It really should be
enough. - The treaty should not include technological protection measures. The
current experiences pertaining TMPs in protection of copyright do not show any real
success in limiting unauthorized copying - but instead eal success in limiting
usershts to use their legally obtained works. - Finally, we would like to see much
more impact assessment studies on what effects different proposed options could have
on the markets. For example, we havenk of al problem for webcasters.
Thank you. ____________
--
FGV (Gittorio Vargas Foundation)
Educational org in Brazil, based in Rio and Sao Paulo
The main purpose of this treaty is to stop signal theft. But the best way to stop
this isn't new rights in IP. This is inconsistent with the ongoing trend to ask for
more flexibility and for access to knowledge, per WSIS.
Broadcasters have the means to repress infringement. They are often the owner of
their copyrights, and already entitled to fight them. Where they aren't the
rightsholders, they can obtain the right to fight infringements through the inclusion
of a simple clause in their license agreements.
Casters should not have private rights over public domain works.
Webcasting rights would create a new barrier to access to knowledge and the free flow
of information.
--
CI (Consumers International)
I listened to EDIMA, and suggest that they talk to the US and EU governments who are
supportive of the idea of special IP rights for webcasters and suggest that they try
it in their home countries before they propose it to the whole world, treating WIPO
like a parliament of first impression.
These desperately needed measures AREN'T making their way through Congress, the
European Parliament or Members States' parliaments.
We support the idea of protecting signals from piracy. The problem is that there's a
grab of new economic rights. It's piracy of the knowledge commons, to make claims on
public domain materials, Creative Commons works, and it creates new orphan works.
This will shrink the knowledge commons and harm access to knowledge.
ACT is right to raise sports-casting. Cricket and football are a big deal. But rather
than design a treaty to protect football games and then apply it to everyone and the
Internet, why not make a protocol for sports-casting? It's a mistake to design a
protocol for sports and apply it to the whole planet.
There are always unintended consequences for regulation. We don't know what
pod-casting will look like. Most of you have never heard of it! We don't know what
the outcome of cheap cameras will be.
Does the treaty cover data? Text? It'd be easy to fix that -- change the language.
It's deliberately vague.
Nigeria asks what the precedent is? If there's a logic in simulcasting then there
will be logic in protecting webcasts. And if you protect webcasts, then you can
extend it to webpages. Why not bookstores? Mobile phones?
The test should be: does the IP regime benefit the public? Does it promote and
stimulate the creation of new works? If the costs outweigh the benefits then it's a
bad idea. It's a bad idea that making an investment on anything on the Internet gives
you 50 years of exclusive rights.
We have TPMs in the 1996 treaties and we're just figuring out how harmful these are
to exceptions and limitations. And copyrighted material is already protected under
the 1996 treaties.
--
IFLA
International Federation of Library Associations/Electronic Information for Libraries
Collect and preserve knowledge to provide access to the public.
Without exceptions and limitations for libraries, the draft treaty prevents libraries
from recording off the air and then making it available to patrons.
The media used by recordings wears out and libraries need to transfer recordings to
media to preserve them, and to prevent obsolescence. TPMs could block this.
We support Brazil's proposal in SCCR 13/3, which proposes a redraft of article 14 to
provide a list of limitations and exceptions and we support the deletion of article
16.
--
FIAF
We represent film-producers. I have an angry cry! The objective was to draw up a
treaty providing protection against signal piracy for broadcasters. We're going to
create protection not just for sports, but for culture.
Now we're getting away from the treaty because we're talking about the content, not
the signal. This has led Brazil and others to question the Berne 3-step test. This
test is endangered in the Brazilian proposal:
1. While exceptions and limitations (which should only cover special cases) -- there
are four broadly worded ones in the Brazilian proposal
2. Brazil says limitations and exceptions does not undermine the normal use of the
content, a reversal
3. Brazil proposes not to undermine the legitimate interests of third parties
This revised three-step test introduces subjective, little defined terms and hard to
interpret by courts. [[CD: as opposed to Art 9 of Berne, Art 13 of TRIPs?] This will
make it impossible to make this treaty work.
--
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 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.
--
NAB
1. 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.
2. Brazil calls for WSIS access to knowledge and UNESCO's cultural diversity. They
say it's important for the WSIS to have uninhibited access to knowledge provided by
signals entering their country from abroad, and UNESCO says they should be able to
lock them out to promote their cultural life.
3. The only effective way to keep people out will be TPMs. I note that EFF says that
these are ineffective, but if so why do they mind them being included.
4. Cutting off rights before or after fixation. Countries have done this for years --
EU, Europe, Japan, NZ, Mexico, etc.
I read from Article 7 of India copyright law: 'Every broadcasting organization shall
have a special right to be know as a "broadcast reproduction right" in respect of its
broadcasts.'
All parties call for balance -- but where's the balance in affording these rights to
the WSIS beneficiaries but not broadcasters.
Reducing this treaty to an anti-piracy treaty by denying them the downstream rights
they need will be to deny them what everybody gets.
Like Morocco said, if you want casters to serve the public in the 21st century, you
need to invest them with 21st century tools.
The consummation of this treaty should take place now, in this sanctuary of Copyright
and related rights, and not years hence in a nursing home.
-- [Ed note: A point of clarification on the distinction between technology and law.
Ineffective copyright TPMs (i.e. technology) has not prevented the unauthorized
reproduction and distribution of copyrighted works. The overbroad US legal
enforcement regime for copyright TPMs (i.e. law) has caused significant collateral
damage to legitimate non-infringing activities.
Now let's clarify the use of "flexibility" in relation to Article 16: Article 16 does
not force broadcasters to use any particular type of TPM. Broadcasters have
flexibility in choosing what Broadcaster TPMs they can use.
But the real issue is flexibility in national implementation. EFF believes that
Member States will have little flexibility in how they can implement the Broadcaster
TPM legal regime in national law. Article 16 deals with Broadcaster TPMs that apply
to transmissions after they've been received and fixed -- i.e. not unlawful access
or reception regimes that already exist in most countries' laws. Because of the way
that these sort of Broadcaster TPMs would work to control post-fixation uses, Member
States will have to pass national technology mandates over the design of reception
devices to provide legal protection for these sort of Broadcaster TPMs. That in turn,
is likely to override consumers' existing personal use rights under national law. For
more details, see EFF's Comments to the June 2004 SCCR:
.]
-- IPJustice
Thank you, Mr. Chairman. I speak on behalf IP Justice, an international civil
liberties organization that promotes balanced intellectual property law. Based in
San Francisco, IP Justice also maintains representatives in Switzerland and Italy.
Firstly, we would like to express support for Brazilreformulate the existing proposal
for a Broadcasting Treaty to more adequately balance the publicdcasting companies.
Mr. Chairman, IP Justice is particularly concerned with any proposal to include the
regulation of Internet transmissions within the scope of this treaty, whether
mandatory or optional.
It is worth noting, that such webcasting provisions currently exist no where in any
national law. It would be dangerously inappropriate to by first creating those
rights in this forum -- without any opportunity to see how such regulation actually
works in the real world.
IP Justice is concerned that broadening the scope of this treaty to include Internet
transmissions of media would harm the growth and development of the Internet. As it
would apply to thousands, if not millions, of individual websites around the world,
such regulation of Internet transmissions threatens to chill freedom of expression
and harm innovation.
The proposal to regulate only simulcasting is a red herringns of including webcasting
within the scope of the treaty. All a webcaster would need to do is schedule a time
for the original Internet transmission, and all subsequent retransmissions of that
webcast, would be regulated under the treatyransmission right. So webcasting would,
in fact, remain within the scope of regulation in this treaty despite attempts to
narrow it to simulcasting.
Including a provision on webcasting in an international treaty as an optional feature
makes absolutely no sense. Member States are always free to enact webcasting
transmissions in their national law, so an adds no value, and will only create
disharmony among Member States. If such measures are truly needed, I ask: why hasnb
the United States, the lone supporter regulating webcasting, enacted such measures in
their home countries?
Mr. Chairman, IP Justice is also concerned about the proposals to include a ban on
circumventing technological protection measures placed on broadcasts. These
provisions have already been shown to be harmful and overly-broad in the areas where
they already exist for copyrighted works, for example the controversial US Digital
Millennium Copyright Act.
Creating an additional layer of rights for broadcasting companies on top of existing
rights will make it difficult for artists to use their own performances without
obtaining the permission of broadcast companies. And consumers would be preventing
form accessing works in the public domain that are broadcasted by media companies.
Greater exceptions and limitations would need to be included in this treaty in order
to protect the general public interest. Considering the global trend to create new
rights for rightsholders, due consideration must be afforded to the exceptions and
limitations to those rights in order to ensure the public is able to access and use
broadcasted information.
The treaty proposal must be further clarified to ensure that any new rights created
apply only to the broadcast signals, and not the content that is transmitted. It is
impossible to separate a broadcast signal from the underlying content transmitted, so
intentions to regulate only signals, will inherently regulate access to the content
as well.
Finally, Mr. Chair, IP Justice supports the views expressed by several Member States
at this meeting and in regional consultations to undertake comprehensive studies of
the impact of this treaty on local economies before rushing into a Diplomatic
Conference. Without weighing the costs to society and local economies against the
possible benefits of this treaty, we are unfortunately eak.
IP Justice welcomes the opportunity to further discuss these views as well as those
of Member States at any time. Thank you, Mr. Chairman.
[[RP: not all of this was read due to time limitations. Confined it to webcasting.]]
[[1:53]]
--
Third World Network
We find that the proposals in the second revised text are poorly conceived. This is
an attempt for casters to gain rights over materials they didn't create and don't
own. This is a means to change the bargaining position of casters with respect to the
public and rightsholders. This gives private rights to public domain works.
Webcasting appears in no national law, not even in the US's law. WIPO shouldn't be
used as an institution to promote brand-new regulatory schemes that would be rejected
immediately in national lawmaking bodies.
No one has an in-depth understanding of what's being proposed. Many delegations worry
that this will restrict the free flow of information. Most of the tech companies and
Internet users haven't been consulted.
Much uncertainty prevails. We are of the view that it is only logical that before you
set norms, the implications of the standard must be understood.
If there is a 50 year extension, what will that do to works in the public domain and
for the exclusive rights to public domain works?
We should have national consultative processes to get input from stakeholders. In the
US, civil society and businesses have asked for these, to no avail.
[3:31]
--
Max Planck Institute
Broadcast protection should be limited to signals, support Art 3, Para 0 of revised
draft. Could be better reflected in arts 9-12. Consider instead of exclusive rights
with the possibility of a right to prohibit; it would be better to have the right to
prohibit as a minimum with the possibility to opt for an exclusive right, combined
with reciprocity.
Article 1, para 1, b: The treaty won't derogate from obligations under other
treaties. Since this won't be a copyright treaty, the word "other" should be deleted
here.
Article 10.1 Imports from the WPPT, referring to originals. What's the "one and only
original" in the case of broadcasts or their fixations. It can't be the copy that is
used to make the cast, since that's not a fixation. Anyone can make a fixation, so
maybe there are many originals. Maybe delete the word "originals" and "copies"
throughout.
Brazilian proposal, Article 14: regarding limitations. There's a presumption that the
listed exceptions comply with the 3-step test. This is inappropriate. The 3-step test
is flexible and can account for different markets in developed and developing
countries.
Some of the limitations indicated are too broad and not specific case, e.g.,
"scientific use" or "private use" -- they don't comply with 3-step test.
Even if one were to specify these cases and include this in the treaty, it could be
dangerous to the three-step test in other fora (e.g. authors' rights). For these
groups the test might be interpreted in other ways. This could be dangerous.
[ more than 3 mins]
--
Chair
Here ends our deliberations on substance of protection of broadcasters. We've had
comprehensive discussions from governments and NGOs. Thank you all.
This will all be reflected in the detailed reports. These will be the main
documentation from here. There's no time for comprehensive summaries from me. I
wouldn't be capable of doing so, anyway.
Two remaining agenda items:
* Recordation Systems
* Database rights
--
Secretariat on Recordation Systems, SCCR/13/2
Survey of legislation on voluntary registration of copyrights and related rights.
This document is available. We recall that Berne 5.2 prohibits formalities. Rome also
allows for a circle-P mark. Irrespective of this, many WIPO states have voluntary
registration systems.
There are 14 states with these systems that work well, and 12 of them wrote back to
us..
[RP: this is pretty interesting actually. Gives an idea of the transaction costs
involved in running this kind of thing. Very relevant for considering levy type
systems]
-- [1720] [some missed stuff as CD left and RP out of the room]
Discussion of dates for next meetings. [SCCR normally meets in June and November.]
Either extend in June or have an extra meeting in April. No decision on this
ultimately. The secretariat will decide.
--
US
We are waiting to make a summary of the discussion here and therefore I can't hold
back from correcting some misconceptions that have developed regarding US law.
It was said we don't have any laws relevant to webcasters or the Internet. That's not
true. US copyright law provides protection to all copyright works on the Internet. We
just had Supreme Court decision in MGM v. Grokster where is was reaffirmed that P2P
used for promoting copyright infringement was illegal.
We have criminal law on unauthorized access. We have extensive protections for
broadcasters.
What we are concerned about here is 'casters and webcasters. We have consulted widely
in the US and will consult further. Once we have a treaty text we will circulate it
for public comment and all those comments will be taken into account when we go to
the Diplomatic Conference.
--
Chair: any further comments?
-- India
While we take note of your comments on the procedure to be followed for reporting on
the proceedings of this SCCR I wonder if you would also like to have some discussion
on what you just mentioned on the possible next steps (apart from holding the next
meeting or meetings).
Whether you would like to indicate the strategy or approach for the next two meetings
of the SCCR? I mention this because this meeting was very well structured by
dividing into 2 different segments (one on scope and one on rights). I wonder how you
would like to tackle the issues in the next meeting(s)? I have a couple of
suggestions:
1. Scope and detailed rights can be carried forward with discussion focused here.
There have been several areas in which different countries have taken different
positions which seem to be at different extremes. But for certain core principles
there seems to be consensus. Let me point out those areas that had consensus: * Art
3(0): treaty should focus on protection of signals * Chair's suggestion: focus could
be against piracy and against competing organizations who may take undue advantage of
that. I think we all accepted that * Protection is not aimed against rightsholder or
limiting public interest users.
This could form the basis for next round.
2. Some effort has to be made before next meeting to test a new text against these 4
[?] principles.
Lengthy discussion on webcasting/simulcasting: there have been comments both for and
against by governments and NGOs. I think we need to think hard about how we go
forward here. Would like some comments from yourself about how we proceed here.
--
Chair:
You asked about strategy for next 2 meetings. The first one (if it is between now and
June) would need to fully discuss the new proposals.
If we have more time we can get deeper into the problems. The breaking it up into
small packages was first introduced a year ago where we had 10 separate, small,
questions and we managed to get through that in the time.
Then there is question of doing work on a new text. This is difficult since we must
be fair to all texts. Whether we can prepare a text for April in addition to what we
have here is possible (perhaps another working paper that could deal with some
specific issues but not replace the consolidated text). Certainly for June we could
do more perhaps. I am in your hands.
Translation takes a month so a text has to be available at least a month before the
meeting. We also need the text a month before the meeting so that there can be proper
consideration. so that is least 2 months before the meeting. Normally I have prepared
it then I send it to the secretariat, there are 2 or 3 rounds of comments and then it
is ready. [digression on relation between chair and secretariat since 1996 diplomatic
conference]
Should we have discussions in April or do we wait until June?
--
Brazil
We think you are right that work on text will be difficult but fair treatment of
proposals as well as a fair recognition of where there is consensus is important.
There was broad support for the basic concept in these proposals and that could go
into a third consolidated text. Into that could also go the new proposals introduced
here. I think we also all agree that we need to cleanse certain things in certain
articles -- things that have been left hanging.
We are happy to confide in you on this.
--
Chair: That indicates you would be willing to take a step forward on the basis of the
proposals that are there.
--
US
We appreciate the proposals made in the discussion. However we think the purpose of
the next meeting is to have to a real discussion on the proposals put forward, for
example that of Brazil. We need to study that further but we've already had several
objections as have other countries and we haven't even see the Chilean proposal.
I think it is entirely premature to start on revising this text until we further
address those proposals and see where they lead us.
--
Chair: [to the US] if we just go to the meeting in April on the basis of the
documents we already have and don't prepare another document there is no way to have
another document ready for June (as explained above -- there will be only 2 months
between April and June).
--
Argentina:
We support 2 points you made:
1. Equal treatment for all proposals tabled. This isn't a pick and choose issue 2. In
addition if there is an objection to a proposal to say it is too early I don't think
that is right.
Either we give equal treatment to what we don't agree on by everything we don't have
consensus should be taken out or we should put everything that is disputed in square
brackets.
We understand the time constraints and perhaps we won't have a text by June.
--
Brazil
In support of Argentina: all proposals should be included equally. Our proposal and
that of Chile are constructive. The aim is to finalize work so that the WIPO GA can
convene a diplomatic conference. If that doesn't happen then the WIPO GA won't be
able to do that.
I don't think it is appropriate that just because there is opposition to certain
measures that they shouldn't be integrated into a consolidated text. Even webcasting
was once a part of the consolidated text and then it left and became a separate
protocol (though we didn't really authorize that -- it was done by the Chair on his
own terms -- since there was widespread opposition to its inclusion in this treaty
altogether).
--
Chair: here's my recommendation as we are now out of time. Continuing work on a
consolidated text, made available as soon as it can be, to the delegations. There
will be explanations of the process of consolidation and if anything is left out it
will be explained.
There will be equal and fair treatment of all positions.
[Pauses in case last minute major objections]
That is the understanding then. Thank you. Oh Mexico is asking for the floor.
--
Mexico: want to invite GRULAC delegations to room 1.27.
[17:56h]
--
Chair: you have all made it possible. Thank you. We made enormous progress in a good
atmosphere. The quality of debate was high. I thank you all, the Secretariat the
interpreters. We have now closed the 13th session of the SCCR.
[- End-]
