[A2k] PROPOSAL BY BRAZIL ON THE PROTECTION OF BROADCASTING ORGANIZATIONS

[Thiru Balasubramaniam]

On 17 November 2005, Brazil submited the following proposal to the WIPO
Standing Committee on Copyright and Related Rights to be considered at
the 13th Session of the SCCR (November 21-23, 2005).



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WIPO Standing Committee on Copyright and Related Rights (SCCR)

PROPOSAL BY BRAZIL ON THE PROTECTION OF BROADCASTING ORGANIZATIONS

As a Member of the Rome Convention and the home country of important
broadcasting organizations, Brazil fully shares the objective of
preventing the serious problem of theft of signals which are used to
carry broadcast programs. Because signal theft has entailed considerable
economic losses for broadcasting organizations, Brazil agrees that it
would be appropriate to update the rights conferred by the Rome
Convention to take into account the implications for signal theft of
recent technological developments.

Under any circumstances, a new international instrument in this field
must strike an appropriate balance between the protection of the rights
of broadcasting organizations and the public interest, as well as the
rights of other right-holders under the copyright system. Signal theft
should not be addressed at the expense of the rights of other
right-holders. Furthermore, it is important to recall that broadcasting
activities in many countries are intended to have a clear =93social
dimension=94, by servicing the public interest in areas of direct
relevance to social, economic and cultural development, such as
education, the promotion of cultural diversity and others. In many
countries, in fact, broadcasting organizations are required to undertake
this =93public-service=94 role in order to receive or renew their license t=
o
operate. Any new instrument in this area should therefore seek to
preserve this social role of broadcasting organizations, for the benefit
of society at large in all countries.

In this regard, recent initiatives in different international fora have
enshrined commitments by the international community to certain
fundamental objectives, which are directly relevant to the proposed new
treaty and, in particular, to the preservation of the social role of
broadcasting organizations. The Declaration of Principles and Plan of
Action of the 1st Phase of the World Summit on the Information Society
(WSIS), for example, affirmed the promotion of access to knowledge and
information as key objectives of the international community, with a
view to bridging the digital divide that continues to deprive most
developing and less-developed countries from taking full advantage of
the potential contribution of modern information and communication
technologies (ICTs) to development. Brazil is concerned that certain
provisions that have been proposed for the new WIPO treaty on
broadcasting, in addition to being of questionable relevance to the
protection of broadcast signals, would seem to actually run counter to
our internationally agreed goals on the promotion of access to knowledge
and information.

We also note that developments at the United Nations Educational,
Scientific and Cultural Organization (UNESCO) recently delivered a
groundbreaking =93Convention on the Protection and Promotion of the
Diversity of Cultural Expressions=94, which enshrined the protection and
promotion of cultural diversity as a widely shared commitment of the
international community. We note, in particular, that Article 21 of this
new Convention, the negotiation of which was wholeheartedly supported by
Brazil, affirms that =93Parties undertake to promote the objectives and
principles of this Convention in other international forums.=94 Given the
significant role that broadcasting organizations can play in the
dissemination of cultural content and expressions, it is crucially
important to ensure a relationship of mutual supportiveness between the
proposed new WIPO treaty on the protection of broadcasting organizations
and the new UNESCO Convention on Cultural Diversity. One should also
note that the recent 33rd UNESCO General Conference adopted a
Resolution, whereby the membership of that Organization expressed its
concern with regard to the possible impact that the discussions on
broadcasting organizations at WIPO may have on UNESCO activities and
objectives, including in respect of access to knowledge and information.

Finally, ensuring that an appropriate balance is struck in the proposed
new WIPO treaty between the public interest and any new rights conferred
to the beneficiaries of the new instrument, so that the social role of
broadcasting organizations is preserved, would be fully in line with the
recent calls to establish a =93Development Agenda=94 for WIPO, and to ensur=
e
that a =93development dimension=94 is mainstreamed into the international
intellectual property system in general.

Bearing in mind all of these considerations, and desiring positively to
contribute to advancing discussions on the important issue of the
protection of the rights of broadcasting organizations in WIPO, Brazil
would like to propose, for the consideration of the Members of the SCCR,
that any new instrument on the protection of the rights of broadcasting
organizations include the provisions which follow. In some cases, only
changes to provisions already included in the Consolidated Text of the
Chairman (Second Revised Text, Document SCCR/12/2 Rev.2) are proposed.

Brazil also reserves its right to propose additional changes to other
provisions that have been suggested by SCCR Members for the possible new
WIPO broadcasting Treaty.


I) GENERAL PUBLIC INTEREST CLAUSES: To underscore the importance that we
attach to the above-mentioned international commitments to the promotion
of access to knowledge, cultural diversity and development, Brazil
proposes that two new clauses on access to knowledge and the protection
of cultural diversity should be included in any new treaty on the
protection of the rights of broadcasting organizations, which would read
as follows:


Article [x]
General Principles
Nothing in this Treaty shall limit the freedom of a Contracting Party to
promote access to knowledge and information and national educational and
scientific objectives, to curb anti-competitive practices or to take any
action it deems necessary to promote the public interest in sectors of
vital importance to its socio-economic, scientific and technological
development.


Article [y]

The Protection and Promotion of Cultural Diversity

Nothing in this Treaty shall limit or constrain the freedom of a
Contracting Party to protect and promote cultural diversity. To this effect=
:
(a) In modifying their domestic laws and regulations, Contracting
Parties will ensure that any measures adopted pursuant to this Treaty
are fully consistent with the UNESCO Convention on the Protection and
Promotion of the Diversity of Cultural Expressions.
(b) Contracting Parties also undertake to cooperate so as to ensure that
any new exclusive rights conferred by this Treaty are applied in a
manner supportive of and that does not run counter to the promotion and
protection of cultural diversity.


II) LIMITATIONS AND EXCEPTIONS: In order to ensure that the =93social
dimension=94 of broadcasting activities is fully preserved, Brazil also
proposes that Article 14 of the current Consolidated Text of the
Chairman should be redrafted so as to specify certain =93public good=94
exceptions which would be applicable to broadcasts under the proposed
new WIPO Treaty. In this regard, Brazil proposes to draw on the content
of Article 15 of the Rome Convention itself, with appropriate
adaptations to ensure that contemporary issues are properly addressed:

Article 14
Limitations and Exceptions =96

1. Contracting Parties may, in their national legislation, provide for
the same kinds of limitations and exceptions with regard to the
protection of broadcasting organizations as they provide for, in their
national legislation, in connection with the protection of copyright in
literary and artistic works, and the protection of related rights.

2. Contracting Parties may, in their domestic laws and regulations,
provide, inter alia, the exceptions listed below to the protection
guaranteed by this Convention. It is presumed that these uses constitute
special cases that do not conflict with the normal exploitation of the
work and do not unreasonably prejudice the legitimate interests of the
right holder:

(a) Private use;
(b) The use of excerpts in connection with the reporting of current events;
(c) Ephemeral fixation by a broadcasting organization by means of its
own facilities and for its own broadcasts;
(d) Use solely for the purposes of teaching or scientific research;
(e) The use of works specifically to promote access by persons with
impaired sight or hearing, learning disabilities, or other special needs;
(f) The use by libraries, archivists or educational institutions, to
make publicly accessible copies of works that are protected by any
exclusive rights of the broadcasting organization, for purposes of
preservation, education and/or research;
(g) Any use of any kind in any manner or form of any part of a broadcast
where the program, or any part of it, which is the subject of the
transmission is not protected by copyright or any related right thereto.

3. Irrespective of Paragraph 2 above, Contracting Parties may provide
additional exceptions to the exclusive rights conferred by this Treaty,
provided that such exceptions do not unreasonably conflict with a normal
exploitation of the broadcast and do not unreasonably prejudice the
legitimate interests of the right holder, taking account of the
legitimate interests of third parties.



III) TECHNOLOGICAL PROTECTION MEASURES: Brazil reiterates its proposal
to delete Article 16 (Obligations concerning Technological Measures) of
the current Consolidated Text of the Chairman. There is increasing
controversy over the role of technological protection measures in both
developed and developing countries and their potential impact on access
to information and knowledge. Not only is it feared that technological
protection measures may undermine countries=92 rights to exercise the
exceptions and limitations foreseen in their national copyright laws, it
is also believed that the use of technological protection measures may
unduly restrict access to materials and content that already are in the
public domain. Furthermore, we note that the relevance of technological
protection measures to signal protection is questionable.

IV) ELIGIBILITY: Finally, Brazil would like to ensure that the proposed
new WIPO broadcasting treaty is fully compatible with and is not used to
supersede the Rome Convention. We therefore propose to redraft Article
24 of the current Consolidated Text of the Chairman in the following manner=
:

Article 24 =96 Eligibility for Becoming Party to the Treaty
Any Member State of WIPO may become party to this Treaty, provided that
such State is a party to the Rome Convention on the Protection of
Performers, Producers of Phonograms and Broadcasting Organizations.