[A2k] EC answer to TACD re broadcasting treaty

[Manon Ress]

In their answer to TACD re broadcasting treaty, the EC explains that
the proposed treaty cannot depart from a previous treaty (the Rome),
treaty that the US and many other countries have never signed!.
Protection can only go up. Exceptions can only be narrow and optional.


QUOTE:
To that extent, the EU cannot agree with the TACD demands since it
would not reflect the current level of protection that is already
accorded to broadcasters in the Community copyright acquis and would
have the effect of diluting that protection. Nor would it be feasible
within the context of international negotiations for a new treaty
updating the rights of broadcasting organisations in the intellectual
property context under the auspices of the World Intellectual
Property Organisations to depart from the substantive norms of
previous treaties. This is what the Brazilian and Argentinean
proposals envisage, namely the provision of mandatory rights for
users. This would be contrary to all previous relevant Treaties in
this area. The traditional approach in this area and the one which
reflects EU law as well is to introduce optional exceptions for
certain users such as the disabled or for teaching and research
purposes.
END OF QUOTE


More here:

TACD 2005 RECOMMENDATIONS REPORT
As part of its role as a consultative forum to the EU and US, TACD
makes policy recommendations on issues of concerns to its European
and American members.
This report brings together the recommendations made in 2005, to
allow the governments to formally respond.   It is the second of an
annual collection TACD=92s recommendations in a year-end report to
governments and the public.
TACD represents the demand side of the two biggest economic blocks in
the world - the 735 million U.S. and EU consumers. Its network of 65
EU and U.S. national consumer organisations has a direct paid-up
membership of some 20 million consumers.
On both sides of the Atlantic, these groups have long track records
of achievement in the consumer protection and safety fields. Many
have successful publishing, research and product testing operations
as well as advocacy and
policy activities and are self-financed; others, according to their
cultural traditions, are financed from public or foundation funds.
All are independent.
More information can be found at www.tacd.org .

INDEX OF THE REPORT
The 2005 Recommendations Report covers TACD recommendations on
=95 Trans-Fatty Acids (page 2)
=95 Radio Frequency Identification (RFID) (page 2-3)
=95 Digital Rights Management (pages 4-5)
=95 Broadcasting Rights Treaty (page 5)
=95 Mobile Commerce (pages 6-7)
=95 Recommendations to the 2005 U.S.-EU Summit (pages 7-9)
SNIP

April 2005, IP-02-05
(this is limited to the recommendations =96 for the full resolution,
including a detailed description of the risks for consumers, go to
www.tacd.org/docs/?id=3D276)
TACD urges the governments of the United States and the European Union:
=95 To justify why a broadcast treaty based on copyright, rather than a
=91signals=92 based approach, is necessary.
=95 To refrain from exerting further pressure to finalise the
provisions on exemptions and limitations until the intergovernmental
meetings proposed by Brazil and Argentina to discuss whether there
should be mandatory minimum exemptions has taken place.
=95 To support the removal of the technical protection and anti-
circumvention provisions in the Proposed treaty
=95 To encourage WIPO to a) provide an assessment of whether existing
TPMs have
successfully protected IP rights and what their impact on innovation
and the exercise
of consumer access has been. b) undertake a comprehensive study on
the likely
impact of TPMs on the Development Agenda.
=95 For the US to withdraw its support for the inclusion of webcasting
=95 To refrain from further pressure to hold a Diplomatic Conference.
***
European Commission Services=92 Response
WIPO has been working on updating the intellectual property8 rights
of broadcasting organisations since 2001. The rights of other major
rightsholders  namely authors and holders of other related
rights .i.e. record producers and performers were updated in 1996
with the adoption of the so called WIPO Internet Treaties namely the
WIPO Copyright Treaty and the WIPO Performances and Phonograms
Treaty. Broadcasting organisations are the only group whose rights,
at international level, are still governed by a Treaty concluded in
1961. i.e. the Rome Convention of 1961 on the rights of broadcasting
organisations.  The Commission has consulted Member States on the
nature and scope of a possible instrument and the likelihood of
success of a Diplomatic Conference. Without exception, Member States
have indicated that they are committed to the process within WIPO in
the light of their commitments to the United Nations and the
international multilateral treaty-making process. Otherwise, the risk
is that the international multilateral process will be replaced by
bilateral agreements which would not necessarily be of assistance to
all Contracting Parties to WIPO, including those associated with the
Development Agenda. To a certain extent, Member States are prepared
to show flexibility in relation to the scope of an instrument in
order to achieve an agreement. However, any such flexibility will
have to be consistent with international norms in this area.

The aim of these negotiations is to update the Rome Convention. The
starting point is, of course, the fact that broadcasting
organisations already enjoy protection as holders of =93related
rights=94. In other jurisdictions broadcasters hold =93copyrights=94.
Therefore, a treaty based only on signal protection would be a
departure from the family of intellectual property treaties and it
would be considered a treaty of a sui generis nature which may not
sit happily with the legal traditions of the majority of Contracting
Parties. In addition, this would not reflect the legal tradition of
any of our Member States.
The current texts on the table abide by the established intellectual
property treaties including the Berne Convention, as amended by the
Paris Act 1971 and in particular the 1996 WCT9 and WPPT10 which
updated copyright for the digital environment but which did not deal
with the rights of broadcasting organisations. The 1996 WIPO Treaties
introduced at international level, protection for TPM11 for holders
of copyright and related rights. Directive 2001/29 on the
harmonization of copyright and related rights in the Information
Society transposes these obligations at Community level but also
includes broadcasting organisations within its scope. The current
draft texts are consistent with the approach of the 1996 WIPO
Treaties in extending protection of TPMs to broadcasting organisations.

To that end, the position of the European Community and its Member
States is reflected in the treaty language proposal submitted to WIPO
in 2001, as amended by a further submission in 2003. These
submissions reflect the high level of protection that broadcasting
organisations enjoy within the EU as holders of related rights. To
that extent, the EU cannot agree with the TACD demands since it would
not reflect the current level of protection that is already accorded
to broadcasters in the Community copyright acquis and would have the
effect of diluting that protection. Nor would it be feasible within
the context of international negotiations for a new treaty updating
the rights of broadcasting organisations in the intellectual property
context under the auspices of the World Intellectual Property
Organisations to depart from the substantive norms of previous
treaties. This is what the Brazilian and Argentinean proposals
envisage, namely the provision of mandatory rights for users. This
would be contrary to all previous relevant Treaties in this area. The
traditional approach in this area and the one which reflects EU law
as well is to introduce optional exceptions for certain users such as
the disabled or for teaching and research purposes.

During the 14th Standing Committee on Copyright and Related Rights
(SCCR) in May 2006 in Geneva, the European Communities and its Member
States submitted a formal proposal further elaborating on its
suggested approach with respect to =93limitations and exceptions=94 to
the proposed broadcasters=92 rights.  These proposals were very well
received by the SCCR and were especially useful in bridging some of
the major gaps that existed between developing and developed
countries. The SCCR agreed to hold another session of the SCCR prior
to the WIPO General Assembly in September 2006 that dealt with
traditional broadcasters' rights only.


8
Copyright and related rights are the relevant intellectual property
rights. Authors i.e. creators  hold copyright whereas other groups of
rightholders are described in the relevant international conventions
as being holders of
related rights i.e. rights related to copyright. The related
rightholders are record producers that hold rights in sound
recordings; performers in their performances and broadcasting
organisations in their broadcasts. The term of
copyright is longer (70 years after death of the author) than the
term of related rights (50 years after fixation).

9
   WIPO Copyright Treaty
10
   WIPO Performances and Phonograms Treaty
11
   Technological Protection Measures

************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

Consumer Project on Technology
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