[A2k] North-South divisions at WIPO broadcasting rights meeting

[Sangeeta]

SUNS #6019 Wednesday 3 May 2006

=A0Development: North-South divisions at WIPO broadcasting rights meeting

Geneva, 2 May (Sangeeta Shashikant) -- Opening statements by many WIPO
Member States at the start of the 14th Session of the Standing Committee on
Copyright and Related Rights (SCCR) on Monday (1 May) made clear that there
was no consensus on many aspects of the proposed Treaty on the Protection o=
f
Broadcasting Organizations.

The 14th Session is the last meeting before the WIPO General Assembly (GA)
in September and the outcome will determine whether the GA will mandate the
convening of a diplomatic conference on the proposed treaty that has been
the subject of discussion at the SCCR in its past 13 sessions (from 1998 to
2004).

The current Session is the second of the two meetings mandated by the 2005
WIPO General Assembly to accelerate discussions on the Second Revised
Consolidated Draft Text For a Treaty on the Protection of Broadcasting
Organizations (SCCR/12/2 Rev. 2) and the Working Paper on Alternative and
Non-Mandatory Solutions on the Protection in Relation to Webcasting
(SCCR/12/5 Prov.)

The General Assembly also agreed that "These meetings shall aim to agree an=
d
finalise a Basic Proposal for a treaty on the protection of the rights of
broadcasting organizations in order to enable the 2006 WIPO General Assembl=
y
to recommend the convening of a Diplomatic Conference in December 2006 or a=
t
an appropriate date in 2007".

The first meeting was held during the 13th Session of the SCCR (21- 23
November 2005) and it considered the Second Revised Consolidated Text and
the Working Paper.

The convening of a diplomatic conference on the proposed treaty is being
pushed by some developed countries, in particular the US.

While there is wide agreement that protection needs to be given to
broadcasting organizations to deal with signal piracy, there are many
concerns by developing countries as well as several NGOs and also some
corporations about the extensive rights that will be granted to broadcastin=
g
organizations and that go beyond simply dealing with signal piracy.

The concerns pertain in particular to the "exclusive rights" approach taken
by the proposed treaty, the 50 years term of protection, the limited
limitations and exceptions in the draft treaty and allowing the use of
technology protection measures (TPMs, i. e. technologies that control use
and access to digital media content on electronic devices with the
technologies installed) by broadcasters in relation to the exercise of thei=
r
rights.

Concerns were also raised about how the extensive rights proposed would
hinder access to knowledge and information, affect cultural diversity, and
undermine the rights of the copyright holders.

Further, there is a strong push by some countries, in particular the US, fo=
r
the scope of the treaty to also be applied to "webcasting", i. e. to
broadcasts over the internet.

In the past SCCR sessions, there has been resistance from many countries
about the inclusion of webcasting into the proposed treaty, be it a
mandatory or voluntary part of the treaty. One main concern is that
extending traditional broadcasting rights to webcasting is an untested
proposition, wherein the implications are not clear, especially on the free
flow of information that currently benefits all.

It became apparent from the opening statements that these concerns remain.
Many countries, including the Asian group, reiterated their positions that
they could not agree to a treaty that included in any form, the matter of
webcasting. Some countries (India and the Asian Group) indicated that the
proposed treaty should only deal with signal piracy and that enhancement of
broadcasters' rights was not acceptable.

Several delegations stressed that there should be a balance between private
and public interests and some of these delegations, including Jamaica,
Uruguay and Egypt, called for a study to be conducted on certain aspects of
the proposed treaty.

Delegations such as Brazil, India, and Argentina also questioned the Draft
Basic Proposal for the WIPO Treaty on the Protection of Broadcasting
Organizations including a Non-Mandatory Appendix on the Protection in
Relation to Webcasting (Basic Proposal) (SCCR/14/2) and the Working Paper
for the Preparation of the Basic Proposal for a Treaty on the Protection of
the Broadcasting Organizations (Working Paper) (SCCR/14/3) that were
prepared by the Chairman as a basis of discussions at the 14th session.

The Chairman Jukka Liedes of Finland in presenting these documents, said
that the Draft Basic Proposal contained substantive elements and is a "clea=
n
text" and that the history of the Basic Proposal can be traced to the Secon=
d
Revised Consolidated text. He added that all other proposals of Member
States are contained in the Working Paper.

The Draft Basic Proposal also contains a Non-Mandatory Appendix pertaining
to webcasting. A Member State would have to make a formal notification to
the WIPO Director General to "opt in" and be bound by the contents of the
Appendix.

The delegations were unhappy that the alternative proposals that had been
made in previous SCCR sessions were not included in the Draft Basic
Proposal. They were expecting for a Third Revised Consolidated Text to be
the basis of discussions and not a Draft Basic Proposal that contains only
"clean text" and that removes all other proposals.

The Chairman also put forward a paper on how he envisioned the meeting for
the week to progress. The paper indicated that the Chairman wished to tackl=
e
the agenda according to issues. However, this was not received favourably b=
y
some delegations. India indicated that it wished to proceed to discuss the
proposed Text, article by article.

Thailand, on behalf of the Asian Group, made it clear that it would like to
see progress on a broadcasting treaty on signal piracy and ensuring that th=
e
rights of the content owner are not compromised.

It added that there is no agreement on the content of the treaty and called
for more transparency, clarity and simplicity in the SCCR. It also added
that the technological gap and the digital divide are major challenges and
that the evolving nature of internet-based technologies needed more
understanding. It opposed the inclusion of any link in the proposed treaty
to simulcasting (broadcast over more than one medium at the same time) and
webcasting.

Brazil made it clear that the document, Draft Basic Proposal (SCCR 14/2), i=
s
not acceptable as a basis for negotiations, as it does not include all
proposals. It added that proposals that were rejected by members are
included in the document. It further said that the new text had undergone a
considerable redrafting exercise and included provisions not discussed
before.

It stressed that all Members' proposals should be treated on an equal
footing and that negotiations should proceed on the basis of one document
that includes proposals of all states. It said that it was frustrated as it=
s
proposal was not included.

India called any enhancement of rights beyond dealing with piracy
"repugnant". It stressed that the right to information and access to
knowledge should not be impeded and the rights of the content provider
overridden.

It then proposed, in line with these basic features, that the proposed
Treaty not go beyond the TRIPS Agreement.

It referred to the Draft Report of the 13th session (SCCR/13/6 Prov.)
wherein the Chair said that a partial or complete consolidation of the text
would be done and a Third Consolidated text would be prepared and added tha=
t
it wanted to see this third consolidated text.

It also said that although delegation after delegation had opposed the
inclusion of webcasting in the treaty, there are still elements of
webcasting in the Draft Basic Proposal.

India recommended that discussions should be conducted on an
article-by-article basis. It also added that better results would ensue if
the discussions in SCCR were on the substantive issues and not about timing
of the diplomatic conference.

Argentina questioned the criteria that was used for the preparation of the
basic proposal, as it contained issues on which there is no agreement. It
added that the decision of the GA is that if there is no agreement on the
language, then there should not be a diplomatic conference. Considering the
implications that the proposed treaty could have, it is premature to call a
diplomatic conference.

Jamaica also supported that negotiations be conducted on the basis of one
text. It also called for a balance between the private and public interests
in the treaty. This call was reiterated by Kenya, South Africa, Nigeria and
Egypt.

Jamaica also urged the undertaking of studies on the impact of L&Es
(limitations and exceptions) and TPMs on developing countries as well as on
developed countries so that proper comparison can be made. Jamaica was also
against the inclusion of webcasting in the treaty.

The US referred to the Basic Proposal and said that in its view it indicate=
s
areas with substantive convergence.

Japan and Korea indicated their keenness to finalise the Basic Proposal and
to proceed to a diplomatic conference. +