[A2k] FromGeneva: WIPO copyright committee comments on Brazilian and Chilean proposals

[Thiru Balasubramaniam]

http://fromgeneva.blogspot.com/2006/05/wipo-copyright-committee-comments-on.html


      WIPO copyright committee comments on Brazilian and Chilean proposals

9 May 2006
Thiru Balasubramaniam

The WIPO Standing Committee on Copyright and Related Rights (SCCR) which
met last week (1-5 May 2006) to deliberate on a proposed
broadcasting/webcasting treaty played host to robust discussions on
limitations and exceptions. At stake in this treaty are practices we now
take for granted but are now under threat including podcasting
<http://www.boingboing.net/2006/05/02/un_cooking_podcastki.html> and
C-Span's broadcasts of public events including Congressional and other
political events. Witness the recent C-Span takedown order
<http://www.nytimes.com/2006/05/08/technology/08colbert.html?_r=1&oref=slogin>
of YouTube's broadcast of Stephen Colbert's speech at the White House
Correspondents Dinner asserted through copyright. One can only imagine
how such disputes would play out with an additional layer of exclusive
broadcasting rights.

At the heart of the debates on limitations and exceptions (L&E) were
proposals submitted by Brazil and Chile at the previous SCCR in November
2005 and the Peruvian proposal submitted during last week's meeting
which included creative proposals on access to knowledge, defense of
competition and protection and promotion of cultural diversity to
safeguard the public interest. Much of the deliberations focused on
whether the proposed limitations and exceptions were "consistent" with
the principles of the 3-step test.

The first part of the Brazilian proposal (Article X) included a "General
"Principles" clause stating that,

    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.



The second part of the Brazilian proposal (Article Y) included a "The
Protection and Promotion of Cultural Diversity" clause stating that,

    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.

.

One early source of contention was the placement of the Brazilian and
Chilean proposals in the working draft not in the draft basic proposal
(DBP). The draft basic proposal was perceived to contain mature
proposals ready for an early harvest while the working draft was deemed
to have secondary status as a document containing "alternative
language". After repeated interventions by Brazil, Chile and support by
other countries insisting that these aforementioned proposals be treated
on an equal footing in one text, the Chair (Mr. Jukka Liedes of Finland)
agreed to consider the proposals in the draft basic proposal and the
working paper on equal footing.

Japan stressed that in its view the Brazilian language was inconsistent
with the WIPO "Internet" treaties (WIPO Copyright Treaty and WIPO
Performers and Phonograms Treaty). The Japanese delegate characterized
the Brazilian provisions as misleading and suggested that the 3-step
test could adequately address concerns on limitations and exceptions.

Mr. Tilman Lueder (European Commission) who spoke on behalf of the
European Communities and its 25 Member States and the acceding countries
of Bulgaria and Romania noted his delegation's view that Brazil's
"General Principle" Article X was preambular in nature and thus not
appropriate as operative text. Ms. Julie Samnadda (European Commission)
stressed that cultural diversity was something that the European
Communities regarded very seriously. She stated that,

    [w]e are a party to the UNESCO convention. Nevertheless, as regards
    to copyright norm-making, we have traditionally taken the view, I
    draw your attention to Recital 17 of UNESCO Convention on Cultural
    Diversity which states that parties recognize importance of IP
    The view of the Community has always been (in that and previous
    treaties - WPPT/WCT, which we have adopted but not yet fully
    ratified) of the view that healthy copyright protection goes hand in
    hand with cultural diversity.



In his response, the Brazilian delegate noted that the objectives of
access to knowledge (a2k), education and science were common to the
majority of WIPO Member States. Brazil stressed that it wanted to
safeguard a2k, education and science from encroachment from an untested
new layer of rights that would arise from this Treaty especially
considering unknown consequences and future technological developments
and the uncertainty that still existed as to whether the Treaty covered
signal or content.

With respect to the Japanese intervention, Brazil reminded Member States
that Brazil was not a party to the WIPO "Internet" treaties and "did not
accept these treaties as a basis for negotiation' or as precedent". The
delegate noted that

    [w]e think in many ways these depart from IP tradition and do not
    benefit developing countries...Regarding the EU comment as to the
    public interest clauses as being more preamble in nature. We think
    not because there are many such types of general principle articles
    found in other agreements. Article 7 of the TRIPS Agreement on
    objectives is just as general in nature as our proposal. We think
    they are texts of a similar nature and in TRIPS this general wording
    found its way in under a substantive article. It loses weight if it
    is relocated to the preamble part. It needs to have the same legal
    weight and the same treatment as the objectives of protecting
    private rights. We do not favour treating private rights on a better
    footing than public interest objectives.



The delegations of Egypt and South Africa gave unequivocal support of
the Brazilian proposal. The Egyptian delegate noted that the importance
of including Article X on General Principles and Article Y on the
Protection and Protection of Cultural Diversity in the operative part of
the Treaty.

The Chilean "Defense of Competition" proposal tracks some of the
language of Article 40.2 of the TRIPS Agreement.
<http://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm#8> With
respect to Chile's submission, the Australian delegate noted his concern
that the language seemed to impose a positive obligation to incorporate
"competition principles with respect to intellectual property" in
general, not just the rights proposed under this treaty". The Australian
delegate echoed Senegal's concern that the nature of the Chilean article
on competition "seemed somewhat wider than the subject matter of the
broadcaster's treaty".

Japan objected to Chile's proposal on defense of competition by noting
its absence in the WIPO "Internet" Treaties.

Chile responded to Australia's concerns by noting that the Defense of
Competition language had no obligation with respect to other types of
"intellectual property" not covered by the broadcasting Treaty. With
respect to Japan's concerns, Chile wryly responded by stating that,

    [t]here is the question of Japan that this obligation allowed by art
    x [Defense of Competition provision] will interfere with WIPO
    treaties, the intention of this article is not to affect any other
    agreement. We believe that the better option for this treaty is not
    to have an effect on other agreements. Therefore that shouldn't be a
    problem. Also, with regard to the question of Senegal on the
    uncertainty that could result from paragraph 2, this provision is
    mirrored from 40.2 from TRIPS, which is already a standard principle
    in international law. Therefore we are not creating any additional
    uncertainty.



At the close of discussions on "General Principles" and "Defense of
Competition", Brazil underscored the point that Members could not use
the WIPO "Internet Treaties" as a basis for negotiations and the fact
that since Members were entering into unchartered waters, they needed
safeguards on board before embarking on any new broadcasting Treaty
negotiations.