[A2k] Text of rightholders' joint position at the WIPO SCCR May 1-5, 2006

[Manon Ress]

EUROCOPYA
The	European Federation of Producers Collecting Societies for Audio
visual
Private Copying

FIAD
The International Federation of Film Distributor Associations

FIAPF
The International Federation of Fibre Producers Associations

GIART
The International Organization of Perfoming Artists

ICMP/CIEM
The International Confederation of Music Publishers

IFPI
The International Federation of the Phonographic Industry

IFTA
The Independent Fibre and Television Alliance

IMPALA
The Independent Music Companies Association

The Draft Basic Proposal for a WIPO Treaty on the Protection of
Broadcasting Organizations

Joint Position of Rights Holder Groups

14th session of the WIPO Standing Committee on Copyright and Related
Rights

1-5 May 2006

The undersigned organisations represent rights holder groups with a
direct
interest in the discussions at WIPO regarding the protection of
broadcasting organizations.

The undersigned rights holder groups welcome the Draft Basic Proposal,
which they see as a positive step in the current negotiation. Further
changes are needed in preparation of the Basic Proposal, in particular a
clearer catalogue of rights and a link to the 1996 WIPO Treaties.

The catalogue of rights

The undersigned rights holder groups appreciate many of the changes made
to the catalogue of rights in comparison to the Consolidated Drafts, and
see a number of changes which they believe may help move the discussion
forward.

We welcome the decision not to repeat the outdated public performance
right in the new treaty and the confirmation that a distribution
right for
broadcasting organizations at international level is neither
necessary nor
appropriate.

We also notice with appreciation that the drafting of a catalogue of
rights is now built more closely on the logic of Article 13 of the Rome
Convention.

The undersigned rights holder groups continue to believe that the
protection related to any exploitation following fixation of the
broadcast
need to be phrased as rights to prohibit the uses made from unauthorized
fixations rather than as full exclusive right. The Draft Basic Proposal
now recognises this principle in the drafting of Art. 8, 9, and 10, and
proposes for each of these Articles in par. 2 the right to prohibit
as one
suitable approach.

We believe that the Treaty should clearly choose the right to
prohibit as
the only appropriate solution. The two-tier approach in Art. 8, 9,
and 10
and the proposed system of reservations should be replaced with clear
and
unambiguous drafting in that sense.

If Article 8 (reproduction right), Art. 9 (transmission following
fixation), and Art. 10 (making available) are to be maintained on the
catalogue of rights, they need to be drafted unambiguously, granting
broadcasters the right to prohibit acts of exploitation from
unauthorized
fixations only, based on the formula used in Article 13 Rome Convention
for the reproduction right.

Furthermore, we consider that the proposed wording for the reproduction
right in Art. 8 is unnecessarily complicated and suggest that any such
article if deemed necessary should read:

"Broadcasting organisations shall have the right to prohibit the
reproduction of unauthorized fixations of their broadcasts."

We also wish to stress that Article 6 (simultaneous retransmission) and
Art. 9 (transmission following fixation) in combination would ironically
give broadcasting organisations a sweeping transmission right that is
currently not enjoyed by holders of rights in the content. This affects
situations where holders of rights in the content do not have sufficient
rights and cannot negotiate terms or seek contractual solutions,
creating
the unacceptable situation where broadcasters alone would set the rules
for what should be an important market place to be defined by holder of
rights in the content.

The Definition of Broadcasting and Cablecasting Organization needs to he
amended.

The definition of the broadcasting organization and cablecasting
organization in Art. 2 (c) sets the terms and defines the scope for the
entire Treaty. This definition needs to be changed to eliminate what may
be a technical drafting issue and to refer back to the prior definitions
of 'broadcasting' and 'cablecasting', rather than to an all-encompassing
broad concept of `transmission'.

Art. 2 (c) should read:

'(c) "broadcasting organization" and "cable casting organization"
mean the
legal entity that takes the initiative and has responsibility for the
broadcasting or cablecasting, and the assembly or scheduling of the
content of the broadcast or cablecast.'

Relations with other rights holders - Link to the WPPT and WCT

One element that is essential to avoid negative repercussions to the
position of other rights holders is the link to the WPPT and the WCT
that
is currently missing from what is now Article 22. Many countries around
the world have not yet acceded to the WCT and WPPT. The updated
protection
for broadcasting organisations without an updated protection of
holders of
rights in the content at national level would be unbalanced and
unacceptable. The link to the WPPT and WCT, that was included as an
option
in previous texts and now appears in Art. 24 of the Working Paper for
the
Preparation of the Basic Proposal Treaty needs to be reinstated in the
Basic Proposal.

The Protection for Technological Protection Measures.

Technological Protection Measures (TPM) and Rights Management
Information
(RMI) play an important role in the digital market place and should
benefit all rights holders alike. The undersigned rights holder groups
find it essential to keep Art. 14 and Art. 15 as they are currently
formulated in the Draft Basic Proposal, carrying forward the elements
and
standards expressed first in the 1996 WIPO Treaties.

Any change away from this would have possibly unintended effects on the
interpretation of the WPPT, WCT, and their implementation under national
law for all rights holders, including broadcasting organisations.

The Protection for Webcasting Organizations

The undersigned rights holder groups believe that the treatment of
webcasting needs to be separate from the protection for broadcasting
organizations.

Rather than starting from a "mutatis mutandis" position, any possible
future protection for webcasters should be considered in the light of
the
key differences between broadcasting and webcasting.

We remain at the disposal of any member of the SCCR to further
explain and
elaborate the views contained in this paper.



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

Consumer Project on Technology
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.:  +1.202.332.2670, Ext 16 Fax: +1.202.332.2673

Consumer Project on Technology
1 Route des  Morillons, CP 2100, 1211 Geneva 2, Switzerland
Tel: +41 22 791 6727

Consumer Project on Technology
24 Highbury Crescent, London, N5 1RX, UK
Tel: +44(0)207 226 6663 ex 252 Fax: +44(0)207 354 0607