[A2k] WIPO Broadcasting Treaty - SCCR 14 Day 2 Notes

[Gwen Hinze]

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WIPO Standing Committee on Copyright and Related Rights, 14th Session, Day 2

  May 2, 2006

  Geneva

  Notes taken by:

  Thiru Balasubramaniam, thiru at cptech dot org, Consumer Project on
Technology [TB]

  Teresa Hackett, teresa dot hackett at eifl dot net, Electronic
Information for Libraries [TH]

  Gwen Hinze, gwen at eff dot org, Electronic Frontier Foundation [GH]

  Jason Pielemeier, jason dot pielemeier at yale dot edu, Yale
Information Society Project [JP]


  [NOTE: This is not an official transcript. It's our best effort at
providing a faithful set of notes of the proceedings. Any errors and
omissions are unintentional and regretted.]

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  10:20 am

  Informal Information Session:

  Professor Delia Lipszyc, Buenos Aires University, (Argentina)
  Professor Ande Lucas, Nantes University, (France)

  [Note we did not take notes of this session. Professor Lucas gave
almost the identical presentation at the Group B regional
consultation meeting on 13 September 2005 in Brussels. EFF's notes of
that presentation are at:
<http://www.eff.org/IP/WIPO/broadcasting_treaty/notes_sept05.php> ]


  ---
  SCCR Formally reconvened.
  3:25 pm

  Ukraine: Supports the inclusion of the appendix on webcasting. This
is optional and can be acceded to at any time by Member States. This
is very democratic. Otherwise, we have to return in the future and
discuss the other issue again.

  Chile: Thanks WIPO Secretariat for automated TPM report and also for
info session. Would like to see more info sessions with other experts
eg economists and representing other points of view.

  We support the comments of Brazil on the fact that all the proposals
were not in the main treaty document (Draft Basic Proposal - DBP) and
put into separate Draft Working Paper.

  We'd like to emphasize that even if it were proper to draw a
distinction between those proposals which have received support and
those that have not, we think that Chile's and Brazil's proposals
should be included in DBP b/c previously rececived support.

  Also want to support comments of Uruguay that we should have studies
of likely impact of treaty.

  Lack of studies very evident in webcasting area, where lack of
studies means we hve no way to evaluate proposal, particularly since
no country appears to have adopted these sort of rights.

  We think that treaty should reflect rationale of creating IP rights,
and that if necessary to have that refelected in this treaty, we
should, have more meetings.

  Morocco: We have to remember the terms of reference from the General
Assembly, to convene a Diplomatic Conference at the latest in 2007 in
order to protect Broadcasting Organizations.

  SCCR therefore needs to step up its progress. We should develop a
consolidated text to make rapid progress, to go through the document
article by article. The Rome convention challenges and digitization
encourage us to improve protection broadcasters. This should not be
to the detriment of right owners (authors). This could prevent access
to knowledge and culture.
  Therefore our text has to be flexible and has to look very
cautiously to exclusive rights and signals must not be monopoly
operations. We have to concentrate on conventional broadcast
organisations.before we move on to any other organizations. The
diplomatic conference is the right forum for the discussion of this
issue.

  China: Under your leadership we believe this meeting will achieve
its expected results.

  Moldova: I think there's a good spirit of cooperation which will
continue for the purposes of creating a new treaty. We understand
that the draft doesn't rresolve all existing problems but we believe
we can resolve these now. We understand the concerns of some
delegations but the study of this issue has already taken several
years involving leading experts of WIPO showing how important it is
to produce such an instrument. Furthermore, this is included in the
domestic legislaton of many countries including our own.

  The appendix on webcasting moves with the spirit of our times. We
support the DBP and that the Secretariat can start to look at the
text article by article so that in 2007 we can have a d/c.

  Bangladesh: The driving force for the growth of our economy is
increasingly changing from nat resources to IP, that is the knowledge
economy. Most of the countries in the world, including Bangladesh,
are facing acute problems of piracy. Copyright law was renewed in
2000 in order to harmonize copyright w/ the international community.
It was further amended in 2005 to include TRIPS agreement substance
including WCT, WPPT, software, database etc. We are planning on
implementing a system to strengthen copyright enforcement. WIPO has
been a persistent support (sic).

  First, we are not against the idea of drafting or concluding a
treaty for the protection of the rights of broadcasting
organizations. Second, we don't suffer from illusion that such a
treaty is not achievable. However, the real quesiton is 'how do we
approve it?'. Thirdly, our mandate is to 'agree' on substance for the
treaty. We must take into account the common concerns of the majority
of the delegations. Fourth, we must seek to include folklore and
traditional knowledge. Fifth, it must be recognized that members have
the right to protect TK in their country.

  W/ respect to Draft Treaty. Article 12 should be expanded. Article
13, term of protection is proposed to 50 years; our national
legislation gives only 25; the commission should set base of 20 years.

  -Australia is still consdiering the implicataions of Article 13.
  -Otherwise Australia can agree to the proposal convening a d/c.

  Australia maintains its position that progress should continue
towards convening of a dip con. Our general position:
  * Agree w/ confining protection in treaty itself to over-the-air
broadcasters and cablecasters. We are still considering the optional
appendix on webcasting.
  * Still prefer the option of confining beneficiaries of protection
to those orgs that both transmit from and have headquarters in the
same treaty member country.
  * Still concerned about implications of Art. 6 for its domestic
retransmission arrangements. Still determining its position on Art. 6
and note that countries have discussed the possibility for
reservation or other mechanism. [GH: Canada]
  * Still concerning Art. 11 on pre-broadcast signals and reserves its
opinion on that.
  * Otherwise, we agree w/ the DBP.


  El Salvador: El Salvador would like to reserve the right to speak
when it has a full delegation present.

  Phillipines:
  We support the statement of Thailand yesterday on behalf of the
Asian group. In addition we'd like to put into the record some
relevant excerpts from the regional meeting:
  * Agreed that the rights of br orgs have to be updated in the face
of new technologies and that Rome Conv has been rendered inadequate
to protect these rights.
  * Delegations reached informal consensus for most provisions.
  The Phillipines considers media as an important pillar in democratic
communications. If democracy is indeed a gov't of the people for the
people and by the people, people need to be able to participate.
Toward this end we believe very strongly that a free media plays a
crucial and very important role. Thus it is in our interests to have
a free and open media. Thus we support a treaty that would insure the
rights of broadcasting organizations if the treaty's scope is
limited. We are not in the position to support any web or
simulcasting.

  We should only consider items that we can agree on and carry forward
to the GA.

  After more than 10 years we simply have to move on.

  Sri Lanka: We support the comments of the delegation of Thailand on
behalf of the Asian Group. In Sri Lanka, B/O even in the public
sector support the treaty while some user sectors do not support it.

  Japan: To discuss article by article is very time consuming, so we
should discuss according to the 8 packages prepared by the chairman
yesterday.

  Burkino Faso: Role of broadcasting has become more important thanks
to the introduction of democracy. Broadcasting is a development tool.
We recognize the importance of the protection of brod orgs in a
balanced manner. Existing instruments should be updated immediately.
In order to do that, we consider that it is extremely necessary for
the WIPO to convene a dip conf. We don't have major objections to
this document. As regards webcasting, we don't want to show a lack of
solidarity w/ other countries that have spoken and in light of what
was said at the lecture this morning, I think that there is a lot of
concern regarding webcasting.

  We should take sometime to better understand this form of
broadcasting. The hesitation surrounding this document are not
without a precedent. International negotiations on the subject have
always thrown up reservation. There is no doubt nonetheless that we
need an instrument to protect broadcasting organizations.


  Indonesia:

  DBP should only focus on signal piracy. Unfortunately, we have some
concerns about the treaty. my delegation has found that the language
goes beyond Rome and TRIPS. May create adverse impact to A2K and
access to material in the pub domain, and the rights of copyright
holders.
  Broadcast can be an essential source of information (educational purposes).
  Process of any norm setting regarding broadcasting orgs shall not
compromise those rules and the rights of public at large. Exceptions
and limitations should be formulated in such a way that can be better
used by developing countries. In this regard, we see the merit in the
Brazilian proposal on the general public use clause. Any attempt to
create new rights should take into account the larger public
interest.As for how we should proceed in this meeting. We should use
this meeting to forge common understanding and move closer. However,
holding a Dip Con in the near future is too far given the complex
nature of the subject. We call for more balance, transparency and
simplicity in the work of the SCCR. All Member States' proposals
should be treated on an equal footing.

  Singapore: We support the convening of a d/c and the conclusion of a
treaty as long as the views of MS are taken into account and heard in
the final outcome.

  European Community (Tilman Leuder): Would like to make three points:

  1. We support the DBP and the working paper.

  2. Also support inclusive debate on both documents. Excellent point
of departure for structured debate.

  3. We urge all the delegations to have a structured debate according
to key topics that have crystallised themselves and not an article by
article approach.
  There are key issues at core of broadcasting organizations'
operations and business and should focus on that.

  Otherwise we wouldn't have time to get to the key issues.

  We do not come unprepared to these meetings following meetings in Brussels.

  Have a series of constructive ideas and proposals on limitations and
exceptions, TPMs and their interplay, that want to bring along and
raise for debate.

  Way to have constructive debate about how to have protection that
does not erode scope of protection for broadcasters and for
beneficiaries of exceptions and limitations.

  Should move forward on discussion of key topics, not time-consuming
article by article approach.

  Ghana:

  Ghana passed new Copyright Act that took effect June last year. This
meets the minimum requirements of WIPO treaties and TRIPS.

  Protects rights of B/O - including rt of reproduction, rt of making
available. Limited to protection of signals.

  Phonogram producers have enhanced protection through WPPT over 10
years ago. Now time for enhanced protecion of broadcasters

  As decided by the last meeting of the GA, it is about time that the
rights of b/o are enhanced against emerging technologies.

  CR and RR holders in content are protected, understand concerns expressed.

  DWP provides good basis for moving forward on discussions for new treaty.


  Reiterates its request that comments made at May 2005 meeting of
part of Africa Group in Nairobi be made public as they may assist our
deliberations.

  We identify with the view of the Nairobi meeting that linking
webcasting with broadcasting is premature.

  Protection of webcasters may be a future agenda item but should not
form part of this treaty.

  TPMS - since provided for in WPPT, should also be available to
broadcasting organizations. Care must be taken to ensure that public
broadcasting organizations not able to constrain or restrict
broadcasting of info with TPMS

  We repeat that authors, performers have enhanced protection through
the WCT and WPPT. It is therefore time to enhance the rights of
broadcast organisations.

  Chair: That brings us to end of first part of Work Program,
statements on Chair's text and new proposals.

  As I promised yesterday, I will offer some response to the comments,
questions, remarks made in the interventions.

  First, and this has also been conveyed to me by several measures, a
comment about stage of work.

  How do we characterise the level of the work? We are working on the
technical level for the concluding part of the work for the d/c that
will be convened.

  As a diplomatic conference is a rare thing, I've been asked to
explain a little.

  We are preparing the basis for the final negotiations based on
proposals by member states and groups of member states. Those
proposals have been consolidated into one or in case of last two
meetings, two documents in order to be able to negotiate on the basis
of fewer draft articles on each issue than would have been the case
if there were 15 or 20 proposals.

  For this purpose, process of consolidating proposals in to a text
where all nuances are still to be found.

  The decision of the GA was to accelerte the work on the basis of the
previous existing docs. That part of work took place last November,
looking at docs that existed before then.

  The second task was to finalise a basic proposal for the GA next
September to decide about the convening of a d/c. Probably finalized
after this meeting. When we are satisfied that there has been
progress and that we have a basic proposal then we will send along to
the GA and it will set a date for a dip con in several months. Basic
Proposal will then be studied and discussed at regional conferences.
The Basic Proposal is a working paper [JP:?!]. Previous BP have
included alternatives. Alternatives is the token of recognition of
differing opinions. Alternatives may not satisfy all delegations, so
may find new proposals drafted during DC.

  The d/c normally takes 2-3 weeks and all delegations can work then
to get their interests recognised and obtain understanding for their
proposals. Negotiation takes places in the plenary and in committess
which may be convened on special topics e.g. single articles or
different issues. DC may set up diff bodies to conduct consultations
on diff issues, report back to DC.

  It is a very intensive isolated piece of universe and a lot of
people engaged in day and night work within a short time. Everybody
knows that this is the place where negotiation takes place.

  Usually the d/ c brings rresults and may adopt political
declarations that explain the purposes of the objectives. High level
declarations on eg intention not to harm rights of mankind.

  Many things can be solved. 1996 experience - was doubt about
interpretation about particular Articles. so DC adopted Agreed
Statements - binding part of package under Vienna Convention because
adopted by same delegates, at some time [GH: Note that the US is not
a party to the Vienna Convention]. Agreed statements are very
important tool.

  The task of this committee is to finalise and agree the basic
proposal to be prepared.

  There has been a debate about the expectation that everything should
be agreed before we allow a dip conf to happen. This is an
exaggerated expectation. Basic Proposal is just a working paper (JP:
again!?). The ambition is that there would be as many articles as are
not controversial. If and when there are differences of opinion then
of course alternatives should be presented. The Draft Basic Proposal
takes its origin from the General Assembly. The draft should be made
better

  i would like to quote from Australian intervention, after listing a
number of concerns, said otherwise we can agree on package in BDP.
That doesn't mean that they agree on everything, but agree on
framework, and can work out details at a DCon.

  There was the regret expressed that there should be one document.
Yes indeed there should be one document. We should try to establish
one document in which we have the basic proposal.

  There was the remark that the two documents on table are not
transparent and inclusive enough. The intention is to be inclusive.
All elements that have been included in discussions are in those two
documents. That's inclusiveness.
  We could call the two documents the third consolidated document

  Every delegation, even those who are not ready to embark upon the
convening of the dip conf, has expressed willingess to contribute in
these deliberations.
  That's very promising, indeed.I propose that after the coffee break
that we start on the delibrations on concrete specific items and
address the concerns of those who have stated that they would like to
consider particular issues. Of course, article by article
consideraion time consuming and not possible b/c of time constraints.
No of outstanding issues, and should focus on those.


  Brazil:

  I listened carefully to all interventions and to your last
intervention just made in which you tried to sum up the mood of the
plenary.

  My delegation is among those that believe that we cannot go along
with view that we can't express a formal opinion on a draft text that
doesn't include our proposal. The only way forward in this
organisation is that points of view put forward by all delegations
must be included in the document.

  We think at this point it doesn't look very promising for going
forward to a DC, to be honest

  There are four issues of concern before we should proceed to examine
specific elements of the document before us.

  Doesn't see much progress possible on discussion of draft that does
not includes our proposal, but does include proposals on which there
had not been general consensus. It is not an extremeist or radical
reaction, but I have clear instructions not to proceed on work
program that would put our concerns on a different footing.

  Having said that, 4 important issues:
  1. We have taken note of considerable opposition to inclusion of
webcasting in whatever draft document we've talked about. This has
become a central issue that must be addressed before we move on. How
can we discuss the extension of rights before we know about the scope
of the rights?

  2. Issue of non-inclusiveness of all proposals. Here we have to find
a formal solution that would lead to the inclusion of all proposals
into the DBP before we proceed.

  3. I understand from a technical viewpoint, but want to note that
there are repeated references to 1996 [Internet] treaties. My country
is not a party to these and we cannot consider these as a reference
point for our discussions or negotiations be it on a technical or
political basis. Membership of those treaties is rather small and
does not form basis of agreement on which to work within WIPO.

  4. You have said that not necessarily everything has to be agreed
upon before a dip conf can be convened. We need reliable basis of
significance convergence before we convene a diplomatic conference.
These events are politically high profile and very expensive for this
organization. I would not recommend a dip conf unless we have
certainty that we have consensus on a core basis of the issues. It
would be irresponsible to jump to the final stage w/o coming to
agreement on these basic issues. Brazil wishes to be positive and
constructive, but to do so requires treatment of all members on equal
footing. This is the least that can be expected from this
organisation.

  Coffee break 4:45pm, Working coffee break to consult on how to
proceed further.

  [TB: Secretariat just handed out SCCR/14/6-proposal by Peru]

  Coffee Break
  ---------------------

  5:43 pm

  Chair:

  We should embark on phase two. I gave you my concluding remarks. I
see that Brazil wants the floor.

  Brazil:

  We would like to propose that formal proposals from Brazil and Chile
as contained in SCCR/14/3 are an integral part of the DBP and should
form basis of discussions. I am speaking on behalf of Brazil and
Chile only, because we have co-ordinated on this. Not intended to be
exclusive proposal. Open to other delegations.

  Colombia:

  In connection with the proposal of Brazil, we the delegation of
Colombia and in view of our proposal on TPMs, we request to consider
incorporating it into the basic proposal as it already exists.


  Canada:
  We are less ambitious. We would like our propsal on retransmission
[GH from SCCR 10] to be part of the working paper.


  Chairman: Thank you very much. Understood.


  India: We would also like to support the propositions placed before you now,
  that the two documents presented by Brazil and Chile are treated on
par with the draft basic document that has been prepared.


  Senegal: We have a slight problem of coordination. I think the
African Group after a regional meeting made a proposal. We would like
this to be part of the basic proposal too.

  Chairman: All the proposals made by any African countries are in the
treaty now.

  Treating them as on a par would remove what I call the problem that
has been caused by having all proposals in the two documents,


  Peru: To support Brazil, Chile and Colombia, we would like to
benefit from the same treatment in respect of our document.

  Chair: Thanks for the proposals. I was consulting with the
Secretariat about how to proceed.

  I will proceed in the direction pointed out by Brazil and seconded
by others. I extend the proposal of Brazil to cover all the substance
of the working paper so that we would by this decision restore all
the alternatives.

  Let's try to proceed in the way that all proposals are treated
equally. Let's make a formal decision on that. That seems to remove a
mental problem in the presentation of the proposals.

  Chair: We will now discuss the Peruvian proposal. We are on better
ground by having had this series of exhaustive statements.

  There is a beautiful diversity of opinions. We have time for one
intervention this evening, and we give floor to India.


  India: I want to once again draw your attention to the four points
that were raised in the session before the coffee break. We have
settled one issue-the inclusion of all proposals.

  Before we move on to actual debate about key issues that you have
highlighted, one issue that we should look at it, which is becoming
the subject of much acrimony and division. That is issue number one,
webcasting. This has this very fundamental difficulty without first
settling the nature of webcasting, and the kind of treatment that we
would like to give webcasting in the proposed treaty. I would like to
propose when we first meet, we consider the nature and the scope of
webcasting and how it should be treated. The rest of the issues will
fall out of that.

  Until and unless the issue of webcasting in its wide scope as it
remains, and the almost unanimous views of ms has been that the issue
of webcasting has to be limited or at least given up. If we do not
address that issue, going into other issues will always be colorued
by the overarching question of webcasting. We need to discuss the
Scope, treatment and status of webcasting. Only then can we proceed
on other issues.

  Chairman: We will consider that proposal overnight. The only reason
that Scope of application is point 6 is because of the need to
discuss that point in the breaks while we are here, to have more
time. Now India proposes to discuss this point first on the agenda.


  We have to finish our work at 6pm sharp today and it is now 6pm
sharp. We'lll reconvene at 10 am tomorrow.


  Croatia: Announcement CEE and Baltic States 13.00 in Room 127.

  Meeting ended 18:02