[A2k] WIPO Broadcasting Treaty - SCCR 14, Day 3 Notes
Gwen Hinze
gwen@eff.org
Fri May 12 10:24:01 2006
WIPO SCCR 14, NGO Coalition Notes of Day 3, May 3, 2006.
Posted at:
<http://www.eff.org/IP/WIPO/index.php?f=sccr14_day3_edited.txt>
Full text below (Warning - over 40 pages of text file)
---
WIPO Standing Committee on Copyright and Related Rights, 14th Session,
DAY 3 - May 3, 2006
Notes taken by:
Gwen Hinze, gwen at eff dot org, Electronic Frontier Foundation [GH]
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]
Jason Pielemeier, jason.pielemeier @ yale dot edu, Yale ISP Project [JP]
Rufus Pollack, rufus at okf dot org, Open Knowledge Foundation [RP]
[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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10:32 am
Chair: Recap of yesterday afternoon's discussion. References to
proceeding on Article by Article basis as being too time consuming.
Expression also that preferable to focus on key provisions. We shall
not proceed with Article by Article approach.
In the meantime I have prepared a small work program schedule, which
is being distributed. There was a request by Morocco for the floor
but we did not have time to accommodate it.
There was a proposal by India that we should look at most important
proposals first. We should discuss the scope of the instrument. And that means
dealing with webcasting.
Many delegates have asked to reserve time, and have said that we need
lunchtime for consultation purposes.
Item 6 in work programme will be tackled in the afternoon session.
Morocco: Yesterday I proposed that we speed up our work. I suggested
we examine the draft article by article but I am not sure I was
correctly understood. Because previous discussion has shown there is
already agreement on some points -- though of course not on others.
Thus our suggestion was to go through article by article and the
Chairman can then say "we have agreement on these points but not on
these ones." We can then work on the points on which we disagree and
then come to webcasting last of all.
Chairman: We will discuss the proposal on an issue-by-issue basis,
which is almost the same as an article-by-article basis.
We may do as the delegate of Morocco is suggesting at some point. We
could list -- in a non-binding way -- the issues where there are no
controversies.
I also remind everyone about the proposal by Brazil yesterday: that
the draft basic proposal includes all documents on the table namely
14/2 [chair's draft text - the Draft Basic Proposal], 14/3 [the
Chair's Draft Working Paper, which includes 3/3/CORR (Brazil's
proposal) and 13/4 (Chile's proposal)), 14/4 [Colombia's proposal],
14/6 [Peru's proposal], 1. Also we shouldn't forget about the
proposal made by Canada which is found in the explanatory notes on
rebroadcasting in the working paper. [GH: SCCR/9/10]
That serves the clear wish that all proposals be dealt with on an
equal footing and this is reflected in the directions for today's work.
So we found a way forward as far as the working documents are concerned.
A revised work plan for item 5 of my previous work plan is being
distributed. My proposal is that we should start from the beginning.
We have new proposals - SCCR 14/3 - proposals on general principles,
cultural diversity and on exception for defense of competition.
Suggest we start with these three proposals.
We have new proposals that deserve consideration by the delegations
that have not been properly discussed.
Revised draft work programme for item 5 of the agenda distributed to
delegates.
[[Insert Revised Work Programme for Item 5 of the Agenda which has
just been distributed]
REVISED DRAFT WORK PROGRAMME FOR ITEM 5 OF THE AGENDA (Prepared by
the Chair)
SECOND PART:
1. Certain items of the new proposals
a) General principles: SCCR/14/3, Art. [x], p.5
b) The protection and promotion of cultural diversity: SCCR/14/3,
Art. [y], p.5
c) Defense of competition: SCCR/14/3, Art. [x], p.6
2. Rights
a) Exclusive rights: SCCR/14/2, Art. 5, Art. 6, Art. 7
b) Exclusive rights and rights to prohibit: SCCR/14/2, Art. 8, Art
9., Art. 10
c) Adequate and effective legal protection: SCCR/14/2, Art. 11
3. Limitation and Exceptions:
* SCCR/14/2, Art. 12
* SCCR/14/3, Art. 14, p. 14 and 15
* SCCR/14/6, proposal on p.4-5
4. Technological Measures:
* SCCR/14/2, Art. 14
* SCCR/14/3, Art. 16, Alt. V, Alt. W, Alt. NN, p.17
* SCCR/14/4, Art. 16, para 3
5. Term of Protection
* SCCR/14/2, Art. 13
* SCCR/14/3, Art. 15, Alt. EE
6. Scope of Application
* SCCR/14/2, Art. 3
* SCCR/14/2, Appendix
7. Eligibility
* SCCR/14/2, Art. 22
* SCCR/14/3, Art. 24, Alt. AA and another alternative
]]
Brazil: We see your proposal as positive. I have two comments.
1. The reference to new proposals in the work programme gives the
impression that they are not part of the basic proposal.
2. India's proposal to look at the object of protection -- if we don't
have a common understanding of the core issue of our work, it will be
difficult for my delegation to look at the issues. So we need to have
a round of debates on the subject matter of the treaty in order to
understand how broad the treaty will be. How broad will the treaty be
in terms of subject matter.
Chairman:
You might delete in your minds the words "of the new proposals" in
item 1 of my new work program. [See above]. You (delegate of Brazil)
were not in the room when several requests were put forward to have
discussions on that issue (webcasting) happen over lunch break. This
article will be tackled as the first item on the agenda this afternoon.
That seems to be a fair proposal because that item is a matter
requiring substantive discussion.
These items under #1 are of general nature and of course are valid
irrespective of the exact scope of the treaty, so we should start here.
We will now have a discussion on the items under number one.
India: Thank you. Our delegation supports the proposition placed
before us this morning. Only one observation, on the 8 items, item 1
is what we can take up right now. My request is that items 2,3,4
relating to L&E and TPM are the heart of the treaty and would
probably be better discussed after the scope has been discussed
regarding webcasting. I would urge that 2,3,4 should be discussed
subsequent to the issue of webcasting.
The other two issues items 5 and 7 -- term of protection and
eligibility -- are almost independent of the other items and could be
discussed later on.
Perhaps after discussing item #1 we should move on to 5 & 7, before
webcasting.
Chairman: I had the same idea in my mind. After webcasting we should
tackle items 5 and 7.
The floor is now open to the first 3 items: general public interest
objectives, language on diversity of cultural expressions (UNESCO
framework) and defense of competition.
Senegal: Well I'll open fire, but I hope I won't be shot down in flames.
On first point, general principles. We have no objections. This is
the reflection of a strong concern which nearly all delegations share
-- namely how can we insure that public interest is taken into account.
However, as regards promotion and protection of cultural diversity, I
would like to say that promotion of cultural diversity can only be
achieved by guaranteeing freedom of expression.
All cultures can develop only with creators. Once that is clear we
also have to remember that broadcasting is one of the factors in
promoting cultural diversity. Our discussions must be viewed from the
angle of all the players, the beneficiaries of rights in content, the
public and also the broadcasting orgs. Proper protection for
cultural diversity can be afforded only if there is sufficient
protection for industry b/c the culture important is important in
promoting diversity.
Japan: We think that these provision proposed by Brazil are
INCONSISTENT with WCT and WPPT treaties. We think this provisions
are misleading and may affect the following discussions. These
parties' concerns should be addressed by 3 step test, which is
consistent w/ WIPO treaties.
New Zealand: We recognize the importance of moving towards a
diplomatic conference. We would like to seek clarification on how
Art. X proposed by Brazil would relate to Brazil's proposal on L&E.
NZ would like to suggest that public interest concerns might best be
addressed by a provision on exceptions and limitations.
European Communities and its Member States (Tilman Lueder): We think
that these principles under Art. X are in the nature of a preamble,
we do not believe that general principles should be in an Art of a
treaty. These are general notions of access to knowledge. This is
preambulary language.
This is what we usually see in treaty texts as a preamble. We stress
that copyright and a2k should not be painted here as opposing each
other. The goal of copyright is promoting a2k. We would like to
propose that this go into the preamble so that we don't see copyright
and access as opposing goals. Rather copyright is given w/ the aim
of fostering a2k.
We agree with granting A2K, it should be absolutely clear that these
are not contradictory goals. We would think that such language
belongs to a preamble.
Chile: I request a clarification with regard to the comment of the
delegate of Japan that the general public interest clauses are
inconsistent with the treaties. My doubt is whether he is referring
to all the objectives in the public interest clause proposed by
Brazil or just some of them.
Because among them is the possibility to curb anti-competitive
activities which is an activity included in Berne and TRIPS. I would
like clarification on that.
Chair: Japan should respond when ready.
Brazil: Our proposal is pretty self-explanatory. We think the
objectives of a2k, education and science are common to most members.
We would like to safeguard them from encroachment from the new rights
that might result form this treaty. This is a new treaty that
establishes new rights that do not exist currently and may expand to
new subject matter as well.
Taking into account the unknown consequences and future technological
developments, the imprecision as to whether the treaty will cover
signals or content. These are all very straightforward objectives.
Regarding Japan's intervention, we intervened yesterday.
My delegation made a lengthy intervention yesterday explaining that
we are not a party to those treaties and we do not accept those
treaties as a basis for negotiation. We do not accept WPPT/WCT as
precedent. We think in many ways these depart from IP tradition and
do not benefit developing countries. Therefore we do not accept these
agreements as a basis for agreements.
New Zealand's comment in relation to Article 1, we think that
information related to
UNESCO cultural diversity treaty is relevant in many respects to CR
and RR and is legally binding for those who have signed that treaty.
We take the UNESCO treaty seriously. We think that this treaty may
affect the goals and substance of that treaty. CD is just as
important as IP. The objectives of knowledge, education and science
are just as important as protecting IP. We attach equal importance
to both. We do not seem it appropriate for WIPO's norm setting
activity to encroach on both.
Regarding the EU comment as to the public interest clauses as being
more preamble in nature. We think not, b/c there are many such types
of general principle articles found in other agreements. TRIPS Art.
7 on objectives are 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 favor treating private rights on a better
footing than public interest objectives.
I would emphasize the importance of incorporating these provisions in
the treaty because it creates new layers of rights. It is not clear
how these layers relate to other rights. Important to include these
provisions to avoid new layer of rights encroaching upon public's
rights.
United States: The US finds the proposals on these 3 concepts to
include vague, unclear language and potentially very broad. We agree
with the EU that it more appropriate to include in the preamble. It
should not be party of the operative agreement. If they operate to
limit scope of provisions in other treaties or this treaty, it will
be very unclear as to what exactly the scope of protection will be.
Also agree with Japan, they have not been incorporated in previous
treaties such as WCT and WPPT and not part of treaty tradition.
Chair: Up until now we have had a very positive discussion, US's
statement makes me think that makes it possible to continue to move
toward a broad universal content that is acceptable to everyone.
Egypt: We have read the two articles on general principles and
protection of cultural diversity.
In principle our delegation feels that these 2 articles should be
supported. There may be divergent views among delegations,
particularly concerning Art. X on General Principles as to the
language used. Perhaps we should redraft it to make it more specific,
but the content of this Article does deserve our support.
If we use medical terms, if we wish to support broadcasting
organisations and we need to give some medicine to maintain the
health of this treaty, I think that the language here is rather a
side effect of our cure. Perhaps we should improve the language in
some way but certainly the focus should not be changed, nor as the EU
delegate has said do we feel that transferring this to the preamble
would resolve the problem. We believe that the legal weight of the
preamble is not equivalent to that of the body of the treaty.
If we agree with the content of this article and if we agree with it,
we should support its maintenance within the treaty in one form or
another.
We also agree w/ the article on Cultural Diversity, largely b/c
international law as expressed in international treaties tend toward
a common goal -- that is, to avoid contradictions. So if there is a
UNESCO Convention on CD when we draft our own Br Treaty we should
include language which says perhaps that the provisions of this
treaty should not be in contradiction to the UNESCO treaty.
Kenya: We are of the opinion that these are good proposals and merit
being included in this treaty. However, we think that these proposals
can be dealt with under exceptions and limitations article. We have
also noted that information, national education and science have
already been provided for in L&E. They should be included in L&E so
that countries would have a leeway to promote these activities.
Chair: What was said by Kenya refers back to question of NZ as to
what is operational effect and impact on relationship to Article 1.
This is the question that NZ put forward.
Senegal: I forgot to speak to item 3 [Defense of competition] as to
the agreements on IP in the field of trade, there are principles that
competition should be free and fair. I think that we should promote
these same principles.
I think we should apply the same principles. Some concerns. We are
talking about unfair competition.
I should like to know how we can establish an international principle
which could be ratified by a specific party. Whereas here we are
talking about domestic legislation. Some practices might be
considered unfair in one country but not in another. I need
clarification in order to understand this better.
Chairman: Let's record that question.
Japan: We share values of the new proposal.
However the same thing can be applied to the other WIPO treaties. If
these provisions included only in new treaty then they can be
perceived as if they have some specific meaning and can be abused and
bring about new arguments.
The observation from Brazil: I don't care if some member ratifies
WPPT/WCT, they are themselves WIPO treaties and consistency is
required between WIPO treaties.
This is just our observation. Depending on goal of this meeting, we
don't have to come to agreement on this principle, we can go to DC to
discuss this and webcasting.
Australia: Much of what we propose to submit to the committee was
effectively conveyed in one way or another by preceding delegations.
In particular we agree w/ NZ in suggesting that meritorious
objectives could be, so far as they were at odds w/ or inconsistent
w/ protection of broadcasters, this could be accommodated w/in the
provision on E&L. And if not, we would be interested to know why it
couldn't be.
As to finding a way to give expression to the provisions that will
not impair protection, we could follow Article 8(1) of TRIPS which is
widely adhered to. This could be done by taking out the words (Art.
X) "nothing in this treaty shall limit the freedom of" and thus begin
the sentence w/ "Access to knowledge..." and then at end add
"provided that any such protection shall be consistent with this
treaty."
On Art Y (Cultural Diversity), we have the following concerns:
We question whether the draft treaty should include an obligation to
ensure compliance with another treaty i.e. namely UNESCO Convention
on CD. We believe that Art. 1 paragraph 3 adequately preserves any
obligations that contracting parties have under existing treaties
which are in force and to which they are parties.
On Art X on page 6 (Defense of Competition) of SCCR/14/3 seems to
impose a positive obligation to impose competition principles with
regard to IP in general, not just the rights proposed under this
treaty. We are echoing a concern expressed by Senegal of what is the
nature of this article as regards competition. In any case, it does
seem to us to be somewhat wider than the subject matter of the
broadcaster's treaty.
Following on, paragraphs 2 and 3 seem to have same broad
application. We feel that this seems to go beyond the scope of the
treaty.
Russian Federation: We think the provisions of the UNESCO convention
reflected in Art. Y should be in the preamble. This convention is
self-standing and in our opinion this is something that requires
additional discussion.
Moreover we think that putting these provisions into treaty could
lead to mistaken interpretation of exceptions and limitations.
South Africa: Just wanted to support Brazil's proposal. We believe
that this text addresses some of the concerns that we have. It seems
implicit to us that the multiplicity of rights of other parties
(authors etc.) are included. Seeing this in relation to Art. Y(b).
The question of placing is one that is quite difficult and we do
believe like others that to relegate it to L&E, brings its own
limitations b/c the overall broad idea is far more reaching as its
own article and that would be lost if it was moved to the L&E
article. You lose the whole range of what the text is advocating. We
think there is justification for having the text in the preamble or
as has been proposed by Brazil.
Iran: Two views from the past regarding nature of protection for
broadcasters: economic and social. These days we say that the two
are complementary. The public interest has been provided for in all
international treaties. The incorporation of language on a2k is not
just a procedural one, it is substantive. We support the inclusion
of these provisions in the treaty. We are flexible w/ regard to
language so long as we can keep the core objectives.
Brazil: I recognize the support from Egypt and think that we have
evidently a margin of flexibility regarding suggestions of redrafting
so long as we keep the substance of these proposals as they are.
There is room for improvement in terms of drafting. Regarding
Senegal's proposal that we relocate to the Art on L&E I think S.
Africa's response is good. It would reduce the coverage of the
clauses if we only covered these in the L&E. it would have a broader
coverage which is what we are seeking.
If it is a stand alone provision, as we have suggested, Japan
mentioned that it doesn't care whether members have become members of
WCT/WPPT and that we should strive to obtain consistency w/ regard to
those two agreements. Those two agreements depart from IP in many
respects e.g. TPM. DRM clauses, has atypical national treatment
clauses. It deals with IP in atypical ways. Being a member w/ Berne
and Paris Conventions for over a hundred years we should be
consistent w/ that and not w/ two recent agreements that are very
atypical in nature and have only been adopted by a minority of
members. We would stick to the big agreements, and to TRIPS in many
respects. These are a better reference. That's not to say that we
don't care about membership of Treaties. We do. We care about
everything in this organization.
Signals carry content. If we are to imagine that this treaty would
apply to webcasting, practically everything that is transmitted over
the Internet, including scientific info, cultural info, news,
anything that defines the cultural identities of nations, and the
cultural identity of nations is the subject matter of UNESCO treaty.
Any such thing perhaps could be affected by exertion of private
rights conferred on broadcasting organization under this treaty. This
is a big new step, uncharted territory. This can have a real impact
on the freedom of countries to safeguard their national identities. A
right of such magnitude needs equally broad safeguards.
Mexico: We have considered these proposals with great care,
particularly Arts X and Y.
We believe that we must be cautious when we draft these treaties and
we should follow the path of the WPPT/WCT, which are recent but
nevertheless have been broadly accepted as we know.
Art X and Y contain very valuable ideas, but go beyond scope of
proposed treaty. What we are trying to do is update rights of
Broadcasting Organizations. It is familiar territory for many states
since we negotiated WPPT/WCT a few years ago, and we are not
negotiating anything radical but rather updating the protection that
should be accorded to broadcasting organizations.
India: Would like to make one suggestion regarding placement of these
clauses.
To begin w/ I would strongly support all of these 3 clauses. However,
issues have been raised about placement and the broad sweep that
these articles might have.
Art X on general principles is essentially a broad statement on
general principles which resonate w/ preamble clause 4, which says
'recognizing the need to preserve a balance b/t broadcasting
organizations and the broader public interest particularly research,
access to education and scientific knowledge. Either we reformulate
this clause 4 or replace it w/ Art. X, b/c they are very much akin.
[Suggests draft wording]
In case there are differing articles in a treaty at the time of case
law (interpretation), legal expert then refer to the preamble to know
the intent of the treaty.
And if general principles are as enunciated in Art X, then could be
modified to incorporate into preamble.
Art Y on cultural diversity, Art. 1, sub-clause 1 in the main text:
"nothing in this treaty should derogate from..." This is a broad
sweeping statement of Contracting Parties obligations in relation to
other treaties. Art Y is essentially drawing our attention to the
obligations of contracting party. I propose that Art Y could very
well be accommodated under Art 1. This would meet requirements of
proposing countries and deal with concerns of other countries about
impact.
On defense of competition, I'd like to draw your attention to Art. 12
on L&E, especially the proposal of Brazil on the elaboration of L&E,
while we do recognize that the anti-competitive provisions should be
maintained, we think that this provision could be read w/ L&E and
appended there to.
Three clauses could well be in treaty, but in different places in
treaty. Art X in 4, Art 1 in preamble and Art Y in 12[?]
Chairman: Thank you for your most constructive comments on how to
include these clauses in the treaty.
Benin: At this stage in discussions, I'd like to address the three
issues under general principles. I must acknowledge that these
points are very positive and valuable b/c they draw our attention to
rights granted to broadcasters. We are dealing here w/ provisions
related to protection of broadcasting organizations so we think that
my country, which was very active in UNESCO which led to the adoption
of the convention of c/d, should support the principle of these points.
However, when we come to the competition article we think that there
are other anti-competition provisions which could be used. What I'm
trying to say is all 3 are justified but that we have a question of
whether they should be placed in the treaty. My delegation thinks
these points could be better placed in the preamble of the text and
they could be reworded accordingly.
Morocco: We've read the Articles X on page 5 and 6 very carefully and
we support the content of the general principles, this is what we
said yesterday when we reiterated the importance of access to
information etc.
However we don't agree with the vague wording because it is obscure.
We also don't agree as to the place where this article should be
inserted. We are working on an international treaty. These
provisions and articles have to be logical, clear and accurate. If
these articles are inserted, even if the content is fleshed out, we
have to be a bit cautious.
The delegate of India said something interesting on this. Morocco
also participated in the development of the UNESCO convention and we
support the inclusion of the reference but in Article 1.
On art 6 (defense of competition) some expressions are difficult for
me to understand e.g. practices that unreasonably restrain trade. I
don't think we are qualified to judge this.
As to access to the public to information, I don't think the
reference is in the right place. It should go under L&E.
EU (Julie Samnadda):
First of all, I would like to reiterate our previous intervention in
relation to Art. 6 on general principles before moving on. Provision
on general principles has the nature of a preamble; however as
currently formulated it does not satisfy our concerns even if it were
in the preamble.
That is why we would support the intervention of India to a certain
extent.
Nevertheless there is a degree of overlap between Defense of
Competition in [] and []
Moving on to Art. Y (cultural diversity), this is an issue that the
Community and its member states take very seriously. We 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 CD 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.
Nevertheless we believe that art 1 will currently suffice and to
insert a specific reference to one specific treaty places at risk our
compliance with other treaties such as WPPT/WCT/TRIPS.
On the defense of competition, Art X, is view of EC and members,
TRIPs Art 40, if we combine specific language in Art X, we create
another level or tier which would call into question whatever has
been agreed in the TRIPS agreement
Chile: I would like to start w/ the first question put forward by
the delegation of Australia regarding the first paragraph of the
defense of competition article. My understanding is that their
concern is that it might apply to other IPRs that are not referred in
this treaty.
The answer from this delegation, is that Member States shall take
adequate measures when implementing this treaty. Therefore there is
no obligation w/ regard to other types of IP not covered by this
agreement.
Also, there is the question of Japan that this obligation allowed by
art x will interfere with WIPO treaties, but 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, w/ 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. Regarding Egypt's
comment, in fact, competition has always been considered one of the
acceptable limits of IP law. Therefore it could be included in L&E
and we could agree with that.
Jamaica:
Just for clarify, in relation to Art X, p. 5 of Brazil's proposal, we
feel that has sufficient merit to be a stand alone provision in Art
1. Would even support Australia's proposed rewording, and could be
included under Art 1 still. As for Cultural Diversity, we think that
this is already sufficiently covered in Art 1 referring to other
treaties. As regards to Defense of Competition, as much as we would
appreciate more clarity, we would be prepared to support its
inclusion in Art. 12.
Algeria: The principle of access to information and protection of
cultural diversity as set forth in articles X & Y are fundamental
issues which developing countries which to protect. The general
principles could perhaps appear in the preamble and article 12 could
cover the other article on defense of competition.
Nigeria: We believe that the task before this distinguished body is
not as difficult as it appears. We support the fundamental purpose
of treaty. New treaty creates private rights. The prevailing and
compelling necessity to insure the promotion of public interest as
expressed in those articles as a matter of substantive law. Art X
and Y is not negotiable and self sustaining provisions which should
not be tempered or watered down in any manner. We support these
article as they stand. We support the thematic theme as employed by
all three of these articles w/ appropriate textual modifications
as may be required to give effect to its purpose.
Sudan:
Would like to speak to Art X, General Principles, this article is
imprecise in my view and needs to be redrafted. Art Y, CD, makes it
possible to promote cultural identity at a time when a cultural
revolution is under way. We already have a UNESCO Convention.
This should be included in Art 1- the relation to other conventions.
Japan:
Quick response to Chile's question. Whether we like it or not there
is no such reference to defense of competition in WCT/WPPT.
No such provisions of defense of competition in WCT. If we adopt it,
will be perceived that this kind of limitation of copyrights will be
perceived as if WPPT/WCT don't have such provisions. However, there
is a three step test. Defense of competition is not usually a
violation of the three step test.
Brazil: Again, it's important that we are clear whether WPPT/WCT are
relevant or not. There are many issues that are defined in the DBP
that are not defined in those other two treaties. Additionally,
broadcasters are not a beneficiaries of protection under the WPPT.
There are many terms that are not defined in those other treaties.
This is a new treaty, beneficiaries not the same. Can't use those
treaties as negotiation basis. We are going into uncharted territory,
need safeguards on board.
US: I intervene to support the intervention by Jamaica and the EU
that Art 1 is sufficient to cover the reference to the Convention on
Cultural Diversity w/o specifically calling out that convention
Would also consider language in preamble to recognize important
interest of protection promoting and protection of Cultural diversity.
Chair: We have had a very enlightening discussion, many useful
proposals have been made. We may be ready to decide how to proceed
further. In any case, these items will be part of the practice in
one form or another. The main candidates are: as preambulary
language; in Art 1 & 12. Also the need to further modify the
wording. Now we need to address drafting. Seems clear that this
item is open to further drafting. We could embark on another debate.
We have two candidates, term of protection and eligibility, which are
not dependent on the core issues around TPMs and webcasting.
In order to make this debate simpler, as reflected in Art 5 of the
revised work program, the basis for consideration is found in 14/2
Art 13 (50 years) and the alternative that is part of the basic
proposal found in 14/3 Art 15 (20 years), proposal of Singapore. Both
alternatives, if no decision is made by SCCR, will be presented in
the basic proposal.
We have gone through the substantive issue of term of protection
several times. In the report from 2004, there were a number of
delegations that were lending their support to 20 years. Taking into
account inclusiveness, the question is easy to recognize and understand.
It seems that we can leave this issue of two proposals (20 years and
50 years) to the working document. And here we can make a clear
conclusion and do not need further discussion of this.
Brazil: Just a clarification of where we're at. I don't have an
issue w/ the inclusiveness. I would just like clarification on Art.
13's wording. There are several stakeholders in Brazil who are
concerned about this. How is the term of protection triggered? Is it
broadcasting for the first time that triggers the term of protection,
or any broadcasting, even if repetitious or new broadcasting. Subject
of much discussion within Brazil.
Chair: Indeed, both proposals (Singapore's 20 years and the 50 years
in DBP) do not include extra criterion concerning the starting moment
of the term of protection.
It means that each broadcast independently enjoys its own protection
and becomes public domain 20 or 50 years after its transmission. This
is crystal clear in legal terms.
There was in at least one proposal in the history of this article
where this criterion appeared and this element was deliberately
eliminated by prior Chair who drafted consolidated text.
This would blur the question of what gets protected and when.
Each signal in air only once, and then fixed.
If you wish it may be added.
Brazil: Your clarification is the reason exactly why there is a lot
concern in Brazil with the way this is currently worded. It becomes
very broad as it now stands. First of all if any broadcasting is to
be protected b/c we're dealing w/ signals, then there has to be a
clearer exclusion of content and this is not the case. At several
instances in the treaty, we refer not only to signal.
My suggestion would be that we use only the word "signal" and not
refer to or use the word "programme" in text. If the protection is to
be as broad as to include any broadcasting, original, first, any
broadcast, we think that this is too broad, imprecise and will
generate confusion. It will be hard to implement and track. Generate
confusion. It is imprecise and hard to implement, hard to track. If
this is the understanding then we need to stick to a treaty that
deals only with signals. If not, if for first transmission only,
there has to be some kind of creative input her in order to justify
such a lengthy term of protection. Additionally, the telecom
authorities of Brazil have made the point that if we are only dealing
w/ signal then it is inadequate to deal w/ them under an IP regime
b/c there is no justification. No traditional grounds for dealing
with under IP rights. Would be better to deal with through some other
ITU instrument. If we are going to have such an understanding on
term, we need to be clearer about distinguishing signal from content.
These are substantive concerns and we need to be clear.
Chairman: We are easily engaging in a debate which is repetitive of
what has already been discussed in this room. This is a technical
issue, easily dealt with. I am quite convinced that we will have no
problem clarifying this once we are closer to defining the scope of
protection. We will be able to solve these technicalities.
India: While a recognize the formulation that you have placed before
us that both options would be reflected in the draft for further
consideration, I would only like to point out that the formulation as
both of them stand need to look at issue that since SCCR/13 two of
very important rights considered earlier have now been given up earlier.
Right to distribution, and other right dealing with post-fixation
[right of communication to public]
Therefore the logic for a longer term protection becomes diluted.
Number 2, the question of whether we are covering the signal or
content is important. Art 2 clarifies that this treaty only refers
to signals, not to works and protected works carried by such signals.
Therefore a period of 20 years, let alone 50 years is a contradiction
of terms. But the 2nd clause refers to broadcast organizations. If
the limitation is for the broadcast, then obviously the first
broadcast should be considered. Obviously the first broadcast is what
should be considered and it should also be clear that the broadcast
does not refer to the content but to the overall broadcast that
includes content and other material (?). Therefore I submit that
while we appreciate the need not to devote too much time to this
subject, there are concerns that a 20 year period for the protection
of the signal is a contradiction in terms.
We need to focus on whether we want to protect signals only or
signals and content.
I have no objection to both options being available for discussion
further on but think that the elaboration needs to be clarified.
Chile: Just a clarification, no problem with including two possible
term periods in DBP, but I'm wondering what is the relation w/ this
type of consensus w/ the question of whether we are going to protect
webcasting or not. I would like clarification of how this moves. If
we agree later to include webcasting, then the term of protection
might not be suitable.
Chair: We have two proposals. Webcasting and EU's simulcasting
proposal, for 50 year term of protection.
It seems that both alternatives are applicable to the result as far
as the scope is concerned.
Of course if delegations have other suggestions they will be considered.
But for now, would be for one or the other of these.
Korea: We had previously supported a minimum 20 year term of
protection, which allows member states to provide more if necessary.
However after thorough domestic consultations, we have come to the
view that providing 50 years of protection is more logical, as is
provided under the WPPT.
Philippines: We support Brazil and India that at this point before
we move forward we really have to have a clear definition of terms
regarding 'signal'.
This was what gave me problems when I read the terms of the treaty.
As my experience as Chairman of National Broadcaster in Philippines,
I have always distinguished between signal and programmes on the
content side. It is necessary for purposes of clarity that we define
these terms. There seems to be consensus on protecting 'signal' but
there is not common understanding on what this means.
Would humbly propose that if there are legal precedents as to what
that means, it should be put forward so that we can discuss this.
Chair: I would ask if it would facilitate the process if we would
add one element to both proposals, namely in the end w/in square
brackets "for the first time".
This was in fact the form of one of the proposals, that was
eliminated, in order to streamline the process.
Let's have a silent procedure on this, if there is consent. No, there
is no consent.
Iran: Recognizing the need for clarification, we agree w/ Brazil and
India.
Mexico: I don't want to extend our discussions but we support the
proposal to keep the two articles. We have a proposal which perhaps
would help to dispel the controversy mentioned by the secretariat.
Egypt: What I'm worried about is that we must make sure that the
different parts of this treaty are internally consistent. The term
of protection isn't in itself a controversial issue. In Egypt we
prefer the period of 50 years.
The main problem is when does the term of protection begin. Before I
answer that, I have to take us back to art 3 which is the scope. What
is protected by the treaty? Well, the treaty protect first of all
signals and then programmes.
The treaty protects signals in an external matter but in an effective
manner it protects content. Is there a difference b/t the protection
of these programs and the protection of the copyrighted content?
Personally I haven't understood the difference. When does the
protection begin? At the start of the broadcast? We can't avoid this
question. We really have to give it consideration.
South Africa: As much as we understood the text of your summary, the
concerns raised by Brazil and India are serious.
With regard to the term of protection, we haven't adequately
discussed the issues raised in terms of what we are protecting.
Inserting language that reflects specifically what we are talking
about won't present much difficulty if indeed we are all in agreement
that we are not talking about content.
Although the first aspects of art 3 imply that the focus is on
signals, but then when one goes further into the narrative of the
article one gets a sense that issues of interpretation could arise
depending on which view you hold.
Colombia: On the subject you've raised - term of protection - we
agree that this subject should be examined in the context of
protection itself. What is the subject of the protection? Over the
last 45 years the international community has worked hard to define
protection schemes. The Rome Convention granted to performers and
authors of phonograms 20 years protection but there are few legal
systems that have maintained the 20 year term in practice. In our
country, there are a great many works, and associated with the
copyright, we've even gone beyond this period of protection. So in
our region, this terms has been exceeded. Done to avoid situation
where works that should be in the private domain go into the public
domain and piracy can occur. For instance works which should have
been in the private domain go into the public domain and piracy can
occur. Thus this is not a frivolous protection scheme. The EU have
followed the same path. But this example of authors was a wise
decision making it possible to maintain levels of protection
satisfactory not only to authors but also to investors. We support
term of 50 years, which is inline with our domestic term of
protection. This makes it possible to establish rules that allow us
to come to agreement with others in Andean community.
Chairman: We have to finish in four minutes. I will offer a small
explanation to say there is no reason to problematise this area too
much. The question of what is the object of protection, that is
something that we have to decide and consider in any case and not
something that we need to decide in the context of the term. B/c the
phenomenon that will be protected will have some qualities.
If we call the object of protection here now broadcast. We have
defined broadcasting. Broadcasting doesn't exist w/o transmission. We
have defined broadcasting, broadcast doesn't take place without
transmission, which requires signal. Two options: any point in
existence, or what is the object of protection remains open for
debate. So the conclusion was already offered - there will be two
alternatives. These concerns have been recorded and this explanation
will be included in the report of the meeting.
We have two minutes of time left.
Brazil: in light of so many doubts and imprecision, not only term of
protection but the wording used, as well as what was raised by Chile
regarding the relation of term of expression and the issue of
webcasting - for which delegates may seek to have a different term,
given dynamics of Internet etc. I would propose that the whole of
Art. 13 be redrafting taking into account our debate. We need to
bracket this whole article until we are clear about the meaning of
the scope of protection. Perhaps you can provide us with an
alternative as to what we can use. If we could use the term signal in
the term of protection it may make things more clear.
Also suggest that wording "for the first time" appear - even if it
appears in square brackets.
Chair: We will revisit these two areas in the afternoon after
discussing the issue of webcasting.
Lunch break 13:02. Meeting adjourned until 15:00
---
SCCR 14, Day 3, May 3, 2006
3:38pm Day 3
Chair: summarizing work before lunch. Draw up conclusions tomorrow
evening and then distribute.
As proposed by India let us now proceed into the question of scope of
application. Item 6 in our work programme. The scope of application
is composed of two elements
1) Scope of application of draft treaty (Article 3)
2) Appendix which extends scope of application to webcasting.
I was asked several times again over lunch about the appendix. It is
clear in the overall comments to the annex that this is meant to be
an integral part of the treaty but the obligations are not applicable
if the contracting party has not made a notification to sign up to it.
This appendix is optional [RP comment: but its presence as an
appendix immediately means the main treaty has to be considered in
light of it]
One final reminder, we have discussed the question of webcasting and
simulcasting this several times since US made known its proposal.
There has been broad opposition to the inclusion of webcasting into
the main treaty.
The view has been put forward that studies should continue,
negotiations should continue and that should be dealt with as a
separate matter in the future.
Another point of view is that simulcasting, i.e. webcasting done by
the broadcasters at the same time as they broadcast, should be in.
This was the view of the European Community and supported by several
other delegations.
Since Nov 2004 a number of doctrines have been developing.
China said webcasting should not be included as a mandatory provision.
Then Senegal suggested that it should go in as an option so those who
wanted it could sign up and others could find out what would happen.
Others such as Russia were also interested and were instrumental in
providing views on what form this package would take.
Then first rough, rather clumsy document I drafted was the Working
Paper with three options. Too many options.
The current document is simple and clear. Now possible for everyone
to engage in meaningful discussion. Apologies for lengthy
introduction, but important to
We know the broad opposition - We know all that. All but the United
States have opposed it.. We know that. So there is no need for a
series of interventions saying we oppose it.
United States: As we stated yesterday we have taken the approach of
inclusiveness. We believe the same attitude should be taken to
webcasting with respect to its inclusion in the basic proposal.
Making them non-mandatory (like the opt-in appendix to Berne) we
believe would address the concerns that delegations have expressed
regarding webcasting. As the delegate from the Ukraine stated
yesterday: we will miss a great opportunity if don't address this
issue in a flexible manner now.
Want to remove uncertainty caused by use of word webcasting.
Have never intended to cover webpages, blogs, and email. Intended to
cover that
content that is like broadcasting, broadcast over Internet that is
assembled and scheduled for transmission in same manner as
broadcasting over Internet
We would be pleased to work with delegations with respect to the
scope of webcasting.
Egypt: I've read Article 2 of the Appendix which contains the
definitions. This is one of the most important articles in the
appendix. My concern has increased at this second reading. Is this
appendix necessary -- I don't think it should be there. When we talk
of transmission by Internet this is transmission of sounds and images
for reception by the public so I don't see the difference between
normal use of the Internet and webcasting.
When we read this we draw a difference between transmission and
retransmission. Broadcasting is done over the radio or by television
but webcasting is done over the Internet. I am not a technician, I'm
just looking at this from a legal point of view. Are we going to draw
a distinction on the basis of technology? Webcasting is different
because it is done over the web, it is different from radio or
television. Are we going to produce a law basing ourselves on the
means of transmission. Technological progress might cover all these
transmissions through one single means.
In the future, is it possible that we may have something more
advanced than the Internet? Given the rate of progress won't it be
the case that all the technical data, and even the legal data, will
be out of date in a couple of years.
European Communities (Tilman Lueder):
We would like to clarify the debate in the light of comments we have
heard in the last two days. We have a proposal of a procedural
nature to structure the debate.
Took us quite considerable time to understand what meant in
non-mandatory annex and what is meant by a webcast.
Very helpful for US to clarify that webcast is not webpage, blog, or
any distance communications
It is not helpful that we continue to labour here under
misapprehension propagated by certain weblogs that this treaty wants
to assert that any form of web communication, weblogs are included in
this treaty.
We would never support a treaty that would protect a webblog (private
or professional).
There is no need to incentivise or protect such activity. It is
happening anyway.
What we need to clarify there is what is the scope? We do not want to
create a new beneficiary. Must remain b/o as defined by treaty. Our
starting points is that there will be no new beneficiaries. No new
org of any sort to get protection. Only people protected would be
broadcasting organizations (as defined in main section of the treaty).
There is a provision on cablecasting. If a cablecaster takes own
cable program and retransmits over Internet, then is protected.
Consensus to extend to new medium but not to a new class of
beneficiaries.
Consensus over medium of cablecasting. Now question is whether to
extend to Internet as new means of communication or transmission.
This is where an existing broadcast organization uses the medium of
the Internet to transmit. We do not extend it to a new category of
people.
More logical and rational debate if we can focus on that issue. All
activities that are similar to broadcasting, those we have to decide
if should be protected. Open to having that discussion with any other
delegation.
South Africa: Regarding your comments on the non-mandatory nature of
the appendix. There seems to be an assumption that both the affected
parties would reside in one state. What would happen if you had party
A is a signatory but party B is not? Another item that the document
is silent upon is the question of liability for broadcaster. If you
give people rights that has to come with response about liability. If
you give broad rights, then you also must deal with liability.
Again there is an assumption that broadcasting is the entity involved
and there is no discussion of other relevant parties such as telcos.
There is a concern that authority is being assigned to a single party
(i.e. the broadcaster).
Bangladesh: This is a broad subject. Webcasting should be considered
separately. We feel that webcasting should be considered as a
separate entity or a separate domain.
Webcasting has a direct relation to the issue of cybersquatting and
cybersecurity. What relevance will this have unless we talk about
ICANN. Another issue is that we are of course against illegal
webcasting but we need more discussion of the fact that country of
source and country of destination may be different. We need to talk
about Internet governance before we rush into a treaty on webcasting.
Can come to some contractual agreements or licensing agreements. Who
will control the governance of the Internet. May be premature to
discuss webcasting until broader issues addressed,
Iran: Have some concerns about Art 3. p.17 from the presentation of
yesterday morning. In section 1 of Art 3 object of protection is only
the signal and contents is excluded. In section 2 the entity
receiving protection are broadcasting organizations in respect of
their broadcasts.
Other language is that used by Prof Lucas. Not signal, but not
content. Better to say "program" b/c that is what are investing it.
For me, very important to know object of protection, as legal counsel
in communications agency.
Algeria: Webcasting is a fairly new development which is not covered
by all countries. so adopting an appendix like this seems premature.
Broadcasters who broadcast over the net do not have the same
responsibilities as conventional broadcasters. Art 6 of the draft
treaty which speaks to simulcasting and the retransmission after
fixation responds to concerns of 'castings orgs. perhaps we could put
this issue on the agenda of future meetings.
Brazil: We have concerns with this appendix. As stated before, at
this point in time it would be premature to start upon these
negotiations. We are in the middle of a rapid process of
technological convergence. For Brazil, as a developing country, it
would be even more premature for us to sign up to this. In the last
few years we have invested a lot in developing Brazilian model of
digital TV. We don't know what the consequence of an appendix such as
this for this new model. We think there should be more discussion on
the appendix, more debate on the definition of webcasting and a full
impact assessment with special attention to developing countries.
We believe that the Internet, both in Brazil and in other countries
has developed so rapidly because it has been fairly unregulated. At
the WTO, at WIPO and even at ICANN they don't have any specific
mandate to regulate the Internet. I was fortunate to be at WSIS and I
have heard from the same delegations who are pushing this issue here
that the Internet is great how it is and should be kept unregulated.
I think it ironic to see the same delegations here trying to regulate
the Internet.
Looking at definitions:
(a) when we say 'wire or wireless over computer networks' is there
a definition of computer network? Would it not be better to say
transmission over IP protocol?
Defn of webcasting entity, means "legal entity.". When I have in mind
the Internet in Brazil, most of content producers in Brazil would not
fit this definition. Would it mean holder of domain name or someone
who is regulated / incorporated entity in a country.
I have heard it for last three years
We have invested in last few years, in trying to develop Brazilian
model of digital TV. Don't know what consequences are of new
Useful to have full impact assessment of right in appendix; useful
for developing counties
In international scenario, useful to notice that ITU, WIPO and even
ICANN do not have any specific mandate to regulate the Internet.
When we see how the document is presented here we don't really see
this as optional because a country who doesn't sign up won't have
their webcasts protected in other countries.
Face burden that their nation's webcasters would not be given
protection.
Countries that decide not to adhere to this protocol, they will face
the burden of having their transmission NOT protected in other
countries. This falls out of the national treatment and MFN
provisions in TRIPS. How would this fit under the TRIPS MFN principle?
Senegal: We all agree that since we started making our statements
no-one has objected to the appendix outright. This is why I feel
uncomfortable. I feel this text is not yet mature. I think we should
make this more comprehensible. Create at a regional level discussion
groups and seminars so that we can produce an informed text. It is
not a question of creating new beneficiaries -- no we are not -- but
still we must regulate yet another kind of broadcasting activity.
We all agree we need to evolve however while bearing this in mind we
should be responsible and careful in our lawmaking. We must not leave
too many loopholes. We are developing countries and LDCs but we need
scientific and technical progress and we must protect creative people
because all the important advances have been due to our creators --
so we should protect them. Economic growth requires investors,
domestic or foreign. One of the critical elements encouraging
investors is the protection of their rights.
Croatia: Central European and Baltic states support simulcasting as
adopted at regional meeting last year.
Australia: We have already stated our position. We're still
considering our position with respect to adoption of draft appendix.
As part of that consideration, we'd be interested in having
responses to several questions.
2.3 of appendix: has option of extending protection to simultaneous
and unchanged webcasts of broadcasters. Is there any reason for not
extending to cablecasters when they do the same.
3.1: operation of mutatis mutandis application. How would it work
with respect to art 4.2 of the main treaty (which establishes
relation between a broadcaster and a contracting party). We are
wondering how 4.2(ii) would work out -- what is a transmitter in the
context of a webcaster.
Operation of technique in Art 3.1 to webcasting operations. or 3.2
with respect to simulcasting organisations. How would mm operation
work out to paragraph 4.2 - main point of connection b
What is Internet equivalent of the transmitter? Would be interested
to hear expert views on that issue.
Ghana: Look at art 2 SCCR/14/2. 2(a) clearly states that broadcasting
should not be considering as transmission over computer networks. But
art 2 of the appendix provides a definition of webcasting so need to
draw out the connection/conflict.
The best we can do here is simulcasting in our opinion because that
flows directly from broadcasting in a simple manner.
Perhaps we need a separate instrument, since these two documents,
things, don't seem to be helping each other here,
Iran: Here is the second part of our intervention. We don't want to
say webcasting does not exist -- simply that to deal with it is
premature. 45 years after the Rome convention we now have
cablecasting included in the treaty. We don't say we want to wait the
same time for webcasting but we should wait to some extent.
The nature of broadcasting and webcasting is different.
Regarding webcasting as we understood 12/5/PRO it is the receiver who
initiates transmission. Webcster controls the transmission.
Most webcasters are not in developing countries so we should be
concerned about this process.
Regarding the non-mandatory appendix: we don't think this is really
true.
If one country adopts appendix, second country will give protection.
Time of accession different but status the same
Any contracting party of the treaty may accede to the appendix either
when signing the treaty or at some later date. But this means that
when you sign up you sign up to the appendix even if you only notify
later.
Art 3: scope (p. 77) will then become mandatory.
Want all references to webcasting removed from treaty. Delete Article
2(d), 4(1) and 29a) and (b) - to clarify beneficiaries here;
transmitter 492).; Art )6) - by any means, and over computer
networks, Art 9 - by any means, authorix, Art 10.1,
Art 6: 'by any means' and 'over computer networks' should be deleted
Art 9.1: ??
ARt 10.1: sentence after 'such a way' to the end: delete
Art 10.2: similarly
This comes from 12/5/PROV.
Chairman: thank you though let us note this only applies if
webcasting is removed from the treaty
India:
Welcome interventions from US and EU in setting at rest some of the
apprehensions about webcasting.
Now clear that webcasting in the broadest sense was not supposed to
be in the treaty and was essentially to a look at another platform,
namely Internet, and was to give some semblance of protection to that
alternative platform.
Certainly helps to dispel some doubts and uncertainties about
appendix and even scope of treaty itself.
If the suggestion is webcasting/simulcasting is to be limited and the
protection is limited to the broadcasting organizations there are
certain things we should think about.
Request clarification on some of the balance issues before we can
proceed further on this text. The nature of the rights that we are
discussing from Art 6 - 10 predicates that
1. The nature of the rights we are discussing (Art 6-10) predicates
it is a right to authorize or the right to prohibit unauthorized
transmissions. In the case of broadcasters and cablecasters (and
other legal entities involved) it is easy for a country to be able to
regulate that protection. But in the case of the Internet it is very
difficult -- since the Internet is so flexible. Thus as a contracting
party, as a regulatory body, it would be difficult to actually
provide that protection. How would the protections/rights being
considered be enforced?
Who are the beneficiaries of this treaty? (Art 4.2). It is based on
the assumption there is a head office, there is a transmitter etc so
there is someone clearly responsible. But transported to the Internet
it is much hazier and we really need to look at these issues.
2. The nature of the rights (art 6-10) and the L&E (art 12) need to
reconsidered in the light of the new proposal (even if just
simulcasting). My feeling is that these articles will need to be
reworked even if we just consider a limited version of webcasting.
'mutatis mutandis' would create a lot of practical difficulties. I
would strongly suggest that though a clearer and narrower focus for
webcasting is being suggested I think we need a separate document for
the appendix rather than just having it tacked on.
Having it as a separate document (e.g. a protocol) it makes it easier
for developing countries to look at it as a whole and work out what
they are signing up to.
Another advantage of differentiating the 2 texts is that we can
separate L&E for normal broadcasters from this other case. This will
allow us to clean up the main text.
3. Liabilities of intermediaries such as telcos or other webcasting
orgs. I would like to bring in distinction between broadcasters and
cablecasters. Cablecasters are pure retransmitters? Original
broadcasting service provides the broadcasters. Cablecasters like
telcos are just retransmitters.
Therefore any rights we are discussing should focus on rights of
origin broadcasters, versus cablecasters, mere repackagers. Need more
clarity from the EU and the US who have been putting forward these
'narrower' webcasting proposals and implications of appendix.
I would like to highlight my understanding to understand the
implications of the narrower focus or definition and need to put into
own instrument.
Would facilitate two things:
(1) Easier for Member States to take a conscious view and decide
whether to adopt or not. Would avoid concern that by signing on to
main, by doing so , doing something else.
My sense is that scope of rights will
MM would create a lot of practical difficulties. Use would also need
to be examined in light of proposal.
But in the case of Internet difficult when access to the website and
simulcasting in digital format is extremely flexible and can be
accessed from anywhere to anywhere, different for reg body to provide
that protection.
One delegate raised question as to who are beneficiaries under Art
4(2). Premise of protection?
What about the liability of telecom companies or any other
intermediaries? Cablecasters retransmit broadcasts. Broadcasts
originate broadcasts.
Chairman: Retransmitting: when someone transmits who is not the
originator of the broadcast/webcast. According to the model we have
that person (the retransmitter) never enjoys the protections
envisioned in this treaty. Thus webcasting on the basis or a
broadcast you have received means you are a retransmitter and get no
protection.
Simulcasting: following EU representative: simulcasting protection
for 'broadcasters' would not create new beneficiaries -- it would
only be the original broadcaster who got the protection.
The US put forward a different view: a webcaster who is engaging in
the same efforts as a broadcaster (creating a schedule etc etc) would
be very similar to a broadcaster and as such would receive similar
protection.
Chair: EU, Kenya and Croatia - proposal was to support simulcasting.
Cf US - different approach.
Up to US and EU to clarify their positions.
Argentina:
Our delegation believes that this is a key issue for reaching an
agreement. Our position remains the same; we do not believe that
this issue should not be included in the negotiations. What we are
hoping to achieve is a Dip Con as soon as possible. This is hard to
achieve with this new language. Some delegations have looked at this
from a legal point of view. We would like to observe it in a
political view. You are seeking to consider there is no "risk"
involved since it's "non-mandatory".
In the real world, this is not the case. Bilateral FTAs - whenever
there are discussions of this sort, all sorts of WIPO treaties are
raised. Fact that is non-mandatory gives us no comfort at all. Like
many other delegations, we feel that this issue should not be a
barrier to our further negotiations. For last three years, we have
allowed ourselves to be distracted by this issue, and has slowed down
our progress on other issues in treaty. Would be difficult for
Argentina to accede to an agreement that includes this. All other
delegations opposing feel this way. Don't see we will make any
progress. Shouldn't be in this treaty. Should consider it in a
separate instrument.
We need impact assessments before embarking on webcasting.
We've said this from outset, particularly when were hoping to achieve
a DC
Chile: The issue of whether the appendix is mandatory or
non-mandatory is important but, the most important question is
whether the regulation we are proposing in the appendix is what we
need. Do we need this sort of regulation for Internet and
information society? I would say that burden of proof is on those
seeking this level of protection. They have the burden to prove
these are the norms that we really need.
What would be the effect on software developers, for developers of
hardware, for ISPS, for content providers? What is the impact on
access to knowledge? Orphan works is already a big issue yet we are
talking about creating a new layer of rights. Agree with what India
say. should look if this is right from of regulation rather than
borrow one that doesn't fit.
USA: Would like to thank India for clarifying concerns and
constructive suggestions on how we can address how such protection
would operate in context of basic proposal. Tot that end, want to say
that USA is prepared to consider alt language that could be included
in an annex that would address concerns related to webcasting.
Consistent with our previous statements: the scope of protection
granted to beneficiaries under the treaty (broadcasters, cablecasters
and webcasters) must ensure they have enough protection to prevent
against piracy while not harming content creators, consumers etc.
2 tier set of rights. Critical question should be what to b/c/w need
to protect against unauthorised use of their signal. Narrow focus on
signal is what is needed to bring these discussions to a satisfactory
close.
EU intervention useful. Chair's clarification was also useful but my
understanding of the EU proposal is that it goes beyond simple
simulcasting. For example a broadcasting/cablecasting which provides
originated programming over computer networks would be protected
[even if not 'broadcasting' it].
We've proposed two tiers of rights to try to deal with how to get
this balance. What do b, c, w need to protect against unauthorized
use of their signal. Narrow focus on signal is what is needed. We
agree with delegate of India, that what is needed is narrow focus on
theft of signal and that if we get that level of protection correct
that will help in identifying what beneficiaries.
Thank EU for intervention. If I understood recent intervention of EU,
goes beyond simulcasting, but also to broadcasting that might be
protected by br and cablecasting over the Internet. To our mind the
br and cable over Internet Would have difficulties in trying to
shoehorn those activities into definition of br and c in part b. c
those terms have established meaning in domestic law. May need sep
set of beneficiaries whether webc to reflect that they are conducting
these activities on Internet, bearing in mind that they are not br or
cablecasters.
While I would tank the del for constructive interventions, on how to
a tech neutrality and competitive parity are guiding principles from
outset. Do not just limit this to organizations because they are
broadcasters and cablecasters. Should also apply to other orgs who
invest time and effort to schedule and assemble content for
disseminate to public through the Internet.
European Communities and its Member States:
Fundamental difference: We have the open public topology of
Internet. None of this is broadcasting. The open Internet is NOT the
scope of the treaty. So many misunderstandings of what is meant that
have polluted discussions in an unfruitful way. The open public
Internet is not part of this debate.
Topology: open public Internet. Network of networks. The open
Internet is not the scope of this treaty.
However we have some use of the Internet by b/c who bundle content
and use net as means of transmission. They use the Internet in a
totally different way from the public Internet. For example they
offer content to only a certain set of subscribers (for example those
who pay). So if a broadcaster uses the Internet in that way then we
would be interested in providing protection. This is the closed
Internet.
Interested in a closed system where you reach your subscribers via
the Internet rather than via cable or broadcasting.
Let me reiterate: there is no new beneficiary. It only those existing
organizations (b/c) who use the Internet in a closed way who get a
right.
[RP: does that mean if you are a broadcaster and you are not charging
you don't get protection?].
Brazil: After hearing all the interventions, I think all the
legitimate attempts by delegations to clarify the issue, I am more
confused. As our colleague from Argentina said: the best thing to do
would be to stick to the original mandate of this committee and only
focus on broadcasting.
After consultation we have new doubts regarding the beneficiaries of
protection. Our main problem who is a national broadcasting
organization and who is not. How would the appendix on webcasting
(mutatis mutandis) be interpreted? What is a national webcasting
organization? Who is an who is not national? For example is the owner
of the domain name under the country code of brazil (.br). Is this a
national broadcasting organization of Brazil or is it the headquarters
or is it where the server is located? Clearly much work is needed to
clarify this. At this stage, we do not feel we can take a decision on
the appendix.
Croatia: Clarification for record - i previously spoke on behalf of
the 15 states []. Now speaking on behalf of Croatia. Political
negotiations are job for DCs. Majority of delegates do not have mandate
to engage in political negotiations.
India: In light of questions raised by us and others, and responses
received from US and Eu, would like to place suggestions.
It is obvious that much more work needs to be done with respect to
webcasting even on the narrow terms raised by the US and the EC. Do
we debate this at the expense at the expense of other issues?
If elements of webcasting continue to be in main text, I am afraid
that there will be lack of consensus. my sincere suggestion is that
we look at remaining items on agenda in more traditional format. Let
the ideal not be the enemy of the practical.
Mexico: Thank you chair. We also wish to support protection for
simulcasting, which we believe is essential. We continue to study
non-mandatory index. Continue to look at the appendix. Remember it is
non-mandatory and non-binding we shouldn't worry about it too much.
We've already heard this view expressed by Dr. Liepzig and Prof.
Lucas, so i think we should not worry about it too much.
Will have 15 min break. 5:25 pm
---
5:55 pm
Chair:
Talk now about L&E, TPMs, rights etc for b/c only. Traditional
broadcasters and webcasting must be separated. At 5pm tomorrow talk
about webcasters. Several possibilities. US wants to keep annex;
there are others who don't want annex at all. Third, have a separate
proposal, as suggested by India.
Now, consider only rights for traditional broadcasters.
Ask Member States to log ideas on how protection for Internet
broadcasting needs
to be different. We'll talk about this tomorrow.
Meeting ended 6:03 pm. Will reconvene at 10 am tomorrow.
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