[A2k] WIPO Broadcasting Treaty - SCCR 14 - Day 4 Notes
Gwen Hinze
gwen@eff.org
Fri May 12 10:35:02 2006
WIPO SCCR 14 - NGO Coalition Notes of Day 4, May 4, 2006.
Posted at:
<http://www.eff.org/IP/WIPO/index.php?f=sccr14_day4_edited.txt>
Full text below.(Warning - over 50 pages text)
----
WIPO Standing Committee on Copyright and Related Rights, 14th Session,
May 1-5, 2006
DAY 4 - May 4, 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]
Jason Pielemeier, jason.pielemeier at 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.]
-=-=-=-=-
Copyright-Only Dedication (based on United States law)
Except where indicated in relation to specific text in the following
material, the person or persons who have associated their work with
this document
(the "Dedicator") hereby dedicate the entire copyright in the work of
authorship identified below (the "Work") to the public domain.
Dedicator makes this dedication for the benefit of the public at large
and to the detriment of Dedicator's heirs and successors. Dedicator
intends this dedication to be an overt act of relinquishment in
perpetuity of all present and future rights under copyright law, whether
vested or contingent, in the Work. Dedicator understands that such
relinquishment of all rights includes the relinquishment of all rights
to enforce (by lawsuit or otherwise) those copyrights in the Work.
Dedicator recognizes that, once placed in the public domain, the Work
may be freely reproduced, distributed, transmitted, used, modified,
built upon, or otherwise exploited by anyone for any purpose, commercial
or non-commercial, and in any way, including by methods that have not
yet been invented or conceived.
-=-=-=-=-
Chair:
We have to separate broadcasting/cablecasting from webcasting.
What kind of differences between broadcasting/cablecasting and webcasting?
We should have the possibility of establishing two basic proposals.
There are delegations who accept the non-mandatory appendix as part
of the package. It enjoys much less support than
"simulcasting"-broadcasting over the "web" by [traditional]
broadcasters. Then there are delegations who do not accept having
webcasting in at all and even those who do not accept having
simulcasting in.
Should there be an appendix, a protocol, a separate instrument --
that would look like a separate treaty. What would be the connection
of these with the main text here?
I propose we now enter into a discussion on limitations and
exceptions , then TPMs then eligibility.
At some moment I will invite those delegations in the discussions
that concerned general public interest clauses; there were a number
of delegations how have proposed modalities to incorporate these
protocols.
Next item in our work programme is L&E. There are 4 proposals:
* 14/2 art. 12
* 2 proposals from last November 2005 by brazil and chile: pp. 14-15
* alternative elements from previous working paper (alt. T)
* new proposal by Peru SCCR/14/6 pp. 4-5
Australia: A preliminary point of clarification. Are we going to
discuss rights after we discuss L&E?
Chair: I have made a gross error and jumped over rights. I should
have had that first. Ok so let us start with rights.
In our work programme rights are categorized in 3 groups:
1. Exclusive rights: Art 6 and Art 7 (Art 5 should be omitted)
2. Right to prohibit: articles 8,9, and 10 (reformulated and
somewhat refined in this latest paper)
3. Art. 11: protection of signals prior to broadcasting
I propose we discuss these all together -- this can be said to be an
article by article debate.
So now I open the floor for a second time. Chapter on Rights-6, 7,
8, 9, 10, and 11.
Japan: Share the principle of inclusiveness. Like to mention 2 points.
1. Right of communication to the public and right of distribution
which was in the 2nd revised text and are now in the working paper.
We think these 2 rights should be included in the treaty
2. Right to prohibit [negative right]: in art 8, 9, 10 the right to
prohibit is adopted as the alternative to the exclusive right of
authorization. The concept of the right to prohibit is broad but is
it enough to prevent piracy?. Are the rights of broadcasting orgs
being sufficiently protected?
Egypt:
May I raise some points about rights. The right mentioned article 6
in the DBP-this article speaks about the exclusive right of
retransmission. This talks about retransmission over computer
networks. I suggest we delete "retransmission over computer networks"
since there has been objection to this.
I think we should treat equally rights given to broadcasters and
cablecasters. Art 3, which defines scope, refers to signals.
We know that cablecasters do not prepare programs but rebroadcast
programs that have been originally broadcast by broadcasting
organizations.
We would like to know whether cablecasters have exclusive rights to
authorize retransmission of programmers given that their role is just
to transmit the programmes that have been put together by others.
This seems to relate to the right to make available to the public
also.
Do the cablecasters have the same rights as the broadcasting
organizations given that cablecasters just retransmit but
broadcasters devise the programmes.
Chair: Indeed the cablecasting organizations whose rights would be
covered by the proposed treaty are not those who only retransmit. In
fact the principle that broadcasters or cablecasters who just
retransmit are outside the scope of this treaty (see art 3.4(i) which
says that mere retransmissions is not within the scope). So only b/c
who invest in their own programming (i.e. in making their own
programme content) are within the scope. See Art 2.(b) (broadcasters)
and Art 2(c) (cablecasters) which defines exactly who would count as
a b/c for the purposes of this treaty.
Egypt: Thanks for the clarification.
However in that case, do you think that it's necessary for the
article on definitions to speak of cablecasting organizations if
cablecasting organizations merely retransmit transmissions. Why do we
mention cablecasting organizations at all?
Chair: The reason we still need the definition of cablecasting is
because there are cablecasters who are like broadcasters -- i.e. they
have their own activities beyond mere retransmission. In some
countries there are very large cablecasters with significant
activities in urban areas -- and even in rural ones.
Australia [Chris Creswell]: We have several comments.
* Art 6: without making any comment on the scope we recall our
previous statement that we are concerned with its implications for
our domestic retransmissions arrangements. We are interested in
further proposals to quality this esp. proposals for reservations
from Canada and Argentina:
* The Japanese delegate proposed the reincorporation or
reinstatement of what was Old Article 7 on the right to communication
to the public. [GH now in the DWP] If that were found favor in the
committee, the Australian delegation would argue strongly in favor of
alternative M of this article which allows a country to have a
reservation with regard to this right, as this delegation has raised
on several occasions.
* Returning to Article 6 to just raise a drafting query, we may have
raised it before but we will raise it again since we are in a
technical discussion. We are interested to know why there is a
doubling up on the definition of retransmission. Art 2(d) includes
'by any means' but then Art 6 repeats this and goes a bit further [by
stating "over computer networks"]-- which seems unnecessary. There
seems to be a needless doubling up.
* We query the need for a right over the fixation of broadcasts. Art
8 covers reproduction direct or indirect in any form. Does that mean
Art 7 interpreted in light of art 8 means that the right of fixation
would not cover making a fixation from an unauthorised broadcast?
* Arts 8-10: the alternative of providing the right to prohibit.
Must the authorization then required be given by the original
broadcasters or may that right be assigned to some other entity.
Chair: may need some minor redrafting regarding repetition. I would
assume that the right was transferable. From now on we should include
old Art. 7 and old Art. 10 since we are considering all proposals.
Brazil: I would like to make comments on Article 5, 6, and 7
(exclusive rights).
* Article 5.1-in Brazil raised by our my counterparts with regard in
the utilization of this language and the language used in TRIPS ('no
less favorable'). Would it be better to use the TRIPS language.
* Art 5.2: would this encourage contracting parties to make use of
Art 8(2), 9(2) and 10(2). What treatment contracting parties receive
if they just use negative rights, will remain outside of the national
treatment provision?
* Art 6: It was the Egyptian delegate who mentioned that at the end
there is 'transmission over computer networks'. If we include this
does that mean we are including webcasting?. I personally doubt if
computer networks would be the technical and appropriate language.
Would this include cellphones and other devices that are connected to
the Internet?. I propose the deletion of this language "over computer
networks".
* Art 6: Exhaustion of rights: we are granting broadcasting orgs
far-reaching and never ending rights. When are broadcasting rights
exhausted? Suppose it allows another org to retransmit its signal.
Will there then be the necessity to sign a new set of contracts: one
for retransmission by wire, one for rebroadcast. When would the
original broadcast orgs rights exhaust themselves?
* Art 7: With respect to Article 7, our concern is with the scope of
the treaty. In article 3, it refers only to signal, and in article 7
this extends the scope to fixation. We could be encroaching upon the
rights of performers and other rights (WPPT, Rome, and TRIPS).
* Art 6 of WPPT, performers shall enjoy the exclusive right or
authorising reproductions of their performances.
* In Article 7(b) Rome: performers shall have the right of
"preventing the fixation without of their consent"
* Art 6(1) of TRIPs have similar language.
The result of this new language here would seem to be a complex
overlapping of rights that diminish the position of existing
rightsholders.
Later we will intervene on arts. 8, 9, 10.
Chair: Ask delegations with expertise on right of fixation to
address this later
Canada: [Bruce Couchman]
Article 6: Want to raise Canada's previous proposal, in SCCR/9/10
(June 20th 2003) which is deemed to be part of DBP as a result of
decision two days ago.
para 2 in art 6: [reservation that would allow retransmission of
free over the air broadcasting]
Article 6 (SCCR9/10)-distributed May 3, 2006.
Any Contracting Party may, in a notification deposited with the
Director General of WIPO, declare that it will apply the right to
authorize or prohibit the simultaneous retransmission by wire or
wireless means of unencrypted wireless broadcasts only in respect of
certain retransmission, or that it will limit it in some other way,
or that it will not apply it at all.
Comment: This wording is a limitation of the communication right
which appears in other submissions, in making this submission, we are
not indicating support for any particular proposal on the
communication right or another other right especially where such
proposal exceeds the rights of the rights owners of the content being
broadcast.
CR owners would of course, by entitled to compensation for use under
Berne in this situation.
Would also need to operate a reservation in relation to derogation
from National Treatment principle whereby free over the air
broadcasting exempted in this manner in one country would also be
exempted in another country which is able to receive that
transmission.
Bangladesh: Having a look at the alternatives [on which article?],
we would prefer the second version where it says that each would
accord "treatment no less favorable". I think the Brazilian delegate
said that this should be linked to TRIPS, and we think there should
be some reference to article 3.1 of TRIPS on related rights.
Therefore we would clarify that we are not referring to 'futuristic'
rights. Art 10: SCCR/14/2 art 10 para 1 and 2 we would prefer this be
retained. In Rome and WPPT it has been specifically mentioned that
the public should have access at a time and placed chosen by them.
Iran: Regarding Art. 6, as we indicated yesterday, "by any means" a
"retransmission over a computer network" should be omitted b/c it
relates to webcasting and that is related to the appendix. In Art.
9.1 "by any means" again should be omitted and "authorizing the
transmission" should not assume that broadcasters have the right to
authorize transmissions over the Internet.
Art 10..1: "in such a way that members of the public .... chosen by
them" (and same sentence in following para) should be omitted as they
refer to webcasting.
Regarding Art. 11 on 'pre-broadcasting', we think that this article
doesn't need reference to Art's 6-10 b/c in Art. 2(c) and its
explanatory note in 205, it has been indicated that the function of a
broadcasting org is the assembling and scheduling of the content of
transmission. So in pre-broadcasting materials raw material is sent
to... The signal doesn't have the same status after broadcasting, so
we think that this reference is not necessary.
We also have another point that we will come back to later.
Ghana: In my opening statements and subsequent statements, I alluded
to and indicated the way my delegations views on provisions related
to Art. 6 of 14/2.
I did indicate in my opening statement that my country has recently
passed new copyright law that gives similar rights to broadcasters.
Should be confined to 'original' broadcasts from traditional
broadcasting organizations or simultaneous transmissions by
traditional broadcasting houses (sic). Ask that text be redrafted to
reflect the views we have expressed.
Mexico: We would like to address Art 6. We think this Article is a good one.
If we did not confer this right, we would be making it possible for
broadcasts to be used by 3rd parties. So we unreservedly support Art.
6 as it stands.
USA (Jule Sigall): With regard to post-fixation rights in Art's 8-10
we would suggest should be merely the right to prohibit. We are happy
for countries to be able to have the stronger exclusive rights but we
would like to have this right to prohibit as the basic level. We
think that this is needed to make clear and avoid overlap of rights
with copyright owners and make clear that intention of treaty is to
prevent signal piracy.
Republic of Korea: There has been a number of cases known to the
public in which pre-broadcast signals were infringed. In this regard,
we hope that Art. 11 will stay in the basic draft so that this issue
will be the subject of consideration at the diplomatic conference.
India (S. K Arora, Secretary-Ministry of Information &
Broadcasting): The list of rights is substantial and you have
categorized them into three categories. I'll confine myself to the
first 3 rights. In the case of Art. 6 - right of transmission - since
the issue of webcasting and transmission over Internet has been
settled yesterday and you have given your ruling today that it would
form a separate text for consideration I would suggest that in Art. 6
the words "by any means" and "retransmission over computer networks"
may be deleted so that the right of retransmission will be confined
to traditional rights of retransmission wirelessly by Broadcasters or
retransmission by wire (cable).
In addition w/ regard to Art. 6, an additional clause could be added that:
"Any contracting party in a notification deposited with the Director
General that will establish instead of exclusive right of authorizing
provided for in paragraph 1, the following protection, and this would
be the right to prohibit the transmission or retransmission of a
broadcast or not permitted by the law of the country. The reason why
we would like this addition of a clause to Art. 3 is that the
broadcasters need certain protection not only of their signals while
the broadcast takes place, but subsequent to broadcast having taken
place, if we leave this right as is, then assumes that rebroadcast
can be done any number of times and that it is an inherent right for
the broadcaster to do retransmission only when he requires.
This would in conflict with the right of the content of the content
owner. It is quite possible that the content right owner has
guaranteed the right to broadcaster for only one broadcast. If we do
not restrict the scope of the rights of the broadcasters to the
rights which they get or to which they have been assigned by the
content owners this potential conflict is likely to take place.
And therefore, and secondly, the domestic law may prohibit right to retransmit
therefore the right to prohibit should extend to broadcasters...[]
Coming to Article 7, we have very similar reservations as expressed
by Brazil. If we are talking about talking about protecting the
broadcasters and we are talking about signals, we must talk about
when these rights extinguish.
The fixation can be at two different levels - for the purpose of
broadcast and for the purpose of rebroadcast, or in certain
circumstances w/ o any broadcast or rebroadcast. Therefore we feel,
the right should only to exercise their original right of
broadcasting that they may have contracted with rebroadcaster
and if it is so required that they need to fix or prohibit fixation
to avoid somebody else conducting unauthorized rebroadcast, therefore
it is valid to allow the right to prohibit that person. But going
beyond that may not be desirable. Our suggestion is that another
segment or clause maybe added to Article 7 which may read as follows:
[Any Contracting Part may, in a notification deposited with the
Director General of WIPO... "broadcasting organizations shall have
the right to prohibit necessary to enjoy the protection recognized
under this treaty".]
Mr. chairman, as far as right of reproduction, Art. 8 and Art 10 RAM
Fixed broadcasts, since these go beyond signal piracy, we do not feel
that there is any justification for these post-fixation rights. and
should be removed. In addition, we would reiterate that the two
rights (distribute and make available to the public) should not be
brought back into the basic text. There could be alternatives
elsewhere.
We thought that we had an agreement that they should be taken out.
Given the scope we have given under Art 3 that scope is only over
signal piracy, We do not believe there is any justification for
giving post- fixation rights.
Chile: Chile also would like to bring attention to an issue brought
in by the delegate from Brazil, which is the right of overlapping
rights in the case of authors and performers and producers of
phonograms. We think that one way out might be to give the option to
contracting parties in the future to opt, instead of having an
exclusive right or a right to prohibit, to opt for a remuneration
right, which in the case of a conflict of interest b/t the content
right holder and the broadcast right holder the other right holder
will be able to communicate or retransmit while giving a remuneration
to the broadcaster.
Would also give a solution for access which might be limited if
exclusive right given.
Colombia: We have been consistent in its position by pointing out
that while it is true that we should like to strengthen the rights of
broadcasters, we wouldn't like to take the road toward protecting
webcasting. Protection in my country, which involves not taking that
step, coincides w/ what many delegates have said. We also consider
that while a text is not mandatory it could at a particular part be
the subject of pressure or advice from other countries for a
particular country to accede to it.
This lack of interest or understanding in my country may be result
of lack of practical understanding of result of strengthening br
rights. Where there is no doubt is about strengthening the rights of
broadcasters, in Colombia both radio and TV broadcasting is a fact,
we've had it around for many years, and it has given us great help in
all spheres - economic, social and political. This is why we have
been a member of the Rome Convention. Our constitution goes much
beyond this in area of broadcasting rights. We have much practice.
Therefore while its true that we do not agree for practical reasons
to the appendix on webcasting, we do believe that /??? is technically
correct.
In 2006 you cannot claim to strengthen rights of broadcasters for
protection given in 1961 and give rights over Internet.
A broadcasting org that wants to protect its signals has the
legitimate right to do this through traditional means, known means
and ones that will emerge in the future. That is, typical copyright
so that the right holder can protect himself against not only known
but against future means of transmission.
Since 1993 in decision 331 we have a provision that goes much
further than Rome - it says retransmission by any means, whether
known or unknown. We don't have any problems with this, whether know
or to be known, and we don't have any difficulty b/c neither do we
believe that providing broadcasting org w/ the right to fixation goes
against the rights of performers. These are issues that are settled
by contracts.
Very many contents transmitted by broadcast organizations are not
protected by copyrights and related rights. In respect to those
rights, the organizations want to have exclusive right not only to
counter piracy but to control the transmission. this is clear w/
regard to [FIFA WC] football championships. The Rome Convention
hasn't caused us any problems. So to consider today that there is
going to be replacement or usurpation of rights is not correct.
In 1961 the Acts of Diplomatic Conference established the principles
relating to the need to give to authors exclusive rights. . In 1996
WCT and WPPT producers and performers were not given excl rights to
communicate but rt to remuneration.
But in addition there was a statement that when they require the
authorization from the one, they had to get it from the other as
well. When they want to get an authorization from either CR or author
have to get from both. Broadcasting orgs could enjoy a statement in
this article so that when they want to get authorization from one
they have to get it from the other as well.
Today many broadcasters produce soap operas or comedies where there
they do not have all the rights.
Sometimes we make apologies about copyright for performers and we
forget that in our countries the issue is not in the treaty or in the
law but in the negotiating capacities of the parties. Particularly in
our region, performers have very little negotiating capacities. This
is the problem. Problem is not in recognition of excl right. our
emphasis is the following let us see how performers are negotiating
b/c we think that there are presumptions on works done to order and
this is why performers lose all of there rights and why the producers
get all their rights. Not only prudent but also absolutely necessary
if we are to be consistent w/ what we've been saying about
strengthening the rights of broadcasters in the digital environment.
Can't exercise peaceful activities if didn't have those rights.
Senegal: As regards Arts 6 and ten I support statements that have
been made w/ regards to deleting references to rebroadcasting 'by any
means'.
On Art. 8.2 we are in favor of paragraph 1 and we would like to
suggest that we mention 'program carrying signals' when mentioning...
in the interests of clarity.
Art 11 - not completely in favor, but in
in view to deleting the reference to any digital broadcast we'd like
to delete the reference to Art. 6- 10.
Kenya: We agree w/ statements of Colombia but believe that these
articles should be retained. The assumption is that when a broadcast
transmits an event they retain ALL the rights. This is a contractual
matter that should be handled between broadcaster and organizer of
event or performer. It would not be right for us to try to restrict
this right. In any event this may be beneficial to the organizer of
the event. These will be legislated upon by the national legislature.
We support the delegation of the words "by any means" and "over a
computer network" because this is an issue that we have previously
raised.
Mexico: By way of repetition, we consider that we shouldn't lose
sight of the fact that the catalog of rights that we would be
granting mean that we are not giving them rights over the contents.
The rights of the performers, producers of phonograms are all
safeguarded. And if we don't grant these rights, then those
broadcasts would be left in limbo. Who is going to be the holder of
these rights over broadcasts?
We would not be protecting authors and those holding neighboring
rights. We would be leaving a vacuum all those works that they have
performed.
European Commission speaking on behalf of the European Communities
and its Member States: In light of what we have heard on the scope of
Art. 5 - national treatment. This is said largely in the light of
proposals to either delete or reformulate certain rights, w/ possible
a two-tiered structure of protection.
One that would assume grant of exclusive right, and other, the right
to prohibit only. National treatment as currently formulated and as
they apply to the provisions in the DBP. This article is one that the
EC could support but we would like to reserve our position to
possible revert to a further discussion on this depending on the
ultimate fate of the rights.
Various reasons. National treatment is shrine at which other
delegations worship.
It is also the basis to the other conventions to which we are party.
In particular we also abide by the MFN of TRIPS Art. 3. If process
w/in this forum were to result in a removal, deletion or degradation
or reformulation of the rights in a way that in some way the
community and its members could not respect
we would regrettably have to consider a move towards greater
reciprocity provisions. May be a moot point considering the status of
the Annex, since simulcasting (which we support) is covered by
material reciprocity in any event. I have difficulty understanding
how this material reciprocity would apply. If the text as currently
drafted is reformulated, in the absence of mat reciprocity, we would
in one sense adopted a nonsense since those traditional broadcasts
would be simulcast anyway, and so subject to material reciprocity
[Mat reciprocity - derogation from national treatement - if you
extend to webcasting you get reciprocity with those who do so]
South Africa: We don't understand EC's statement on material reciprocity.
W/ regard to Art. 6, I think the concerns have been indicated and
ours is also in terms of the scope given to the broadcasters. We
tried to say this yesterday but it wasn't well understood. When we
talk about the conventions, we are quite concerned that we seem to be
ready to transport the rights over a new set of services that are
new. It is not purely prevention of piracy. We would therefore
support the proposal to delete 'by any means' and reference to
'computer networks' b/c we do believe that this extension of these
rights is extended throughout the text when we mention 'wireless'
W/ respect to Art. 7 the Brazilian proposal on L&E and the Canadian
proposal complement each other and would serve to clarify this
Article.
In Article 10, broadcasting organizations are given excessive
rights. Broadcasters can even prevent rightsholders of content from
making their content available to public even if they want that.
Again, scope goes beyond the actual intention.
Russian Federation: We reserve the right to make further comments on
the drafting of these articles. ,but we would like them to remain in
the form that they know have. B/c they repeat the Rome Convention
Art. 13 in essence. To authorized or prohibit is nothing more than an
excl right. This proposed wording is harmoniously compatible w/ the
rights of authors, performers and phonograph makers.
European Community: B/c a delegation asked for clarification, the EC
is not proposing material reciprocity. We could abide by national
treatment in Art 5, however if things change re formulation of
rights, we reserve our right on this provision. Art 5 in so far as it
applies to activities of traditional broadcasters is vacated by
provisions [in Annex] that apply material reciprocity
Chair: no other delegations are asking the floor.
Chile: one omission from my last statement. We would like to express
our interest in the Canadian proposal on right of retransmission.
Australia: I'd like to refer to the US intervention in so far as
they were advocating the re-inclusion of a right to prohibit as
alternative of obligation of governments to prohibit certain
unauthorized activities. Would be interested in explanation of
difference between these, in so far as right to prohibit is right to
prohibit unauthorised activities.
USA: It is our view that the right to prohibit is a right that is
less than the exclusive right to prohibit or authorize designed to
allow beneficiary of right to prevent activity from occurring but not
be construed to allow that beneficiary to exploit in commercial ways
the activity through licensing as with exclusive right.
Right to prohibit should not be transferable, it is one that is
personal to the entity that only allows them to prohibit the activity
from occurring but not license or sub license the right. To the
extent that further clarification could be done by adjusting the text
we are open to that to the extent that it furthers our goal of
protecting only signal theft.
[GH: i.e. Right to sue, but not to create licensing scheme, but gets
complicated if withholding right to sue is done for compensation..]
Ukraine: We are in solidarity with the proposal by Russian
Federation (Article 6-11) that the present wording should be retained.
Chair: Brazil promised that they'd comment on the articles that
follow the first two. There have been no delegations who have come
forward to answer these questions, so I will remind them. What kind
of treatment would enjoy broadcasters from those countries which have
opted for the right to prohibit. Art 5.1 makes clear that national
treatment would apply. 5.2 makes it clear that national treatment
would prevail... This guess is based on the history of the Rome
Convention where possibility of preventing has been converted into
exclusive rights in almost all cases of practical implementation.
Second question is regard to 'computer network' and this is a
pertinent consideration that needs to be clarified in process and
understandable beyond this room.
Concerning exhaustion, there are no rules on this in this
instrument. The doctrine that has been clarified since 1996 is that
the rights that relate to communication activities there is no
exhaustion in those areas. Exhaustion is confined to physical
objects.[ i.e. a limitation on the distribution right, that applies
only to embodiments of works]
Then ? about how rights of broadcasters relate to rights of
performers in area of fixation, where there is no signal in the air.
Art 7 of Rome - right of reproduction of performer would not prevail
if no fixation [?]..."speaking form the heart"...
Now we have the proposal that the broadcasters would enjoy the right
of fixation of their broadcast including the signal and the content.
Broadcaster has the right to authorize or prohibit the fixation of
their output which is now nicknamed 'signal' even though the signal
no longer exists any more.
[GH; which highlights why clear why the rights granted by Art 7
onwards are not related to "signal theft"]
These are the short explanations and it would be advisable to turn
to Brazilian to see if they have comments.
El Salvador: We're very pleased w/ the method of work. It is our
view that Art. 6-10 and 11 should be maintained as drafted in DBP.
Some of these rights are covered in the Rome Convention and others in
others such as the Internet treaties. Many countries have granted
them in their own legislation such as the Salvadoran legislation
which has been generous to broadcasting organizations. We find very
positive the way in which we are proceeding b/c we are exhaustively
discussing these provisions. Slight digression, we consider that
webcasting is a subject that should be studied in much greater depth.
keeping it in an optional appendix should be left on the table (as
Mexico stated) so that if a state thinks its in its interest it can
state when it wants to adhere to the appendix.
Chair: clarification. There is a parallel right of fixation of performance
Brazil:
Your explanation points to the complexity of these clauses. It is
not entirely clear to us, the extent to which the parallel rights can
overlap, coexist or nullify each other if this treaty were enforced.
So this is an area where we need further explanations in a technical
and legal sense.
Perhaps we should discuss moral rights of performer. Would they
become overridden if becomes subject of a broadcast. Here I see
margin for a confusion of rights if they are to exist in parallel
systems if they are not exactly compatible with each other. So I
would propose that further technical clarifications be made.
Would like to revisit national treatment. We don't fully understand
how Art 5(2) would work b/c those members who did not adopt the 2nd
option, they would be providing only simple national treatment
clause. Would countries have to have special clauses in their
national legislation that would foresee the possibility of not
applying national treatment to another who has or has not adopted
opt-in clauses. [i.e. alternative rights scheme in Art 6, 8, 9]
Makes the system very complicated and cumbersome. As a general rule
we do not like to depart from TRIPS on national treatment and MFN
clauses. As stated now, only higher levels... well first, as we have
now, apparently lower levels of protection do not apply as national
treatment, but if we look at the Appendix we see that it is
reciprocity, meaning that higher levels adopted through the protocol
would not apply across nations through national treatment. We are NOT
supportive of this. This runs counter to the principles enshrined in
the TRIPS Agreement. TRIPS as a general rule allows higher levels of
treatment to apply across all members. This is line with the
traditional system of IP that differentiates b/t countries based on
their development level. Principle of non-discrimination is general
thinking behind Berne, since Paris Conv'n.
This also in line with the development agenda that we have
introduced to the WIPO that one-size fits all should not be imposed
on all members. One size fits all should not be imposed upon all
members and their development needs should be taken into account. I
would also recall the TRIPS agreement regarding bilateral or FTA that
if those contain TRIPS+ members, they must apply to all nations
because of TRIPS' MFN clause. We think that if that is the case, it
should be the case multilaterally as well. IF you opt-in you opt-in
for everybody and vice versa.
Chair:
Lunch break. 1:05 pm Reconvene at 3
---
Restarted at 15:40:
Chair: We were at the end of discussion on 2nd package of rights
India: I suggested in my earlier intervention that some of the
downstream rights post-broadcast need not be protected in this
treaty. I now wish to elaborate upon my reasoning.
If you look at all of arts from 6-10, fixation, reproduction, etc
all of these rights relate to the term broadcast. I was looking at
the explanation in 14/2 to know exactly what is meant by broadcast
and it transpires though we have defined broadcasting and broadcast
organisations we have not defined 'broadcast'. It has been
specifically stated that: 2.0.6 (p.14 of SCCR 14/2) the object of
protection is the 'broadcast' this is defined in terms of the
activities of broadcasters. Thus it is stated that there is no need
for a defn of the term broadcast. However I think this is a conundrum
and I believe a defn is needed.
There are 4 elements to a broadcast:
1. The program content: a drama, film, sports event etc
2. Advertising in a broadcast
3. Promotional material such as tickers
4. Logo/color scheme/look and feel of the broadcast itself
Together these elements define a broadcast. Thus when we talk of all
of rights to reproduction, retransmission we are talking about these
4 elements. But 2 of main the elements (1+2) are probably the IP of
other content owners. What belong to the broadcasters are the items
3+4. So when we are saying this broadcast cannot be fixed or he can
license someone else to do that are we looking at all of these 4
elements? What is the exact right we are trying to protect. This is
why this morning I suggested that post-broadcast rights should be
kept to a minimum. If 95% of a broadcast is not the property of the
broadcaster then there is no reason to get protection for all it. If
his effort in putting it together and adding items 3+4 is sufficient
then this may justify this extra right but we would need to think
about it. Otherwise we are just giving an IP right to a broadcaster
in material that isn't theirs but is in fact the property of someone
else.
Thus we need to define broadcast and then decide what parts of it
deserve protection.
Senegal: Our aim is to create protection to prevent the infringement
of rights. thus broadcasters should be protected against /any/
illicit use of their signals. In the digital case they need to be
able to check to prevent illegal exploitation. They must be able to
check all forms of transmission. Digital piracy is someone who
chooses some programmes and just puts them online.
Brazil: Arts 8, 9, 10. We still have the concerns stated earlier:
1. As India has pointed out these arts relate to post-fixation
rights. In recognizing these rights we risk extending the treaty
beyond its mandate to protect signals. If the signal itself is not
the product of a creative activity we may be extending the treaty
even beyond the area of IP itself.
2. We are concerned about the conflict between the rights of content
producers and the rights being granted here to broadcasting orgs. Mr
Chairman you stated that there was no need to be concerned as these
rights would be in parallel but we believe it is possible to not just
have them be parallel but for them to conflict.
3. Exhaustion: given the current formulation of the term it seems we
may be creating a perpetual right. Similarly arts. 8, 9, 10 give a
similar impression.
As an extra point in art 10 when we talk about making available
fixed broadcasts we are concerned that the statement at the end of
para 1 and 2 ("time individually chosen ...") would impact on the use
of digital TV where you are able to choose when and where to watch
programmes. In Brazil we have made great efforts to develop digital
TV and we want to ensure that art 10 does not interfere with this --
perhaps a redrafting is in order.
Finally let me come to art 7 and the issue of right of fixation. The
right of fixation has already been granted by other treaties to
performers. Mr. Chairman you explained that this would only apply to
unfixed performances. But what if a performer contracts with the
broadcast company to broadcast and also contracts with another
company the right of fixation how would the right of the broadcasting
org, the right of the 'fixating' company and the right of the
performer interact.
Egypt: Art 12 (L&E) -- can I speak now or later. Also I wish to
speak re. Brazil's recent statement and this issue of intertwining of
different parties' rights. In our view the basic proposal has not
clarified this sufficiently and there would be problems if this text
were submitted to a DC.
Art 3.1 para 1 speaks of protection of signals. Para 2 says it
applies to broadcasting orgs in respect of their broadcasts.
I think we should say that this treaty relates to broadcasting
organizations in relation to broadcasts of their programmes. And this
way we can distinguish between rights for broadcasters and rights for
creators.
14/2 and 14/3. I think art 12 should be revised for 2 reasons:
a) following the Brazil proposal yesterday (see 14/3 p.5 para X
general principles). Several people said the best place for this is
art 12 (L&E).
b) a second reason is that the L&E as mentioned in 14/2 are dealt
with fairly cursorily and I think it would be good for that to be
fleshed out. I think 14/3 is better than 14/2 because it mentions all
the cases (6 of them in para 1) and para 2 allows for extra ones at
the national level (where justified)
I therefore propose replaced of 14/2 art 12 by 14/3 p.15
Morocco: Broadcasting organization need more rights to match the
digital environment in order to combat piracy of signals and
transgressions against rights. I believe protection should be
holistic and total and I don't believe that granting the rights
debated here is merely a matter of signals. We have to see things in
their entirety. We would support further elaboration of the term
broadcast because of course the content, the creativity is owned by
the rightsholders. So who owns the broadcast? (we are of course
talking of traditional broadcasters since you said we will have a
separate document). The exact definition of signal is rather vague
(e.g. art 11 where it says broadcasters must enjoy 'adequate and
effective protection.'). But what about this issue of rights
post-fixation? This is especially vexing given that their discussion
of rights in pre-broadcast signals.
EC: Arts 6, 7, 8, and 9. There is some confusion and clarification
from the chair would be useful. With respect to "retransmission by
any means", "reproduction in any manner". We need to distinguish
between traditional broadcasters and new business models in the
digital environment. The rights in the basic draft proposal are for
protection of signals not for the protection of new business models.
How are you going to catch the signal thief? You can only catch him
when he uses it -- for example transmission in a digital environment
We have an appendix for the new business models and we have the main
text for trad broadcasters where they can catch the thief when he
transmits the signal "by any means". We have got to be careful that
you don't have a situation where you have someone illicitly
transmitting the signal but he says you can't catch me because I am
outside the category of transmission methods that are prohibited. We
shouldn't restrict ourselves to traditional media so that when the
thief goes to a new medium you can't catch him.
Algeria: We believe current rights would allow them to issue license
without authorisation from performers. Thus we think there should be
a prohibition right that would prevent the piracy of material rather
than an exclusive right. We believe further that then these would be
good rights we should grant to reflect changes in technology since
Rome.
Iran: Support treaty on b/c but want exclusion of webcasting and
simulcasting. have a general law on broadcasting and a new law under
discussion. In light of this law there may be some addition to the
rights mentioned (6-10).
Chile: Still have doubts re. post-fixation rights esp. if aim is to
prevent theft of signals. Where is the signal one it is fixed. One
cannot find a signal in a CD, DVD etc. Furthermore we need to explore
exhaustion because otherwise you can have a situation where a new
signal is created with each broadcast and you end up with 3 or 4
broadcasters with rights which overlap.
USA: Re. recent intervention by EC. We are very sympathetic to idea
of granting rights to broadcasters in relation to retransmission of
their signal over computer networks. We have seen concrete examples
where companies have established business using Internet protocol,
www, and other means that allow users to get broadcasting (from
Canada and elsewhere) over the Internet. This is why we need to
update, and strengthen, the rights of broadcasters in relation to
retransmission of their signals over computer networks.
Art 11: in relation to pre-broadcast signals just talks of adequate
and effective measures but no mention of exclusive rights or even
right to prohibit. Thus we would like to point out that we would be
flexible in considering terminology similar to this for "transmission
over computer networks" so that countries can be more flexible over
the level of protection they grant in relation to such activity.
Chair: We are at the end of the debate on rights. There was a broad
diversity of opinion. I have one question and one comment. We have
already agreed to confine discussion to b/c. There were a number of
delegations that pointed out there are references to activities done
over computer networks. Even if there are no rights for webcasting
wouldn't the delegations who are objecting accept that these
provisions are part of the defensive set of rights for b/c and don't
give any new rights with respect to people doing retransmissions over
the web and are therefore ok. Right of retransmission is of course
very important and in its form in Rome only relates to rebroadcast
over the air which is clearly insufficient in the current age.
Next we move to L&E.
-----------
Limitations and Exceptions
Japan:
We value inclusiveness. L&E should be consistent with the 3 step test.
USA:
It is the strong view that Article X [General Principles] and Y
[Protection and Promotion of Cultural Diversity] should not be
included in Article 12 and should not be included in any operative
parts of the DBP. The scope of these two limitations and exceptions
would be unclear.
This opens up the road to many unintended consequences.
Chair:
Australia:
We have concerns about the alternative 14 (page 14). We need to be
convinced that there is a need and alternative to the 3 step test
(WPPT, TRIPS-Article 13).
We have concerns with Article 14.2(g)-page 15. Would a sportscast be
deprived of all protection?
Chile:
European Communities:
Article 12 of DBP:
We would have serious concerns (not with the principles enumerated
by Brazil/Chile/Peru); however we would have specific objections to
ANY reformulation of the 3 step test.
Article 12.2 (proper statement of the 3 step test)
We lend our support to statement by Australia, legal uncertainty
created by Article 14.2.
IMRO panel (WTO ruling).on Three Step test
Article 15 (Rome): we would support an exhaustive enumeration of L&E
provided that beneficiaries can be identified.
The approach in our Community Instrument; we believe a listing
approach could be placed on the table.
For cases such as
private use
short excerpts (reporting)
teaching
libraries/archives
disabilities
public security
[]
non-profit (public accessible libraries/archives and their equivalents)
[GH; See E & L in Art 5 of EUCD - EU Directive 29/2001/EC]
India: Our delegation has looked at the DBP and the proposals by
Chile, Brazil and Peru. We are also interested in the proposal just
presented by the EC. We find the list is reasonably exhaustive but we
are open to the Brazilian proposal.
Also wish to mention proposal of Chile in respect of art 1. We think
that art X in defense of competition could easily come under art 12.
If we are to make the list exhaustive if possible we would also like
to the defense of competition to be put in.
Brazil: our proposal in 14/3 is motivated by 3 concerns:
1. to maintain the balance between public interest and the rights of
broadcasters
2. the public domain
3. interests of developing countries in
scientific/technological/educational development
I have heard that there is significant concern that there will be
legal uncertainty in regard of these L&E. But if so why are these
concerns applicable a fortiori to the rest of the proposal -- in
particular the rights being granted.
I have also heard concern about being prescriptive. but if we are
prescriptive about rights why not also about L&E.
art 1. para 2: protection granted under this treaty will no way
prejudice rights of existing rights holders. But what about the
public domain -- does a broadcaster get rights over public domain
material they transmit? this is the purpose of the art 14(d): to
preserver a lively public domain (without which there can be no
creative activity).
All the L&E here do not affect a reasonable exploitation of the
broadcaster's rights. We need to preserve our national [policy]space
for enacting laws which really address developing countries needs.
Japan:
Quick response to Chile's and EC's intervention. I just mentioned
that there is a possibility of abusing the new proposals. Treaties
are always subject to amendment and are adaptable.
Better to have some treaty rather than nothing. We are concerned
that these proposals are too broad.
Mexico: We understand the legitimate concerns expressed by Brazil,
Chile, and Peru to have a list of L&E. We think it would be quite
risky to have such a catalogue; it may go beyond the scope of many
nations' domestic laws. We would be giving unequal treatment to
broadcasting organisation compared to the treatment of artists and
performers. Thus we think art 12 is more prudent and flexible.
USA: This time I would like to address the idea of an enumerated
list of L&E. The US shares the concerns of Australia and Mexico on
departing from the general language of the 3-step test.
1. We second the point of the EC. We need to make sure the list is
compatible with the 3-step test.
2. We also thank the EC for pointing out what would occur if we took
the specific approach rather than following the simple and elegant
laid out in the DBP. There would be already 10 different provisions
and it would be very complex effort. To give an example of the
difficulties. We are currently examining libraries access to works in
digital form. We have convened a group of experts (meeting every
other month). We have found it hard to find a balance between
interest of libraries and general public and that the interest of
rightsholders.
3. These examples tend to come from provisions in national laws. We
note these came into being under a 3-step test so it is clear that
they can be enacted by each state on its own under the 3-step test in
a flexible way.
Chair: question to EC. If the list you just offered actually exist
in EC countries that would show just how complex this process can be
and how a simple statement can give rise to something complex.
Iran: ???
Algeria:
These L&E reflect the general principles in Article X and Article Y
in 14. Berne (L&E).
Senegal: I simply wish to support Article 12 as it appears in the
DBP. Those delegations who have made proposals are to be applauded
but I have some difficulty as to the feasibility of an enumerated
list. We have to leave it to the Member States as to determine L&E
appropriate to their situation.
Regarding the Brazilian concern about appropriation of the public
good, we can solve the problem through domestic legislation. In
Senegal, the public domain was protected-it could not be exploited-if
you want to use it you have to pay.
European Communities: Whether one approaches for the Article 12
(L&E)-general clause (3 step test) or one uses a list approach,
neither one guarantees compliance with the 3-step test.
The beauty of the listing approach, one could negotiate the
formulation, if one could agree on a catalogue, one could agree on
the compatabality with the 3 step test. With the general 3 step test
(Article 12)-you leave it to domestic law but you may have to revisit
this (IMRO ruling).
1) India: The anti-competitive
We cannot support this as it would leave rise to great uncertainty
as it would be unclear how the remedy would be applied.
This could lead to 3 CL; we do not believe compulsory licenses are
general compatible with 3 step test in the international arena.
2) Article 1.2 (DBP)-protection shall leave intact of copyright and
related rights. [TB: What about non-protected subject matter?]
Chile:
3-step test approach. I have doubts that this is the international
norm for broadcasting and cablecasting. Article 13 [GH: of TRIPs]
should not apply to these new rights. Any formulation for L&E on
casters may affect the rights of other right holders.
Our delegation is of the view that we need both a general clause and
an enumerated approach to be acceptable. A general clause may be too
general; we need certainty. It's also true that we may not agree on
an exhaustive list (the exercise may be exhausting for us).
Four of the articles on enumerated list have been taken from Article
15 of Rome, so this should not be so much of a problem. In general,
our delegation believes that we should include both the general
clause and enumerated approach.
Brazil: Article 14 was presented in the spirit of cooperation. Our
main objective is to ensure that the broadcasting treaty would
adequately preserve the rights of public at large and of broadcasters.
We prefer the list approach to the 3-step test approach.
Morocco: 14/3. L&E are L&E to a general rule. Are not sure about
having an exhaustive list. Should have a limited list but be able to
expand it. There is repetition in the list of L&E existing in other
instruments such as WPPT and Rome. We reserve our position wrt to
para (h) as this has associated risks wrt to the rights we are
granting. We also have reservations art 14 para 3.
Chair: this brings us to the end of limitations and exceptions.
There is much convergence. 2 main approaches:
1. General clause
2. list-based
There is no great passion here but rather flexibility. There were
critical comments but that is just the start of analysis. Once we
enter into negotiation those differences will no doubt disappear.
We have now 20 minutes left and we shall start on TPMs .
I have confirmed that the evening session would be necessary. We
stop the meeting at 6 sharp and will resume the meeting at 7:30 with
the possibility to go till 10:30 pm.
In SCCR/14/2 technological measures are contained in Art. 14.
(SCCR/14/3) Article 14.3 (page 17)-alternatives that were found in
the previous document.
Alt NN: no article on TPMs in the instrument
14/4: proposal by Colombia to add a 3rd (or 2nd) para
Senegal: I think it important to provide TPMs since security is
essential to development. It has been shown that the circumvention of
TPMs should be the object of a proper judicial response.
Chile:
We would like to seek clarification from Colombia on their proposed
for Article 16? What categories of TPMs would be covered?
TPMS in copyright context cover both TPM access controls and copy
controls. My question: is it just intended to cover copy controls or
both access and copy controls?
Colombia:
Our delegation has submitted a new proposal on exceptions to TPM on
the following grounds.
Traditionally copyright and related rights treaties cover exceptions
related to object of protection and way that rights relate to social
purposes, are embodied in E & L, which since TRIPS, goes beyond
reproduction E & Ls .
Since 1996 WCT and WPPT offered a new thing - TPM obligations and
RMI.[GH: Rights Management Information obligations - Art 12 of WCT
and Art. 19 of WPPT]
These were two provisions that were not well developed in 1996.
Since then, this has lead to controversies, conferences and seminars.
This treaty should deal with these aspects; how is this going to be
developed by the parties. We have various solutions in comparative
law. DMCA 1998 or EUCD EC/29/2001
[GH: And Australia's s.116A Copyright Act 1968, Canada's now-defunct
C-60 proposal]
The developing countries which have introduced these measures have
used the US and EU statutes as a reference. The US FTAs have -
without exception - developed these obligations extensively. That is
I think the basis of Chile's qn.
What are these exceptions getting at? Are they TPMs protecting content?
Colombian proposal did not refer to one or other, to leave room for
discussion, and allow discussion to go in one way or another. Main
thing may be access, because unauthorized use would be covered under
traditional substantive rights (i.e. copyright in copyright case).
Wisest thing is to leave it general. General terms is how we have
always tackled L&E.
What we want to achieve is that on TPMs because they have in fact in
the center of the debate, rights would not be infringed by an over
severe TPM.
Evening break: 6 PM
---
8:pm
EC: Happy, almost charmed, with Colombia's intervention on TPMs and
interpretation of EC29/2001. Two models. Happy to provide info on how
EC and Member States have treated relp bw E & L and TPMs [GH: i.e.
how Art 6(4) relates to E & L in Art 5 of EU Info Society directive].
Happy to return to this point if we take this up at a later time.
Kenya: [called, not in the room yet]
United States:
We consider the inclusion of TPMs essential in this Treaty in the
sense that if we intend to implement this treaty in the digital
environment, it needs to have TPMs modeled on the 1996 Treaties.
Very concerned that alternatives and modifications suggested to Art
14 can do great harm to level of protection, but in interests of
inclusiveness, want to include all options with view to ensure TPM
provision included.
Want to provide clarification on scope of protection in Art 14. Does
not require adoption of TPMs. Requires legal protection if
broadcasters do use TPMs.
[GH: Yes, agreed. However, saying that may miss the point. Consider
how broadcaster TPMs actually work. Broadcaster TPMs require devices
that receive broadcast signals to look for and respond to the
broadcast TPM. Providing effective legal protection for TPMs where
broadcasters are using them, is likely to require Member States to
regulate signal-receiving devices. In the U.S., broadcasters have
argued that a new law (in addition to the U.S. anti-circumvention
law) is required to provide protection for the Broadcast Flag, a
broadcaster technological measure. The new law, a Federal
Communications Commission regulation, is a technology mandate law
that essentially does two things; (1) it requires manufacturers to
design signal-receiving devices to detect and respond to the
Broadcast Flag; and (2) it bans from the marketplace all devices that
do not do so. When people talk about "mandates", they are talking
about these technology mandate laws, not whether or not a broadcaster
has to use a TPM. For more info, see EFF's briefing paper on TPMs and
Technology Mandates at ]
South Africa:
We have major concerns over the last sentence "not permitted by law"
and the sentence on adequate legal measures or adequate legal
provisions, what do we mean when we say "legal remedies". We feel
that this may be onerous.
Brazil: We reiterate that we should delete this article. We do not
support any provisions in this treaty that would promote legal
sanctioning of TPMs. This is a controversial measure. This equivalent
of self-implementing rights by the industry.
Has implications of extra territoriality by self established rights
by industry which goes against national sovereignty.
Do not believe that should be up to companies to have this sort of
control over lawfully acquired content. Applies equally to
transmissions. Should be a matter of national law.
It should be up to national legislations of what is allowable or
not. We already have exclusive rights for broadcasting.
Therefore we do not support the inclusion of TPMs in this Treaty.
Kenya:
Chile:
Although Chile is sympathetic with proposal of Colombia, that states
can allow for dilution of measures for TMs for uses allowed by law,
we think the current version of Article 16 allows for this. Wording "
acts not authorised.. or are not permitted by law."
Also, implementation in national law of EU and US allow for
exceptions and also for devices for doing so. Therefore we think that
the ability for exceptions is already covered by current language.
EC: [JL: Julie Samnadda speaking on behalf of the EC, who appears to
be, not only now, but according to reports from country negotiators,
is quite a hardliner on behalf of right-owners. (She should remember
this is about this broadcaster/webcaster rights, not copyright, which
has a separate legal framework, and raises quite different policy
issues).]
There is no requirement to use TPMs in the WCT, WPPT or in the
Community Directives. The inclusion is only where they are used by
the relevant rights holders. Neither international law nor the
community directive mandate the use.
What the legislature tried to put in place was to enumerate
exceptions that would enumerate exceptions. Having in the first
instance identified that list, we thought it was appropriate to
incorporate that list. We did think that it was advisable to first
allow for their incorporation in domestic legislature.
Within the EU we have a very strong lobby on behalf of the visually
impaired. Those of us who were at the last meeting would have heard
from the representative, David Mann, who requested a study. Where we
could identify groups who could be protected, then we did (?).
The community legislature has produced a duty on its member states
to ensure that rights holders provide works w/ modifications.
[GH: Note that it's a conditional duty. The duty for Member States
to take action under Art 6(4) EUCD 2001/29/EC only applies if a
rightsholder does not voluntarily make available means of exercising
exceptions for a TPM-protected work and does not apply to works that
are made available subject to contract and at a time and place chosen
by exception beneficiaries. This might exclude access to many works
on the Internet. Art. 6(4) states: "The provisions of the first and
second subparagraphs shall not apply to works or other subject-matter
made available to the public on agreed contractual terms in such a
way that members of the public may access them from a place and at a
time individually chosen by them". ]
In this regard we have had to pay careful attention to the legal and
cultural mechanism and traditions among our Member States, so our
Member States have chosen a variety of mechanisms to ensure the
identified user groups can have access to the chosen administrative
recourse. These include recourse to court, more informal rights to
arbitration.
For another exception, the private copying or use, we only place a
discretion among our Member States. There again it is only to be
applied w/ the appropriate procedure and w/o prejudice to the rights
holders' rights. That's the theory and we are beginning to see how
this works in practice. Later this year we will bring out a report
reviewing practice in various national laws implementing Art 6. of
the 2001/29/EC directive.
Colombia: I would like to comment on what Chile said. In Art. 14
there is the possibility of limitation. At the end, it says "restrict
acts in respect to... that are not authorized by the broadcaster,
etc." These unauthorized acts are not authorized b/c they are not
allowed by the contract. So the user will have the possibility to
have legal recourse. Now since these acts are not authorized by the
law, the user will have access to remedies.
If I use a protected broadcast, it is protected by TPMS in such a
way that I as a user
cannot use this because these TPMS prevent me and at this point, I
have to resort to this limitation clause. That is to say I have to do
certain acts to overcome this technological difficulty without being
sanctioned. In the area of copyright there are various situations in
which I can act in this manner. The delegation of South Africa has
said that there could be effective legal remedies. Well let me take
this opportunity to try to answer on this point.
If the measure is overcome, the owner of a right in a country which
could lay down a law to apply a sanction to overcome these obstacles
would lead to sanctions which would be protecting the content. but if
we want to use the content and this is true in the US and the
European Union, we have to see if these systems are designed in such
a way that we can overcome these technological protections. This is
not really a matter of technology, what it is a matter of overcoming
situations of criminal sanctions. This is important if these
organizations, they might be libraries or archives or teaching
establishments, are to enjoy these possibilities for pedagogical
purposes for instance. So the aspects of TPMS, and we agree with
other delegations, it is of course essential to be able to protect
rights of rightsholders, we have to take account of the fact that
practice since 1996 has shown that these TPMS have been enshrined in
theory but practice has shown the contrary. There are cases in Spain
and France that demonstrate that in some cases these TPMS have to be
able to be circumvented to avoid conflict w/ public interest for
instance.
I am sorry to have taken the floor at such length.
[JL. Well, it was time well spent... a very good intervention] [GH;
Yes indeed. A very clear explanation of the problems with overbroad
legal protection for copyright owner TPMs.]
Canada [Bruce Couchman]: We have a question for the delegations
which have proposed Art 14 in its current form. Given the fact that
TPMs are proposed,
if the TPM prevents fixation, will the object never be able to fall
into the public domain?
The situation is different in WCT/WPPT b/c there is always a
physical object that will fall into the public domain. We wonder if
there is any implication of a TM that prevents fixation.
[JL. Good point Bruce Couchman, and one might take this a bit
further, or even discuss the need to address solutions to this issue,
since it comes up in the WCT and WPPT].
Brazil: I'd like to make two points. First of all we'd like to add
to comments made previously that we have great concern for the impact
of these TPMs on content w/ is in the public domain and regarding
broadcasts that consist of works that are not copyrightable.
Regarding Art. 15 on rights management info, we understand that
there are certain measures that prevent users from being able to
interfere w/ the information. Here there's the issue of the abuse of
rights and reflects rights that rightsholder would enjoy under each
particular national situation.
And I don't see anything here that would address the situation of
incorrect information being placed on a broadcast and the fact that
there may be TPMs employed to prevent such information and the fact
that the information would not be validated by any national
authority. Would basically be some sort of legal interpretation by
the rights holders himself. Complex domestically. It is even more
complex in a global context.
Particularly when consider that other country may not be able to
remove the TPM to address incorrect info which would not be correct
under the national legislation of the receiving country. This poses a
great amount of legal uncertainty.
These kinds of rights are new and haven't really been tested, even
in the EU. The community representative just mentioned that they are
now just beginning to get feedback on how this is being implemented.
And this is in the EU, a very developed area of the world. I would
wonder how much more experience developing countries would need in
order to implement these types of decisions.
[GH: All good questions on the relationship between RMI and TPMs]
European Communities[Tilman Lueder]:
Just to clear up a conceptual issue surrounding fixation or
embodiment of signals. It is our understanding that we are not
dealing w/ the sale of physical goods. This is a service and it needs
protection while it is being transmitted. Article 7 on fixations, as
we understand it, concerns only those fixations that are necessary to
provide the service. First you have to embody the signal.
Fixation is the "embodiment of images and sounds ...", so obviously
first you have to embody the signal in order for it to be received.
Therefore the issue of 'exhaustion' does not arise legally speaking
b/c the performance of a service requires that the service itself is
protected and once it is rendered the service is over. There is no
other issue.
Question of exhaustion does not arise, because service, no good.
This entire issue does not arise b/c no good is being offered to the
consumer. Our regime of L&E now has the aim to provide this service
to be provided to the group of beneficiaries who are in need.
Senegal:
It my delegation's view the inclusion of a proposal on obligations
concerning legal remedies is extremely important.
it is not enough to give rights - we have to go further and create
the conditions where they will be effective. I would like to speak to
para 1 of article 15 - we could have gone even further. in referring
to civil remedies it implies that this treaty will produce and
conceal an infringement prohibited by this treaty. What is important
in this is that we have enforcement and we have clear info on what is
to be understood by information on legal regimes. Draw your attention
to create a link b/t info and the act committed which infringes
rights. And these rights are transmission, transmission after
fixation, or creating of an illicit[ unlawful] copy, it is extremely
important to establish remedies to ensure that it is not a moot right.
Chile:
I could not resist the temptation to answer the interesting question
posed by Canada. As I understood his question he asked if a TPM
prevents the fixation of a broadcast. Will this mean this signal will
never fall into the public domain.
The term of protection under the proposal starts from fixation. What
a pity if no ones makes a fixation. The broadcast will be heaven but
on earth there will be no fixation and so obviously a librarian or
archive will not have it, so certainly there is no exception for them
to exercise. This of course would be against what UNESCO has asked
the nations of the world to do to promote access to the public domain.
[JL: this intervention raises the question of why UNESCO is not more
involved in this treaty discussion]
Iran: My delegation thinks that there is no need to have TPMs in the
proposed treaty. This kind of TPM that are legally sanctioned...
On the other hand, providing TPM is against the public interest
against works that are not protected by TPM.
It is therefore inappropriate to provide TPM to a further and
broader level of TMs.
Jamaica: Two questions for the EU. Was it being said that therefore
the signal would never be able to fall into the PD and therefore the
question was essentially moot. First of all, let me thank you for
'elucidating' (sic) on the topic. it means that there is much work
for us to do, but not insurmountable.
Second, Qn whether it was the intention in the EC directive not only
to provide to user groups and to also permit circumvention but also
intention that if they actually needed to use to circumvent a TPM.
what was the intention?
Japan: Quick clarification of Canada's question. I don't understand
what they mean b/c of course there is authorized fixation. For
example in Japan there is authorized fixation, even digital TV is
"copy-once". This type of fixation will fall into the public domain.
[GH: In US case law, we've seen that it depends on who does
authorizing - authorized by broadcaster, or by law. A broadcaster
could, for instance, decline to authorize something permitted under
national law. Art 14 says "authorized by broadcasting organization OR
not permitted by law"]
Canada: Obviously the issue of what exceptions each country provide
is very interesting. We were getting at the point of what tech might
be applied by the broadcaster itself. If the viewer or library
doesn't have the tech capability to make the copy, the fact that the
exception may exist in the law may be irrelevant. The primary point
is that In the 96 treaties, there is always a tangible object that
can fall into the public domain. Whereas here there is the example of
a live interview that was never fixed it might be lost forever.
Ghana: Art. 14 is in the right direction b/c the Internet treaties
have made similar treaties in the face of technologies of the day.
Everyday Africa Group at our consultative meeting in Nairobi took a
similar view.
Make exception in Treaty.In the first place, we should be very
careful, especially the public broadcast organizations should provide
access to the public. Whatever text we use, we need to put in
measures saying that those who want to have access to information
through public broadcasting must not be unreasonably blocked. I
should think that Colombia's proposal in SCCR/14/4 is intended to
solve some of these provisions.
Clarifications: Was stated that someone could circumvent for
non-infringing use.
Who determines non-infringing use? Second, Is this not a recipe for
crime? If someone thinks he has a legitimate need, why would they not
approach the broadcasting org legitimacy and ask for access. We
should rather provide or we should be able to list or outline the
circumstances in which someone can have easy access into a
technology. If I determine it, and just break into a system, may be a
recipe for crime.
We should list circumstances in which should have access.
Colombia: The distinguished delegate of Ghana referred to our
proposal and spoke to the understanding of the right to access to
tech dev'pt and progress.
Here we are referring to a protected broadcast. and I would respond
by saying when the language on TPMs, and here I should note that
Colombia was not one of the countries that submitted the TPM
provision,
Colombia is rather trying to make balance between TPMs and their
implementation
and on the question by Ghana, this act is not permitted under the
law or could only be permitted as a limitation. If it is considered
an exception am I then in a position as a user to evade that
exception. In so far as could be considered a limitation, couldn't do
that, but if it is an exception, am I then able to evade [circumvent]
that law.
The work in the public domain is not as simple as you seem to
suggest Mr. Chairman. If an org for example broadcasts a work by
Shakespeare which is in the PD, I don't have to ask for permission
b/c the work is in the PD. Therefore what I would be stealing is the
investment in the production and all of us are free to do that w/o
asking for permission.
But once I have staged this work and broadcast it over TV, then not
that anyone can use that work b/c what happens to my investment as a
broadcaster? This is how we understand all works in the PD. I believe
that today knowledge is wealth. Knowledge creates jobs, is dynamic
where development of countries is concerned. We can understand the
demand, that what we are doing, and we can understand the debate
about many aspects of society, is creating a new form of wealth that
must be protected in a secure manner. Question is whether IP language
should protect that new form of wealth. In that case, those
are we protecting knowledge? in that case the ones who produce it
should be protected so there is some return on their investment and
guarantee the right to property in a secure manner. And I think we
can focus the discussion on that aspect. And guarantee that those
rights should be secured in general way of society and ensure that
society can make legitimate uses of knowledge.
European Community: [Tilman Leuder] I'd like to answer the question
proposed by Jamaica. The signal is the carrier. The signal is what
carries the program to the end user.
Once it has accomplished that task it disappears, its no longer
there. [JL. then why a 50 year term?] In that sense, there's no qn of
falling into pd. Once carried, it no longer exists and this is how we
understand the Art. 2.9 where it is stated that there are no
conditions regarding the permanent...
Embodiment is required for fixation. Once the viewer has perceived
the signal, then the signal is gone. I am not a scientist but a
signal it's an electromagnetic impulse that fulfills a function. What
falls into the public domain is the content. If there is no signal
protection, then you then the broadcasters would go bankrupt and then
there would nothing to pirate.
My colleague will attempt the second response:
Julie Samnadda now speaking. Very grateful to delegate from jamaica
for her qn.
The aim of the community legislator was to ensure that no hierarchy
between two provisions. On one hand, required legal protection [for
copyright owner TPMs] but, then on other hand, required that measures
had to be provided if not provided voluntarily [GH: to allow
exception beneficiaries to be able to exercise].
It was our clear intention notwithstanding that protection, member
states were under the duty in the absence of voluntary measures
(either unilaterally or by agreement), the onus was therefore on
rightsholders in the period that was transposed to get their act
together and ensure that there were voluntary measures either
unilaterally or by agreement. In many instances members facilitated
this. In one instance the member state held a forum, in another a
member adopted a 'wait and see' approach.
No hierarchy as between grant of legal protection and DUTY of
requiring provision of measures to exercise exceptions.
Two examples: (1) Many states have introduced exceptions for
categories of the impaired, in one instance a general exception for
all impaired people.
In at least one case, has been for all disabled groups, so required
identification for all disabled individuals. Has introduced high
degree of social cohesion; increased dialogue in society.
The other area where it was dead easy to identify, is that we do
apply the exemption on broadcasters to prisons. Our prisoners are
privileged.
If a Brazilian person [Colombian?] cannot identify anyone who can
provide assistance,
it is entirely consistent w/ our intention that he would certainly
have a defense in the situation of a legal action that is brought
against him.
Brazil: I found the EC explanation on the issue of signals to be
quite interesting and entertaining. It brings me back to the same qn.
- if the broadcast is just a signal, why are we granting a 50 year
right to it? This needs to be clarified. Is this a treaty against the
piracy of signals or for protection of content. In that second case,
the second layer is concerning.
fixed signals embodied in some sort of manner.
We seem to be mixing up signal and content. I still am not able to
identify the extent to which one definition begins and another ends.
Chair: This is already an identified qn that is part philosophical,
part technological [JL: and partly a lot of hand waving].
Now that we have nicknamed the object of protection as "signal" and
identified those parts of the treaty that go beyond after it is live.
Then question as asked by EC as to
what remains after fixation of the signal is an embodied fixed
version of the broadcast. There is still work to be done in order to
make this clear to everybody. That was also identified yesterday and
now there is that clear question.
I hope that there is no problem in continuing to work on this and
seek full clarity.
Looks like we have come to the end of the discussion on TPMs.
[and it's only 9:05 pm]
We've now had some 25 interventions that refreshed the concerns, and
the fact that many delegations have concerns about these obligations.
It also reminded us that there are proposals of delegations that
would not like to see these kinds of elements in the treaty.
It is quite clear that in any future version of Wkg Doc there has to
be provisions on this item, and based on this principle of
inclusiveness it has to be equipped w/ an alternative that there
would be no such provision. That would be my conclusion on that
substantive area.
We might now then be ready to tackle the last area in our work
program where the ? has a name. Item 7 - Eligibility. Technically an
easy area to be covered. Article 22 has clauses that regulate/govern
the possibility of states and EC to become parties to treaty. Main
debate has been centered around first parag, and the ? about whether
ability to become party should be conditioned in such a way that
requirement would be included that the state should be party to one
or another treaty. [i.e. WCT and WPPT]In this respect, in the WP on
p. 18 you find the models that represent the different formulas that
are proposed. Alternative AA - WCT and WPPT accession required. And
on the same page you find the proposal made by Brazil last November
which in addition to, no not in addition, instead of, listing other
treaties, sets a condition that the party should be a party to the
Rome Convention.
We have had several rounds on this issue and know pretty well where
the main positions are and now we should continue and take stock on
prevailing constellations and discuss the new proposal that has not
previously been discussed in proper terms.
Brazil: Clarification on an issue of procedure. We've gone through a
lot of the treaty. What is your position on observer delegations and
when they might be able to intervene? You also mentioned revisiting
webcasting. When might that happen? Now quite late in day, and will
help with planning for tomorrow.
Chair: My idea is to come to end of substantive discussion.
Afterwards we might ask for analysis. Then, I will invite those
delegates who have informed me that after the first round of
discussions on public interest clauses.
Those who have put down on paper, who have done some work, and very
helpful work, to reiterate what they have proposed, to discuss in
more precise language.
Then as promised we should visit the question of webcasting and
simulcasting and that could take place after these substantive
discussions. That would probably be tomorrow morning. Then we could
consider opening the floor to observer delegations. And then after
that we would come to overall conclusions of the meetings. Then will
ask those NGOs wanting to take the floor. Might ask this evening.
[Note that it's 9:17 pm]
That is the overall plan and then depending on what kind of
negotiations there will be concerning the overall conclusions there
is a chance that we could come to a conclusion at a decent time
tomorrow- clearly earlier than in the evening.
US: We still continue to believe that a linkage to 96 treaties is an
important step to ensure that this new protection does not interfere
w/ rights of other rights holders. W/ respect to suggestion by Brazil
on potential linkage to Rome, we think it would be useful for our
ongoing work. No objection to including that in document.
Brazil: Just to reiterate our position, we would have a difficulty
w/ linking this treaty to 96 treaties. Those two treaties have
distanced themselves from traditional international IP law. They
innovate in many respects, they take an orientation w/ which we are
not in agreement and any linkage would only reduce the possibility of
including broad representation in membership to this new treaty.
Morocco:
I should recall the position of our country, which we have recalled
on several occasions. The work that we are doing, year by year, and
create a treaty and update protection for broadcasters, the purpose
is to try to attract as many signatories as possible. We all hope
that we will achieve this instrument, which would be the crowning
glory of so many years of work. All member states should be able to
accede w/o having to be member to any other treaty.
Senegal: It's hard to accede to this treaty if you are not party to
essential instruments like Berne or Rome. As regards the 1996 treaty
for performers, this is only partial performance, because doesn't
cover both broadcast and TV[?]
On both there should be a minimum of obligations to insure that the
owners of rights in contents have their rights scrupulously
protected. Now, we want to have massive access but we cannot
sacrifice effectiveness.
China: Concerning eligibility we have expressed our opinion before.
Our position has not changed. We still believe that this treaty
should be open to all WIPO MS and all MS should be able to accede to
this treaty therefore we are in favor of Article 22 in its present
form.
Jamaica: Jamaica is in favor of all MS becoming members of this
Treaty and we favor article 22 as it appears.
Kenya: My attention is on Art 1.3 which says that this treaty will
not have any connection w/ nor prejudice any relationship with other
rights in other treaties this is compatible w/ Art. 22 as it now
stands.
European Communities [Julie S]
We can access this current formulation though it is not our original
position. I have a question for those who would like to create a link
to Rome - In light of Art 22 of Rome, which states reservation to
allow MS of that Convention to enter into special agreements, in so
far as those agreements grant more extensive rights than those in
this convention... It strikes me that the implication of this is that
you can't sign a Rome minus convention, only a Rome plus.
Egypt: I have a simple question, could we ask those who have made
this proposal in 14/3 (US) to explain their proposal. Why did they
want to add some points to Art. 22 and why did they want to make this
link?
United States:
Purpose behind the linkage to 2 1996 Treaties (Cr and RR) stems from
the concern that has been expressed by many delegations that
extending this right might interfere w/ or diminish in some way the
protection available for CR and RR holders.
I think this concern has been very articulately expressed by Senegal
on repeated occasions We share that concern and one way to deal with
that and to provide for rights of underlying CRO - whether in
broadcast, cablecast, or webcast - and that those rights are at least
equal to and consistent w/ rights of broadcasters. It would be
helpful to make clear that all involved in creation and dissemination
of content to the public are on similar footing. In one way intended
to impede speedy conclusion of treaty. Think that this would be
effective way to achieve goal of ensuing protection for underlying
rightsholders.
Brazil: we think that underlying right holder throughout the world
are not protected under 96 agreements b/c most countries are not
members.
If it looks like this treaty will impinge on the rights of authors,
then we really should not be signing onto this treaty. If that is the
case, we think the treaty needs redrafting not linkage. Our proposal
on Rome is clear b/c its the only treaty that actually applies to
broadcasters. This is supposed to be an update of Rome. Seems logical
that we should accept a requirement that eligibility conditional on
Rome membership. Would not want to see this treaty override the Rome
Convention.
Ghana: We are comfortable w/ Art. 22 as a working proposal and would
still be open to any further proposals.
Sudan: Despite the clarification that we have heard, nevertheless,
the problem remains a complex one. There are broadcasters and
distributors of programs and we wonder how we are going to make a
link b/t these rights and copyrights and related rights.
There are two stages, so what would the responsibility be?
It seems that the author has not only financial rights but also a
right over control of distribution of works and therefore has right
to remuneration under Berne for distribution or broadcast. Its very
confusing and we no longer understand the relationship b/t these two
treaties.
Benin: We would like to recall our same position regarding
eligibility that there should be no limiting conditions and no
requirements for accession. Therefore, we would support Art 22 as it
appears in SCCR/14/2.
Iran: Regarding eligibility we support Art. 22.1 as in SCCR/14/2.
Egypt: US has provided clarification which has explained the variant
language under Art 22 and I had more or less guessed that this would
be the answer. The treaty before us now provides a formal protection,
protects signal and programs broadcast.
The objective of protection is dealt with in other international
instruments or domestic legislation be they treaties be it WPPT or
WCT. Can we accept however that a MS which is a party to this treaty,
is obliged to protect the rights of their authors?
Can we accept that a country can become a party to this treaty if
they are not parties to an instrument protecting copyright authors or
performers? This is objective protection suggested by the US. Some
countries are not parties to those treaties or one of them, but may
have domestic legislation which protects that protects the rights of
authors or performers. So we have to find some kind of legal language
which allows us to require that a party to this treaty will have
international commitments or domestic commitments to protect its
authors.
We don't have time to look into this, but perhaps the Secretariat
could look into this.
Algeria: On eligibility we would support Art. 22 as it appears b/c
in this case all member states may become parties and remains open to
all states which wish to become party to treaty.
[9:42pm. Many people looking tired.]
Chair: We can have a stock-taking of MS views on eligibility. We
have documented reasons for proposals, and with previous information,
we should have all the basis for continued work in this area on an
educated and well-informed ground. It seems that any next working
document towards the BP, if not the BP, at least at this stage must
include those alternatives that have been proposed. Of course in
accordance with principle of inclusiveness in which we had agreed to
conduct our work going forward.
Chair: now we might turn to those delegations who said they might
refine their comments on public interest clauses.
Australia: Your invitation related to the intervention we made
earlier w/ regard to Art. X on page 5 of SCCR/14/3. Proposal was: up
to the word promote should be omitted and substitute "A Contracting
party may promote" and then secondly to omit word "to" and in front
of curb and in front of take and substitute the word "may" in each
case and thirdly, to add at the end the words "provided that any such
action is consistent w/ the provisions of this treaty."
Just before finishing, can I reserve the right - I'd like to reserve
the right to intervene on the "any other article" part of the work
program.
European Communities and its Member States: we have proposed some
preambular language that should take into account in an eminently
suitable manner the general public interest clause Art X on page 5,
Art Y on page 5 (Culture Diversity) As we stated in the discussion a
few days ago, some time this week, I don't even remember when that
was any more, these articles are important and should be located in
the preamble. This would provide guidance. language would stay as in
current text of p. 7 14/2. Then propose insertion of new text
"Recognizing the .."
We have circulated our language in a preambular approach.
1.Desiring
2.Recognizing
3. Recognizing
We would then propose the insertion of a new text, which reads as follows:
"Recognizing the need to balance of between the rights of
broadcasting organization and the larger public interest, in sectors
of vital importance particularly education, access to knowledge and
the need to promote the public interest in scientific and
technological development"
Then we would have two alternative recitals on cultural diversity,
they can even be cumulative. First, "stressing the importance of the
promotion of cultural diversity including the producers of
phonograms...
Second, [something about protecting consumers at large]
India: The three principles will be integrated into three parts of
the treaty. Gen principles go in preamble. Similar to where EC
suggested and same wording
I will read it again "recognizing the need to maintain a balance..."
We would like to promote the cultural diversity clause in the
preamble. And we would suggest an additional clause that is clause 4.
Nothing in this treaty will limit the protection and ... of cultural
diversity...
Any measures used to implementing this treaty will be fully
consistent with obligation under UNESCO CD Convention.
(b) parties also undertake to cooperate so that any exclusive right
in this treaty are implemented
Would like to place in Art 12(E & L)
3,4,5 read as follows: "parties shall take matters... to prevent
abuse of IPRs... tech transfer... nothing shall prevent from
specifying licensing practices that constitute an abuse that have
impact on competition... may take appropriate measures consisting w/
TRIPS to prevent or abuse such anti-competitive practices."
Brazil: Some formulations presented by Australia and also by the EC,
they considerably change the nature of the proposals submitted by
Brazil. If they are wedded to their particular language, perhaps they
could submit their now proposals.
However, we would stick to our own language as it stands in 14/3 and
in the spirit of inclusiveness insist that it appear in a new draft
proposal. India's suggestion must be included in its entirety. Seems
that part of (b) was deleted when he read it out. If included in Art
1 that would be ok. The Indian suggestion that this be included in
Art. 1 is in line with the Brazilian proposal.
The same goes for Art. 10, we proposed as an article of the treaty
and not as preambular language so we insist that be included in new
draft as operative language article and if other delegations want to
submit different language, they should submit own proposals.
Chair: the suggestion of other delegations was a token of the
interest in Brazil's proposal.
Iran: During discussion many delegations indicated that there is no
contradiction b/t this treaty and the UNESCO convention and so they
can be supportive. I think maintaining this in the Art. of the treaty
would allow for this so we support India's proposal to include this
in Art. 1.
Chair: Work completed in this area. Had discussion, all issues documented.
Chile: E&L is not still settled and presented in different ways.
Three ways of presenting. We'd rather stick w/ our proposal on
defense of competition as a stand alone clause until issue of E&L is
settled.
Chair: Understood, even before you and Brazil made that point.
We will proceed forward w/ item 8 to which Australia made a
reference. Are there any other items to submit for considerations?
Australia: Briefly to raise 3 matters: First, don't think we've
dealt w/ Art. 4 on beneficiaries of protection, in case I've missed
it. We'd like alternative H in the working document. to be reinstated
in the text - would allows party to limit protection to those
broadcasters who are headquartered in, and whose transmissions are
received in same country. Is provided as option in Rome.
Second, point of clarification - not sure when we were dealing w/
Art. 7 of WP (old Art. 7), on right of communication to the public.
Our submission before was that if this was to be reinstated we'd like
Alternative M, which includes possibility of reservation. Our first
preference is to leave old Art 7 out of treaty, this is second.
Finally, it just occurred to me while listening to the debate that
perhaps for those -- and I'm not saying that we don't -- who still
have conceptual difficulty it might help to think of broadcast as
akin to performance, which is gone the moment its given its gone. Yet
as object of protection under Rome, still enjoys term of protection.
Analog for understanding broadcast term.
Iran: Regarding final provisions, we think that this section has
close interrelated w/ first, substantive part of treaty. From Art 19
to end, we think need for some kind of reviewing and amendments. Of
course w/ the receipt and improvement of the negotiations, this part
would also be more clear. We'd like to articulate the need to
reformulate this section and we might submit some suggestion in this
regard.
Chair: Are experts who will specialize in this once we are in DC and
have BP on table. Thank you for the reminder.
India: W/ reference to Art. 4 we would like to support suggestion
made by Australia to see clause incorporated.
Brazil:
We have a concern with use of word "uniform" in first para preamble.
Uniform carries a meaning that is not entirely consistent w/ the
objective of the treaty. We think balance would be a better word, we
would accept other suggestions including "effectiveness" but we would
request removal of "uniform."We do not strive for uniformity.
In Art. 17, we have reference to 'opt-in' clauses. We have some
reservations as to ability to have reservation These are optional
elements of treaty [alternative rights formulation] so should use
word reservation; we understand that it has different legal
ramifications because they are optional. We'll rely on your greater
legal expertise on this point for alternative language.
Regarding Art. 19, we have an issue w/ the last phrase of paragraph
2 regarding provisions on enforcements of rights. Wording here that
indicates that contracting parties shall ensure that enforcement...
including expeditious remedies to prevent infringements and remedies
that constitute a deterrence to infringement.
That last part is unneeded. WE think that this is outside of the
scope of the treaty and beyond international law. WE think that
enforcement procedures should provide remedies, but we cannot assume
obligations to preventing acts before they occur. There are other
ways to deal w/ the issue,
e.g. best endeavors clause, but we could not accept this approach.
Very important issue for Brazil.
... do not mention minimum number of ratifications in order for the
treaties to enter into force. In 1996, number of countries required
was 30, because would have been double EC (then 15). now has 27. So
minimum no of countries this time should be around 60, if based on
double EC. Necessary if to be a truly international treaty. We would
not support negotiating new treaties that are only adhered to by a
minimum number of members which would undermine international IP
system.
Art. 26: Member can accede w/ in ?, some other time frame, yet a
member can denounce within 3 mths but takes a year to take effect.
These should be the same for three situations describe in Art 26.
Chile: Just to support Brazil on the issue of the preamble to delete
'uniform' and substitute 'balance' or 'adequate'. Also in last
paragraph, last line of preamble again the word 'uniform'
On page 9, also is "uniform". Preferable to use "effective and
adequate" instead.
European Community:
We would like to address a point made by Brazil on Article 17.
In relation to Art 17 related to reservations this is the correct
term in legal terms b/c doesn't apply to possibility to opt in but
applies to possibility to make reservations to NT obligations
possibility to apply reservations applies to the national treatment
principle in Article 5. therefore the term to be maintained is
'reservations'.
Brazil: I understand up to a certain point what the EC has expressed
however the language is quite vague in this Article 17. It just says
"reservations to his treaty", rather than just "reservations to the
national treatment obligation". So I wonder whether this is specific
enough. So I wonder if this is sufficiently clear in terms of what we
are referring to. So perhaps we should be more specific about this.
Chair: We have tackled the last item in the work plan. and we will
tackle the next item that was promised to be tackled after the
substantive articles. This will be webcasting. Yesterday, in my
conclusions I said that it seems in the light of that debate that we
have to separate more than before the substance of protection of
broadcast/cablecast orgs from the protection of webcasting orgs and
computer networks, diff from Hertzian waves.
Then I envisaged possibility of creating two basic proposals. At the
end we will establish the possibility to prepare two basic proposals,
one regarding traditional casting rights and another regarding
webcasting. That suggestion was based on the finding that the
discussion on the scope, that there was very clearly stated
opposition to including webcasting in the basic proposal. There was
clear and broad opposition to the inclusion of webcasting in basic
proposal.
There was more opposition to webcasting than to simulcasting.
Positive statement of support for simulcasting. In our final
conclusion we cannot conclude that a single document can be prepared
because there was no consensus emerging in the debate. and we need
consensus for our work this lead to the proposal that we would divide
the proposal in two parts. Two proposals, would discuss webcasting
separately. If it becomes clear that the other issue is more
politically difficult then that instrument could be promoted adopting
a different time frame. We will discuss this first thing in the
morning. I will then submit the question of whether this division
into two parts would be acceptable, as the first way of handling
these substantive areas was clearly not possible given the
expressions of opposition to webcasting expressed.
I should add one thing, I left a ? hanging in the air. If
delegations who object to web casing, if even when we consider
traditional broadcasting instrument, when we refer to simulcasting by
traditional broadcasters, would delegations object to this?
That refer to subsequent 2ndary references (simulcasting) would
those elements that includes retransmission (Art 6) and transmission
of delayed (Art 9)
In some cases, esp. in area of retransmission, then this would empty
the whole treaty. Particularly in relation to online distribution.
Would empty all purpose of treaty.
Article 6 on retransmission is the main article to combat signal piracy.
And of course those elements were there, there would be no
protection of webcasting, there would be protection of broadcasts
when done over the Internet. They would be acts of piracy if done
without authorization of br or cablecasters.
I invite you to consider these ?'s over night.
10:25 PM Session ended.