[A2k] SUNS: SCCR recommends Diplomatic Conference on broadcast treaty

[Thiru Balasubramaniam]

WIPO: SCCR recommends Diplomatic Conference on broadcast treaty

Geneva, 14 Sep (Sangeeta Shashikant) -- The fifteenth session of the WIPO
Standing Committee on Copyright and Related Rights (SCCR) decided on
Wednesday to recommend to the upcoming WIPO General Assembly the
convening of a diplomatic conference from 11 July to 1 August 2007 on the
protection of broadcasting organizations.

The objective of the diplomatic conference, according to the conclusions orally
presented by the Chair, "is to negotiate and conclude a WIPO treaty on the
protection of broadcasting organizations, including cablecasting organizations".

As regards the scope, it "will be confined on the protection of broadcasting and
cablecasting organizations in the traditional sense."

It further states that the Revised Draft Basic Proposal SCCR/15/2 (working
document for the 15th Session) will be the basic proposal for the conference "with
the understanding that all delegations can make proposals at the diplomatic
conference".

To prepare for the conference, "a preparatory committee will be convened for
January 2007 to prepare the necessary modalities of the diplomatic conference."
This meeting is to consider the draft rules of procedure to be presented for
adoption to the diplomatic conference, the lists of states as well as
intergovernmental and non-governmental organizations to be invited to participate
in the conference, as well as other necessary organizational matters.

According to the conclusions, in conjunction with the preparatory committee, a
special two-day meeting will be held to clarify outstanding issues.

The conclusions also state that the Secretariat of WIPO will organize in
cooperation with the Member States concerned and at the request of the Member
States, consultations and information meetings on the matters of the diplomatic
conference. The meetings will be hosted by the inviting Member State.

The conclusions are only a recommendation and must be approved by the General
Assembly when it holds its annual meeting that begins on 25th September.

The final decision took many delegates and observers by surprise as uncertainty
had gripped much of the three-day meeting that began Monday, which was spent
mostly in informal consultations.

Several public interest NGOs that have been following the negotiations for many
years privately voiced their concerns that the Chairman had ignored the apparent
reluctance of many delegations to recommend a diplomatic conference on the basis
of the draft basic proposal. It remains to be seen whether WIPO members will
actually approve at the General Assembly what has been recommended by the
committee.

The key issue in the meeting was whether Members could agree to a Basic
Proposal for a treaty on the protection of the rights of broadcasting organizations
for the purposes of recommending a diplomatic conference.

The first two days of the meeting revealed that there were significant divergences
still existing among Members on the objectives, scope as well as the substantive
elements of the proposed treaty and there were also many contradictions within the
Revised Draft Basic Proposal (SCCR/15/2), a working document prepared for the
meeting by the Chairman of the Committee, Jukka Liedes from Finland, in
cooperation with the Secretariat. As a result, several delegations were hesitant to
accept the Revised Draft Basic Proposal (SCCR/15/2) as the basic proposal and
take a decision recommending a diplomatic conference.

The European Communities, Japan, the Russian Federation, the Philippines,
Mexico, and El Salvador were some of the countries that were supportive of the
draft basic proposal and the convening of a diplomatic conference, on that basis.

The US was of the view that document SCCR/15/2 was nota proper basis and it
required more certainty. It added that the principle of inclusiveness had many
benefits and costs. The cost is that the more inclusive the document, the less
chance of its success. It also specifically opposed the inclusion of public interest
clauses, provisions on the protection and promotion of cultural diversity and the
defence of competition. It was insistent on including a provision on technological
protection measures that tracks the WIPO Performers and Phonograms Treaty into
the draft text. It added that it remained open to alleviate uncertainty and had begun
to engage delegations to find the middle ground.

India said that it was obvious that after three SCCR sessions there was still no
unanimous agreement and so it had a lot of "trepidation and apprehension" in
going in for a diplomatic conference. It raised several points that it was dissatisfied
with including the fact that the draft basic proposal as well as the Chairman's
interventions gave the impression that webcasting is at the centre of the proposed
treaty, although it was decided at the last meeting that this issue would be on a
parallel track. It added that if this was the case, then unless and until this issue was
addressed, any further attempts to go in for a diplomatic conference is likely to
lead to more acrimony than acceptance.

Iran said that there was ambiguity in the text as it did more than take a signal
protection approach and there appeared to be no space to revisit the text. Iran
stressed that there should be clarification.

Indonesia drew attention to the mandate given by the last General Assembly. The
main issue according to that mandate was to see whether the revised draft basic
proposal was acceptable. Its delegation felt that some work needs to be done
before the convening of a diplomatic conference and proposed that Members
revisit the draft basic proposal. It also supported cleaning the text of any references
to webcasting and stressed the importance of having impact studies as they would
be useful for negotiation.

South Africa also expressed its wish to see a document clean of any
inconsistencies before committing to a diplomatic conference so that Members are
aware what they are committing to and are able to prepare adequately.

Chile also said that Members appeared to be rushing into this, putting the cart
before the horse. It said that a solution was being rushed although the text was
unclear.

The Chairman, who according to several delegations is very keen personally on the
convening of a diplomatic conference, proposed several methods in an attempt to
make delegations agree to a recommendation to the General Assembly for the
convening of a diplomatic conference, although it was apparent from the
interventions made during plenary sessions, that there was not much agreement
that the draft before them could be the basis for a diplomatic conference.

On the evening of the second day, the Chairman presented its draft conclusions.
Besides containing text on recommending a diplomatic conference and the
preparatory steps that would follow suit, the Chairman also listed instructions for
the preparation of the basic proposal. However, this was not agreeable to several
delegations. According to a delegate, it would rather go to a diplomatic conference
on the basis of the draft basic proposal before them, rather than leave it to the
Chairman and the Secretariat to prepare a new text and proceed on that basis for a
diplomatic conference.

Just an hour before the close of the meeting, the Chairman proposed the
preparation of a "non-paper" by the Chair for use during a two-day meeting that
would be held in conjunction with the preparatory committee to iron out
differences among Members. However, this was also rejected by several
delegations on the grounds that the two documents (i.e. the basic proposal and the
non paper) would create confusion and complicate the process further.

In the three days, several developing country delegations also flagged their
concerns about the substantive elements in the draft basic proposal.

Indonesia, on behalf of the Asian group, said that it wished to see a treaty dealing
with the problem of signal piracy. However, there were some rights and measures
in the draft basic proposal that goes beyond dealing with this problem, impacting
public interest and the rights of content owners.

The group also did not support the inclusion of any provision that legally sanctions
technological protection measures (TPMs), adding that this would stifle innovation
or deny the public rights to exercise rights on access to knowledge. It called for the
deletion of Article 19 from the draft basic proposal. It stressed that it was essential
to reach agreement on the text before proceeding to the diplomatic conference.

Egypt pointed out some of the contradictions in the Draft Basic Proposal. It said
that while Article 6 (1) of the draft made clear that the protection granted under
this Treaty "extends only to signals" and "not to works and other protected subject
matter carried by such signal", sub-paragraph (2) and (3) of the same Article
extends the scope to include "broadcasts" and "cablecast"which is not defined and
could mean the content carried by the signal. It added that the problem was that
there were many issues that were not crystal clear.

India said that broadcasting organizations broadcast the signals that carry the
programme that is copyrighted and therefore protection of the signal before and
during transmission is desirable. To some extent that kind of protection is
provided for in the TRIPS Agreement, India added. If the intention is to go beyond
the TRIPS Agreement and the Rome Convention on the protection of performers,
producers or phonograms and broadcasting organizations, then its delegation
would be happy and willing to consider additional protection if it is convinced that
it is required and desirable. It stressed that the protagonists of such protection need
to state their case in greater detail.

India added that broadcasting organisations get related rights and the protection
that they receive is relevant to the extent the rights are conveyed to them by the IP
holders and so the protection is circumscribed by their acquisition of those rights.

It also agreed with the observation made by Egypt. It said that it was willing to go
beyond Art. 6 (1) provided they were convinced that this is what the broadcasting
organisations need and deserve. It gave the example where a film producer has
transferred the right to broadcast a film to broadcasting organizations and so
during the broadcast, protection is needed for the signal but once the transmission
is over no right subsists.

It explained that a "broadcast" contains fours types of intellectual property, i.e. the
programme content, the advertisements, the look and feel of the channel and the
scheduling of the total programme, and so when talking about "rights", we need to
see whether one is talking about this or something else.

India also said that Members should look at another expression i.e. "protection",
rather than "rights" as broadcasting organizations need protection from the misuse
of signals rather than exclusive rights.

India also raised the point that although Members had agreed at the 14th Session to
exclude from the scope of the treaty webcasting and simulcasting, the draft basic
proposal contains in many parts expressions that can include webcasting and
simulcasting. It stressed that the draft text should be clean of such expressions.

India was referring to the language in the draft basic proposal that gave
broadcasters the exclusive right of authorizing the re-transmission of their
broadcast "by any means" and "re-transmission over computer networks" (Article
9); the right of reproduction  "in any manner or form" (Article 12); and the right of
transmission "by any means" following fixation (Article 14).

Brazil made clear that its position on TPMs was that it should not be included in
the draft treaty. It also expressed concern over the lack of definition of "broadcast"
especially if the rights granted are becoming enlarged. It said that it could not
move forward without defining the term. It also stressed the importance of
limitations and exceptions and the provision on the protection and promotion of
cultural diversity.

Brazil later added that it understood that for certain members it is imperative that
the re-transmission right can be applied in a defensive measure i.e. the "right to
prohibit". It further said that to what extent expressions such as "any means"
covers webcasting and simulcasting is an open question that needed further
exploration and study. It said that it felt that narrowing down the rights to being
merely defensive is a good general direction.

South Africa took a similar position to that of India in relation to clearing from the
draft basic proposal expressions that could extend the scope beyond traditional
broadcasting and cablecasting.

It also concurred with Brazil's intervention on the desirability of listing exceptions
and limitations. On TPMs, it said that it should be clear that the treaty does not
impact Member States' ability to regulate anti-competitive monopoly conduct. It
also recommended that WIPO conduct a study of the best practices available on
enforcement of TPMs.

Argentina also said that it could not support a document that referred indirectly or
directly to webcasting and it wanted to be clear that these issues were outside the
scope of broadcasting. Chile similarly stressed the importance of Limitations &
Exceptions (L & Es) and listing these out, stating that it was fundamental to
achieving a balance in the treaty. With respect to TPMs, it added that it was not
opposed to such inclusion so long as they do not obstruct the exercise of legitimate
exceptions and limitations, and block access to public works. It further expressed
support for the provision on defence of competition.

China said that L & Es were an important part of the treaty as they balance
broadcasters' rights with the public interest which was crucial to guarantee. It said
that an exhaustive list would not allow sufficient flexibility for national legislation
to make domestically appropriate exceptions and called for a more general
provision.

Nigeria on behalf of the African Group raised concerns about protecting the public
interest, access to information and knowledge and protecting rights of creators. It
urged more impact assessment studies. It also said that L & Es were important for
policy space.

Kenya was supportive of providing a non-exhaustive list of L & Es and of "rights"
that do not adversely affect competition and impact access to knowledge. It
opposed the inclusion of TPMs and supported conducting impact studies.
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