[A2k] Riaz Taybo at WIPO: Chairman dominates discussions at Special Session on Copyright

[James Love]

SUNS #6172 Friday 19 January 2007

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WIPO: Chairman dominates discussions at Special Session on Copyright

Geneva, 18 Jan (Riaz K. Tayob) -- Chairman Jukka Liedes from Finland
dominated most of the discussions on the proposed treaty on the
protection of the
rights of broadcasting organisations, taking place at the Special
Session of the
Standing Committee on Copyright and Related Rights (SCCR).

The first of two Special Sessions mandated by the WIPO General
Assembly began
on 17 January and is due to end on 19 January. The second session is
to be held in
June 2007.

The two Special Sessions have been mandated to "clarify outstanding
issues" in
relation to the proposed treaty. A diplomatic conference has been
convened for
December this year, but in effect is conditional on the clarification
of issues in the
Special Sessions.

At this week's Special Session, the Chairman has sought to drive the
discussions in
the direction favoured by him by presenting three new non-papers
reflecting his
views, rather than the basic text which reflects the viewpoints of
various groups of
countries. The Chairman's presentation of the non-papers led to
confusion as to
which document is to be the basis for discussions at the 3-day
Special Session.

Several key delegations raised their dissatisfaction with the method
of work of the
Chairman, in particular, the 3 non-papers presented for discussion
and stressed that
the focus should be on the WIPO General Assembly (GA) decision which
guides
what the special session should discuss and the document that is to
be the basis of
discussion.

The WIPO General Assembly (GA), in convening the Diplomatic Conference,
decided to hold special sessions, as a compromise between those
delegations that
wanted to approve the recommendation of the 15th SCCR meeting for a
diplomatic conference (11 July to 1 August 2006), with the Revised
Draft Basic
Proposal (SCCR/15/2) as the main negotiating text for the conference
(See SUNS
#6099, 15 September 2006) and others such as India, Iran, Indonesia,
Chile,
Canada, Uruguay and the US that were of the view that there was
insufficient
consensus on the draft text (SCCR/15/2) to guarantee a successful
conference (see
SUNS #6099 of 15 September and  #6113 October 2006).

The Special Sessions were mandated to "aim to agree and finalize, on a
signal-based approach, the objectives, specific scope and object of
protection with
a view to submitting to the Diplomatic Conference a revised basic
proposal, which
will amend the agreed relevant parts of the Revised Draft Basic Proposal
(SCCR/15/2)".

In effect, the WIPO GA approved the convening of a diplomatic
conference from
November 19 to December 7, 2007 but set conditions to be fulfilled
before the
conference can be held. According to the GA decision, if the special
sessions fail
to find consensus on the "specific scope", "objectives" of the
proposed treaty and
"object of protection" on a signal based approach, further
discussions  will be
based on the Basic Proposal (para 4 GA Resolution).

Many delegations at the Special Session say that the recommendation
of the 15th
SCCR meeting was the result of Chairman Jukka Liedes steamrolling over
objections that it was premature to convene the diplomatic conference as
significant divergences still existed among members.

At the Special Session, with the introduction of the new non-papers,
the Chairman
seemed to be determined to lead discussions in a specific direction
in spite of
objections from several Members that this may not be the proper working
methodology.

The Draft Basic Proposal contains the views and alternatives
presented over many
meetings by delegations, while the three non-papers contain only the
view of the
Chairman. However, according to the Chairman, the non-papers were an
attempt
to stir debate and move the process forward during the Special Session.

On the methodology of work, Algeria, on behalf of the Africa Group,
said that it
was better at the Special Session to work on the basis of the Basic
Proposal to
identify common and divergent views in order to make progress.

The Chair, however, dismissed this view, retorting that the Basic
Proposal should
be referred to only when there is no other basis for debate.

Colombia agreed with Algeria, and said its delegation had not
consulted their
capital on the Chair's "ambitious" documents.  Both El Salvador and
Mexico also
supported the view that the Basic Proposal is the proper basis for
discussions.

India said that the meeting should first arrive at a consensus on
"objectives"
instead of looking at specific text.

However, the Chair ignored these interventions and proceeded to
discuss the
non-papers.

When Mexico then asked if the Session was working with the Basic
Proposal,
which is mentioned in the GA decision, or a separate document, the
Chair said that
the content of the decision of the GA needed to be clarified.
Colombia also
reiterated its understanding that the Basic Proposal should be the
basis of work,
pointing to some confusion in the discussion paper (one of the non
papers) by the
Chair.

The Finnish Chair however said the GA decision was a "complex" one,
which
"demonstrates the diversity of opinions on how to proceed."

The European Union also sought clarification on the working
documents, and
asked why the non-papers had not been distributed much earlier.

The Chair's first non-paper, presented as a discussion paper, states
that it "reflects
only the understanding of the Chair and no Delegation is bound to the
thoughts
presented in it". It outlines the understanding of the Chair of a
"signal-based
approach", the "objectives", "the specific scope" and the "object of
protection".

On the "signal based approach", the non paper states that it refers
to "something
that is narrower than what has been laid down in the working
documents up to
now". It interprets the GA decision as focussing "on the protection
of the "live
signal", as this is the moment when the need for protection is most
acute", but adds
that in order to make protection "practicable and effective" it could
"in some cases,
extend beyond the live signal, to some post-fixation instances" and
"by no means
precludes granting some exclusive rights to broadcasting organizations."

The Chair also said that this approach was the "ultimate signal-based
approach."

The paper adds that a "signal-based approach" and whether the
protection is
"rights-based or based on other legal means", are "actually different
aspects or
dimensions of the protection". It also proposed to narrow down the
proposed treaty
by regrouping the provisions on "rights" into new combined and condensed
articles on "rights and protections".

On "objectives", the non-paper outlines the main objective as
providing "a stable
legal framework for the activities of the broadcasting organizations"
with a focus
on "anti-piracy", providing "protection against competitors and unfair
exploitation" and against free-riding.

According to the non-paper, legal protection is given because of the
investment
made by broadcasters and the ease of exploiting the works in the new
technological environment. The Chair said that delegations could
consider making
some of the provisions on protection applicable only against "acts
that are
committed for commercial purposes, for competitive uses, or for outright
misappropriations ("theft of signals")".

On the "specific scope", the non-paper states that the treaty "would
provide a form
of protection, consisting of related rights, and/or other specific
protections that are
not defined as rights" which are "independent and self-standing
rights or
protections in relation to rights of authors and other rights holders
of the
programme content".

On this, the Chair added that delegations could consider "what
elements are
absolutely necessary to meet the objective of the treaty, and the
need for an
adequate and effective protection".

On the "object of protection", the non-paper says that the "scope of
the instrument
is normally dictated by the definition of the object"  which is the
"broadcast". The
term "broadcast" has not been defined in any international instrument
- the TRIPS
agreement and the Rome Convention. If it is "now defined, the term
should ideally
have the same scope in the other treaties, and in any case should not
be narrower".

It suggested that a technologically neutral definition of the
"broadcast" be added to
the proposed treaty possibly complemented by a definition of "signal".

The second non-paper was on "Articles -Object and Definitions". It
proposed
specific text on the "object" as well as definitions of "broadcast",
"signal",
"broadcasting", "broadcasting organization", "communication to the
public".
While mentioning these terms, the non-paper did not present any
specific text on
"cablecasting", "re-transmission" and "fixation" (physical recording
of the
programme e.g. on a video).

The "object" of protection of the proposed treaty has been and is a
major question
that emerges during any discussion on the proposed treaty and on
which there is no
consensus. In the past there have been differences of  opinion as to
what the term
"broadcast" (if that is the object of protection) means, i.e. is it
just the signal or
does it also include the "content" carried by the signal. In any
case, the approach
taken by the Chair appears to be an approach that has been rejected
by several
delegations and non-governmental organisations in the past.

The third non-paper "Articles on Rights and Protections" contains
specific text on
"Rights in Broadcast", "Protection of Uses Following Broadcast",
"Protection of
Encryption and Relevant Information" and on "Protection of the Pre-
broadcast
Signal".

The rights proposed to be granted to broadcasters are the "exclusive
right of
authorizing", the "simultaneous or deferred re-transmission of their
broadcasts by
any means, including re-broadcasting, re-transmission by wire, and re-
transmission
over computer networks; and the fixation of their broadcasts".

The text also proposes that following the broadcast, the
organizations "shall enjoy
adequate and effective legal protection in respect of (I) the direct
or indirect
reproduction, in any manner or form, of fixations of their
broadcasts; (ii) the
making available to the public of the original and copies of
fixations (distribution)
of their broadcasts, through sale or other transfer of ownership;
(iii) the making
available to the public of their broadcasts from fixations, by wire
or wireless
means, in such a way that members of the public may access them from
a place
and at a time individually chosen by them; and (iv) the communication
to the
public of their broadcasts, if such communication is made in places
accessible to
the public against payment of an entrance fee, or using very large
screens in places
accessible to the public, or made in a profit making purpose."

At previous meetings, several developing country delegations have
objected to an
"exclusive rights" approach as well as including any reference to "re-
transmission
over computer networks" and  re-transmission by "any means".
According to these
delegations, the general understanding is that any transmission over
the internet is
outside the scope of the proposed treaty and will be dealt with on a
separate track.
These delegations also oppose "fixation" rights. However, the
Chairman's text
retains these aspects which have been the bone of contention in
several past
meetings.

On "Protection of Encryption and Relevant Information", the text
states that the
"Contracting Parties shall provide for adequate and effective legal
protection
against unauthorized (I) decryption of an encrypted broadcast; (ii)
manufacture,
importation, sale or any other act that makes available a device or
system capable
of decrypting an encrypted broadcast; and (iii) removal or alteration
of any
electronic information relevant for the protection of the broadcasting
organizations."

This text appears to favour a certain approach although the Basic
Proposal
contains several options including the option of not having any
obligations in
relation to technological protection measures, an option that is much
preferred by
many developing country delegations that are concerned that it would
impact
access to knowledge.

In general statements during the morning session of the meeting,
Algeria, on
behalf of the Africa Group, welcomed the GA decision and the fact
that the most
contested issue, that of webcasting, has been taken out of the Basic
Proposal. It
added that the decision mandates protection for traditional
broadcasting (and
cablecasting organisations) only.

It also highlighted that provisions in the proposed treaty should not
undermine the
right to access knowledge particularly that in the public domain. A
distinction
should be made between the "signal" and the content of the broadcast
as well as
between the protection given to the copyright holder and that given
to the
broadcasters.

Algeria reiterated its opposition to any reference in the text to
"webcasting" or to
"netcasting". It stressed the importance of having general principles
on the
preservation of public interests in order to protect access to
knowledge and
limitations and exceptions.  It also said that technological
protection measures
should not impact access to knowledge, adding that protection should
only be for a
minimum duration of 20 years.

Barbados for the Group of Latin American and Caribbean countries
(GRULAC)
emphasised the need to ensure an appropriate balance among the rights
of the
broadcasters, copyright holders and the protection of public
interest. There is
interest in discussing other subjects like exceptions to encryption
as raised in
earlier discussions.

Chile supported the GRULAC statement and drew attention to the
limitations and
exceptions for libraries and the disabled. It underscored that the
committee needs
to discuss it more.

Bangladesh on behalf of the Asia Group said that the treaty should
take into
account the protection of cultural diversity and defensive competition.

India said that the parameters of the GA resolution are clear and
distinct and that
there should be a treaty on the traditional medium of broadcasting and
cablecasting. It endorsed the SCCR suggestion that web and netcasting
are not
included and are to be discussed separately and that there should be
a signal based
approach. India said that within these parameters it was willing to
continue.

Colombia said it was concerned about some understandings on
webcasting and the
outcome of the 15th session (referring to the last meeting of the
SCCR). It asked
for clarity so that "doubt can be dispelled once and for all."

The Chairman clarified that "webcasting" and "netcasting" were not
abandoned
and that two tracks were established. One track dealt with
broadcasting in the
traditional sense while another track dealt with the issue of
"webcasting" and
"netcasting".
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