[A2k] Developing countries criticize Chair's text on broadcasting treaty

[Sangeeta]

Please find below SUNS report on the first day of the Second Special Session
of the Standing Committee on Copyright, reproduced here with permission.

Sangeeta Shashikant
Third World Network


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Developing countries criticize Chair's text on broadcasting treaty

SUNS #6275 Wednesday 20 June 2007

Geneva, 19 June (Sangeeta Shashikant) -- A week-long meeting in WIPO to
prepare for a possible diplomatic conference for a new treaty on protection
of broadcasting organizations has run into trouble when many developing
countries could not accept a Chairman's "non-paper" meant to be the basis
for discussing the main provisions of the treaty.

A broad range of developing countries criticized the non-paper for not
representing their views, and for attempting to broaden the scope of the
treaty beyond what was mandated by the WIPO General Assembly last year.

Discussions on a possible WIPO treaty on broadcasting have taken place over
the past nine years, but there has been deep divisions among Members on many
key points, including the objectives, specific scope and the object of
protection of the treaty.

The 2006 WIPO General Assembly decided that a diplomatic conference would be
convened to finalise the treaty, but on condition that agreement on certain
key points be reached, by this week's meeting.

The discussion on the WIPO Treaty on the Protection of Broadcasting
Organizations is taking place at the Second Special Session of the Standing
Committee on Copyright and Related Rights (SCCR) of WIPO.

It is chaired by Jukka Liedes from Finland, who presented a non-paper dated
20 April 2007. The paper seems to have contributed to more controversy,
rather than to narrowing the differences.

Several developing country diplomats are frustrated that even after nine
years of discussion, the Chairman seems unable to recognize the differences
and on some occasions had tried to ignore the views of developing countries
and to push through outcomes over the objections of these countries.

This week's meeting may be the last opportunity to reach an understanding,
as it will have to, latest by Thursday, "agree and finalize, on a
signal-based approach, the objectives, specific scope and object of
protection" of the treaty, as well as the text that will be the basis for
negotiations at a diplomatic conference that is tentatively fixed to take
place on 19 November to 7 December.

If there is no agreement at this meeting, members may recommend to the 2007
General Assembly either to continue discussions on the basis of Revised
Basic Proposal (SCCR/15/2 ) - which is the text for the diplomatic
conference prepared prior to WIPO General Assembly 2006 - or to discontinue
discussions altogether.

If there is an agreement, a preparatory meeting will be held on Friday to
prepare the necessary modalities of the Diplomatic Conference, such as
procedural rules.

On Monday and Tuesday, developing countries voiced their dissatisfaction
over the Chair's non-paper.

The criticisms included the paper's failure to take into account the
comments made by Members; the dilution or elimination of important clauses
(such as those on the public interest, cultural diversity and competition);
the granting of IP type of "exclusive rights" to broadcasters and cable
casters (in Article 7 of the non-paper); the granting of exclusive rights in
Article 7 for "deferred transmission" of "fixed broadcast" "by any means";
its failure to reflect broader alternatives on limitations and exceptions;
its inclusion of the controversial technological protection measures (TPMs);
and the lack of definitions for "signal" and "transmission".

Following years of contentious discussions, the WIPO General Assembly had
decided that the treaty be limited to a "signal-based approach", and to
broadcasting and cable-casting activities. Many developing countries
believed this to mean that the treaty would deal mainly with the problem of
signal theft, and would exclude the granting of IP-type exclusive rights.
They had also advocated several clauses for public interest flexibilities.

The Chair's non-paper failed to reflect this understanding or these
concerns.

As a result of their lack of confidence in the Chair's non-paper, many
developing countries including the African and Asian Groups, stressed that
the Revised Basic Proposal SCCR/15/2 was still the main document for the
SCCR process.

The Chair in introducing his non-paper said that the Revised Basic Proposal
SCCR/15/2 is too complex to be presented to a diplomatic conference. The
Chair had been asked to prepare the non-paper by the previous SCCR session
in January.

The Chair said that thus there was no other possibility but to "start from
scratch" with his non-paper.

He acknowledged that there is a broad range of opinions among members, with
some stating that there should be a "small treaty" not based on "rights" and
"IP", while others wanted a "rights" based treaty.

He added that the mandate from the General Assembly is that the basic
proposal be "signal based" but said that there were different
interpretations of what it means.

The Chair then proposed to conduct the meeting in a small-group informal
mode that would discuss clusters of issues, perhaps to mimic the mode of
negotiations at last week's meeting on the WIPO Development Agenda.

But this was opposed by several countries, including India, Brazil as well
as the Asian Group, who successfully proposed that the non-paper be examined
article by article in the plenary. However, the possibility of informal
consultations later this week has not been ruled out entirely.

Prior to the last General Assembly, Member States agreed to a Draft Basic
Proposal (SCCR/15/2) that contains all the proposals of member states.

However, several member states and the Chair felt that if that document
proceeded to be the basis of the diplomatic conference, it would more likely
fail due to the many differences over the objectives, specific scope and
object of protection of the treaty.

Due to the insistence of some members, the General Assembly approved the
convening of the Diplomatic Conference but subject to certain conditions,
that two special sessions of the SCCR be held this year to clarify the
outstanding issues, and to 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.

The Decision while limiting the scope of the treaty to "the protection of
broadcasting and cablecasting organizations in the traditional sense" also
mentions that "The Diplomatic Conference will be convened if such agreement
is achieved. If no such agreement is achieved, all further discussions will
be based on document SCCR/15/2."

According to its introductory note, the non-paper endeavours to lend full
recognition to the "signal-based" approach, and to the focus determined by
the General Assembly and the SCCR.

It says that representatives of the broadcasting organizations have made a
very serious point that cannot be omitted. "If the Treaty is not based on
some elementary and absolutely necessary rights, the process should be
abandoned. Therefore, the non-paper now includes, as the main operative part
of protection, specific related-rights-type rights in two instances where
the protection of a signal is most relevant, namely re-transmission and
deferred transmission."

The introductory note also states: "This represents the narrowest meaningful
functional protection for broadcasting organizations. If Member States so
wish, provisions may be added allowing for optional wider protection,
notably of post-fixation rights or protection, which would enable
international protection, linked to a clause on national treatment and
reciprocity regarding optional rights or protection."

The non-paper also mentions that "the number of rights and protection
clauses is reduced", adding further that as "the protection against
retransmission and deferred transmission is confined to transmissions to the
public only, the protection of broadcasting organizations would in no case
interfere in the activities of the recipients in their private sphere, e. g.
in the use of broadcasts in the home or personal network environment".

It further notes that "the indicative list of allowed limitations and
exceptions" found in the previous draft non-paper (of March 8) has been
deleted because there are no rights in relation to fixation and/or
reproduction" present in the non paper. The note adds that the "Treaty would
in no instance affect public interest, access to information, consumer
interests or technology innovation."

The non-paper generated many criticisms. Bangladesh, on behalf of the Asian
group, stressed that the document for the SCCR should adhere to the decision
of the General Assembly applicable to the text, should be "signal based",
restricted to the traditional mode and not include web-casting, simulcasting
and computer networks.

It should not affect the rights of the right holders of the content
contained in a broadcast, not impede free flow of and access to information,
including through the use of Technology Protection Measures (TPMs) and other
public policy objectives of the member states and finally that it should
provide for a fair balance of protection of the broadcasting organization
vis-a-vis the rights of the other holders and states.

Barbados, on behalf of the Group of Latin American and Caribbean states
(GRULAC), said that all norm setting activities should take into account the
interests and priorities of all member states and ensure the balance between
the protection of broadcasting organizations and the rights of the copyright
holders as well as the balance between public and private interest.

Algeria, on behalf of the African group, said that while the non-paper was a
useful spring board, the document SCCR 15/2 underlies the discussions. It
said that the scope of protection should reflect the balance between public
and private interest and include the development dimension.

Algeria said that broadening rights that go beyond signal piracy would run
counter to the treaty and the right to access knowledge. Limitations and
Exceptions represent a special interest in reconciling public interest and
gives space to developing and least developed countries. It added that the
TPMs included should not limit access to knowledge.

It also highlighted that several important provisions such as general public
interest clauses (Article 2 of SCCR 15/2), on the promotion and protection
of cultural diversity (Article 3 of SCCR 15/2) and Defense of Competition
(Article 4 of SCCR 15/2) had been transferred from the operational
paragraphs into the preamble of the non-paper.

Raising the same issue, Brazil told the Chair that he had unduly transferred
these Articles to the Preamble and diluted the language to near
"irrelevance".

Brazil said that the Chair should be guided by the mandate of the General
Assembly, which states that a text based on a signal-based approach should
be finalized, otherwise one should revert to SCCR 15/2 and decision should
be made whether to go to a diplomatic conference on the basis of that
document. Brazil said the non-paper is not a "signal-based approach" text.

Brazil added that while the "text has become short", the "rights have become
long", adding that the "rights" contained in the non-paper are "not
precise".

It referred to Article 1 of the non-paper which states that "The objective
of this Treaty is to provide effective and uniform international legal
protection, on a signal-based approach, for broadcasting organizations
against unauthorized use of their broadcasts". Brazil said that this article
is not consistent with "signal-based" protection.

Brazil also maintained reservation to the definition of broadcast and
broadcasting organizations. It said that they were not consistent with
Brazilian national definitions, adding that "many doubts persist on scope
and object of the treaty," particularly clarifying "the extent and correct
reading" of the part of the non-paper which states that "The provisions of
this Treaty shall not provide any protection to any person for transmissions
over computer networks."

On taking an "exclusive rights approach", Brazil said that if "exclusive
rights" is to be included, there should be options for other types of
protection. It was referring to its previous proposal of an alternative
language of "establish adequate and effective legal protection for the
broadcasting organization" as an option instead of an "exclusive rights"
approach.

Brazil said that the non-paper's proposed article on TPMs is "problematic".
Brazil did not agree to its inclusion in the text, adding that the current
language creates obstacles to legitimate uses, use of limitations and
exceptions and access to public domain materials.

It advocated instead the mandatory application of the Limitations and
Exceptions (L & E), adding that what has been included in the current text
is limited to L & Es that apply to copyright holders and makes use of a
three-step test that "limitations of or exceptions to the rights and
protection provided for in this Treaty to certain special cases which do not
conflict with a normal exploitation of the broadcast and do not unreasonably
prejudice the legitimate interests of the broadcasting organization."

Brazil stressed that this test is not suitable for the treaty and is only
for copyright. It added that a treaty on signal theft should not venture
into the area of authors' rights.

It said that the non-paper's proposed article on enforcement is inconsistent
with Articles 1.1 of the TRIPS agreement, adding that all enforcement
matters should be left to national jurisdictions.

Article 1.1. of TRIPS states that "Members may, but shall not be obliged to,
implement in their law more extensive protection than is required by this
Agreement" and that "Members shall be free to determine the appropriate
method of implementing the provisions of this Agreement within their own
legal system and practice."

India said that the "specific scope is not stated positively" in the
non-paper. It referred to Article 3 of the non-paper and said that it was
broad enough to include activities not prohibited. Article 3 is about
scenarios on which the "treaty shall not provide any protection".

India said that despite there being general agreement that the treaty should
take a "signal-based approach", Article 7 goes beyond the mandate, and it
thus had difficulty with the non-paper's approach.

India noted that the non-paper's Article 7 grants broadcasters "exclusive
rights" of authorizing the re-transmission (the simultaneous transmission
for the reception by the public by any means of a broadcast by a third
party) and the deferred transmission by any means to the public of their
fixed (such as video tapping) broadcasts.

India said that despite the members' understanding that simulcasting should
not be included in the treaty's scope, yet it still appears in the
non-paper's draft text, thus being in conflict with the mandate stated by
the General Assembly.

India also made a proposal, similar to that of the Africa Group, that a
number of Articles appearing in the operative paragraphs of SCCR/15/2, i. e.
General Public Interest Clauses (Article 2), Protection and Promotion of
Cultural Diversity (Article 3) and Defense of Competition (Article 4) be
placed into the operative paragraphs of the non-paper instead of in the
preamble of the non-paper. +