[A2k] TWN INFO: Differences remain over protection of broadcasting organizations

[Sangeeta]

Below is a news report on discussions that took place on Thursday last week
during the WIPO Copyright Committee meeting.

It was first published in SUNS.

Regards
Sangeeta Shashikant
---------------------------------------------------------------

Differences remain over protection of broadcasting organizations
Published in SUNS #6710 dated 2 June 2009

Geneva, 29 May (Sangeeta Shashikant and Asmeret Ashgedom) -- The World
Intellectual Property Organization (WIPO) Standing Committee on Copyright
and Related Rights (SCCR) resumed its discussions on 28 May, with continued
differences over the issue of the protection of broadcasting organizations.

The issue of the protection of broadcasting organizations has been on the
agenda of the SCCR for more than ten years.

Despite a call for the revival of talks on a treaty by selected industry
representatives on Monday during an information session, wide divergences
among countries suggest that it is likely that the issue will continue to be
on the agenda of the SCCR, although text-based negotiations are unlikely to
begin in the near future.

The SCCR also discussed the protection of audio-visual performances, albeit
making little headway due to continued differences. Treaty talks on the
protection of audio-visual performances collapsed in 2000.

Towards the end of the day, the Committee begun discussions on the first
draft of the conclusions prepared by the Chair of the SCCR, Jukka Liedes of
Finland. As the draft was discussed, positions and points of divergences
became clearer on the issue of exceptions and limitations (E&L) to
copyright.

At the core of contention is future work on the issue of E&L, in particular,
on the proposal by Brazil, Ecuador and Paraguay relating to "Limitations and
Exceptions: Treaty proposed by the World Blind Union (WBU)", which was
formally submitted and considered this week. (See SUNS #6709 dated 29 May
2009.)

The developed countries considered as "premature" having discussions on the
proposed treaty at the next SCCR session, while the developing countries
were keen to embark on a discussion of the proposed treaty, as well as a
broader agenda on E&L.

Most of the morning of the SCCR meeting on 28 May was spent discussing the
protection of broadcasting organizations and audio-visual performances,
while the afternoon was spent mostly on informal consultations and formal
discussions on the conclusions prepared by the Chair.

The talks over a proposed treaty for the protection of broadcasting
organizations were geared up towards a diplomatic conference but collapsed
at a special copyright committee session in 2007, as members failed to reach
agreement on the "objectives, specific scope and object of protection" of
the treaty, as well as the text for negotiations at the diplomatic
conference.

The main point of contention was how the mandated "signal-based approach"
should be reflected in the text, that is, whether it should provide IP-type
of protection to broadcasters and whether the protection should extend to
"non-traditional platforms" such as the Internet.

Over the last decade, some members, in particular, the developed countries
(such as the EU and Japan) favoured the granting of "exclusive rights" of
authorizing the "retransmission of their broadcasts and the deferred
transmission broadcasts" over traditional and non-traditional platforms
(such as the Internet) to the public. However, many other countries opposed
this approach.

Differences remained at the SCCR over this matter.

Germany, on behalf of Group B (comprising developed countries), claimed that
one of the major obstacles for broadcasters was piracy. It noted that
digitization had increased the global threat of signal piracy and thus, this
was more than a national problem.

Korea supported extending the scope of protection of the broadcasting treaty
to the digital environment.

South Africa noted that stronger government enforcement to monitor and hold
persons accountable for copyright infringements has not deterred people from
participating in acts of piracy. The socioeconomic dimension to piracy needs
to be studied, it added.

Instead of just strengthening laws, there needs to be more attention placed
on public access, especially on content with high public interest, South
Africa said.

Pakistan said the signal-based approach should be the basis for any future
norm-setting for traditional broadcasting and cable casting. It added that
the time was not right to roll into the area of the Internet. It also called
for further studies for improving the understanding on the issue.

India also stressed on a signal-based approach in setting norms for
traditional broadcasting and cable casting. It also requested the
Secretariat to provide information to Member States on the current status of
broadcasting organizations in developing countries and least developed
countries (LDCs), information to comprehend the signal-based approach, as
well as information on the objectives and scope of broadcasting
organizations.

Brazil noted the existence of a wide divergence of views. It said that it
did not oppose the item being on the agenda but recognized that a vast
amount of work was required before reaching a conclusion on the issue. A
diplomatic conference cannot occur until agreement on the objectives,
specific scope and object of protection has been achieved, it added.

Although Chile supported retaining the agenda item, it also recognized that
the position of the various members remained distant. It suggested that a
way of deepening the debate could be through new studies.

The issue of the protection of broadcasting organizations will remain on the
agenda of the SCCR, with the Secretariat likely to be tasked with organizing
regional and national seminars, followed by regional consultations on the
objectives, specific scope and object of protection.

The issue of the protection of audio-visual performances also made little
headway at the SCCR meeting.

Senegal, on behalf of the African Group, said that while it would like to
progress on the issue, protection for audio-visual performers should be
balanced with the public's right to access to information.

It asked for the discussion on the protection of audio-visual performances
to be aligned with the principles of the Development Agenda, adding that the
disparities and different levels of development among countries should be
borne in mind. It also requested the Secretariat to organize a seminar in
Africa that would provide a forum for stakeholders to debate the potential
contents of a treaty.

Indonesia also requested for regional consultations, but stressed that it
was essential to strike a balance between the protection of audio-visual
performances and other stakeholders.

The Czech Republic, on behalf of the European Community, also requested that
WIPO hold informal consultations and meetings with Member States with the
intention of identifying the current positions of all Member States with
regards to the treaty.

Colombia and Mexico urged that discussions be centered on the aspects of the
treaty that could not be agreed upon in the Diplomatic Conference held in
2000.

The issue of the protection of audio-visual performances is likely to
continue to be on the agenda for the next SCCR meeting. The Secretariat is
also likely to be asked to prepare a background document on the main
questions and positions of members and to organize informal consultations on
possible solutions to the current deadlock.

Towards the end of the day, the Committee begun discussions on the first
draft of the conclusions prepared by the Chair of the SCCR, Jukka Liedes of
Finland, which covered the issue of E&L, protection of audio-visual
performances and protection of broadcasting organizations.

Interventions by the different regional groupings revealed divergences on
the issue of E&L. At the core of contention was future work on E&L and the
proposed treaty. Particularly contentious was the first two paragraphs of
the Chair's text.

The first paragraph reconfirms the commitment of the Committee to "expedite
its work on the access of the blind, visually impaired and other reading
disabled persons to protected works".

The second paragraph of the Chair's text states: "The Committee expressed
its appreciation for the Proposal by Brazil, Ecuador and Paraguay Relating
to Limitations and Exceptions: Treaty Proposed by the World Blind Union
(WBU). The proposal will be discussed at the nineteenth session of the SCCR
after Member states have had time to analyze the proposal".

The developed countries considered as "premature" having discussions on the
proposed treaty at the next SCCR session, while developing countries were
keen to embark on a discussion of the proposed treaty, as well as a broader
agenda on E&Ls.

Germany, on behalf of Group B, sought to dilute the Chair's text. It
proposed as a substitute: "Some Member states expressed [the] view that it
should be discussed at [the] 19th session after Member states have had time
to analyze the proposal. Other Member states stated the view that
deliberations regarding this instrument or any instruments would be
premature because many Member states are still immersed in fact finding and
evaluation."

(According to James Love of US-based NGO Knowledge Ecology International in
a blog post, "opposition from the United States and other high-income
countries is due to intense lobbying from a large group of publishers that
oppose a "paradigm shift", where treaties would protect consumer interests,
rather than expand rights for copyright owners".)

Sri Lanka, on behalf of the Asian Group, proposed language in the first
paragraph that would reaffirm the Committee's commitment "to the broad
agenda" on E&L, but "especially", "expedite its work on access of the blind,
visually impaired and other reading disabled persons to protected works". It
favoured discussing the proposed text "along with any other alternative
proposal submitted by Member states" at the next SCCR meeting.

Senegal, on behalf of the African Group, proposed stronger language for the
first paragraph in that the Committee reconfirm its commitment "to expedite
its work on the exception and limitation, taking note of the interest
expressed by the Member states for the progression of work in an overall and
inclusive approach taking account of the concerns linked to development."

On the second paragraph, it proposed that the conclusion say that the
Committee expressed "interest" (substituting "appreciation") in the proposed
treaty and "agreed to work on exceptions and limitations in an overall and
inclusive framework at a norm setting level", taking into account the need
to expedite the work on access for the blind, visually impaired and other
reading-disabled persons to protected works.

Costa Rica, on behalf of GRULAC (group of Latin American and Caribbean
countries), proposed for the second paragraph: "Many delegations expressed
support for the Proposal by Brazil, Ecuador and Paraguay Relating to
Limitations and Exceptions: Treaty Proposed by the World Blind Union (WBU).
 Other delegations asked for more time to analyze the proposals. Some
expressed the desire to have a broader approach to E&Ls". +