[Ecommerce] June 23 notes WIPO SCCRR meeting on Database and Broadcasting/cablecasting/webcasting Treaties

[James Love]

-------- Original Message --------
Subject: FYI Informal notes (first day of meeting)
Date: Mon, 23 Jun 2003 17:45:18 -0400
From: Manon Anne Ress <manon.ress@cptech.org>
To: James Love <james.love@cptech.org>

June 23, 2003 Informal notes on first day of meeting for WIPO’s Standing
Committee on Copyright and Related Rights

This is the ninth session of the committee looking at a non-original
database treaty and the “Broadcasters’ treaty”.  The morning session was
taken over by industry presenters.  Seth Greenstein (representing
broadcasters) made a presentation on the technological features of
webcasting to “demystified” webcasting.  He explained the difference
between streaming and downloading.  Then to present a “different” point
of view, Bob Roback, (Yahoo) explained the difference between
“on-demand” and “programmed” for consumers and the industry business
model. We heard how business planning is complex for the webcasters.
The purpose was to show that the proposed treaty is about fighting
signal piracy and has nothing to do with content.  We also heard from
Fox (not on the agenda but gave us a quick presentation before lunch
break) who explained how the broadcast flag being proposed in the US is
a simple solution.

The afternoon session was about approving the agenda.  The discussion on
the possibility of discussing a non-original database treaty lasted less
than an hour.  Kenya had a proposal but was not available, Korea
mentioned that they just started to protect database for 5 year term.
India stated that there was no consensus in India at this time and that
it was premature to discuss the issue.  Egypt remarked there was no
progress and that the item should be deleted from the agenda.  More or
less the same for Senegal whose delegate mentioned that the “non
original databases” are protected by other means.  Brazil stated there
was no need to discuss the database treaty and that it should be deleted
from the agenda.  The US stated that it was an important issue being
discussed in the US Congress now and asked that it’d be kept on the
agenda for the spring meeting of the committee.  The European Community
mentioned that they have a directive that works very well for the member
states and that the report on its functioning will be available before
the end of this year.  Russia proposed to postpone discussion to next
spring.  For Romania the issue is important and necessary.  After a
second round of “no, it should be deleted from the agenda” and then the
Chair announced that he will summarize all of this in the report at the
end of the week.

Delegates wanted to discuss the broadcasters’ treaty and the Chair asked
delegations that had submitted a proposal since last meeting (November)
to present them.  Kenya was not ready but Egypt presented its proposal
focusing exclusively on broadcasters’ rights (no mention of webcaster).
The US (Mike Keplinger, USPTO) stated that they had consulted with
stakeholders, i.e. performers, content owners, broadcasters,
cablecasters and webcasters.  He mentioned they US might want to add
“broadcast flag” technology and continues to believe that webcasters,
also victims of piracy, should be in the treaty.

Japan introduced its paper “Issues concerning “webcaster” in new WIPO
broadcasting organizations treaty”.  While recognizing that
broadcasters’ protection needs updating, Japan had various questions
about what including webcasters would mean.  Would any individual
“webcasting” from point to point to anyone... be a webcaster?  And that
would also mean cross border webcasting?  That was the beginning of many
questions (publicly and privately about why the US is insisting on
including webcasting).

Canada stated that cablecasters should not in any case acquire higher
rights than content owners.  Senegal had questions about the definitions
in the treaty.  For India, talking about a treaty is premature,
broadcasters are already protected under copyright and the definitions
are too vague.  India pointed to the “forgotten” in all of this i.e. the
authors and the consumers.  India suggested that maybe a protocol on
investment protection for broadcasters was more appropriate.  India
noted that this treaty could be a threat to the public domain by
shrinking what is publicly available.

For Russia, the webcasters should be dealt with a different “internet
treaty”.  Egypt supported other delegations and stated that more
discussion was needed for the definitions, the scope and other essential
matters.  Ghana asked that regional groups met to have regional positions.

The chair mentioned that back in November, he was optimistic, there was
“convergence of positions” for example pre broadcasting deserved
protection and simultaneous streaming should also be covered.  There had
been no opposition to fixation in any of the proposals.  Now, it seemed
as if there was less “convergence” and it was decided that the next two
days would be devoted to discussion about the scope, the rights and the
beneficiaries.  He urged the delegates to keep in mind two questions:
what is protected today and what still needs protection?  Again he
reminded the committee that the assumption was that they were talking
about signal and not content.  He stated that the committee had to
consistent with existing instruments such as TRIPS, Rome, and WPPT etc.
  The committee should also look at a balance of rights avoiding
prejudice to other rights.

The Chair had a conference room paper to clarify his assessment of the
topics to be discussed (I quote):
“OBJECT
Preliminary understanding
1) Broadcast (program-carrying) signals over the air
2)Cable originated (program-carrying) signals
3)Pre-broadcast (program-carrying) signals

Suggested other items:
4)Simultaneous streaming of 1) and/or 2) (signal)
5)Internet originated streaming (signal)

RIGHTS/RESTRICTED ACTS/OBLIGATIONS
1)	fixations
2)	reproduction of fixations
3)	distribution of fixations
4)	rebroadcasting (simultaneous)
5)	cable transmission (simultaneous)
6)	retransmission over the internet (simultaneous)
7)	deferred broadcasting/cable/internet transmission based on fixation
8)	making available of fixed broadcast
9)	communication to the public (in place accessible to the public
against entrance fee)
10)	obligations regarding technological measures of protection and
rights management information.

Suggested other items

11)	decryption of encrypted broadcasts

12)	making available of unfixed broadcasts”


The regional groups, Grulac, Asia, Africa will meet tomorrow morning
before the committee.

VERY Informal notes:  the work of the committee is not going to be easy.
  Including the webcasters (see the US) is not seen as a good move by
many.  The “content people” are so far, let’s say quiet (considering
what is going on) except for the International Music Managers Forum that
circulated a paper stating in bold “We know from experience that when in
negotiation with broadcasters, it is rare for any rights-holders to
negotiate from anything like an equal position.”  While not opposed to
broadcasters rights they have justified concerns about their own rights.
  Talking with various delegates, it appears that they are not convinced
that the webcasters should be included nor have the clout to be
included.  However, the brodcasters and cablecasters are seen as
powerful (and not only in the the US).

For many the morning presentations were another example of US corporate
giants setting the agenda.  Some stated that there had not been enough
discussion about whether there should even be a treaty and that the
various drafts compiled by the secretariat were not convincing that
there was a need except the need to draft something.  They can see that
at the end of this meeting a decision will be made about whether to
schedule a diplomatic conference and many expressed concerns and doubts
about the process.  I circulated a statement (see below) and several
delegates shared with me their own concerned for the threat to the
public domain, a lack of regards for the public interest and for
developing countries’ situation regarding adding more rights to one more
“layer” between consumers and authors.  There were many questions about
whether the broadcast flag was controversial and also about assessment
of the DMCA in the US.

The US delegation is three persons (Keplinger, USPTO, Jule Sigall and
Marla Poor(LOC)

-- 
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176