[Ecommerce] Re: [Broadcast-discuss] SCCR/12/2 REV.2-Second Revised Consolidated Text for a Treaty on the Protection of Broadcasting Organizations

[Nick Ashton-Hart]

I thought I would put forward some comments in respect of this draft
to start the debate :)

Needless to say, the change to the Preamble, Para 5, line 3 with the
addition of the phrase "carried by" is a step in the right direction.
Article 1, Alternative B, para 2, should have a change: the end of
para 2 should be changed from "...program material incorporated in
broadcasts." to "...program material carried by broadcasts." in order
to reflect the spirit of the change to the perambular text.

The Secretariat has suggested that a definition of a "broadcast" is
not required since it is covered by the definition of "broadcasting"
- but I do not think this is correct as there needs to be congruence
between the changes to the subject of protection as provided in the
new Article 3(0). We also need a definition of "signal" in order to
provide certainty as to what exactly is being protected. I would
suggest a definition of "content" or "subject matter" as well (see
further comments for one of the the uses of it)

Article 3(0) - this is a MAJOR positive shift! It is exactly what
we've been calling for! We're going to have problems, I think, with
the European Community over this though - EU and member-state
legislation leans toward a muddier definition of what a broadcast is
than this treaty is shaping up to provide... Now we just need to win
people over on our way of protecting signals - but at least the
foundation has been laid!

The new language still needs some work in my opinion: in particular
in relation to the last line: "...and not to works and other
protected subject matter carried by such signals." I understand why
the word "protected" is used - but it doesn't really help: "clever"
people could perhaps suggest that there's ambiguity as relates to non-
protected matter. Perhaps something like "..and not to the [Content
or [Subject Matter] carried by such Signals." What I'm getting at
here is of course that it is irrelevant whether or not the content is
protected - the point is that the content is not the signal.

Article 6: This is a nightmare; it was one before, and now it is
worse! In the joint NGO proposal we've not really concentrated on
this article - I think we're going to have to do so at the next SCCR.

Article 8: as bad as it ever was - it should at least be limited to
the level of Rome. This is a difficult one to fight, as the Egyptian
proposal was very broad so one of the main allies we have is unable
to go as far as they might otherwise.

New rights: (reproduction, distribution, etc). the two-tier proposal
has been converted somewhat - a repackaging exercise. These are a
particular danger, as this means everyone can have as little or as
much as they want. We'll have to fight this more of course...
However, if we get the changes vis a vis signal vs content, it is
unclear what, if any, benefit would be available to the reproduction
of a fixed signal...

Article 15, Alternative EE, is a welcome inclusion.

Article 16, Alternative V: this has been included because it was left
out in the first sets of drafts. The problems associated with this
language are many and varied and I'm sure others will pick up and
make comments on them. Alternative N is of course a welcome addition
I'm sure for many.

Article 19, Alternative OO: this illustrates how far away from a
DipCon we (should) be: there are more and more possible reservations
to this instrument as the negotiating continues, not less - and as
many have said, a DipCon's basic proposal should have few, or ideally
no, reservations.

There are other things one could say but the above are a good start....

I look forward to seeing other comments!

Regards,

Nick Ashton-Hart
PO Box 32160
London N4 2XY
United Kingdom
Tel: +44 (20) 8800-1011
Fax: +44 (20) 7681-3135
mobile: +44 (7774) 932798
email: nashton@subversive-music.com
Win IM: ashtonhart@hotmail.com / AIM/iSight: nashtonhart@mac.com /
Skype: nashtonhart


On 8 Aug 2005, at 18:25, Thiru Balasubramaniam wrote:


>
>
> Document SCCR/12/2/REV.2 is the "Second Revised Consolidated Text
> for a Treaty on the Protection of Broadcasting Organizations"
> prepared by the Chair of the Standing Committee on Copyright and
> Related Rights in cooperation with the WIPO Secretariat.  It was
> released on  May 2, 2005.
>
>
> This link provides access to the document which number 97 pages.
>
> http://wipo.int/edocs/mdocs/sccr/en/sccr_12/sccr_12_2_rev_2.doc
>
>
>
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>
>