[Random-bits] WIPO SCCR Meeting - day two - more discussion of "casting" treaty

[James Love]

Day two of WIPO SCCR meeting
November 4, 2003

James Love <james.love@cptech.org>

Geneva: Tuesday was the final day of deliberations on the
broadcast/cablecast/webcasting treaty.  On Wed the SCCR will discuss
other agenda items.

The day began with comments from a number of member country delegations.

Australia said that the inclusion of webcasting might block progress on
the treaty.  (Australia also has a private copying right for broadcasts
that would be possibly be in trouble under the treaty format for
limiting exceptions).

New Zealand indicated that the current proposal might not be the best
instrument to address internet webcasting, but that this was an
important issue that needs the attention of WIPO, as a matter of priority.

Brazil made a moving intervention, asking the delegates to reflect on
what was the rationale for the treaty, and "why are we here in the first
place."  Brazil said the point was not to protect investments or to
create profit opportunities per se, but to ensure that broadcasting
served the public, emphasizing the social dimension of intellectual
property, and the role of broadcasting organizations in cultural and
educational areas.  Brazil said it was far from evident what the social
aspect of this treaty would be.  Brazil noted that others had observed
that not every country was entering the 21st century on the same footing
in terms of development, and that access to information was important,
and that the treaty and other developments in digital technologies
should not lead to a further widening of the existing disparities in
access to information and knowledge and technological development.
Brazil opposed the inclusion of webcasting in the treaty, and Brazil
also said it was concerned over technological protection measures, which
had the potential to prevent the exercise or use of exceptions and
limiations that have served an important role in copyright policy,
noting the UK Commission on Intellectual Property Rights noted that in
many cases, the technological measures can impede access to public
domain materials.  Brazil said the treaty should strike a balance
between creators and the public at large.

The Chair responded to the Brazil intervention by noting his own concern
over access to information and the important role of education.

Bangladesh asked that webcasting be placed in a separate treaty.

Mexico suggesting webcasting should be part of a future work program.

Kenya again made a long and highly technical presentation, pushing for
an expansive coverage and scope of the treaty, to cover any wireless or
wired transmissions of information.  Kenya said that advances in
technical and digital communications were going to completely change how
content is presented and delivered, and Kenya pressed for a forward
looking treaty that addressed the new technologies now.  Kenya also
proposed some of the most sweeping rights and protections for investors
in broacasting/cablecasting/webcasting, apparently reading directly for
a prepared statement.


Ghana called for the treaty to be scaled back to only include
traditional broadcasting.


Next the NGOs were allowed to speak, and all but the Civil Society
Coalition (CSC) represented right owners of one type or another.

I was called upon first, and focused on three issues --  the term of
protection, the scope of coverage, and the impact of technological
measures.  I said that several CSC members were in opposition to the
extension of the TRIPS and Rome terms from 20 to 50 years, noting this
was far longer than terms normally given to protect investments.  I
cited a number of other regimes ranging from 6 months to 15 years for
various investment based sui generis IPR regimes, such as those that
protect data or investment in pharmaceutical or agriculture research, or
the European Database protection regime.  We did not want WIPO to create
a precedent that regimes that protected only investment would receive
the same long terms that had been earlier justified on moral grounds to
reward creative artists and their heirs.  The term of protection should
not exceed the term of the business plan.  Then I revisited earlier
comments by the United States and Kenya on the scope of protection,
noting that the US had recognized the need to narrow the scope of
protection so that ordinary web pages were not covered, but recalling
the Kenya intervention, reminded the delegates that the future of
digital television would increasingly be multimedia, and that even
current analogue television was sometimes presented in web page formats,
such as the Bloomberg and CNN headline services, which combine video,
text and data in the presentation.  If there is a future convergence
between Broadcast TV and the web, it will be very difficult to write a
legal definition which does not create very broad and in our opinion,
very inappropriate legal regimes for transmitted information.  We were
very concerned over the potential for the treaty to create a new layer
of rights that would restriction dissemination of public domain
materials, or create barriers for access to materials where the
copyright owner would permit use.  Finally, I said we were concerned,
like Brazil and others, that the technological measures would restrict
access to both public domain materials, but also limit the role of
important exceptions and limitations in copyrights.

Ben Ivins from NAB the made a very detailed a clear intervention about
how NAB considered the protection of the "signal" to mean that
everything transmitted via a signal should be protected.  Ivins objected
to any notion that educational materials or public domain materials
would not be subject to strong exclusive rights, and he provided a
detailed discussion of how broadcast organizations would use to the
treaty to restrict access to public domain materials, in order to
protect their investments in locating and airing the public domain
works.  If there had been any doubt over the issue of how broadcasters
would use the treaty to restrict access to public domain materials, it
was eliminated by the NAB intervention.

Japan NBA noted that Webcasting has a social dimension.

I was not able to keep up with the identity of each industry NGO.  The
International Music Mangers Forum IMMF noted the protection of a signal
was one thing, but providing rights to a fixation was something else.
The IMMF presented its own proposals for a WIPO Protocol on the
Protection of Programme Carrying Communications over Public Computer
Networks.

There was a comment that the neighbouring rights approach was not a
sound one, and that a more appropriate approach might be that found in
the regulatory agreements concerning satellite signals.

The CISAC said there was no workable definition of who is a broadcaster.

Several NGOs noted there was almost no agreement on the scope of the
treaty, or even the goals and objectives, and that the definitions
themselves were far from agreed upon.

When the NGO comments were finished, most of which were highly critical
of the proposed treaty, the Chair then sought approval for a conclusion
that would authorize him to create a text of a possible treaty, to be
finished by April 1, 2004, and discussed in June 2004, and that a
decision would be made about whether or not to recommend a diplomatic
conference.

There was discussion of this, but at one point India made an
intervention that shook things up, saying there was no consensus that
the treaty was needed, that India opposed the 50 year term, and that
India opposed efforts to schedule a diplomatic conference.  The room
became very quiet.  Egypt and then Brazil intervened, and Egypt proposed
changes in the text of the conclusion that would allow the draft treaty
to be prepared, but significantly reduced the presumption that a
diplomatic conference would be scheduled.  With this, the meeting was
adjourned until tomorrow.


-- 
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040



-- 
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040