[DMCA-Activists] Day 2: WIPO Special Committee on Copyright and "Related Rights"

[Seth Johnson]

> http://www.public-domain.org/node/view/66#day2


Broadcasters Locking Up the Public Domain, Day 1 and 2

Submitted by davidt on Thursday, November 18, 2004 - 04:15

Click here for more info on the treaty and this meeting of the
copyright committee at WIPO.

Day 1 Notes (http://www.public-domain.org/node/view/66#day1)
Day 2 Notes (http://www.public-domain.org/node/view/66#day2)


12th Session of the SCCR, Geneva


Election of Chair and Vice Chair

Chair: Jukka Leides

17 November, 2004

Notes by:

Thiru Balasubramaniam, address@hidden, Consumer Project on
Technology
[TB]

David Tannenbaum, address@hidden, Union for the Public
Domain
[DT]

Cory Doctorow, address@hidden, Electronic Frontier Foundation [CD]

Jamie King, address@hidden [JK]

Volker Grassmuck, address@hidden [VG]

(Notes attached.  -- Seth)

DAY 2: Broadcast Treaty

18 November, 2004

Notes by:

Thiru Balasubramaniam, address@hidden, Consumer Project on Technology [TB]

David Tannenbaum, address@hidden, Union for the Public Domain [DT]

Cory Doctorow, address@hidden, Electronic Frontier Foundation [CD]

EFF distributed its "Letter from 20 Technology Companies" opposing the 
inclusion of Webcasting this morning.

--

Chair: We'll now continue to the end of the general discussion, and then I will 
propose a work program for the rest of the day.

Zambia: Chair, congratulations on your election.

Thank you Egypt for making an inspiring statement.

It was also inspiring to hear about meetings held by delegations with their 
stakeholders and the enthusiasm for supporting broadcasters as soon as 
possible. Let's clear up all the remaining issues this week. Let's go for at 
least three issues.

Perhaps we could have regional meanings as soon as February next year.

[CD: Regional meetings are viewed as a means to divide up the opposing sides 
here, by separating, for example, India and Brazil, and negotiating with them 
one at a time in a room filled with heavily influenced national broadcasters. 
It's also likely that fewer "civil society" NGOs will be able to attend these 
and give the other side.]

Let us recall that the general assembly requested this committee to accelerate 
its work with a view to approving a diplomatic conference.

We need leadership from our big trading partners to motivate delegates like 
mine.

We fully understand the importance of new countries like webcasting and 
simulcasting in some countries. However in my country these issues are not ripe 
for legislation and we would consider it counterproductive to consider how 
these technologies would develop. We do support including these issues in the 
treaty. Members like our country need more time to understand these 
technologies. To do otherwise would put logic upside down.

In my country the broadcaster is the most important means that our people have 
of sharing our culture. The broadcaster is a motor of development and has a key 
responsibility in insuring social cohesion. We see this treaty as a central 
component of development. The time has come to move this process to a positive 
conclusion.

China: This revised consolidated text has shown lots of flexibility and 
provided a good basis for our discussion. Thanks to the secretariat.

The Chinese delegation will actively promote the progress of meeting, following 
the principles of justice and reasonableness. We want to protect not just the 
interests of inventors, but also the interests of the general public.

Between the developed and developing countries, there are many many differences 
and gaps, economic and social. Therefore we should work hard to reduce the 
divergence and increase our consensus.

This is the 12th meeting to formulate protection for the broadcasting 
organizations. This new text is a supplement to the Rome convention. Our 
divergence is greater than consensus. There are many important questions still 
to discuss.

On the scope of protection, the protection of cablecasters is reasonable 
because this is not very different from the wireless broadcasting organizations.

On webcasting, this may be reasonable, but to reach consensus and establish a 
treaty this will cause difficulties. For most countries, including China, the 
immediate problem is not how to protect the rights of the webcasting 
organizations. Rather the question is how to regulate their behavior. I can't 
speak about other countries, but I feel the problem we have is not that Chinese 
webcasters' rights have been impinged upon, rather they have impinged on the 
rights of other performers, producers and authors. Therefore for China, our 
immediate problem is how to regulate their behavior. We suggest the standing 
committee should leave this question aside and not try to force it into our new 
treaty.


On giving broadcasters exclusive rights, the rights of the broadcasting 
organizations is a question of the limitation or prohibition. We can try to 
look to the Rome convention, which has been in effect for 30 years and has many 
members. China is not a member of the Rome Convention, however, when we 
formulate Chinese law on copyright, we have taken Rome into account.

We believe the reproducing rights should be limited. The consolidate text has 
expressed this idea. We believe this is a limited right. This right should only 
apply to...? We have reservations on this point.

On technological protection measures, some have pointed out that this is not a 
question of broadcasting signals. On this question we cannot copy directly the 
WPPT. We need more study on this question. If the control is so strict, it will 
affect the communication of information. So we should study this further.

In our earlier discussions, we and many others have raised another question, 
the rights of the performers. This question is the reason why no consensus was 
reached during the last diplomatic conference, but we can't say it shouldn't be 
discussed further.

Some countries have raised the question of folklore. These questions are 
closely related to the protection of the rights of the broadcasting 
organizations and perhaps our standing committee should pay more attention to 
this question.

Togo: Thank you Chairman for you skills and consolidated text.

On webcasting, I believe we need an in-depth study.

We think the time has come to accelerate work as required by the general 
assembly so that broadcasting organizations finally have an international 
instrument to be better protected against piracy of their signals and also take 
into account the protection of other rights. On many positions there is a 
certain degree of convergence.

Outstanding issues can be resolve in the present session or in the rounds prior 
to the convening of the diplomatic conference, or even in the diplomatic 
conference itself.

The developing countries are showing extraordinary growth rate in the 
broadcasting sector. Broadcasters participate in cultural development and the 
development of our countries. They require effective protection.

My delegation would like regional consultations, and perhaps the committee 
could set a date for such a conference.

Kenya: My delegation fully supports the statement by Egypt on behalf of the 
African Group.  My delegation also fully supports the statement by Brazil on 
the Development Agenda.  We take note of the fact that these negotiations have 
dragged on for over 7 years.  We should avoid celebrating a decade of these 
negotiations.  There is enough convergence on the substantive issues to warrant 
progress.

Australia: Australian law already provides for most of the Rome plus protection 
proposed in the draft treaty text.

The nature of protection of pre-broadcast signals needs reconsideration.

Assimilation of webcasters to broadcasters raises issues. For instance, 
broadcasters are licensed in Australia and as such they have public obligations 
under regulation. As previous speakers haven noted, webcasters in relation to 
their countries are not subject to the obligations imposed on broadcasters. For 
this reason alone, and there are others, we think protection of webcasters 
needs further and separate consideration. We would participate in separate 
discussions.

Argentina: We need to have an agreement that will stop piracy of signals. We 
will take the floor again on specific points when we come to them.

Nigeria: We broadly support the work of the committee and pledge our support. 
However, making progress for its own sake is not satisfactory: this is an 
evolutionary process. We're taking measures to digest and appreciate issues  
before moving forward. We want to support the Africa group's points that 
require further discussion. In light of that, we have recommended to our 
capital to draw their attention to matters of importance to us for thorough 
examination before definite steps are taken. We want to see a final outcome 
achieved here and that it reflects the interests of all parties.

Azerbaijan: We believe that the revised text is a well-balanced document that 
can be used as the basis for adopting a treaty.

Chair: We will move now to specific issues.

[CD: The chair has foreclosed on the presentation of general statements by 
NGOs!]

We don't have time for a full debate of every controversial item.

We may put further elements in square brackets. We've already bracketed web 
elements and an element concerning technological protection measures. The 
square brackets mean the elements mean they are in one or another way out of 
the text.

Chair: We will first visit those areas which are less political in nature.

Alternative V, which has received limited support.

Then paragraph 4, beneficiaries. Article 14, L&E's, alternative T.

Higher level of difficulty: - Article 1, relation to other treaties. - 
Eligibility for becoming a party. - Article 16 proposal to delete it

Highest level of difficulty: - Article concerning acts after fixation - 
Alternatives for protection

what do you mean? - Article 7 - can we delete the whole article? - Article 2 
definitions - web has to disappear is my tentative thesis

Morocco: We want something clarified: are we going to be examining the articles 
article-by-article, or are you presenting us with a group of articles on which 
to express our views. Will the articles that receive support be merged to form 
a temporary draft while the others are set aside.

Chair: The plan is to take a look at articles with alternatives in the text, 
which are based on differing written proposals by government. The other 
articles had convergence from several governments. By this means we can take 
the temperature of the room on each controversial clause. We will deal with the 
articles one by one, except for arts 9-10-11-12.

There will be no coffee break this morning.


[Powerpoint: 1. Article 16: Technological Protection Measures

- Alt V - Proposed to be deleted

- Alt W - selected (no such provision)]

Brazil: You have told us that you would accept "silence" as concurrence. Not 
everything in the alternative text reflects everything proposed to this 
committee. In fact, last time we proposed to delete this entire article, and we 
think this proposal should have been deleted as an alternative. In fact we were 
told by you that it would included as an alternative in the revised text in the 
course of the discussion we had on the floor.

We have a basic concern with the way you are approaching our discussion on this 
article because you're basically asking us to tell you which of these two 
proposed alternatives, the ones you have listed on the screen, would be 
preferable. The fact of the matter is that we see little point to actually 
asking that question before addressing the more fundamental question, the much 
more important question of whether this article should be present in the treaty 
at all, or not.

My concern is that in fact you will interpret expressions of preference for any 
one of the two alternatives as somehow an indication that the maintenance of 
this article counts on the support of members of the committee, and Mr. 
Chairman we cannot agree to proceed on the basis of that assumption.

Chair: Thank you. Question 6 will be whether to strike article 16 altogether. 
First, though I want to see whether we're going to strike article 16 v or w.

India: We don't want to come to an unsatisfactory agreement. Please clarify: we 
thought you were going to take up those articles with more than one view (i.e. 
alts v and w for article 16). Our recollection of paragraph one as it emerged 
from the last session was that that, too, should have had an alternative: we'd 
have x (the current version) and y: no such provision. We clearly recall 
Brazil's opposition to Article 16.  There should have been two alternatives for 
paragraph 1.  One of them would read, "No such provision".  We were surprised 
to see that this alternative was not provide.

Chair: Our method -- now questioned -- was that all aspects that were found in 
the *written* proposals were in the articles. But oral-only remarks are 
reflected in the explanatory comments. We can change this -- it would be easy.


Russian Federation: The first paragraph is a general statement and the second 
paragraph makes these statement concrete.

Chair: There is no need for the rest of delegations to talk about Article 16 
more generally. We are only talking about Alt. V.

Argentina: While we haven't received much support for our proposal, there is a 
much more substantive issue at stake here. No one actually opposed Alt. V and 
there was even some support for it. Without additional instructions and without 
having the general context for what will happen with this article, it's 
difficult for us to tell you what is final. We are in fact negotiating and this 
is not our final word. We haven't heard anyone opposing this, but if there is 
anyone opposing it, we would like to hear the reasons.

Chair: We will leave this in square brackets for the next draft.

Switzerland: At this stage I'm not in a position to give any final reply and I 
would like to reserve our position. We are in favor of a provision on 
technological measures, but the question is how this would be included.

Chair: Everyone can add their comments on this later, or after the meeting.

Senegal: Thank you, but I waive my right to the floor.

Chair: [Powerpoint: 2. Article 4: Beneficiaries of Protection - Alt. H proposed 
to be deleted - Alt. I selected (no such provision)]

The question here is mainly directed to the EC. The effect of that element is 
to narrow the scope to cases where only both headquarters and transmitter are 
in the same country.

EC: Since we proposed this and there seems no proposal to support this from 
other state, I can't claim overwhelming support for this provision. We proposed 
it because it reflects the situation under Rome. I think our 8 member states 
have made use of this provision under Article 6(2) of Rome. We have a 
coordination meeting at 2pm. We would like to take a little bit more time 
before we take a more definite view. We may need this provision to reflect the 
actual state of play in the union and we will discuss this at 2pm with our 
member states. We may come back to this in the afternoon.

Chair: I hope countries will show flexibility.

Russian Federation: As regards Alt. H, we believe that it is subject to 
relevant drafting of Art. 6(2) of the Rome convention. And if we reject the 
application of 6(2) then we need to redraft this and have a reservation that 
contracting parties shall not apply 6(2) of the Rome convention. Otherwise 
there may be a contradiction in the text and we would not like to see that.

Chair: Thank you for your remarks of a legal nature. OK, let's look at Article 
14.

[Powerpoint: 3. Article 14: (Limitations and Exceptions) - Alt. T proposed to 
be deleted - Alt. U selected (no such provision)

[DT: Alternative T is a crucial clause. Without it there is hardly any scope 
for exceptions. Even with it the scope is narrow. The Public Knowledge report 
from SCCR 11 has a good section on this issue.]

United States: This proposal was included in our original text because it 
reflects our domestic legislation and reflects widely accepted provisions. 
While this is very important to us and to our public broadcasting system, it's 
possible that these provisions might be protected under an appropriate 
application of the 3-step test. If there were an understanding that the 
limitations we have in favor of public broadcasting entities could be exercised 
under the 3-step test, we could agree for this provision to be deleted. 
However, we need to think a bit more about this and determine what sort of 
flexibility is present in the representations of other delegations.

Egypt: My delegation is keen on Alternative T. We are keen that a 
grandfathering clause should be in the text to allow contracting parties to 
maintain a limitations and exceptions related to retransmissions. We agree with 
U.S. that we need more time to measure the flexibility of the membership. We 
would like this alternative in the next version of the text.

Chair: Subject to subsequent comments, Alternative T will be kept in the text.

Chile: We request that other members envisage the possibility of including 
additional exceptions including transfer rules as they exist in the Rome 
convention.

Chair: My provisional immediate reply would be that this new instrument should 
not affect existing instruments. We would not make any carve outs or change the 
Rome convention.

Chile: We think it would be preferable to include in Art. 14 the specific 
request to provide for exceptions in cases of broadcasters which already enjoy 
the provision of Article 15 of the Rome convention.

[CD: How can you update the rights of broadcasters without effecting the 
previous interests that set out the rights of broadcasters?]

Russia[?]: I believe there should be a universal application for all parties, 
and we should go with the 3 step test.

Argentina: I reserve comment on alternative T -- I have been instructed to 
reiterate our interest that 14.0.1 be kept.

Mexico: We believe that paragraph 1 of article 14 should be incorporated in 
this new version, including the sentence, "and the protection of related 
rights."

Chair: Group 2

[Powerpoint: 4. Article 1: Relation to Other Treaties - Alt. A proposed to be 
deleted - Alt. B selected and clarified]

Senegal: We believe Alt. B would be the proper one.

Chair:

Russia: We support Alt. B because it is more flexible and will be far more 
acceptable.

EC: The pain level is starting to increase, but this is helpful. We quite like 
Alternative A.

[CD: Alternative A is very narrow, and says that this treaty won't override 
Rome and the WCT -- alternative B says that this treaty won't override any 
treaty]

Egypt: We favor Alternative B which has just been supported by the delegation 
of Senegal.

Morocco: We support Alt. B?

?: We support Alternative B.

Columbia: We support Alternative A.

Chair:

?: Are paragraphs 2 and 3 included under alternative A or not?

Chair: Paragraphs 2 and 3 are clean text and will probably be in the final 
product.

India: We support alternative A. It is clearer and spells out the whole scope 
of our obligations, while B is more open and hence vague.

We have questions about para 3, since it seems clear that adopting any treaty 
here will prejudice rights and obligations under other treaties. For example, 
limits and exceptions under other treaty may be broader than those in this 
treaty.

Chair: We are only talking about paragraph 1 now. Paragraphs 2 and 3 come from 
the 1996 treaties.

Alternative A is para 1 is narrower. Its scope is Rome only.

For the moment it seems like we can not delete one or the other.

Ukraine: Alternative B is more effective and more logical -- it's more 
flexible. It includes all other copyright and related rights treaties.

Australia: Perhaps we could build in a reference to Rome in alternative B.

[CD: No, that doesn't answer the problems of the A supporters, who want to 
cabin the list of sacrosanct treaties]

Chair: Elsewhere we have a non-exhaustive list of treaties this can't overstep, 
that includes Rome.

[CD: Right -- the point of A is to limit the sacrosanct treaties, not render 
all treaties inviolable]

Mexico: We like alternative B because it fits better with our national law and 
provides clearer protection.

Togo: We support alternative B, because it proposes a broader safeguard. 
Regarding alternative A, confining ourselves to Rome means that states that 
aren't Rome signatories won't have to act in conformity with it. Alternative B 
is broader.

Chile: I understand India's concern.

India: We can use logic to understand the law, even if we're not lawyers 
[bwahahaha]. I don't understand how can there be contradictions in obligations: 
you could have obligations for treaty 1 and obligations under treaty 2. Your 
obligation set may expand, but how can it conflict? This is meant to underscore 
one's obligations, and nothing can change your existing obligations. My problem 
is with paragraph 3: what 3 says is that if there is a right -- held by a 
broadcaster etc -- under one treaty, that those rights will not be abridged by 
another treaty. Very often that is the case, and I don't see how you can get 
out of that. We need to look at 3 more closely. A state might abridge the 
rights of a party to Rome because of the corresponding paragraph under article 
14 and that may not be available to the party under 4. Therefore a broadcaster 
might feel shortchanged under one or the other treaty.

Chair: Paragraph 2's objective is to say that this treaty doesn't touch, at 
all, the subject of copyright and related rights treaties that deal with the 
programs. The rights of broadcasters cannot touch those rights -- they are out 
of the scope of this instrument.

Islamic Republic of Iran: We support alternative B -- it's more compatible with 
our law. We reserve comment on it.

Sudan: Chile's proposal is good -- and deserves all our attention. The African 
group position is that alternative B is better.

Chair: It seems that Alt. B receives broad support, Alt. A also receives 
support. I can't say whether it's more limited or not. I could not draw any 
conclusion on this.

After lunch we will tackle Art. 24, Alternative AA; Article 16, proposal to 
delete all article; Arts. 9, 10, 11, 12, footnotes and 2-tier protection; Art. 
15, 20 or 50 years term; Art. 7, delete article on communication to the public; 
webcasting and simulcasting.



Brazil: We would like the NGOs to speak after each cluster. We're disturbed to 
hear that NGOs' documents were trashed. We petition the secretariat to address 
this and prevent it from recurring.

India: I am quite alarmed by the fact that documents by produced by public 
interest NGOs were found trashed.  The democratic process has been thwarted by 
these type of actions.

The other issue is that, as mentioned by Brazil, we attend a lot of WIPO 
meetings and the organization is quite open in allowing participation, in which 
Governments, intergovernmental bodies and NGOs are given a chance to speak in 
order. We've yet to hear from the NGOs on this -- when will this happen? If it 
happens at the end, it will serve no good because it will arrive too late to 
inform our positions on this subject.

Chair: This isn't a marketplace, people from the street aren't allowed into 
these halls. Security only allows professionals with credentials in. Now it 
appears that one of our number is doing not so well-educated. Secretariat, how 
can these people solve their problem?

Secretariat: The table is left for delegates to put their different papers on 
the table. The rule is that we cannot copy papers that you bring. The 
Brazilian/Indian issue regarding throwing away documents was brought to my 
attention right before lunch and I've talked to conference services who were 
not aware of it and are very concerned about it and they will do their best to 
ensure that this won't recur. This is unfortunate. Does legal counsel have any 
comment? I ask all of you here to follow the procedure that we have had over 
the years.

Chair: All of the documents presented by parties here are most welcome.


Algeria: With regard to the point raised by Brazil, in my view, priority should 
be given to government representatives since we have to accelerate our work.  
We condemn these actions if they were deliberate.

Senegal: Allow me to thank Brazil for making an interesting point about the 
activities of NGOs. I think this was made in a totally constructive frame of 
mind. However, while thanking the distinguished delegate of India with regard 
to the ranking of speakers, I think we have a tradition in our debates that 
delegations take the floor before NGOs take the floor on major issues. We've 
always appreciated the contribution of NGOs because among the NGOs that are 
there there are organizations who defend the rights of rightsholders, and we 
also have organizations defending the rights of users. We also find 
representatives of civil society. And who is that, it's you and me. So I think 
there should be no difficulty. We need NGOs, but in such a body we should 
follow procedures. This will enable us to save time. I think in the past that 
we have made important progress through the contributions of NGOs.

With regard to this document business, I don't know what happened but I've 
never had problems and just this morning I took documents that were lying on 
the table. If such a regrettable purpose was perpetrated, I think that this 
must be due to a misunderstanding and I sincerely hope this will not occur in 
the future.

New Zealand: I would like to express support for the comments made by the 
delegates of Algeria and Senegal. The comments of NGOs are no doubt extremely 
valuable, however given the excellent progress made this morning in working 
through some of the substantive issues, we think priority should be given at 
this stage to the government delegations.

Chair: We should finish the round of discussions on those questions formulated. 
These questions are extremely relevant if you think about where progress can be 
made and has to be made. The shorter that debate will be, the sooner the NGOs 
will get the floor. This is so short that everything will be fresh in the minds 
of everyone. If we can get to the end of this round the NGOs will be given the 
floor immediately. If we cannot finish this evening then of course that will be 
the first order of business tomorrow morning. We cannot break and change the 
order of the business because as you see, any round of opinions and 
interventions will always take time.

Now that it's 4pm, we have to shorten debates compared to this morning's 
debates.

Brazil: If we want to make progress in our discussions we also think we should 
try to make sure we start beginning our meetings on time and not 40 minutes 
late which I think has been a record this week. We also don't appreciate the 
fact that our coffee breaks are being sacrificed.

Chair: Article 24 deals with the eligibility for becoming party.


5. Article 24: Eligibility for Becoming Party)


[Powerpoint: 5. Art. 24 (Eligibility for Becoming Party) - Alt. AA proposed to 
be deleted - Alt. Z selected

- consequently: Art. 25., Alt. BB selected]

[CD: Alternative AA is a requirement that signatories also come on board the 
WIPO Internet Treaties, WCT and WPPT. It's bad because it's a back door into 
forcing countries that have decided for good and sufficient reasons not to sign 
onto those treaties, which contain lots of bad stuff like notice and takedown 
and anti-circumvention]

Egypt, speaking for Africa: We support alternative Z -- there should be no 
restriction on joining the treaty, alternative Z will make it easier to get 
signatories.

U.S.: The U.S. is not in a position to accede to the removal of AA. Many 
delegations have expressed concern over potential conflict between protection 
for broadcasters and other related rights holders and copyright holders. This 
has precedent in Art. 24 of the Rome convention, and is essential that the 
rights of authors, phonogram producers, and performers are not adversely 
affected by this new protection for broadcasters. It's also consistent with the 
position that neighboring rights holders shouldn't have more rights than 
copyright holders.

Democratic Republic of Congo: We support the African group's position in favor 
of alternative Z

Mexico: We support Z. We note with concern that signing this might be dependent 
on the WCT and WPPT which would be to the detriment of this treaty's coming 
into force and could jeopardize the treaty.

Islamic Republic of Iran: We support Alternative Z. Alternative AA is contrary 
to the freedom of determination of states and is inconsistent with 1(b) para 3.

Syria: We support Alternative Z.

Zambia: We know that our big trading partner likes consensus, and we urge the 
only party on the other side of this issue from everyone else to be flexible.

Chair: Alternative AA could be put into square brackets. I hesitate to do this, 
but when we see clear majorities it may be appropriate.

EC: For us this isn't much of an important issue. I hope that when we get to a 
diplomatic conference there will be more members of the WCT and WPPT, and 
Alternative AA will become less and less important. As the U.S. has reminded 
us, the linkage to other rightsholders is an important and sensitive issue. But 
as far as we're concerned, it may be appropriate to bracket.

We have some flexibility to offer on beneficiaries of protection. We are ready 
to look more favorable to alternative B in section 1. However, we would 
probably need more guidance from our legal experts. What would be the effect of 
using a different formulation from that in WCT and WPPT. We hope legal counsel 
from WIPO could give us further guidance. We need to reflect, but a priori I 
think we need some flexibility here. I'm happy to say I think we can put 
Alternative A between square brackets.

Chair: The legal counsel is ready to take the floor.

Legal counsel: The practice in the past was to make it a condition of Paris or 
Berne in order to accede to a new treaty. But in the more recent practice it 
has been the other way around. It has been the formulation you currently see in 
Alt. Z. The current practice is that you only need to be a part of any WIPO 
treaty. Currently there are 48 states signed on to WCT and 45 for WPPT.

Morocco: We prefer alternative Z.

Chair: This suffices for Art. 24.

India: The argument put forth by the U.S. does have merit. We are proceeding to 
grant additional rights to the broadcasters potentially at the expense of 
performers and copyright holders. In the past we've expressed concern that the 
underlying rights holders rights should not be trampled on. And that is the 
consequence of Alternative Z.

[CD: This can be remedied by controlling the grant of rights to the 
broadcasters -- if those rights are strictly cabined so as not to overlap with 
copyright, the problem is solved.]

Chair: It's clear that we shouldn't trample on anyone else's rights.

[DT: By the chairman's logic, this treaty should clearly not go through. Even 
if WPT and WCCT were accepted, performers would still suffer, as would those 
who produce under Creative Commons, copyleft, and those who release material 
into the public domain.]

6. Article 16 (Obligations concerning Technological Measures)

Chair: Brazil has proposed the deletion of all of article 16, for reasons set 
out in paragraph 16.07. I propose not deleting this.

Switzerland: We want to retain 16, it's our view that protecting TPMs should be 
based on the WCT. We can support alternative W and will give up support for V

Senegal: I want to insist on the importance of article 16. It is an essential 
article and it seems to me that it constitutes the very structure of the 
protection that broadcasters are asking for. It's difficult to contemplate a 
broadcast protection treaty that doesn't include a discussion of TPMs. If this 
document is a human being, article 16 is a vital organ.

Chile: We recognize the usefulness of TPMs for protecting authors' rights and 
related rights. We're also aware that the application of past treaties with 
similar provisions have given rise to problems regarding the use of works in 
the public domain and the legitimate use of protected works. We need to find a 
way to be sure that these measures don't unduly effect the public domain. 
Therefore we continue to support Brazil's proposal to not include article 16.

Zambia: We would like to offer a compromise approach. After hearing two 
differing views -- and maybe the legal counsel will assist us -- our 
understanding is that Article 16.1 appears to be similar to the TPM regime in 
WPPT, which allows members choice. If that's the case then this might be a good 
compromise to keep 16.1, which is between deleting the whole article and on the 
other hand 16.2.

[DT: Article 16, Para 1, reads: "Contracting Parties shall provide adequate 
legal protection and effective legal remedies against the circumvention of 
effective technological measures that are used by broadcasting organizations in 
connection with the exercise of their rights under this Treaty and that 
restrict acts, in respect of their broadcasts, that are not authorized or are 
prohibited by the broadcasting organizations concerned or permitted by law." 
That word, "shall," makes this mandatory.]

Syria: We support Brazil's proposal. It's very important for us to have access 
to information!

India: We were engaged in intensive consultations involving all levels of 
government and stakeholders regarding this. This article has been of great 
concern, for obvious reasons. There is a recognition that with the evolution of 
technology we will need to address the implications it has for protection. On 
the other hand we have to respect the public domain.

Article 18 of the WPPT has a similar set of concerns. And while the harm to the 
public domain might in some ways be less in the case of the corresponding WPPT 
article, the potential harm of Art. 16(1) is probably much greater. We 
recognize that there is a need for something, but we are still in the process 
of examining all the implications and points of view that stakeholders brings 
to these discussions, and for the time being we would not like to rule out the 
option of having or not having Art. 16. We are not in a position to take any 
position on this right now.

Algeria: We want to keep Article 16.

Islamic Republic of Iran: We are still consulting with our capital on this and 
we look on it with reservation.

Morocco: We attach great importance to TPMs and think we should keep article 16 
for many reasons, mainly that the lack of such an article in a new instrument 
could endanger much of the protection that we wish to guarantee. This article 
is also in keeping with our national legislation.

Russian federation: We think it's extremely important to keep Art. 16 but we 
could imagine recasting the wording.

Chair: Before tackling the next set of questions, it seems that a new version 
of Article 16 maybe should be presented in three ways. Either with paragraph 1 
and alternative V, with paragraph 1 and no alternative V, or with Brazil's 
proposal for no article at all. Whether we present the first option depends on 
Argentina's position.

[Powerpoint: 7. Rights Concerning Acts After Fixation

Article 9 -- Right of Reproduction

Article 10 -- Right of Distribution

Article 11 -- Right of Transmissions Following Reception

Article 12 -- Right of Making Available of Fixed Broadcasts

Suggestion: make possible two-tier level of protection as in footnotes]

Switzerland: I welcome your efforts to reach a compromise, however I have some 
questions about the way of approaching this and the effect of harmonization 
because this is really the heart of the treaty. I have no definitive views on 
this but I do have a lot of questions and concerns.

Chair: I understand Switzerland takes a reservation on having the right to 
prohibit side-by-side with the normal exclusive right.

Russian federation: We support you proposal for two-tiers of protection. We 
think we could get a consensus on this.

Chile: We don't have a definitive position.

Chair: We have to think about your remark, what is the relation between the 
right to prohibit to the rights of remuneration? My immediate response is that 
the exclusive rights have nothing to do with the right of remuneration. If 
someone gives their consent for use, the agreed conditions prevail and that 
might include remuneration. There is no connection between this and rights of 
remuneration that we find in other treaties, as in Art. 12 of Berne. This is my 
analysis. It may be contested but I leave it for your consideration.

Zambia: My delegation's earlier statement was for us to move towards harvesting 
at least three or four articles. For this article we clearly think we can make 
a decision and move to other articles that may need our time much more.

For instance in the spirit of compromise we think the suggestion of a two-tier 
level offers a very important compromise. As I understand this would allow all 
countries with the right to authorize to keep their rights, as well as allow 
other countries to keep their systems in place. I would like to urge this 
meeting to feel proud to make conclusions to register achievements as we move 
towards things we haven't agreed on yet.

Mr. Chair, can you appeal to our colleagues with questions to at least accept 
the two-tier provision?

Chair: You have a nice way of putting things. I try to emulate it.

Canada: We like the two-tier approach and we will scrutinize it to see what 
impact it might have on our private sector.

[CD: Canada hates the retransmission right because Canadian cable operators are 
free to retransmit broadcasters without permission, provided they have a 
license from creators]

New Zealand: Now final position but would note two points: NZ law grants same 
rights to broadcast as to copyright works, without any problems resulting; 
useful to maintain consistency with rights provided in Rome and WPPT and depart 
from that only with good reason or need.

Brazil: Yet to have a defined position on these articles and will reserve right 
to return to this question at later sessions as well as the right to propose 
alternative language that is not as yet contained in the revised consolidated 
text.

United States: Our two-tier approach is intended to address many delegations' 
concerns over protection under this treaty and the rights of creators and other 
rightsholders. The difference between our approach and the footnotes approach 
is close, but the footnotes are likely to lead to confusion. Alternative S 
leaves countries free to provide a higher level of protection for those rights 
-- the floor should be a right to prohibit, only.

Chair:

[Powerpoint: 8. Art. 15 Term of protection - Alt. EE proposed to be deleted - 
Alt. DD selected]

[DT: Alternative EE appeared for the first time in this draft. It calls for a 
20 year term of protection, which has been the international standard since 
Rome and Brussels. Broadcasters are trying to grab 50 years, Alternative DD.]

Singapore: Our position remains as it has since the 11th session. In all 
respects of the treaty as discussion, our position is our proposal. We didn't 
expect that the term of protection proposal would be so controversial. We think 
that this right is like Rome, so we proposed its term. We think countries 
should be able to choose their own terms. For example, we provide 50 years for 
broadcasters.

India: We support Singapore for good reasons: there is a relationship between 
the term of protection and the thing that is being protected. The WPPT deals 
with content, and so it tracks the practices of copyright. The protection for 
broadcasters in Rome was duly considered and arrived at. We should take our cue 
from Rome, which is more relevant than the WPPT.

Chair: Your opinion in the last session was decisive for why the 20 year 
proposal was included in the latest draft.

Syria: We support 20 years per Singapore.

Chair: This way, brief interventions, are the way to register opinions.

Chile: We support the proposal by Singapore particularly since we have not 
defined who will benefit from this protection.

Mexico: We support Alternative DD, 50 years.

Argentina:  We maintain our position as mentioned in the written proposal.

Morocco: We support the term of protection that is contained in the Rome 
Convention.

[DT: i.e., 20 years]

Brazil:  Brazil would like the two alternatives to be kept in the alternative 
text.  We are still studying these proposals at our capital

Togo:  We think the Singaporean proposal should be studied further.


Chair: We shall consider Article 7.

[Powerpoint: 9. Art. 7 (Right of Communication to the Public) - Suggestion: 
delete the whole Article]

Switzerland: I'm not sure I understood what you meant about the article being 
left over from the 1950s. I think the issue is still live today, not just for 
broadcasts, but for things downloaded from the internet. I think it's rather 
premature to delete this article completely. My position isn't final, but I 
have a reservation.

Chair: Article 7 has nothing to do with downloading or anything that happens in 
broadcasting itself. This concerns making broadcasts available in a public 
places where a fee is required to enter. I have not seen such a situation since 
the 1950s. Nowadays we don't have entrance fees to watch television in public 
places.

Australia: Our inclination is that if Art. 7 is retained, we would want the 
right of reservation included in the Rome convention. We know there is an 
instinctive reaction against having Rome minus, but it isn't really, since if 
you include a reservation you're back to zero. We support deletion of the 
article.

Chair: Having something in Rome that is not found in this instrument would not 
be Rome minus. The museum piece in Rome would still be binding on those who are 
party to Rome. We will have to keep Art. 7 on the basis of this discussion.

Senegal: I'm confused: As you've pointed out, Art 13 of Rome hasn't been 
applied at all. So if we look at it in terms of legal/economic value, the 
result is nil. But my concern is that this exercise result in "Rome-plus" 
protection. Bringing it down a level gives the impression that this is less. My 
concern is that rather than considering the deletion of this article, I would 
like it to be retained and then during our discussions, let's see how we can 
improve it by making it easier to exercise. At the Olympics, I was attacked by 
the radio and the television that had paid large fees, and the broadcasts were 
being played at hotels. There was no entry fee at the hotel. We should keep 
this and look at it carefully to be sure that it can be useful, not a museum 
piece.

[CD: She wants to give HBO the right to sue bar owners who throw Sopranos 
parties, basically]

Argentina: We support keeping the article.


Chair:

[Powerpoint: Art. 2 (Definitions) + Art. 3 (Scope) - Art. 2 / Alt. C proposed 
to be deleted - Art. 3 / Alt. E and F proposed to be deleted

- suggestion 1: Alt. D + G selected (no provisions on the web) - suggestion 2: 
search another kind of solution]



It seems that it would not be possible to get broad support for this part of 
the project. It would seem that including it would make negotiation on the rest 
of the project difficult. It would almost block any meaningful progress, in 
light of discussions in several meanings. In the last 2 meetings we have heard 
growing positive interest from those against now considering protecting 
webcasters in this context, in considering this in the future, perhaps 
deserving a project of its own. A document distributed by the Japanese 
delegation indicated this position.

We have a proposal by one delegation to cover webcasting, we have opposition 
from virtually all sides.

We have a proposal by the European Community to cover simultaneous broadcasting 
and webcasting of the same broadcaster at the same time, aka simulcasting. This 
would cover a broadcaster or cable caster who is broadcasting over the air also 
makes the broadcasters available as webcasts, so that they can be followed at 
the same moment as the broadcast. If the transmitter were turned off, the 
broadcaster would immediately become a webcaster.

Some say Webcasting deserves analysis and protection, but to be added later, 
possibly in an annex or in an independent instrument.

In some years time, possibly we should extend broadcaster protection to 
webcasters.

This is the most important question of the whole meeting. We must take stock of 
the need for this and the willingness of organizations to pursue it. There's a 
clear need and willingness to do a broadcast treaty. We need to remove the 
blocking items from the road.

To propose that webcasting be covered in the body of the text would block the 
whole project. There'd be no reason for us to come to Geneva any longer.

What to do? This is like a 1000k block of concrete in the road. If we grip it 
and push, will it start moving aside?

This would make life easier for us, and for Webcasting proponents.

This is already in square brackets -- the concrete has been loaded on the 
train, which has a head of steam and is ready to go. The engines are on. We 
should give a sign to the conductor: please go.

U.S.: I think that this is the first time that I have been compared to a 1000 
ton block of concrete in the way of an archaic steam engine.  This is a most 
interesting comparison. We understand that Alternative E has not garnered much 
support.  However, many delegations have indicated that this is a substantive 
issue.  We believe it is important to keep this alternative in the text.  We 
remain very interested in hearing what other delegations say to your proposals, 
Chair.

Chair:  You want to keep it in square brackets. If any innovative proposals 
come up on this issue, you want us to consider it carefully it.

Egypt: I might agree with you that it may be a block of 1000k, and we would 
like to lend a hand, but this would require the help of the whole delegation. 
The statement of the whole African group represents our position on this issue. 
We do not find it appropriate to include webcasting in this treaty. We are 
therefore in favor of your first suggestion, Alternative D in Art. 2 and 
Alternative G in Art. 3.

Russian Federation: To reach a compromise solution we propose a formulation 
concerning webcasting. Perhaps we could use a 2-tiered protection system like 
you proposed before. We could consider the possibility of reservation.

Chair: We could consider a two tier or even a three tier approach.  The 
provision would sound like,

1) the Member States may extend protection to "webcasting"

2) Member states may extend protection to simulcasting by web only

3) Member states may not extend rights to webcasters.

Zambia:  I want to support the statement by Egypt on behalf of the African 
Group. I am not sure if my big trading partner has been able to assist you in 
your plea? Clearly, US, which we have good relations with, and that everyone 
else has good relations with, can give us a reason to smile and walk out at 
6PM.  Please drop this proposal.

Chair: My African brother, I believe the US delegation is an a listening mood.

Senegal: Like Zambia, I want to defuse this situation. You should never waste 
time with someone who denies the truth and evidence. Webcasting is a fact of 
life: concealing it is bad faith. But I would like to say that we do have to 
progress. Digital broadcasting is the most important indicator to give 
information about universal information. Broadcasts are creations with 
producers, artists, etc. When we're in a situation where there's no favorable 
environment for the lawful exploitation of these, we will end up with many 
concerns about IP. This isn't something we're overlooking: it's a new area, and 
we can leave the door ajar, rather than closing it.

Chair: If you keep your interventions short, the NGOs may have a chance to make 
their statements.

Japan: We want to consider Webcasting in a different instrument: not because 
it's unimportant but because it requires new deliberation.

Argentina: We should delete Alternative C.

EC: I thought we crafted the simulcasting provision to go outside the scope of 
the instrument. We think including simulcasting is a good idea. We have to 
address the internet. We're proud of WPPT and WCT. If we fail to address the 
internet in this treaty, I think there will be little reason to call this 
treaty the WIPO Internet treaty, even though I think the point of this treaty 
is to update it to take account of the internet age. My children talk about 
downloading and the internet.  I tell them that they should not do that.

I think the digital environment is very vital and we should try to find a 
solution, and final solution now. We have come a long way, yet I realize that 
we have not solved all the questions. Yet, to postpone this to an indefinite 
future when we are already here, when we have the internet, would be a mistake. 
I believe we should try to find a solution among ourselves that does justice to 
these technological developments. We have to be innovative and address it in a 
way that those who think it goes too far do not have to follow. I think there 
is merit in the Russian Federation's suggestion.  I think it is a shame that 
without all this prepatory work, if we only include cablecasting.  We must find 
an instrument that would embrace the digital environment.

Brazil: On Article 3, we support alternative G. We cannot agree to include 
webcasting in the scope of application of the treaty. Nor can we accept the 
inclusion of simulcasting. And we'd like to reserve our position on paragraph 2 
of Article 3, on cablecasting. We are not yet convinced that it really is 
necessary to apply the provisions of this treaty mutatis mutandis to the rights 
of cablecasting organizations.

On the subject of the future work of this committee, in all other areas of WIPO 
our delegation would like to state once again that for us the priorities for 
future work, which we believe are important, are reflected in the proposal on 
the Development Agenda that was presented at the last General Assembly by  
Argentina and Brazil and cosponsored by 12 other developing countries. That 
means that any proposal on future work, in whatever subsidiary body, any 
agreement to us on that proposal will depend on its compatibility with the 
goals and principles of the Development Agenda.

Mexico: We want to include simulcasting, but not webcasting. Simulcasting is a 
reality, it's something we have to confront daily, and it requires action. We 
repeat that it would not be appropriate to include webcasting.

Chair: We have come to the end of the work program.

EFF CSC IP Justice IFPA EDRI UPD FILA FIM EBU FIAPF IMMF ?? NAB Japan AIR ACT 
CSOC IFPI DIMA


ASBU (Intergovernmental Organization)

Thank you. We welcome your efforts & especially the preparation of the docs. We 
had the opprtunity to give our views previously. I'll be brief. Mention 2-3 
points in particular. With great joy we welcomed the concern expressed by all 
delgations to achieve something, and to achieve success after all these years 
of study and work. The hesitations or reservations expressed by a number of 
delegations concerning the lack of balance that there might be in a forthcoming 
treaty or agreement, and that might be unfair to a no. of rights holders in 
unfounded. On the contrary, we think that the updating of protection and the 
improvement of broadcasting comptaible with tech. developments strengthens the 
protection of rightsholders.

As regards the scope of application and webcasting, and whether to include it 
-- we believe there is an important difference between the two subjects. As 
regards the principles and methods applied, the protection of broadcasting 
organisations is linked to compatibility with technological developments and 
social developments, whereas webcasting is connected to technological 
innovation -- so we believe it's necessary to separate the two subjects while 
stressing the importance of the updating of a schedule on this subject, 
protection for broadcasting organisation.

EFF (Mr. Cory Doctorow)

As I take the floor for the first time at this meeting, allow me to 
congratulate you on your ongoing chairmanship and vice-chairships, and express 
my confidence in the outcomes that we will reach with your steady, experienced 
hands at the tiller.

EFF is an international digital consumer rights and advocacy NGO with over 
12,000 paying members and a readership of over 50,000.

I would like to make three brief points on behalf of EFF:

1. That the Webcasting provision is as controversial outside of this room as it 
is *inside* this room. EFF today set out a letter signed by twenty technology 
organizations that would be affected by the Webcasting provision, led by Mark 
Cuban, the founder of Broadcast.com, the owner of HDNet, the largest 
high-definition television service in the world, and the owner of the Dallas 
Mavericks, an NBA basketball team. Mr Cuban is also the owner of half a billion 
dollars' worth of video content. He, along with 19 other technology executives, 
has signed onto an open letter opposing the inclusion of Webcasting in the 
treaty on the grounds that unlike broadcasting, where permission-free regimes 
are rare and where public-domain, Creative Commons and other non-copyright 
works are not often seen, the Web is full of these things, and thus extending 
exclusive rights to the Web will generate far more negative effects than when 
applied to the comparatively enormous and diverse group of Webcasters. For 
those who are interested, this letter is available outside the assembly room.

2. That TPMs are not coherent with the Development Agenda. TPMs allow distant 
rightsholders to override national exceptions and limitations that reflect 
national development policy.

They undermine the fair dealing and personal copying exemptions that educators, 
researchers and other entities who are sensitive to high information costs rely 
upon.

They restrict the ability of national entities to produce compatible goods and 
services and tools that extend the utility of information services that are 
locally appropriate.

They restrict the ability of the owners of TPM-covered goods to loan, sell or 
share their property, a factor that is especially damaging to regions that rely 
upon savings arising from these practices.

There is no indication at TPMs are remotely effective at keeping copyrighted 
works from being circulated on the Internet -- indeed, the lead TPM engineers 
for Microsoft have published an important document called the "Darknet" paper 
that predicts that TPMs can *never* serve this end. And yet, we propose to 
extend TPMs to new classes of works and services, to cover works that are in 
the public domain, are Creative Commons licensed, and are not copyrightable.

I would like to respectfully call upon the Chair to set aside the controversial 
articles 16 and 17.

3. There is a great deal of new material to be aired in this hall. This forum 
is not exhausted, and all possible views have NOT been uttered and heard. There 
is much new input to be brought here from technology organizations that will be 
impacted by the Webcasting provision. Moreover, there is the vital work 
remaining of examining this treaty through the lens of our new Development 
Agenda and ensuring that it is coherent with the will of the General Assembly. 
Therefore, this is NOT the time to go to regional meetings, but rather to 
continue to convene in this body and ensure that all this new intelligence is 
shared among all the interested parties.

In conclusion, I would like to inform the Chair and the delegations that we 
have made two handouts available on TPMs and Webcasting, which can be found on 
the table in the corridor.

Finally, I would like to respectfully ask the chair to build upon the previous 
studies undertaken on TPMs and augment them with a new study that examines TPMs 
in light of the development agenda.



Civil Society Coalition (CSC, Ms. Michelle Childs):

Thank you Mr. Chairman,  As this is our first opportunity to take the floor, 
welcome your election.

Three points :

1. We are not convinced there is evidence that broadcasting organizations face 
problems with piracy that could not be addressed with existing treaties

We believe the proposed treaty is designed balanced to create new rights for 
broadcasters to exploit works at the expense of copyright owners and public 
domain. They say we should rely on them and trust them: that is not balanced, 
that is capitulation. We do not agree with that view.

We believe that this treaty should not be extended to the internet.   It is not 
the purview of one company to ask for special consideration at this forum.

2.  The internet presents the best opportunity ever to provide access to 
knowledge for scholars, researchers, scientists etc. Everyone is empowered by 
the vast sea of free information that is now available. This proposal to create 
new and never-tested rights is for special interests, who wish to claim rights 
over works that are currently freely available.

The treaty cretes a new layer of rights that could be exercised even in the 
case the creator does not want it. It is not necessary to create these rights 
to disseminate digital works. As we have heard, there are many technology firms 
who do not agree with this extension. it is not the purview of one company to 
ask this forum for special protection.

3. We would like to ask why these proposals are being pushed forward when the 
development agenda has not been in the same way. The treaty is a threat to the 
development agenda. The committee needs to reassess its priorities. There are 
more pressing issues: why are we just looking at property rights that restrict 
access to knowledge, when we should be looking at proposals that extend access 
to knowledge?

WIPO has also been asked to examine impact on consumers of innovation. Yet 
articles 16 and 17 suggest these measures continued when there has been no 
timetable for a review of the effect of TPMs. There have been continuing 
problems with TPMs, and we urge the commitee to set out a clear timetable for a 
study to look at the effects on consumers of TPM.  and we urge the  commitee to 
set a timetable for a treaty on access to knowledge.

This treaty is not compatible with the spirit of the Develeopment Agenda.

Chair: We will continue tomorrow, then go to the limitations and exceptions, 
and then to webcasting.