[DMCA-Activists] Day 3: WIPO Special Committee on Copyright and "Related Rights"

[Seth Johnson]

-------- Original Message --------
Subject: [Broadcast-discuss] Notes from Day 3 Now Available
Date: Fri, 19 Nov 2004 12:15:53 -0500 (EST)
From: address@hidden
To: address@hidden

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

The end of this session was truly amazing. Brazil made a strong
push against including suggestions for regional conferences. They
pointed out that the method suggested by the chair departed from
the written recommendations from the previous meeting. A number
of countries agreed, and India suggested alternative language.

Serbia objected on a point of order that India should not have
been able to make a substantive point on a previous point of
order. India then argued that the rules of procedure had been
violated in the past, as when the chair was elected for
back-to-back sessions. India suggested that the personal views of
one member (the chair) should not be included in the report of a
committee that was supposed to operate by committee.

Zambia intervened, and the chair then took a show of hands on
whether his conclusions should go into the committee report. The
majority were in favor of including the recommendations. The
chair then gave a short speech on democracy and enthusiastic
applause from the back of the room ensued.

This summary doesn't do justice to the drama -- be sure to read
the last 1/3 of Day 3's notes.

David
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> http://www.public-domain.org/node/view/66#day3


Broadcasters Locking Up the Public Domain, Day 1, 2 and 3

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)
Day 3 Notes (http://www.public-domain.org/node/view/66#day3)


(Notes attached.  -- Seth)

DAY 3

Election of Chair and Vice Chair

Chair: Jukka Leides

19 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]


-- [DT: These notes are spotty, as we were preparing for statements later in 
the day.]

IFPA maybe???: [missed]

Consumers seek access to work on any number of distribution systems, so we 
support systems that protect any method of distribution.

We call for a separate instrument on webcasting.

IP Justice (Robin Gross):


IP Justice is deeply concerning about WIPO's rush to convene a Diplomatic 
Conference...

At its recent General Assembly, WIPO adopted a Development Agenda. There is 
concern about IP's impact on education, civil liberties.

Proponents of this treaty have yet to explain why existing regimes fail to 
adequately protect signal theft.

We recommend stopping the treaty in toto, but in particular, anti-circumvention 
and Webcasting are very bad and dangerous.

With regard to the web, this will create new rights, not harmonize those that 
already exist.

Bypassing technological restrictions is necessary for consumers to exercise 
their rights, engage in research, and archiving.

At the June SCCR meeting, numerous objections were made to the inclusion of 
webcasting in this treaty.  The proposed right of retransmission in Art 6 by 
any means would give webcasting the power to regulate the internet.

EDRI:  We believe that this treaty should be signal-centric. We have a number 
of concerns over the current draft. What is the future of the public domain 
under the current treaty? Works that expire today would be subject to a new 
broadcast right.  This would effectively remove them from the public domain.  
The sole source of this material is through broadcasting organizations.  
Article 16 is bad because it would give TPMS.  Restrict access to materials in 
public domain.  Article 16 should be removed from the text as Brazil proposed. 
Works would no longer fall out of protection since protection will be extended 
every time a work is broadcast. This is exacerbated by Article 16. We support 
Brazil's proposal to remove it. There is no rationale for a 50-year term. 
There's no evidence that TRIPS's 20 limit has resulted in a reduction of 
investment. We support Singapore's proposal.


Union for the Public Domain (Shyamkrishna Balganesh):

[DT: A slightly abbreviated version of this intervention was delivered in the 
interest of time.]

The Union for the Public Domain is an international membership organization 
that works for the promotion and enhancement of the public domain in matters 
concerning patents, copyrights and other forms of government imposed ownership 
of knowledge and technology. This is our second time participating in the work 
of the Standing Committee and Copyright and Related rights, and we would like 
to thank the member states and secretariat for this opportunity.

The Union for the Public Domain (UPD) continues to believe that the adoption of 
the new treaty is not in the interests of society and should be rejected. The 
proposed treaty to protect broadcasting organizations does not go nearly far 
enough in protecting the interests of society. Society relies on access to 
public domain materials for the promotion of education and the preservation of 
culture. By granting broadcasters almost absolute control over their 
transmissions, the treaty would curtail access to a broad range of public 
domain materials that are accessible only through broadcasts. As more and more 
vital information is captured and conveyed in broadcasts in our visual world, 
it becomes even more essential to protect the public domain from the monopoly 
powers broadcasters seek in this treaty.

Moreover, by creating a new layer of proprietary controls over broadcast 
signals, the proposed treaty completely ignores the fact that creative 
processes are incremental and depend on access to material within the public 
domain. Even those few who don’t have any regard for the educational and 
cultural value of the public domain would be making a mistake to adopt this 
treaty because it will undermine the vital base of knowledge and culture that 
citizens, innovators and artists depend on for creating progress and innovation.

For these reasons, the proposed treaty stands in direct opposition to the 
Development Agenda welcomed by the General Assembly last month. In specific, 
the Development Agenda places great emphasis on “access to information” and 
“knowledge sharing,” and explicitly warns against the dangers of adding new 
layers of copyright protection, which would obstruct the free flow of 
information in the digital world. The proposal to grant new and broad powers to 
broadcasting organizations ignores these prerequisites for closing the 
knowledge gap that separates wealthy nations from the poor.

Many, if not all, of the objections raised at the last session by delegates and 
the Union for the Public Domain are valid today, since only incremental changes 
have been made in the latest draft.

For example, Article 14 still fails to specify the limitations and exceptions 
with any level of detail. More importantly, it merely permits countries to 
include limitations, without specifically requiring them to do so. Given that 
the new monopoly privileges given to broadcasters are couched in mandatory 
terms and dealt with in great detail, the omission to do the same for 
provisions that accord use and access rights to consumers and the public, 
evinces a complete lack of regard for the public interest.


As with the last draft, the public interest will also be threatened by the 
failure to include an upper limit on the duration of these monopoly powers. 
Since Article 15 provides that the only act necessary for the commencement of 
protection under the treaty is transmission, in effect a broadcaster could 
indefinitely extend the term of protection by merely re-broadcasting the same 
work. We note that such an anomaly is avoided in traditional copyright and 
patent law by their insistence on a requirement of originality or novelty for 
monopoly rights. These safeguards are completely absent in this treaty for the 
protection of broadcasting organizations.

We would like to voice our deep concern over the continued inclusion of 
technology locks in Article 16, and the related digital rights management 
provisions in Article 17. We were surprised and sorry to find that the revised 
draft of the treaty (barring the explanatory comment) does not include any 
reference to the proposal by the delegations of Brazil and Chile to delete 
Article 16 altogether. The new Development Agenda makes express reference to 
technology locks and flags it as an issue of ‘great concern’. Many countries, 
including the United States are beginning to see the undue restrictions that 
such measures impose on the rights of free speech and access to information and 
most developing countries have yet to introduce these measures in any form, out 
of concern for their effect on freedom of expression. As one of the few civil 
society representatives from the developing world, I would, on behalf of the 
UPD strongly urge this committee to reconsider its stand on Article 16 in the 
interests of information access, critical to developing countries’ 
socioeconomic development.

Lastly, we remind delegates that every mistake and error that this treaty makes 
will be far more important if the regime is extended to the Internet -- a 
publishing platform that is essential for access to knowledge and development. 
The webcasting industry representatives do not really need the provisions of 
the treaty (every problem they face can be solved under other treaties and 
laws), they are simply seeking to make a political statement that webcasting 
should be treated the same as broadcasting, so they can claim a level playing 
field in their commercial dealings. Under this logic, every group that competes 
in some way with broadcasters will ask for upward harmonization of rights. By 
including webcasting in the Treaty, the SCCR would introduce radical and 
untested legal protections that will harm the Internet. While the broadcasting 
organizations can claim that a new treaty would extend and expand the existing 
Rome Convention, there is no such instrument for Internet transmissions.  The 
webcasters should first demonstrate that they can gain acceptance for new legal 
protections in national legislatures before they are permitted to assert such 
rights in a treaty that covers broadcasting organizations.

For all of these reasons, and more, this proposed treaty to protect broadcast 
organizations will not protect the public’s access to knowledge and culture, 
and the Union for the Public Domain asks delegates to stand strongly against 
adoption of this treaty.


[Performers Group]: Maintain balance between rightsholders and performers.

FIM (musicians): ): We are a cosignatory of a statement, "Joint Position of 
Rightsholders..."

[DT: A number of technical challenges to the draft treaty.]

European Broadcasting Union:

What comes to word when the word "balance" is used? Rome allowed three parties 
to live together. This treaty protects broadcasters against pirates and against 
third parties.

Those who don't want broadcasters to have protection against circumvention that 
broadcasters may decide to use want access to the content. Other treaties deal 
with content. This treaty only deals with broadcasters' *signals*.

Finally, a small technical point, as for future steps, the scope of the 
definition in Article 6 should correspond to the explanatory comment.

FIAPF: The inventory of rights proposed in consolidated text,

What type of beneficiaries are we dealing with and what is there function in 
the audio-visual economy?

The right of distribution

If the rights given to broadcasters encroach upon on the rights of content 
owners, this would not be an efficient way to deal with signal theft.

We are worried about what people are saying today.  They want to reduce the 
needs of developing countries to access.  They have reservoirs of talent.    
Only proper protection of the rights of creators and entrepreneurs can maintain 
cultural diversity.  We need exclusive rights plus a balance between right 
holders.  We ant adequate TPMS on digital works.



IMMF:  Intervention by the IMMF on the Revised Consolidated Text for a Treaty 
on the Protection of Broadcasting Organisations delivered by David Stopps on 
Friday 19 November 2004 at the WIPO SCCR 12  held in Geneva


As with other speakers I would like to warmly congratulate the chair on his 
re-election. He certainly has my sympathy for the formidable task he is facing.

I am here representing the IMMF which stands for the International Music 
Managers Forum. We represent the featured artists, performers and creators, 
that you hear on the radio and see on your televisions. These are the creators 
and performers that represent over 95% of the income generated in the global 
music industry.

We are not lobbyists, academics or even lawyers. We are entrepreneurs who have 
to deal with copyright and related rights as they affect us in practice on a 
daily basis.

We have prepared, along with other NGO's an amended version of the Revised 
Consolidated Text. I have just been outside and see that they have all gone 
from the table so if anyone has not seen a copy please contact me and I will 
send or e-mail a copy to you.

As we know it is some 40 years since the Rome Convention and the broadcasters 
now feel the time is right for a further extension of their rights.

It is some 90 years since radio came in to  being and yet still in 2004 
performers are being paid nothing in the United States and some other countries 
when their performances are broadcast. So the broadcasters, who represent a 
multi-million dollar industry, have waited 40 years but performers have waited 
90 years for the most basic global rights. In the Agreed Statement on Article 
15.3 of the WPPT it states that this issue has been 'LEFT FOR FURTHER 
RESOLUTION', but here we are 9 years later and I see no sign of anything 
happening.

So now to the proposed treaty before us and you will be pleased to know that I 
think we have the answer to all your problems.

If we look at the Rome Convention Article 1 we see that it states that:

PROTECTION GRANTED UNDER THIS CONVENTION SHALL LEAVE INTACT AND SHALL IN NO WAY 
AFFECT THE PROTECTION OF COPYRIGHT IN LITERARY AND ARTISTIC WORKS. CONSEQUENTLY 
NO PROVISION OF THIS CONVENTION MAY BE INTERPRETED AS PREJUDICING SUCH 
PROTECTION.

So here we see that the broadcast signal and the underlying content are 
considered to be quite separate.

If we then look at the WPPT ART 1.2 we see almost exactly the same wording. So 
here again we see a clear distinction between the object of protection and the 
underlying content.

Many NGO's and many delegations have made the point that all broadcasters 
really need is strong signal protection to prevent piracy. Even the 
broadcasting lobby in their paper available on the table outside entitled '25 
Questions and Answers' state on page 6 of that document:

THIS TREATY IS ABOUT PROTECTING BROADCASTERS RIGHTS IN THEIR SIGNALS REGARDLESS 
OF WHAT OR WHOSE CONTENT IS BEING BROADCAST.

So here we see that many NGO's, many delegates and even the broadcasting lobby 
want signal protection. So why we ask is this not reflected in the draft 
treaty, even though the delegagation of Singapore made such a suggestion in 
their official submission last January.

Of course, we need a definition of a 'signal' but this could be easily achieved 
by adapting the definition of a signal which is to be found in the Satellite 
Convention.

So here is the magic answer:

If we turn to Page 19 of the Revised Consolidated Text Article 1 Item 2 all we 
need to add is 9 words after the words 'PROTECTION UNDER THIS TREATY' and these 
words are 'SHALL BE IN RELATION TO THEIR SIGNAL ONLY AND'. So Article 1 Item 2 
on Page 19 would then read:

PROTECTION GRANTED UNDER THIS TREATY SHALL BE IN RELATION TO THE SIGNAL ONLY 
AND SHALL LEAVE INTACT AND SHALL IN NO WAY AFFECT THE PROTECTION OF COPYRIGHT 
AND RELATED RIGHTS IN PROGRAM MATERIAL INCORPORATED IN BROADCASTS.

This is a simple and elegant solution that should satisfy all parties and I 
recommend it to this committee.

Thankyou very much.

FIJ:  The FIJ has three basic points.

1. We want to exclude webcasting from this treaty.

2. We feel that broadcast rights should only be to protect signal theft

3. We favor Alternative B in (Art 1) and  Alternative AA in Article 24 of the 
Chairman's Consolidated Text.

NAB Japan: Why have we been discussing this for 7 years? We unanimously agreed 
to update the rights of broadcasters because we recognize the need to update in 
accord with the digital environment. This is why we did WPT and WCCT. 
Protection for broadcasters was left behind.

As digital technology has developed signal piracy has been snowballing. 
Broadcasters have played the role of indispensable communication. For instance, 
during a recent earthquake in Japan, we were the only people covering. Who else 
covers sports?

Some claim that the new treaty will jeopardize access to information. That is 
absolute nonsense. After the treaty, people will still be able to access info. 
Public domain info is accessible through broadcasts. Without the broadcasters 
there wouldn't be access. The treaty does not ever affect content itself 
because it only aims to protect signals.

Broadcasters could lose their power because of piracy. The very existence of 
broadcasters is under challenge now. We can tolerate this anymore. We cannot 
afford further delay before moving on to the next stage. If not now, when?

After long discussion we've had convergence. We must move forward to the 
diplomatic conference without hesitation. In must be convened next year.

AIR: Many delegations have warned that the balance between right holders and 
the public  might be jeopardized by the adoption of this treaty.  This treaty 
refers to the "Protection of Broadcasting Organization" which covers the 
neighboring right to authorize or prohibit their broadcasts.

There is paramount need to update the Rome Convention in the context of the 
digital age.  We need international and national legal protection.  We need a 
fair balance.

In the consolidated text there is no clause that calls for the appropriation of 
content.  With this treaty we are closing the circle of international treaties 
that began in 1996 with the WIPO internet treaties.  This treaty is important 
for developing countries.

This treaty will consolidate and nurture our creativity.  We want a clause 
included on technological protection measures.

ACT:  the argument that the treaty will block access to public domain is 
distinct from the concern that the treaty will block other rights holders. 
Broadcasters enhance access to the public domain and make more material 
available than would otherwise be the case. A legal framework to protect them 
is in public interest. Broadcasters exist to broadcast - for a commercial 
broadcaster, the size of an audience is critical; it is counter-intuitive to 
argue that broadcasters block public domain access. The claim is false; take 
the case of Renoir as a case in point. Most of his work is in public 
institutions and has immense public appeal. In 1875, he painted 'Summer' - now 
in Geneva. In order to display it, consent of the museum would have been 
necessary, since they own copyright in the postcard. What does it mean to say 
that the work is in the public domain? It only means that the artist's heirs 
have no exclusive right to reproduce the work, except for moral rights. The 
museum has the right to control access - it is a public institution to serve 
the public and fulfills this function by allowing access free of charge, but as 
a condition of entry it restricts photography of the paintings, since this a 
source of revenue for the museum. This gives it the necessary rights to 
generate revenue. behind the museum stand the citizens of Geneva, who have an 
interest in seeing the costs set off by revenue generation. Similarly, if a 
program maker is putting together a program on the artist - the maker is not 
free to include whatever works he wants; he will have to negotiate with the 
holders of copyright in the paintings. Museums do allow this, but access is 
never unconditional or unrestricted. behind this entire process is a process of 
bringing different stakeholders into an equilibrium. it is to distort and 
misunderstand the treaty to state otherwise.

CISAC:

The rights currently envisaged in the proposed broadcast treaty. are too 
far-reaching.

We believe it would be premature to include webcasting in this treaty.

IFPI: We've been in this since the beginning and we like to facilitate 
communications with developing countries. The catalog of rights afforded to 
broadcasters will have an impact on the rights given to other rightsholders. 
Exclusive rights for broadcasters don't in themselves conflict with other 
rightsholders'. But in the market, it's different. This isn't merely principle, 
it's grounded on real-world concern. In the case of some broadcasts, casters 
would be the sole rightsholders and hence the sole entities entitled to 
envision a new business model. Australia, NZ and EU might have broadcasting 
rights, but it'll be different on a global basis, because some countries that 
sign this might not have signed onto the 1996 treaties. Linking this to the 
treaties will solve this. We prefer a "right to prohibit" rather than a "right 
to authorize." We support 50 year terms. TPMs are key to this treaty. Casters 
and the public will benefit from this. The best TPMs are the ones not noticed 
under normal circumstances.

Asian Broadcasters' Union: I speak for casters from the developing world. 
Here's an actual case that justifies this: In the Philippines, we had a FTA 
that paid a lot of money to air the Olympics. Without their consent, many 
establishments cashed in by receiving the sat feed and adjusting their biz 
hours in accordance with the games. Some restaurants set up additional sets. It 
cannot be denied that the reason for Communication to the Public in Rome was 
unjust enrichment like this. A clear-cut example today is large-screen 
broadcasts in bars and beer-tents set up to profit from customers. Is this what 
we mean by "balance of rights?" If there is anyone among all stakeholders who 
want a balance of rights, it's the casters, who didn't get new rights in WCT 
and WPPT. There has been exhaustive discussions and a litany of examples of 
actual piracy. Casters have already articulated their case, but the attempts 
here will tilt the rights against casters for no good reason -- we want the 
right to authorize, not just the right to prohibit. We want 50 years, not 20. 
We want article 16 and TPMs despite the fact that other rightsholders have 
similar protection. Under WPPT, other rightsholders have the right to be 
remunerated for communication to the public, so we should too. Private 
reception and broadcasts won't be affected. Signal piracy robs us of the 
motivation to innovate. Without an updated protection, casters will have 
difficulty providing a higher quality of programming and this will cost 
creative-sector jobs.

Digital Media Assocation: [Pasted in from a transcript provided by DIMA rep, 
Seth Greenstein]:


Statement of the Digital Media Association November 19, 2004


On behalf of the Digital Media Association, representing Internet webcasters, 
we agree with the United States:  webcasting deserves treaty protection against 
signal piracy - now.

It has been suggested by many that this treaty should meet the challenges posed 
by digital technological developments.  To achieve that goal, the treaty must 
address the piracy facing all forms of media and all transmission modes, in a 
technology-neutral way.  A treaty that merely grants additional rights for 
modes of transmission known for 50 or 90 years will be obsolete before it is 
implemented, and would retreat from the foresight shown by WIPO members in 
crafting what the European Union aptly called the "Internet Treaties."

At the June 2003 Informational Session of the SCCR, representatives from DiMA 
and Yahoo! explained webcast "streaming" technology and the extensive business 
investments required to create and transmit webcast programming, and the 
reality of webcast piracy.  And, how supporting lawful, royalty-paying Internet 
webcasting provides an effective antidote against unlawful Internet piracy.  If 
you missed it, you can listen to it any time you want, because WIPO still 
offers those presentations on its Internet website, by webcasting.

Last night, I conducted an experiment.  I went to an Internet search engine and 
looked for the word "webcast" and the names of delegations that have spoken 
about webcasting.  I found:

Video programs from Chile.  Music from Brazil.  Music and video from the 
Russian Federation.  Video news from India.  38 million people enjoyed webcast 
streaming of a series of soccer games in China.  There have been audio webcasts 
of cricket games involving teams from Australia and New Zealand.  In 2001, the 
first solar eclipse of the new millennium was webcast live from Zambia.

Some are continuous programming webcasts, others single events.  But remember, 
the first international webcast in 1995 was a single baseball game.  Yet less 
than a decade later in the US, according to the leading broadcast analyst, 
Arbitron,

*More than 50 million people enjoyed Internet webcast streaming each month
* More than 30 million people in the last week
* The top five Internet webcasters had a combined U.S. listenership approaching 
11 million unique listeners per month.  One of these webcasters comes from the 
United Kingdom
* More than 50 % of the webcast audience is over 35 years old, and more than 70 
% is 25 or older

Consumers like Internet webcasting because it exposes a wide variety of music 
and culture and programming otherwise unavailable by broadcast radio.  The 
increasing availability of high-speed "broadband" Internet in Europe, South 
America and Asia,  and the growing number of webcaster services around the 
globe, demonstrate that these data are a paradigm of the trend worldwide:  
Internet webcasting is a mainstream activity that substantially contributes to 
the dissemination of world culture and entertainment.  It is especially 
important to developing countries.  If webcasting is not your reality today, it 
will be -- sooner than you expect.   We note the press release distributed 
yesterday by the Cable and Satellite Broadcasting Association of Asia (CASBAA) 
supporting inclusion of webcasting in the treaty.

The United States has the right answer, but we note with interest the 
innovative suggestions of the Russian Federation as interpreted by the 
Chairman.  Both suggest that the 1000kg block has been mistakenly characterized 
as an impeding block of concrete.  In fact, we should see it as a block of 
marble.  Keep webcasting in the draft documents. With a bit of the creative 
genius that WIPO celebrates, this body has a historic opportunity to again pick 
up the tools of the legal artisan, and to fashion from this block a worthy 
successor and counterpart to  the WIPO Internet treaties where WIPO saw the 
future, embraced it and helped to unleash the cultural force that the Internet 
has to offer.


[CD: My fear is exactly this: " a worthy successor and counterpart to  the WIPO 
Internet treaties where WIPO saw the future" -- in those treaties, the Internet 
saw the future and REJECTED it]


FIAP: We acknowledge the concerns of traditional broadcasters and cablecasters 
with respect to signal theft. We share the concerns that these rights do not 
derogate from content rights.  Any new treaty should be linked with the WPPT 
and the WCT.  We are concerned that some rights requested by broadcasters will 
encroach on content.

The two tier approach, "a la carte choice" in Article 9-13, does not favor 
available solution.  We suggest that Use based on unauthorized fixations.

We agree that webcasting should not be included in this treaty. We do not favor 
a compromise solution proposed by one delegation.

NAB:  We have documents from Cancun, documents from Minoa, and the reports of 
the first 5 or 6 sessions of this committee, where pretty much the sole focus 
was to establish the need for such treaties.

On the issue of balance and a level playing field, we have heard nice rhetoric. 
But when you review the proposals, you see there is not balance, it is 
imbalance against the broadcasters and in favor of other neighboring rights 
holders.

On the issue that the new rights in this treaty will overlap with other content 
providers, the distinguished delegation of the U.S. has listed this as the 
reason for requiring two tiers, and requiring assent to the WCT and WPPT. To 
assuage this we have Paragraphs 5 and 6 of the preamble which say that we won't 
compromise the rights of others, and stressing the rights of performers. In 
Art. 1 we have provisions saying this treaty will not prejudice other 
protections. We have the declarations from EC and New Zealand that they have 
for years had the parallel system of rights proposed here, and that no problems 
have been created. According to Latin American experts at least 10 countries 
there have the right of reproduction. So when IP Justice says the rights 
proposed here exist no where they are either misinformed or uninformed.

[TB: In response, Robin Gross from IP Justice commented that the IP Justice 
intervention specifically noted that "anti-circumvention provisions for 
broadcasters and webcasting rights do not exist in national laws."  After this 
intervention, one delegate took a copy of the IP Justice statement to the 
representative from NAB and noted that he made an incorrect assertion on IP 
Justice's statement.]

On the issue of protection I find it bemusing that the countries that have 
proposed 20 years provide at least 50 years (Singapore, Chile, Brazil).

On TPM's, Senegal has it exactly right that it makes no sense to create the 
vital organs of these rights and then leave them  unprotected. If no TPM is 
included in the broadcast treaty but you have it in the WPPT or WCT, what does 
it tell the rest of the world? It tells them it's important that other have 
protection, but there is no need for broadcasters to have protection. That, I 
submit is a very wrong message to send, and it would be very detrimental to 
content holders in that it would remove a level of protection that would 
protect them.

[CD: No, it tells them that we've discovered in the past ten years that TPMs 
don't work]

To me the very crazy notion that broadcaster who depend on their livelihood 
would somehow want to inhibit public access.

In my 13 years, the work of the last three days has been incredible. We submit 
that this committee has accomplished its committee. This committee used to be 
referred to as the committee of experts. Its role used to be to apply its 
expertise to the facts. We have done this. The next step is negotiation and 
diplomacy, what they call a "Diplomatic Conference." We are ready to move 
forward and ready to compromise.

FIART: Does it help creators in developing countries to not give them effective 
protection? It is very desirable for broadcasters to fight against piracy of 
signals. That's why I'm astounded people are calling for the deletion of Art. 
16. Paying channels can't work unless they can eliminate piracy. I think if we 
deleted Article 16, it would make the text totally useless.

Regarding Article 24, seems odd to join this without people joining WPT and 
WCCT. It's putting the card before the horse.

I notice the reluctance of many delegations on this issue.  France Telecom put 
their telecast on a pirate site.  We must do something to combat piracy.  In 
schools there is racketing, rape but I don't think we should put everyone in 
jail for piracy

NABA: [some missed]

A treaty without TPMs would be empty words. Digital technology cannot be 
overlooked. The interests of governments differ, but digital technology crosses 
all borders.

If we do not take a step for a diplomatic conference and the treaty I think 
people would lose interest in the treaty.

UHRNA: [missed]

JIARD: We think simulcasting should be included.  What we are trying to avoid 
is piracy.

Chair:  We have come to the end of substantive interventions on issues related 
to broadcasting.  We shall revisit some aspects of Agenda Item 4 later.  We 
should continue the debate on the Chair proposal.

We will include Limitations and Exceptions on the agenda for the next SCCR 
meeting.

[DT: This is huge. Finally, a discussion on protecting users' rights.]

[Brief discussion on TPMs, in which Brazil suggested that it would be more 
expedient to have an inter-sessional meeting in Geneva rather than regional 
consultations.]

--

Break

--

[India is given the floor after the meeting]

India: After hearing the Brazilian delegation, we realized there was 
considerable merit in holding meetings where we can iron out  differences 
before coming on to a diplomatic conference. We think that the idea of 
inter-sessional open-ended consultations will help us narrow the differences  
that exist and obviate the need for regional consultations. If there's one 
thing that's emerged is that within regions there's a remarkable degree of 
homogeneity, so therefore regional consultations would be quite unnecessary.

Chair: Conclusion now. We're going to talk about the Broadcast Treaty and 
Limitations and Exceptions. Other announcements are permitted.

My overall assessment:

The Committee made considerable progress and reduced the substantial 
differences in the consolidated text. No final concessions on concrete points 
were made.  Delegations want to maintain their positions for the next stage of 
the work. No progress will be made until the next phase starts.

Concrete examples of progress are as follows:

There is support for a new version of the consolidated text:  Items in square 
brackets will not be retained in the next version (i.e. provision on webcasting 
and square brackets concerning TPMs)

Rights on acts that follow fixation: we considered a two-tier model, which 
received growing expression of interest. A new alternative will be added to the 
text.

The remaining single paragraph of Art. 16 will be included along with an 
alternative that no such provision will be included in the final version.

Regarding becoming a party to the treaty, the alternative that requires joining 
WCT/WPPT will be put in square brackets.

Delegations' attentions will be drawn to the need for further streamlining of 
the retransmission rights. (talking about alternative T)

Less than 50 years' term alternative received support and will be maintained in 
the text.

In order to make further progress and in light of the request of the General 
Assembly:

[Powerpoint slides:

1. Documents to be prepared:

* A second revised version of the Consolidated Text will be prepared by the 
chairman of the present session of the standing committee;

* A working paper on alternative non-mandatory solutions on the protection of 
webcasting organizations including simulcasting organizations will be prepared 
to accompany the second revised version

2. Regional consultations

* Regional consultation meetings will be organized by the International Bureau, 
as requested by the member states.

3. 13th session

* The next session of the committee will take into account the progress made in 
the regional meetings.

* The committee will, in light of the results of regional consultations 
consider the second version of the Consolidated Text and examine the working 
paper on alternative solutions on the protection of webcasting organizations;

[TB: Who requested regional meetings?]

B. EXCEPTIONS AND LIMITATIONS TO COPYRIGHT AND RELATED RIGHTS

* Agenda on exceptions and limitations for libraries and disabled persons will 
be placed on the agenda of the Thirteenth Session]

[CD: What about education??]

Brazil: We're willing to engage in this discussion on these conclusions, but we 
would like a written copy. I think this is the standard procedure we follow 
when we discuss your conclusions. It would help us a lot to see this in written 
form in a printed format so that we could work on it as we discuss your 
suggested language.

Chair: We do have a written version of the set of conclusions now shown by 
using the technical equipment available in the room [Powerpoint] in order to 
serve all language groups I could read this text again slowly to make this text 
perfectly accessible to everybody. This is a set of simple, soft, flexible 
conclusions and there should be no difficulty in following the content of the 
different elements.


India: Before the lunch break I pushed you more for the floor more than I 
normally would. The reason was that I had a dental appointment. I realize my 
ideas may not have been clearly conveyed because my speech may not have been 
clear. I hope my speech is a little clearer now. What I was suggesting was that 
Brazil's suggestions for open consultations inter-sessionally were an eminently 
sensible idea. I would have thought that given the open ended consultations are 
wider in scope and the fact that the differences that emerged in this meeting 
were essentially differences across regions, it would be more beneficial to 
have an inter-sessional meeting which is precisely what we are now engaged in. 
Some meeting like this that brings regions together in inter-sessional 
consultations. But I see that none of that has been reflected. And since we 
believe our conclusions are those of the committee rather than the conclusions 
of the chair, we would request you to show some indication that our 
contribution has not been entirely dismissed out of hand. Thank you.

Chair: Whups, yup, we got that proposal. I can't give you the proper reaction 
to this now. Let's hear from the other delegates and then we'll ask the 
international bureau and the secretariat to weigh in. I would not expect there 
to be consensus given yesterday's discussions. I tried to make this streamlined 
so those who have flights can catch them.

India: Thanks -- those are indeed your conclusions but for them to be 
actionable means that they have to be accepted by the committee. Before we 
discuss these, I think my delegation has to sign on. If there's a conclusion 
from the chair without a requirement from the committee to sign on, then how 
can the secretariat do anything? I think it's the committee, not the chair, 
that is entitled to move us to action.

Chair: We will listen to the comments of the other delegations and they will be 
presented in the report, and we will then see whether these can be actionable.

Egypt, Speaking for African Group. The African Group thinks that Brazil's 
proposal is worth consideration.

European Community: India made me painfully aware that I, too, need to go to 
the dentist's, soon. I don't want to talk about regional consultations, because 
we have these in Europe in the form of meetings in the Council Working Group. 
I'm puzzled, though, by how my messages in the past few days have been 
perceived. EU believes that Simulcasting is an option that should remain in the 
text, and Webcasting should also remain in the text. The working paper should 
deal with other possibilities to address this issue. I'm not talking about 
"Webcasting Organizations" or "Simulcasting Organizations," as we should 
clarify what these terms make. Can you clarify this, please? Also, PowerPoint 
slides are good. Ú

Zambia: My first point is that my delegation will be the first to support 
whatever my coordinator says because I am part of the African group. But also, 
where we don't agree or we have not discussed an issue as an African group, I 
am put in a corner. My understanding of my coordinator's statement about 
Brazil's proposal is that it is the Egyptian position and not an African group 
position. I am sorry to say this, but I want to be honest.

My second point is that we have made a lot of progress. As far as my delegation 
is concerned, we believe it has been difficult for the Chairman to please 
everyone. Yesterday I suggested the U.S. drop its webcasting proposal so we can 
have consensus. They did not. Someone else brought a compromise that has 
brought us to where we are. I support the Chairman and hope we can proceed 
accordingly. I don't have time to go through each point, but this is the 
summary of our position.

Senegal: I would like to thank the Secretariat for all the facilities they've 
provided for us. I would like to thank you first of all for your skills and 
your spirit of consensus. You have guided our discussions very skillfully. On 
behalf of my delegation I would like to endorse the conclusions you have put to 
us. I support wholeheartedly the idea of consultations. The request for these 
consultations requested by Morocco and endorsed by Togo is again topical 
because we believe that if we hold these inter-sessional consultations we will 
succeed in overcoming the difficulties easily and we will be in a position to 
go ahead to a diplomatic conference.

Algeria: I would like to thank the Russian Federation for their proposal to 
protect broadcasting organizations on the web within a non-mandatory protocol 
which would guarantee a 3-tier protection. We believe that this proposal will 
help us arrive on consensus. My delegation supports this proposal. We have made 
great progress but there is still a great deal of work, and I think this will 
be done in a series of consultation meetings at a regional level, as proposed 
by a number of delegations, including Morocco, Togo, Senegal.

Brazil:  Thank you Mr. Chairman for your efforts to summarize our discussions 
this week.  We want to get back to something that the distinguished delegate 
from India said.  Clearly any decisions on future work with respect to this 
process must be accepted by this Committee.  We have been proceeding under the 
assumption that this is a Member driven, not a Secretariat or Chair driven 
process.

We concur with some of the delegations who spoke earlier, that they seem to 
constitute an honest effort to capture some of the ideas in our discussions, 
but they leave out some very elements that were brought up in the context of 
our debate. My delegation in fact made a specific suggestion regarding future 
work that we honestly offered as a constructive suggestion which we thought 
could seriously help enable this committee to make progress in discussions. 
That suggestion has received support from some of the members present in this 
room. You have chosen not to reflect this in the conclusions you are making, 
these proposed draft conclusions for reasons that frankly we fail to understand.

The language you have suggested for regional consultations is frankly accurate 
because what it seems to suggest is that the members of the committee have 
agreed to convene these regional consultation meetings. In fact that hasn't 
happened. We understand that some members of the committee have raised this 
point in the course of the debate, and we respect and take full note of that 
suggestion. However, we feel that the appropriate way to proceed would be along 
the ways of the suggestions we have made. The fact is that we have had not time 
to discuss any of these suggestions, including the one on regional 
consultations.

We would like to point out to you that this idea was in fact discussed in the 
last meeting of the standing committee when we negotiated, in a member driven 
way, the language of the recommendations that were forwarded to the general 
assembly on this important matter. This recommendations did include references 
on the matter of regional consultations. I would like to read the text:

"Depending on the decision of the WIPO General Assembly under point a 1 above 
the decisions to convene or not to convene, and the recommendations of the 
standing committee, the international bureau shall organize regional 
consultations meetings where appropriate and at the request of the relevant 
regional groups.:

We would like to point out that no regional group has lodged such a request in 
the course of this meeting. No regional group that I am aware of has supported 
this proposal or raised a formal request for the holding of such regional 
consultations.

If there is an interest on the part of any region to have a regional 
consultation meeting we would not stand in the way of that. But in the course 
of the discussions we have had today no regional group has made that proposal 
and no group hap has requested a meeting. The group my country belongs to has 
certainly not asked for a regional consultations meeting. I ask that we stand 
by the decisions this committee has taken in the past. We believe it is late 
but we may still have time to have consultations on these issues and would be 
willing to have constructive conversations on those issues.

It would be hard put for us to agree to a set of conclusions that does not 
reflect any kind of agreement that might have been arrived at between any 
members of this committee.

Chair: I set earlier that these conclusions were simple. I don't understand how 
the regional consultations that have previously proved so useful, why it would 
be so difficult to consider regional consultations this time. So this element 
is in the set of conclusions.

[CD: In other words: "Tough."]

Morocco: My delegation approves all delegations that support the proposal at 
the beginning of this meeting concerning the organization of regional 
consultations in order to discuss the items still in abeyance. Because here we 
share your view, we believe we have made considerable progress. We still have 
work to do, but not very much, and through these consultations we'll be able to 
achieve a solution if everybody sincerely approaches these consultations and 
makes an effort to understand all the issues. There are of course divergences 
in abeyance and this is a good reason to hold regional consultations.

Morocco tends toward the liberalization of all satellite transmissions. We 
approve regional consultations for the creation of new broadcasting bodies 
which will contribute to the organization of better and more modern levels of 
protection.

Syria:   We agree with your proposal to convene regional consultations with a 
view to convening a Diplomatic Conference.  We want the regional consultations 
to focus on Article 16 and also on limitations and exceptions.


Colombia: We appreciate your efforts. Re document on webcasting -- we have to 
take into account that article three has three objectives: traditional 
broadcasters, cablecasters and webcasters. When you say that this is an 
alternative proposal, we could also include simulcasting here. It's a special 
case, but it's independent. They do it either by wire or wireless and to talk 
about "web" in this connection would be an additional situation, another layer 
to be added to traditional broadcasting.

As regards the convening of regional consultations, we've always proceeded in 
this way in WIPO, prior to any diplomatic conference there are regional 
consultations dealing with a given item.

Regarding Brazil's comments, I take it that the venue will be Geneva, 
especially given the financial situation of the organization. We need to take 
into account the points made by India. This aren't discussions within a region, 
but from one region to another. This is similar to the situation in 2000, with 
the audiovisual performances treaty. The divergences are not within regions, 
but among regions.

Uruguay: We appreciate your efforts.  Generally speaking, Uruguay can support 
these conclusions even though they do not fully satisfy us.  We should not lose 
the momentum and we should go on to the future stage   We support a second 
version of the consolidated text.  We are amenable to alternative non-mandatory 
solutions on webcasting but this must be done at a later stage.

We are flexible on the subject of regional consultations. Whether or not they 
are regional, we think the proposal of an ad hoc inter-sessional meeting is 
really something that's very positive and I think it would be worthwhile to 
have an inter-sessional meeting because we're convinced that a further meeting 
of the committee even if it is inter-sessional or informal will make the 
process more dynamic.

Mexico: We appreciate your work. We have enough consensus to continue. Bear in 
mind that we've already spent 12 sessions on a matter recognized as important 
by many countries, on updating rights already addressed by rome. We're talking 
about broadcasting organizations that provide knowledge and culture to our 
people.

Mexico considers that the time is ripe for regional conferences, and possible 
for the holding of a diplomatic conference.

Norway: We can support this constructive proposal by the chairman. We want to 
remain flexible in addressing this issue. Regarding the issue of exceptions and 
limitations we can fully support continued international discussion in this 
committee.

Argentina: What is the relevance on having conclusions since we are discussing 
future work?  This is a negotiating process between Members not between Members 
and the Secretariat.

I think this position was set out in the Development Agenda set out by 
Argentina and many of the other delegations. So we do not believe this kind of 
procedure is really most appropriate.

Regarding the text, it was clear from our discussions so far that we would keep 
98% of the alternatives in the text. What we find surprising is that for one of 
the alternatives that got majority support you are proposing a different 
solution. Alternative V which was proposed by Argentina, it's the only 
alternative that would be removed from the text. Argentina does not withdraw 
its proposal on Article 16. We would like to see this alternative in the next 
text.

On a working paper, which would be prepared and which would accompany the 
second version, we're not clear about the nature of that document. What would 
it mean to say that it would be prepared to accompany the second version. I 
think it's very obvious that there is great opposition to this subject. It's 
not necessary to have a second treaty or protocol on webcasting. There has been 
no mandate or discussion of a different instrument specifically on that subject.

There were proposals here to include an alternative two-tier protection. This 
was what the EU said in its proposal today and there may also be another 
alternative with this 2-tier solution. I don't know if this would solve the 
problem, but if we have a working paper it should be asked for by the members. 
It should be discussed by the members in depth and there should be a request to 
the secretariat for the document.

We support Brazil on the regional conferences issue. There should be regional 
meetings if they are requested, we have no objection to that. But we think an 
inter-sessional meeting of the committee might help us make more progress or 
discuss in more depth.

In the last few sessions all we've done is look at various alternatives. Our 
delegation hasn't had an opportunity speak on Art. 4 but it doesn't mean that 
what isn't in square brackets has consensus. We don't know the state of things 
not in square brackets because we haven't discussed them.

USA:   Thank you Mr. Chairman.  It is with regret that I find it dismaying that 
the proposal has been made to take webcasting and simulcasting off the 
consolidated text and put in some "other document."  We found the proposal by 
the Russian Federation of a multi-tiered solution interesting.  We've discussed 
these issues before, had educational sessions on the topic. The proper way is 
to leave webcasting in the text. It is, we believe, an important issue for the 
21st century and we continue not to want to see it  left behind.

Russian Federation: Re the drafting of these recommendations. It's better to 
speak of the second document as a working document, containing an alternative 
solution to the problem of Webcasting and Simulcasting. The broader wording 
would make a better doc.

Iran: We think an inter-sessional meeting is a better way of engaging all 
delegations. There should be a consensus on the work of the committee. We 
support the statements of Egypt, India and Brazil.

Zambia: We are all the same members that have held previous meetings before, at 
the general assembly and with other portfolios. In other venues, we've 
adopted/supported the proposals of others when we'd initially said we wouldn't 
support them. You can't win all the time. Today you propose and your colleagues 
say yes, but they expect you to say yes to them, to die a little and give in, 
remembering that they supported you. Hey you other delegates, support regional 
meetings. We've held our noses and swallowed much more bitter compromises.

Chile: We want a rewording of the text on regional consultations and include 
language on an inter-sessional working group considering that this will be more 
open.

China: In general the Chinese delegation supports the Chairman's suggestions. 
We have a small suggestion. If it is possible, we suggest that consideration be 
made on the part of WIPO to include the experts from governments from 
developing and developed countries to exchange questions so that developing 
country experts could learn more about webcasting so that they can find out why 
they want webcasting in.  We want to emphasize that these experts be from 
governments This will enhance our mutual understanding and it will be useful in 
preparing the second version of the consolidated text.

Canada: We will refrain from commenting right now.

El Salvador: We agree with the statement made by Uruguay. As other members have 
mentioned, there are some areas where we are concerned, however we think we 
should make progress on the definitions in the treaty.

Serbia: Speaking in my national capacity, not as leader of the group. We 
support your conclusions as a whole as a compromise. Regarding your suggestions 
on slide "3. Thirteenth.." We should be careful in our suggestions to the 
secretariat given the financial considerations we have discussed.

Honduras: This is my first time taking the floor, thank you Mr. Chairman. We 
support the proposal to have an inter-sessional meeting rather than a regional 
meeting, given the financial issues.

We support the Chilean proposal.

Colombia: I think you misunderstood me as regards regional meetings. Of course 
we support regional meetings and I think we have presented a number of comments 
and remarks and precisely to imply the recommendation we formulated in June of 
last year concerning the venues of the regional meetings. But we did not object 
to that at all.

Togo:  I would like to thank you for your very relevant conclusions which you 
have drawn after our 3 days work.  I would like to note that the General 
Assemblies instructed the SCCR to accelerate its work.  This was the guiding 
concern of the African Group.  We support the regional consultations with a 
view to convening the Diplomatic Conference.

Rita Hayes (Deputy Director General of WIPO): There is a precedent for regional 
consultations and it seems to be a good way of discussing the issues. In 
response to the distinguished delegate of Colombia, we will of course look into 
the financial aspects and the scheduling conflicts.  We might ask the Chair if 
he could add to conclusions that there be other types of consultations. It was 
the request of many many delegations to have these regional consultations.

[TB: The word "inter-sessional" was not directly mentioned in the intervention 
by the Deputy Director General]

Chair: I suggest, changing the heading to "Regional and other informal 
consultations." And add, "regional consultation meetings and other types of 
informal consultation meetings."

Brazil: The suggestions you are adding, following the suggestion of the rep of 
the secretariat could be useful, but we don't think the language captures the 
sentiment manifesting itself in the course of discussions on future work. Mr. 
Chairman, we did not hear many many many members support regional meetings. We 
heard several members, but similar a number a of countries have pointed out 
that they would prefer a different kind of consultation. As a committee we must 
decide on what the follow-up process of our work should be. I think I'll let 
you finish talking to the secretariat if that's OK with you. Mr. Chairman, as I 
was saying I don't think it should be so difficult for us to find a way forward 
given the goodwill in this room.

Mr. Chairman we want to make clear again as we have before that if a specific 
region wishes to have a consultation and wishes to convey that request as a 
group to the request, Brazil certainly would not stand in the way of that 
region. But the fact of the matter is that we have yet to hear a regional group 
make such a request in this meeting. If that did happen, we would not stand in 
the way.

In adopting a decision this afternoon, we must stand by the principles that we 
have agreed to in past meetings of the standing committee in discussing the 
preparations. Clearly in the last meeting we said the regional meetings would 
happen where appropriate at the request of regional groups. We insist that this 
process remain member-driven.

Chair: I would ask all of you to be patient and understand we need to come to a 
speedy conclusion. We are running out of meeting time.

[DT: 5:04pm]

The wording I added was indeed intended to cope with all proposals made here, 
including your proposal.

I should maybe turn to the legal counsel of the house and see if sees any 
problems in proceeding in this way.

Legal counsel: [laughter] Mr. Chairman I think it depends on what the committee 
wants to adopt. My understanding is that you are providing a summary of the 
conclusions as you see them. THese are the chair's conclusions and the 
delegates have been invited to comment on them. This is not precedent setting, 
this is the standard practice in most of the committee meetings these days, 
especially for meetings that are less than a week. If the committee doesn't 
want to adopt these as the committee's conclusions they can be adopted as the 
chair's conclusions on the committee's work.

India: Some of what I want to say has already been said by the representative 
of the Brazil. Namely that we should hold regional consultations where such 
consultations have been requested by the regional groups and we certainly think 
that's the basis on which we should proceed. And to that end modify the 
language that you have on the screen:

"Regional consultation meetings, based on requests by regional groups, followed 
by an open inter-sessional intergovernmental consultation of the committee will 
be organized by the International Bureau as requested by the member states."

Chair: Thank you very much India for your suggestion. Now it seems that the 
meeting starts again. Now we may have an endless discussion on details.

Do we have consensus or not? If not we will have conclusions by the chairman in 
the report.

I don't think we can now exactly define the form and order of business in 
organizing the consultations. Negotiations between the secretariat and possible 
host countries has to continue, discussion on possible inter-sessional meeting 
in Geneva has to continue.

[CD: Brazil sticks its sign in the air, waits to be recognized by the chair]

Brazil: Referring back to the comment legal counsel made on our deliberations.  
You are asking us to agree to conclusions with which we have not agreed to.

We are surprised that you seem unwilling to allow us to agree on something 
which we seek to agree, rather than agreeing on a conclusion which you already 
know the committee does not agree on.

The problem with your proposal is simple. It is up to the committee to decide 
on the follow-up process. You're asking us not to agree, and to leave it to the 
secretariat to decide what should be done. We have repeated that this is a 
member driven process, and we insist that it remain member driven.

Serbia-Montenegro: Rule 14(1) of WIPO says that any delegation may raise a 
point of order, and may not speak on the substance. So if you make a point of 
order I think the delegation should refrain from speaking on the subtance.

Zambia: Mr. Chairman I apologize, we should be making a conclusion. But Mr. 
Chairman I raised the flag to try and see how much more this delegation can 
contribute to the debate, and I more or less repeat the same point I had made. 
We should not set a trend which will be difficult to reverse in the future.

Compromise is very important. If I agree to support you, at least look at me 
and support me.  There seems to be a trend where one or two delegations are 
saying that there should be no regional consultations.  Why is this such a do 
or die affair? We can make progress on regional consultations. This is 
deliberate, this is unnecessary. For you to force me to speak like this is 
unnecessary, I have never spoken like this before. I refuse to jump on the 
bandwagon because I'm small. Let's look at the reason. Surely if we have 
agendas the regional consultations will not spoil those agendas. This is not 
necesasry but we have been driven to speak like this. I am so sorry. When you 
quote the decision which we made youare quoting it as cast in stone. We are 
being rigid. Several African countries have suggested a regional meeting. Do 
you just want the coordinator of Africa group to say that yes, we have 
suggested. So many Africans have suggested. We are a region. This is not fair. 
I'm sorry. Thank you Mr. Chairman.

Chair: I give the floor to everyone who is asking the floor we will run clearly 
over time. So we should admit at this stage, especially after the intervention 
by Brazil, that it is not proposal to have any conclusions to the meeting that 
would enjoy full support as to every detail by everyone in this room. That is 
the atmosphere now and that was the atmosphere yesterday. That is why now I 
would like to make it clear that the conclusions as presented and amended as I 
suggested add flexibility. Flexibility is the principle of the day.

This will be under my responsibility. I would invite you to accept that we 
should come to the end of this debate.

India (point of order): This is quite precisely a point of order. The reason 
why it is a point of order, as we were were reminded the delegate ofSerbia. 
[DT: lights turned up] Personally I thought that was very unhelpful because the 
spirit of WIPO is not rigid, hidebound. Flexibility is the order of the day, 
not recourse to the rulebook. Because if we did take recourse to the rulebook 
we wouldn't have been able to elect the chair. Because the rule says that the 
chair should not be elected back-to-back, but we have done it in the interest 
of flexibility. I try not to go by the rulebook because I think what we know is 
important is the spirit behind the rule, which is that we should advance our 
work. Since the rep of Serbia pointed out the rule, I do recall a rule that the 
chair should not be elected back-to-back. So is she going to say that we have 
overstepped the authority we have in electing you as the chair? Thank you.

Chair: Thank you for your point. Legal counsel.

Legal counsel: India's reference to the rule is correct, but this committee did 
decide to derogage from procedure and not stick to the rule that there should 
not be a repeat chair.

India: I do not recall this proposal being put to the Committee. I seem to have 
missed when this special derogation was discussed.

Legal Counsel: Just for information to the distinguished delegate of India this 
was at the 3rd session of the committee where we adopted a special rule of 
procedure.

India: But that does not bind subsequent sessions of the committee. Each 
session of the committee is the master of its own rules.

Secretariat (Jorgen Blomqvist): If I may inform the distinguished delegate of 
India, the secretariat noticed that in the two previous sessions the chairman 
had been elected back-to-back. That was seen as a de facto departure, so 
special rules of procedure for this committee only were established.

India: Mr. Chairman I don't believve this satisfactorily addresses this 
question. Just as we don't like to have intergenerational tying down of 
populations, we don't like one committee session tying down another committee 
session. Unless the rules of procedure themselves are changed. Given that there 
is turnover, that human memory is perforce limited, that where we depart from 
the rules of procedure these should specifically be brought to the attention of 
the committee each time. Given that we don't think the 3rd session of the 
committee can tie down future sessions of the committee, which is the master of 
its own rules.

[lights come on brighter]

Chair: I think this week's session shows there is great flexibility but there 
are difficulties in arrivng at the joint conclusions. I ask for the last time 
that the debate not continue. I ask simply that you indicate whether you cannot 
join, and we will have only in the report the conclusions of the chair.

Brazil: This is a point of order, since people have been referring to the 
rulebooks. We understand there are rules governing the general powers of the 
chair, and we're not aware that anywhere in the rules does it say that the 
chairman has the power to impose decisions on the committee. We would like the 
report to say that your conclusions are not endorsed by the committee and does 
not bind the committee.

India:  We need to still resolve the point that we raised.  If we are working 
on the basis of consensus, it doesn't matter whether the chair has been elected 
according to the rules or not. But when we are going to depart from consensus, 
when an individual is going to give his personal views, then all these 
questions again resurface. Consensus is a beautiful thing. It sort of smoothes 
over a lot of rough edges. But absent that consensus they again raise their 
ugly heads. We have to bear in mind that there is no consensus. And for the rep 
from Finland to say and for WIPO to accept that these are the conclusions of 
the cahir and not the committee gives a special weight to the conclusion of the 
delegate to the conclusion of perhaps to one hundred and forty delegates in 
this room.

Chair: As a way to measure the prevailing position in the committee, I invite 
those who would not be able to join the conclusions to give a show of hands. 
Five [Iran, Brazil, Egypt, India, Argentina]. Shall we continue this 
discussion? Who might be able to join the conclusions? [large show of hands] 
When the modern democracy was born, it was said that peole have a say. In many 
cases it is the majority whose opinion has to be respected. That is democracy. 
[applause, including broadcasters in the back row]

[TB: The United States did not raise their placard]

The debate is closed. The conclusions and observations of the chair are going 
to be taken to the report. Now ladies and gentlemen there has to be a specific 
procedure for the adoption of the report. There have been 1 or 2 cases where 
the report has been distributed a few weeks [missed]. I apologize for all the 
bad will that this debate may have caused. I deeply regret it because the 
willingness to deal with the substance has been so promising. The difficulties 
in finding the procedure in how to come forward was difficult.

Are there any  other announcements by the Secretariat?

The session of the 12th session is now closed. [gavel] Thank you very much.