[DMCA-Activists] Rough Notes: WIPO Databases and Broadcasting - Day 1

[Seth Johnson]

-------- Original Message --------
Subject: [Fwd: WIPO Databases and Broadcasting - Day 1]
Date: Mon, 7 Jun 2004 17:43:43 -0400 (EDT)
From: address@hidden

We wrote these notes collaboratively, all of us working on the same doc at
once, using Wi-Fi, Rendezvous and SubEthaEdit...pretty friggin awesome.

-------------------------------

Meeting notes for the 11th meeting of the WIPO Standing Committee
on Copyright and Related Rights, 7 June 2004

These notes were collaboratively written by:

Cory Doctorow, EFF
Wendy Seltzer, EFF
David Tannenbaum, UPD

Note: The notes below were written quickly, in the heat of the
session, and there may well be some errors and omissions. They
are by no means verbatim, but on the whole they are a
comprehensive record of the meeting.


  __________________________________________________________________________

--
    [ed. The session began at 3pm, and the first 40 minutes were
taken up with discussion on giving more control to non-original
database owners. This was followed by a much longer discussion on
the proposed Broadcasting Treaty.]

Database copyright

* Previously, we agreed to keep non-original database protection
on the agenda, but not consider it at every meeting.  We had a
meeting without revisiting the question, now's the opportunity to
consider any developments in this field

* US: There've been minor developments on database protection in
the US: two bills in the House

        * DB And Collections of Info Misapprop Act: Protects databases from
          misappropriation, with a private cause of action for entities
that cr
eate
          databases

        * Consumer Acess To DBs: Only FTC can bring suit.  Establishes a
          misappropriation regime as opposed to property.

        Both are in committee.  Both are controversial.  No legislation
has been introduced term in the Senate. No database bill will pass into
law in this term.

* EC: Old issue, since 1996 the (c) people have been trying to
get a proposal to the dip conf, but time was too short.
Non-original dbs have protection in many countires on
sweat-of-the-brow. EU has harmonized IP protections for DBs.
We've stated many times that the EU resolution has been an
important incentive or the Euro database sector. A balanced
protection encourages production. It is beneficial for investors
and users alike. This has gone through court many times, four
cases are pending now before the ECJ. We want a db treaty ASAP.

* Brazil: We've been at this for ages. No real and substantive
discussions have taken place. There's no clear understanding of
the potential economic and social impact of database protection.
A study that was comissioned by WIPO on database copying in Latin
America indicated from the Latin American perspective that
regulation is premature. It's detrimental to innovation, science,
education, access, etc., particularily in developing countries.
In the light of this we want to question the usefulness and
convenience of maintaining this on the agenda. This isn't
unfinished business, the lacklustre engagement of the committee
tells us that this is business we don't want to engage in, and
this gets in the way of other business we might choose to
address. We ask to have this permanently deleted from the agenda.

* Jamie Love (Civil Society Coalition): This is a bad idea.  In
1996, there was tons of opposition to this, because it was a new
topic and there wasn't enough experience to ascertain the impact
on innovation. It was the beginning of the explosive Internet
tech growth. It is important now to take full stock of the
importance of the free flow of info in light of the success of
the internet in informing people and enhancing their political
power. The medicine and agribusiness database protection ideas
have been in a lot of bilaterals.

* Intl pubs assoc: The need for info will become ever more
pressing. The problems we have perists even in the absence of db
protection. Regarding database protection at WIPO, lots of
countries have adopted this, Mexicao, Australia, South Korea,
South Africa, Canada, etc. It won't go away through
nondiscussion. We need a more in-depth understanding of the real
issues.

* ALA: The database protection issue in US Congress is
significantly controversial, highly unlikely to pass in this
Congress. Agree with Brazil, let's take this off the table here.
Congress called this a "Solution in search of a problem" --
there's more databases than ever, why do we need this.  We don't
see a consensus or a need for protection.

* Ecuador: On behalf of Latin American and Caribbean group, I
would like to make a general statement. We don't think that this
should be on the agenda now.

* India: Should everyone who produces work by sweat of the brow
come here for protection? This isn't creative labour.  There's no
allegation of widespread copying of non-original databases.  Even
if there were, the question relevant for this organization is
whether this body should be considering nonoriginal databases.
Where there's no creativity, databases are assets;  that's the
apporpriate concern to address by misappropriation, but not
intellectual property.  Perhaps soem other rubric, some other
forum is appropriate.  Many entities need protection of sweat of
brow assets but we shouldn't have all of them approaching WIPO
for a remedy.

If EU wants to protect nonoriginal databases, EU can.  It's
important to leave industry space to develop.  at this stage, we
need a more careful learning process, not laws that inhibit
industry rather than facilitate.  Database protection is
premature now.  Even in long term, it may not be appropriate for
WIPO. We recommend the issue be deleted from the Standing
Committee's agenda.


* Russian federation: We're legislating this at home -- it seems
to us that this might be good later in WIPO, but we're not ready
to discuss it here in any substance.

* US delegation: We think that this should remain on the agenda.
We need to exchange more information about what this is and how
it works where it's been adopted.

* China: We are not enthusiastic about discussing this. I
appreciate the Indian and Russian remarks. Some issues need to be
clarified. Should IP be used to protect non-original databases?
WIPO is here for IP and innovation. Non-original databases aren't
creative and are already in the public domain. We need to ask
whether it is contradictory to WIPO's objectives. In past
discussions and in the new treaties such as WCT and WTO treaties
on IP that are outside of WIPO, in all these treaties, only
creative or innovative works are afforded protection. Most
countries have accepted this. The principle for database
protection is to protect the labor of creators and the profit of
operators, which should happen, because without investment, we
get no innovation. Granting protection to them lets them get
return on investment. But should this be in WIPO? Some countries
have laws to resolve this problem. I think we should do this with
copyright, I think we should do this unfair competition law. This
doesn't need to be resolved immediately. Broadcasting is more
important that databases. Folklore protection is more important
than databases.

* Union for Public Domain/David Tannenbaum: The stated
justification for protecting databases comes from the idea that
proprietary rights are the best way to foster innovation. But
there is a contrary view that openness is the best way to foster
innovation. The opponents of a database treaty, including Union
for the Public Domain, believe that follow-on inventions that
come from open databases are more valuable that protecting
databases.

The decision of six major nations to publicly release the human
genome into the public domain shows that some do believe that
openness is beneficial to civil society.

This comes down to an empirical question which requires objective
study. We woud like to suggest that WIPO hold an information
session on open source and collaborative models of innovation so
we can evaluate what the best path to innovation really is.

Chair: Let's table this until the end of the meeting.

----------------------------

[ed. The proposed Broadcast Treaty took up the remainder of the
discussion.]

Broadcast Treaty
================

* We decided in November to create the consolidated text

* The scope has been unclear until now, so we have clarified the
scope in a new article

* I've been asked, "What is the standing of explanatory notes?"
They are a reading device for helping with articles. The articles
themselves are where the attention should be focussed.

* At the end of this meeting we will have an assessment of the
progress of the work and in the light of this assessement there
will be a decision made about whether to recommend a diplomatic
conference to the secretariat

* Next step: a preparatory comittee to set out rules of
procedures and invitees for conf

* If we don't have progress, we'll need different next steps

* Want to hear more from Singapore

* General remarks:

    * Two main branches of discussion

        * Scope of protection

        * Substance of protection

            * Obligation of national treatment, points of attachment, etc

* Ecuador: Statement on behalf of Latin American and Carib countries.
(GRELAC?)


        1. Webcasting: technically and legally complex, recent tech. Not
yet sufficiently developed to be regulated. Leave it off. However,
simulcasting of broadcasts over the Internet are a part of
broadcasting.

        2. Cablecasting: need to look at this in more depth, need
        more analysis of the impact. With this type of study we could
favor the option of including it.

        3. TM's: Concern wrt impact, and how implemented. Must
        consider limits and exceptions, and obstacles, impediments to
public domain.

        4. WRT audiovisual performances: Huh? This falls within the agenda
of the general assembly. In Nov 2003, there was some interest in
resolving this, we should have more consultations. Let's deal with this
ASAP without prejudice in respect of other topics.

* Egypt: Statement on behalf of African group.

        * Used "possible future treaty" in contrast to others, who have
said "future treaty" (wants more technical info)

        * Member states need more time.

        * African group endorses protection of signals

        * Exclude Webcasting -- too complex with tech and legal
        problems requiring further study

        * Treaty should consider development dimension and promote access
to knowledge and dissemination of info -- of paramount importance
in digital environment

        * Wants to revisit performance treaty (audible groan)

(Chairman notes that African and Latin American groups have both
intervened -- both were opposed to webcasting and wanted more time)

* Russia

        * Thanks WIPO for their help organizing seminar on
        broadcasting in Moscow region.

        * "Future treaty": we could propose that existing document be
adopted at diplomatic conference; recommend this document and any
alternatives it proposes be considered

        * Emphasize how important and timely this treaty is in
        protecting broadcasters.  Broadcasters themselves are saying this.

* EC

        * Protection of broadcasters through IP rights is established
practice in EC, and it works well.

        * Rome is a good starting point for negotiations

        * Let's update Rome and not go below it

        * We will be constructive, but have several issues. Relation to
Rome; treatment of webcasters; definitions; exclusive rights [i.e. rights
to authorize] versus rights to prohibit; linkage to
membership in WCT and WPPT.

        * Target a diplomatic conference in the not-too-distant
        future.


* Mexico

        * Our objectives include preparing the convening of the
        diplomatic conference, once we have the greatest possible
        consensus.

* USA

        * Numerous proposals have been submitted, including one by US.
Look forward to discussing areas of disagreement in
        not-too-distant future.

        * Norway

        * Update protections for all three groups affected by
        technological progress. Don't let broadcasters suffer for AV
performers' failure.

        * Don't let what happened to performers happen here

        * We hope this session will close with a recommendation for a
diplomatic conference.

        * Keep this close to the WPPT incoporate alternatives j, m, p, and
r.

        * Leave webcasters out, so we can focus on needs of
        traditional broadcasters.  Maybe webcasters will need yet another
treaty, after we've had time to analyze it.

* Japan

    * We hope to adopt this in the near future


* Morrocco

    * Concerned about scope of provisions.

    * Cut Webcasting -- we've said it before and we say it again.

        * Study economics of webcasting in several countries including ours

        * WIPO must give us more info so we can examine the consequences
in dep
th

        * Diplomatic Conference: We like it. Keep the meeting short, so we
can all participate and be assured of a "good outcome."

* Mexico

    * Many of provisions are in line w/our legislation. Such as protecting
      broadcasts, increasing length of protection to 50 years.

    * Protect broadcasters, like others, with TPMs

    * We currently protect our broadcasters under Rome.

    * Webcasting should be in separate text.

    * Don't prejudice rights of other rightsholders.

* Singapore

    * Thanks.

* Kenya

    * We hope this results in a diplomatic conference in the near future.

Chairman:

    * This is the end of the beginning.

    * Let's hear more about the scope from governmental delegations that
haven't taken the floor, but don't repeat yourself

    * Scope = what to protect, whose rights, what acts

        * 4 candidates for protection:

            i. transmissions initated by broadcasting organizationss,

            ii. transmissions by cablecasters,

            iii. transmissions by webcasting orgs,

            iv. pre-broadcast signals (found in later article) by those
                persons/entities who have protection for broadcasts

China: Sorry to hear you're ready to move on, I was out of the
room and missed my chance, and would like to make a general
comment, and so would Hong Kong

    * Balance is key. Looking not only at broadcasters' interests, but
      also rights of authors, performers, phonogram producers.

        * Change preamble to reflect this.

        * Also include the public's access to education, tech and info

        * Someone at the Max Planck Institute told me that entertainment is
          like a shared pie

            * Can we grow the pie? I think so

            * A big pie provides more for everyone.

            * But big pies are also bad, because they cause consumers to
              pay too much for their pie

            * How big should pies be?

        * We organized meetings in China with rightsholder orgs to ask them
          how they liked the Chairman's Draft

            * Everyone liked this about the consolidated text, but three
concer ns(?)

                i. Influence of new tech on rights of broadcasting orgs

                ii. Protection of "webcasting rightsholders"

                iii. Protecting performers

        * This treaty should focus on the impact of new tech
        on the rights of broadcasting orgs

        * Treaty of Rome is good, but we have to consider new
        tech. eg, Protection could be broadened to cablecasting, and we
have solved this problem in China.

        * Webcasting: we could grant equal or similar rights
        to authors, performers, phonograph producers. Difference between
websites and broadcasting organisations and Internet
        simulcasting--we haven't reached a point yet where we could grant
rights to webcasters that could be similar to broadcast rights. We must
avoid creating new imbalances in the system. Before we look
to Webcasting protection, we should protect performers who work
online (?).

        * This is not a text for a diplomatic conference.
        This is a discussion text. We believe protection of broadcasters
is based on Rome, and if something has worked well for decades,
let's keep it as it stands.

        * We should keep some of Rome. Rather than exclusive
        rights, we should continue to  muse the right to forbid. (e.g. Our
copyright law says broadcasters can prohibit various acts.)


-- end of day one session --