[DMCA-Activists] Day 2: WIPO Databases and Broadcasting

[Seth Johnson]

-------- Original Message --------
Subject: WIPO Day 2 Notes
Date: Tue, 8 Jun 2004 17:55:43 -0400 (EDT)
From: address@hidden


Below are comprehensive notes on the Day 2 proceedings from Cory, Wendy and 
myself, also available at http://www.eff.org/deeplinks/archives/001597.php.

In the morning many country delegations made statements in opposition to the 
inclusion of webcasting, and to proposed language that would require all 
countries to sign on to the WCT and WPPT if they signed on to this broadcasting 
treaty.

The afternoon was taken up by the statements made of non-governmental 
organisations, including Union for the Public Domain, EFF, the Civil Society 
Coalition and Public Knowledge.

A litany of rights-holders organisations, representing artists, musicians and 
journalists, made statements in opposition to the treaty because it threatens 
to interfere with their copyrights. It says something about this treaty that 
such an unusual coalition has come together to oppose it.

The broadcasting lobbyists were the only NGOs to speak in favour of the treaty 
and they were clearly on the defensive.

Despite the overwhelming opposition and lack of consensus among the country 
delegates, the chairman's concluding remarks pushed hard for a diplomatic 
conference, the next and close to final step in adopting a treaty.

===================================================
Notes from Day 2 of WIPO Meetings on the Draft Broadcasting Treaty

June 08, 2004

from the World Intellectual Property Organization's Standing Committee on 
Copyright and Related Rights meeting, day 2, 8 June 2004.

Impressionistic transcript by Cory Doctorow (address@hidden), Wendy Seltzer 
(address@hidden) and David Tannenbaum (address@hidden)

Public-domain dedication:

On June 8, 2004, Cory Doctorow, Wendy Seltzer and David Tannebaum (The Authors) 
dedicated to the public domain the work "Notes from the World Intellectual 
Property Organization's Standing Committee on Copyright and Related Rights 
meeting, day 2, 8 June 2004." Before making the dedication, the Authors 
represented that they owned all copyrights in the work. By making the 
dedication, the Authors made an overt act of relinquishment in perpetuity of 
all present and future rights under copyright law, whether vested or 
contingent, in "Notes from the World Intellectual Property Organization's 
Standing Committee on Copyright and Related Rights meeting, day 2, 8 June 2004."

The Authors understand that such relinquishment of all rights includes the 
relinquishment of all rights to enforce (by lawsuit or otherwise) those 
copyrights in the Work.

The Authors recognize that, once placed in the public domain, "Notes from the 
World Intellectual Property Organization's Standing Committee on Copyright and 
Related Rights meeting, day 2, 8 June 2004" may be freely reproduced, 
distributed, transmitted, used, modified, built upon, or otherwise exploited by 
anyone for any purpose, commercial or non-commercial, and in any way, including 
by methods that have not yet been invented or conceived.

-- 

Note: At least nine of the developing world delegations are not in the room for 
the morning session.

-- 

Work package 1: scope: objects of protection and rightsholders Work package 2: 
rights, limitations, framework/treatment beneficiaries, national treatment; 
relation to other treaties and elegibility; TPM clauses (added after 
intervention by Brazil)

* Brazil: Wants clarification of work program.  When will we be discussing TPMs?

Chair: I thought about this; follow the model of pre-existing treaties closely; 
there has been no specific controversy; those were adopted after extensive 
debate. All proposals contain these clauses in almost-identical form. So leave 
as-is for next stage;

Brazil: my delegation believes Art 16 is controversial and we think it should 
be debated in this committee in this session.

Chair: no problem adding those articles to the list for Work Package No. 2 
because they're modalities of protection.

* Kazakhstan

CIS countries have agreed-upon position: As to objects of protection, agreement 
should protect traditional broadcasting and cablecasting organizations; 
Protecting internet broadcasting important, helpful to express in a different 
document at the next meeting.  [Leave webcasters out of this document.]

Subjects of protection. (?)Webcasting, broadcasting, satellite broadcasting, 
broadcasting organizations that simultaneously transmit their own broadcasts. 
This concerns point 3(e) found in the consolidated text.

Terminology in this draft text shouldn't contradict terminology currently used 
in Rome, WIPO Convention on Performances and Phonograms (WPPT).

Participants who could accede should be any WIPO member, not necessarily 
members of WCT and WPPT.

We support the position of Brazil, regarding the protection of signal regarding 
webcasting, the encoding and decoding of signals. We're not speaking here of 
copyright or related rights, but technical elements. So what is stipulated in 
Art. 16 (article on TPM's):

16(1) and (2).  Regarding technological protections against decryption of 
encrypted signals, participation in manufacture/sale/making available of 
devices -- we support these measures and the language in the draft.

* India

While preparing the text, secretariat has presumed consensus to grant 
additional rights to broadcasters.  Ignored concerns that have been raised by 
many delegations, including this one.

- Concerned that rights of copyright holders are being eroded by strengthening 
neighboring rights.  There's still no conceptual clarity regarding the proposed 
treaty.

- Copyright is delicate balance of copyright and neighboring rights with the 
rights of society to access information.

- Proposed treaty may tip this balance too much in favor of broadcasters. 
Regarding scope. This proposed treaty regulates new tech, extending to 
cablecast and webcast. Many countries haven't reach western levels of 
development; may not be able to get there if new technologies are preemptively 
regulated.  Scope should be limited to broadcasters. Will have more to say 
later on substantive issues.

* USA

- US prepared its proposal to deal with important 21st century tech 
development, webcasting among them.  Rome was a pioneering convention, before 
many states had adopted neighboring rights. Do the same here: protect 
broadcast, cablecast, webcast.  Value added by deliverer of contents should be 
protected because it can be pirated regardless of its means of delivery.

- We addressed concerns in last meeting by limiting definition of webcasting to 
that done by legal entities. Limited to streaming, for orgs that engage in same 
types of activities as casting orgs.

- We should not ignore technological progress.

- We should level the playing field between traditional broadcasters and 
webcasters and give webcasters the same rights as broadcasters

[ed - the economics of broadcasting and webcasting are completely different -- 
webcasting is unicast and asynchronous; broadcasting is multicast and 
synchronous. Why should we believe that the protections for broadcasters will 
help webcasters? Movie theatres use the same content as broadcasters, too -- we 
exclude them from the treaty because broadcast protection has nothing to do 
with movie theatre protection -- neither does webcasting -cd]

- As Alternative E reflects, EU has proposed that only webcasting performed by 
a casting org that consists of a simultaneous transmission should be covered. 
US proposal also covers this. The EU proposal however provides that only a 
broadcasting org could avail themselves of this protection. Another 
organization engaging in the same webcasting activity, subject to the same 
threat of signal piracy would not receive protection b/c it has transmitted 
only through the Internet. We see no justification for including one kind of 
webcasting and not another. The Eu proposal would provide an economic advantage 
to traditional broadcasters. We oppose Alternative E unless all webcasters are 
protected.

- Protection of prebroadcast signals in Article 13 should be included. 
Prebroadcast signals are very subject to piracy when transmitted from one 
region to another. This is a very important part of the treaty.

[Chair: don't repeat yourselves; time constraints.]

* EC

- I will refrain from giving explicit reasoning on my points, due to the time 
constraints.

- We agree with India that we should provide for protection that is needed and 
at the same time avoid tipping the balance between the interests concerned.

- Scope: Should cover wireless, wire, acts of simulcasting. It should not cover 
webcasting (Internet originated transmissions), interactive transmissions 
("transmission over computer networks"). Should protect pre-broadcast signals.

- Articles: 2a, broadcasting, based on 2f of WPPT, why split definition of 
broadcasting by wireless and by wire?  Why use term "cablecasting", new to 
international instrument?

- 2b: broadcasting organizations: no international definition. Does it add 
value? We are concerned that this definition will lead to "Rome minus." There 
is no precedent for this definition and leaves open some questions, such as who 
is responsible for the transmission of sporting events? The broadcaster or 
someone else?

[ed - yesterday, the issue of sporting events was raised privately by the 
Canadian delegation in conversation; the Canadians claimed that in some 
nations, retransmission of sporting events is not covered by copyright and so 
when people across the border retransmit without permission no remedies are 
available. He didn't seem to be interested in the argument that those "works" 
excluded from copyright are deliberately thus: we have decided as a society to 
exclude them from copyright for policy reasons, and putting them *back* into 
copyright through a broadcast right seems like a bad way to deliberate the 
appropriate scope of copyright -cd]

[ed - This morning I thought about this more and realized that even if you buy 
his argument, it's still pretty weird: why should the guy who *aims a camera* 
get the copyright monopoly? Why not teams? Venues? Players? -cd]

- 2d: retransmission: compare to Rome 2g

- 2g: Alt. C, webcasting.  We do not favor including webcasting.

- Article 3, Scope of App: Need for para 1 or para 2? To say that treaty shall 
apply to rights of casting orgs in respect of their broadcast goes w/o saying. 
Is there added value? Besides, text speaks of rights of casting orgs in Art. 
3(2) and we wonder whether it should make reference to protection rather than 
rights.

- Alternative E - Acts of simulcasting [ed. note that a simulcast can be 
unfixed, hence unprotected by copyright -ws]. However, para 3 refers to 
webcasting, but we have not defined webcasting. Perhaps we could find a more 
neutral term.

- Alternative F - We're opposed, because we're not in favor of covering 
webcasting in this treaty.

- Article 3, Para 4 - "Mere retransmission." We're unclear, b/c defined in 
Article 2(d). Is the def in 2(d) too narrow?

- Article 13, Signals prior to broadcasting - Do appreciate such protection.

* Russia:

- 2 points: preamble and Article 2.

    * Preamble uses "piracy."  That's a loaded word, not a legal term.
       Perhaps refer to the illegal use of rights. [ed - yay! I mean, "arrrr!" 
++]

    * Definitions: broadcasting organizations:

        * Need to cover the situation when cablecasters ignore creators
         and related rightholders -- they say that they're not
         "broadcasters" -- just "signal transmitters." They
          won't pay a copyright or royalty.

        * It's important to be able to respect the balance
        between broadcasters, creators and owners of related rights

* Egypt:

- Speaking as national delegation.  Thanks for secretariat's work. Egypt 
submitted proposals reflecting interest protecting broadcasting orgs. Open to 
proposals from other countries and other ideas. Join general agreement with 
respect to these matters (?).

- However, we stand firm on:

* Scope: We want this to cover webcasting.

[ed: Egypt later qualified this and said that they had been mistranslated and 
believe that Webcasting should be excluded from the treaty -cd]

* Art 13, pre-broadcast signals; Article 24, eligibility should be open to any 
member of WIPO, not necessarily other treaties, not only those who have acceded 
to WCT and WPPT.


* Brazil:

- We don't understand that you want us to take stock without discussing.

- Art. 3: reserve our position re wording of paragraph (2), cablecasting. We 
don't necessarily oppose, but our government is still examining. Not sure same 
rights of broadcasters should apply to cablecasters. Might need to reexamine 
definitions in Art. 2.

- Webcasting: completely unacceptable that it be included. Note high level of 
overwhelming opposition in previous meetings in this committee. Resolve this 
quickly, because we won't go into a draft treaty that includes webcasting.

* Argentina:

- Keep webcasting out of this treaty (delete Alternative F)

- Simulcasting: That's a broadcast activity and entitled to inclusion

- We like paras a, b and c in definitions

- Para d -- retransmission -- want the Spanish translation changed from 
"redifusion" to "retransmicion"

- Art 13: pre-broadcast signals, no objection.

* Australia

- Supports application to broadcasting and cablecasting.  Support inclusion of 
def of broadcasting organization, subject to understanding of the wording. 
There may be many who participate in transmission.

- Do not support extension to webcasting in this treaty.

    * Yes, this should be forward looking and webcasting may be
      important in the future

    * but the design of appropriate protection for webcasting needs more
study

    * i.e. what should be protected? In the definition of "webcasting"
      proposed in 2G, it seems to be "making available online" and in the
second sentence as a "transmission" -- this reflects ongoing
uncertainty about what activity constitutes "webcasting"

    * How does definition of broadcasting organization apply to
      webcasters, especially as webcasting is unregulated?

- Prebroadcast signals - We're prepared to consider that program-carrying 
signal  intended for transmission to public should be protected.

- Echoing a previous delegation re: exclusion of "mere retransmissions" in 
Article 3(4). If retransmission as used there is as defined in 2(d), that 
refers to simultaneous transmission. So is deferred mere retransmissions 
included in Article 3(4)(i)?

* Iran

- Scope: Broadcasting and cablecasting.  No webcasting at this stage, it needs 
more work.

- Art 1 should be transferred to final provisions of treaty.

- 2a and 2c should go elsewhere

- Define broadcasting organization as legal entity

- Article 24: any member of WIPO

* Chile

-  IP is supposed to promote creation for the social good

- Basic pillars: public domain and exceptions and limitations to copyright.

- Inclusion of new rights holders of IP, such as cablecasters or webcasters 
could pose a serious risk to the basic pillars, and a risk to rightsholders who 
are at the heart of the IP system. This is the main risk has not been looked at 
properly from point of view of developing countries.

- Before we include new categories of rightsholders, we should perfect rights 
of current actors in the system (broadcasting orgs), and clarify the rights of 
users. The work on future agreements should be limited in the case of the 
treaty we're looking at to the case of broadcasting orgs of a traditional 
nature only.

[ed - great to hear about the public's rights and expectations -ws]

* Egypt

- Some delegations have told us this is a misunderstanding, perhaps a 
translations problem. We meant that we *oppose* the fact that webcasting would 
be introduced into this treaty. We said that this is one of the topics to which 
we attach great importance.

- We agree with Brazil: in light of general opposition to webcasting, we should 
stop discussing this matter if we truly want to make progress.

* Singapore

- We presented an alternate draft:

- We don't want Webcasting either

- We premise this on the protection of program-carrying signals

- Cablecasting: We define this as broadcasting by wire, excluding transmission 
over computer networks and interactive transmissions

- We want to limit this to rights control piracy of signals

- Pre-broadcast signals: Our article 10 was incorporated as article 13 in the 
consolidated text, but this doesn't do it justice. Our article 10 doesn't 
relate to exclusivity in pre-broadcast signals, only piracy of same.

- We based our work on Brussels convention with slight modification

[ed. This is the approach taken by many of the NGOs: focusing on preventing  
signal theft rather than granting new rights that would let broadcasters 
control content. -dt]

* Morrocco

- Preamble: We want to keep in the strong term "piracy" [ed - ARRRRRR! -cd] 
given how important it is to this text

- Art 3: Scope should be narrow, limited to protecting broadcasting orgs in a 
classic way: time to renew and update the classic protections for broadcasters

- We need to strike a balance and provide rights to all who deserve them -- 
both in the AV area and other fields [ed - this is more stuff about performers' 
rights -cd]

- Article 13: Redraft this to be more precise. "Effective and adequate" isn't 
precise enough.

- Article 24: ?? should take place without reservation

* Benin

- Broadcasting is the locomotive of economic, social and cultural development 
in my country. We support all the work done here today and all future work for 
a future treaty.

- But deal only with traditional broadcasting.

* Togo

- We applaud the work on the summary document, proving the importance of 
adopting a new instrument.  Protect the rights of rightsholders, creators, 
performers, performing artists whose work is an object of broadcasting.

- New instrument should protect only traditional broadcasting, and cable.

- Exclude webcasting, at least for now.  Also include pre-broadcast signal.

* Chairman: short remarks can be helpful. Tell us in written submissions what 
you don't want to see in the document (otherwise it may look as though pieces 
have more support than they do, because that's all the drafting committee tends 
to see.)

* India

- Request for clarification: When are we going to discuss substantive issues of 
protection beyond scope?

* Chairman: We're still on scope. More after lunch. Now we're moving onto 
substance:

    1) Rights: Arts 6, 7, 8, 9, 10, 11, 12, 13

    2) Limitations: Art. 14

    3) Treatment clauses: Arts. 4, 5 (beneficiaries and national treatment)

    4) Eligibility in relation to other treaties: Arts 24, 1

    5) Technological protection measures [ed this is anti-circumvention
       in the DMCA/EUCD sense, along with tech mandates in the broadcast
       flag sense -cd], rights management: Art 16, 17

* Barbados

- Regarding article 24: speaks to the heart of our future participation. We 
like the entire treaty except for Article 24. We can't participate if WCT and 
WPPT are mandated.

- In the developing world we have other legislative imperatives to take care of 
in our march toward development. We will eventually accede to these treaties. 
But we don't believe it is right that we should be excluded from this treaty 
because we haven't acceded to the others.

- This document lends itself to our national development in providing a model 
for our legislation. But this benefit would be undermined if Art. 24 is adopted.

[ed: importers of IP have no incentive to join in strong IP treaties: that's 
why the US was a pirate nation for the first century of its existence, while it 
was merrily and enthusiastically pirating UK IP -cd]

* EC

- Art 7., Right of Communication to the Public: We can support Alternative L, 
but we have problems w/Alternative M because it leaves a lot to domestic law. 
(Art. 7, Para 2&3)

[ed. The US currently has a case against it in the WTO for playing music in 
bars and other public places without compensation. -dt]

- Art. 9, right of reproduction.  Alt. O does not give exclusive right of 
authorizing, but right to prohibit.  Does not speak of direct or indirect, as 
has been done in other international treaties.  We oppose Alt. O.  Why was 
exclusive right from Rome downgraded to right to prohibit?]

- Art. 10, Alt. Q. Right to prohibit rather than right to authorize.  Same 
objections.

- Art. 12: Ditto.

- Art. 13, pre-broadcast signals.  Flexible formula, "adequate and effective 
legal protection."  Flexibility needed in new territory.

- Art. 14, limitations: paras 1 & 2 equivalent to previous treaties.  Alt. T, 
however, is a grandfathering clause. How would this affect our ability to 
harmonize?

[ed. This is a crucial clause. Without it there is hardly any scope for 
exceptions. Even with it the scope is narrow. The Public Knowledge report has a 
good section on this issue. -dt]

- Art. 4., It's not clear what nationality a broadcasting org has, so it's a 
fiction. Why do we need a reference to nationals? Should we choose a more 
straightforward approach? This comes from Art 3 WPPT, but WPPT covers 
protection of performing artists, but they are natural persons.

- Art. 5, One of my favorite articles. National treatment is something we can 
only consider at the very end of the negotiations. Once we know what the 
content of the treaty is. We are in favor of Alternative J, which draws upon 
the formula we have agreed upon in other contexts, with respect to neighboring 
rights.

[ed. The US wants national treatment (foreigners get the same rights as 
nationals) to protect its content owners. The EU isn't as enthusiastic, and has 
won on this issue in the past. -dt]

- Eligibility.  Art. 24, 2 alternatives.  AA: conditioned on WCT and WPPT 
accession.  Unconvinced that this is necessary in self-standing treaty.  7 or 8 
EU members have ratified one or the other, more will be doing so, but it still 
shouldn't be a condition.  Art. 26 CC is also unconvincing.

[ed. If WCT and WPPT are requirements for this treaty, then DRM 
anti-circumvention like that in the DMCA and EUCD will become an obligation of 
all the signatories -- EFF and lots of other NGOs don't want this. -cd]

- Article 1. Eligibility. need non-prejudice clause concerning Rome.  Less 
convinced re other treaties.

- Article 16, comment. While para 1 mirrors WPPT, Alt V does not.  V seems to 
give self-standing protection for certain forms of decryption (? should be 
encryption?).  Not a technological measure as understood from previous treaties.

- Because previous negotiations were painful, stick to previously agreed-upon 
language.

[ed. Ed Felten has pointed out that if Alternative V goes through, (iii) would 
ban computers, which are "capable of decrypting or helping to decrypt an 
encrypted program-carrying signal." -dt]

USA:

- Article 7: Option M based on WPPT. If we don't take M, we'll upset the 
balance struck in the WPPT, so we should include paras 2 and 3 and alternative 
L.

[ed. Again, this refers to the issue raised in the WTO case against the US: 
playing music in bars and other public places without compensating the 
rightsholders. In the EU this is illegal. -dt]

- WRT the two-tiered rights: Scope of rights needs to be crafted to protect 
broadcasters without conflicting with the public interests or copyright 
holders. This is the balance we're shooting for. We want a right to prohibit to 
contain signal theft. Don't expand proprietary rights and you won't trammel the 
rights of copyright holders.

- Article 24: We don't want to exclude countries by proposing membership in the 
WCT and the WPPT. But we believe that you should join the others before joining 
this, because they put into place the essential legal infrastructure necessary 
to protect content in the digital age -- the protection of content and signals 
should work together.

- Article 1: We like alternative B -- the broadest possible statement about 
noninterference about the rights in this treaty and any other copyright or 
neighboring rights treaty.

- Art. 16: agree with EU that 1st paragraph is all that we need. Not 
necessarily for same reasons as EU, but it provides the necessary protection.

[ed - Article 16(1) is the general statement of "technological measures"; 
Alternative V's 16(2) is some particularly extreme implementations against 
decryptors, use of decrypted signal, and manufacture of general-purpose or 
specific decryption devices. -ws]

Chair: To the EU's query -- you're right that this issue of broadcasters being 
identified as a national comes from TRIPS. We chose this model because we talk 
about nationals in the articles about national treatment. So without this legal 
fiction, the subsequent article would be funny. We could change this and use 
the model in Rome.

* Russian federation

- Art. 1, Russian delegation supports Alt. B because the contracting parties 
could be linked with existing obligations under other treaties.

- Art. 4, Support Alternative H, because this alternative is in line with Art. 
2(6) of the Rome Convention.

- Art. 5, on national treatment, regarding signals we support Alternative G.

- Art 6, 8, 11, 13, 15, 16, 18, 20, 23, 25, 27, 31 -- We support the proposed 
drafting.

- Art. 7 - Alternative M is the most appropriate in line with Art. 13 of Rome.

- Regarding exceptional rights on banning third parties (?), Arts, 9, 10, 12 
should be in line with these provisions.

- Also join other countries that spoke about acceding to the treaty. We should 
not place reservations and force contracting parties to accede to WPPT and WCT.

- Art. 16, TPMs, we support the EC position. We have found a good mechanism, in 
WPPT, and we should follow this model.

* Iran:

- Art. 6, support rider for authorizing retransmission for broadcast and 
cablecast.

- 7, Alt. M; Art. 8 support; Art. 9 Alt. O; Art. 10 Alt P; Art. 24, previously 
mentioned; Art. 1, Alt. B

* China

- Use convention of Rome wording for scope of rights, i.e. have the right to 
prohibit, not an exclusive right

- Article 24: Alternative Z is best. I.e., any member state can join without 
WCT/WPPT membership

- Article 1 - Alternative A.

* India

- Article 6-12, 13, and 15: These give exclusive rights to broadcasters for 
retransmission, communication, etc. In our opinion, this goes far beyond WCT 
and WPPT and far beyond those of performers. Many of us haven't ratified WCT 
and WPPT -- this is a WPPT-plus agenda to many developing countries. This 
further restricts technology development in the developing world

- Much further than Berne, too.  We have adopted provisions in TRIPS, but many 
countries are facing implementation problems. Imposing new obligations will 
simply harm the copyright industry whose protection is main objective of WIPO.

- Exclusive rights in 6-12: Giving rights to broadcasters in works of creators 
and performers.

- Article 13 gives rights to broadcasters for pre-broadcast signals without 
defining them. Notes that this is related to Brussels: this therefore isn't a 
copyright matter, but a Brussels Convention matter

- This isn't the right forum to protect the investment of broadcasters

- Art. 15, term of 50 years.  Much longer than mandates in TRIPS, WPPT, WCT.  
Takes away rights of performers and artists. In our opinion, this is a TRIPS 
plus agenda for developing countries. Term unreasonably long.  Reduce to 10-15 
and not beyond.

- Other provisions.  We keep our position open and revert back after discussion 
with our government.

* Brazil

- Article 5: National Treatment. We favor alternative J, irrespective of 
whether we agree on some kind of redefinition of the term "national." We 
reserve the right to come back -- possible at a future meeting -- to the issue 
of the rights conferred to the beneficiaries under the treaty.

[ed: note Brazilian implication that this business shouldn't be concluded at 
this session]

- Concentrate on Article 16, TPMs.  Brazil is concerned with proposed inclusion 
of TPMs in proposed new treaty.  Aware that similar provisions are in WCT and 
WPPT, but it's important to recall that those treaties were negotiated and 
adopted when there was little awareness regarding potential implications of use 
of TPMs.  Since then, some years have gone by, and there's a growing widespread 
awareness that use of such measures can be quite detrimental to rights of 
consumers and public at large. Significant concern that anticircumvention has 
significant negative for exercise of rights  exceptions and limitations in 
national laws.  Important obstacle to access of public to public domain materia.

Inconsistent with necessary free flow of info so important to encourage 
innovation and creativity in the digital environment. All of Art 16 counters 
stated objectives of new treaty as referred to in preamble.  Para recognizes 
need to maintain balance between rights of broadcasters and larger public 
interest.

This entire article should believe this entire article should be deleted from 
the text.  Other delegates argue that e fact that we have these provisions in 
WCT and WPPT mean that we should include them in this treaty. We disagree. Not 
pertinent to rights of broadcasting organizations.

[ed. Brazil is very courageous. -dt]

[ed. See EFF's Unintended Consequences report for some of the specific harms to 
which Brazil alludes that result from adopting anticircumvention. Brazil 
recognizes that previous treaties offer opportunity to learn from mistakes, not 
just blindly follow existing language. -ws]

[ed This is the best statement I've ever heard at a WIPO session. -cd]

Eligibility.  Our delegations strongly supports alternative Z. We think it 
would be entirely inappropriate to condition the possibility of joining this 
treaty on the ratification of the other WIPO internet treaties. We do not think 
this it is very helpful at all to have alternative AA.

- We have a reservation with respect to Alternative CC in Art. 26. We would 
prefer Alt. BB.

- Art. 19 on reservations, we would like to reserve our position on this at 
this time. Both of the alternatives are somewhat restrictive.

[ed. Allowing reservations could allow countries to exclude certain provisions 
from their national legislation, eg. TPMs, webcasting, etc. -dt]

Chairman: Access to information is near to my heart as well. This is not 
intended to cover DRM that locks up public domain material. If an industry or 
entity does this, then TPM protection shouldn't be available and circumvention 
should be lawful.

[ed. Since broadcasting isn't copyright, though, there's a wide range of new 
material locked up by new rights for broadcasters. Otherwise, there's no need 
for a treaty at all, since copyright and licensing of copyrights can cover the 
field. -ws]

[ed. It's a nice theory, but the DMCA enthusiastically covers the 
uncopyrightable, the public domain, and things that really shouldn't be thought 
of as copyright, like the way that garage door owners work or the secret of 
refilling a printer cart -cd]

Mexico:

- Must not prejudice other rightsholders, the owners of the content of 
broadcasts. We support Alternative B of Article 1.

- We feel we have the right contained in Art 8, fixation

- Art 7 - Alternative L is the most suitable

- Art 10(?) - Alternative B is the best since it's in line with our national 
legislation.

* Chile:

- For now, Article 16: Add Chile's voice to Brazil.  Dangerous effects from 
exaggerated effects of protecting TPMs.  If we include TPMs, be sure to take 
account of legitimate interests of users and those entitled to exceptions.

- Art. 14, limitations and exceptions, it's important that as a minimum, we 
include the 3-step process from previous treaties [TK].  Specifically include 
Rome exceptions: Private use, information, use for educational and scientific 
purposes.

* Australia:

- Where we don't express a preference for an alternative we're reserving our 
position at this stage.

- Article 6: This refers to "retransmission by any means" -- does this 
double-up? [ed: Australia is probably afraid this broad language covers 
webcasting. -dt]

- Article 7 - Right of communication to the public, we support Alternative M as 
in Rome.

- Article 9 - support alternative N

- Article 10 - support alternative P

- Article 11 - is "by any means" missing in this clause? If not, then why is it 
in Article 6 in such abundance?

- Article 12 - support alternative R

- Article 14 - Suggest modification or addition to para (1). Although based on 
16 of WPPT, it might be best to add reference to "and related rights."  Share 
reservations on Alt. T. [ed. "grandfathering" clause] Therefore Alt. U is 
preferable.

- Article 15 - Why "broadcasting" rather than broadcast?

- Article 16 - if Alt V were to be adopted, on which we reserve, not consistent 
reference to requirement that activity be without authorization [ed. i.e., you 
could be tripped up even if you were authorized.] Art. 16 (2)i : Confusion re: 
"or are prohibited" ? or "not permitted by law"

- Art 19 X/y [missed this]

- Articles 24, 26: reserve

* Argentina

- Art. 6 - The translation right of retransmission is problematic in the 
Spanish version.

- Article 7 - We prefer Alternative M

- Article 9 - We prefer Alternative O

- Article 10 - We prefer Alternative Q

- Article 11 - Exclusive rights banning transmission of broadcasts based on 
fixation of such broadcasts -- a translation problem and not a substantial 
change

- Article 12 - Rights of making available should be up to owners of content. 
This is why we propose that Article 12 be struck, rather augment Article 9 with 
a declaration based on article 7, 9 and 11 of the WPPT

- Article 14 - Maintain alternative U -- add nothing, unless in the future we 
conclude that the alternative in comments 14.0.5 on P54 of the English version 
(Argentina's cablecasting proposal)

- Article 4 - Prefer Alternative H

- Article 5 - Prefer J

- Art 14, AA.  Balance between rights holder and related rights.

- Art 16, on TPMs, pt. 2, Argentina prefers Art. V, but reserves right to come 
back.  [ed. Alt. V was Argentina's wording, I wonder why. -ws]

* Benin

- Article 5: support alternative K

- Articles 6-13, we think it is crucial to strike a balance among the three 
regarding the protection of broadcasting and the need to raise awareness, teach 
communities at the grassroots. And this is why while we support the 3 articles, 
we think these rights could be stipulated provided these rights are implemented 
for business reasons.

- Article 24 - We do not understand the justification for Alternative AA, 
delete it.

* Morrocco

- Article 1 - support Alt. B wrt other treaties.

- Article 3 - support pts 1 and 2 on scope of application

- Article 4 - Beneficiaries. "Ressortisant" is not people, but organizations. 
National treatment, alt J, reserve, because national treatment closely linked 
to application scope.

- Article 6 - Comment.  Retransmission by what means?  "Any means" is too broad.

[ed: One wonders if using WiFi to send a signal from your TV receiver to your 
laptop is covered in "by any means" -cd]

- Article 16 - TPMs.  Support para (1) because it gives states many options for 
dealing with the issue.

[ed - but not the option not to endorse TPMs at all, as some states clearly 
wish to do to further development, creativity, etc. -ws]

- Article. 24 - Eligibility for acceding to the treaty, we of course support 
Alternative Z. There should be no conditions to becoming party to this treaty.

- Provisionally conclude. stocktaking of NGOs.

IGOs; African Intellectual Property Organization

Arab States broadcasting union


NGOs:

ARTIS.  problems giving broadcasters more rights than artists.

CSAI.

FILAIE:

* performers' rights should come first.  It's as if we were trying to repair a 
wheel when the engine has broken down.

Electronic Frontier Foundations: (Cory Doctorow)

We believe that the technological measures in Articles 16 and 17 are not 
required for the protection of broadcasters' signals and thus should not be 
incorporated in the proposed Treaty. EFF  is a co-signer to the NGO statement 
of principles on the proposed treaty and has submitted a Floor Statement to the 
Secretariat detailing its views, and will briefly outline its concerns here.

1. Article 16 opens the door to an unprecedented range of technology mandates 
which will constrain technology development

Article 16 requires Member Countries to adopt extensive mandates over everyday 
technologies like televisions, and radios. It envisions broadcasters "marking" 
broadcasts, cable transmissions and webcasts with something like the American 
"broadcast flag". All signal-receiving devices -- even personal computers -- 
will be required to detect and respond to the flag.

Imposing this kind of sweeping government mandate over emerging broadcast 
technology is bad for innovation and it's bad for competition policy. In the US 
context, these measures restrict private, non-commercial uses of broadcast 
programming that today are reserved to the public, under our existing national 
laws.

A technology mandate here is premature: there is simply no evidence that 
non-commercial uses harm broadcasters.

2. Article 16 is not a good way to protect broadcasters rights and will harm 
the public domain

Technological measures have failed to protect IP. However, technological 
measures *have* imposed punishing collateral costs on the public interest. In 
those countries which have implemented the similar provisions in the WCT and 
WPPT there has been significant harm to competition, technological innovation, 
scientific research and freedom of expression.

Article 16 gives broadcasters greater rights than creators over the content of 
broadcasts. Under the proposed Treaty, broadcasters can restrict the 
distribution of material that is not copyrightable, is in the public domain or 
is made freely available by its creator. Indeed, in national implementations of 
the WCT, technical measures have done all these things.

Despite the best intentions of treaty-drafting committees, national 
implementations of technological measures undermine or eliminate altogether the 
public's access under existing copyright laws.

There is no reason to grant legal protection for a further and broader layer of 
technological measures for broadcast signals, cable transmissions and webcasts.

3. Broadcaster Technological Measures are Unnecessary

Article 16(1) is based on similar provisions for rightsholder technological 
measures in the WCT and WPPT. At the time, rightsholders argued that they would 
have no incentive to release their works digitally absent a strong legal ban on 
circumvention.

The same is not true for broadcasters. There has been no credible evidence that 
broadcasters under-invest in technology. Broadcasters broadcast, 
notwithstanding the possibility for signal theft.

The stated objective for the proposed Treaty is to protect broadcast signals, 
not content. Rightsholders and holders of related rights can already use 
technological measures to protect their content in broadcast signals as a 
result of the 1996 Internet Treaties.

Alternative V - Article 16(2)

Finally,  Alternative V of the proposed Treaty poses a grave threat to 
consumers, scientific research and technological innovation.

Article 16(2) bans general-purpose computers, creates a strict liability 
offence for the public and imposes a technology mandate for encrypted signal 
receiving devices.

For these reasons EFF strongly supports Alternative W in Article 16, which 
would not require adoption of Article 16(2), if Article 16 is retained at all.

Thank you for your consideration of our views.

* IP Justice. (Robin Gross)

- Art 16 and 17, in DMCA, chill freedom of expression.  Chill scientific 
debate, technological innovation.  Delete Art 16.

- Fix fixation.  The discussion of fixation defies physics.

- Broad scope of "by any means" has unforseeable implications.

- Refers to top 10 list of reasons not to adopt broadcast protection.

Civil Society Coalition (Jamie Love):

- Oppose movement toward diplomatic conference.  No demonstrated evidence of 
need for a treaty.  Broadcasts are protected by existing law.

- Not about protecting against piracy, but a grab by broadcasters.

- Treaty doesn't distinguish between public domain and protected. If it wanted 
to leave public domain freely accessible, it could say that.

- Aligned with EFF and IP Justice.

- Address real problems, not claimed harms.

* Union for the Public Domain (Tatyana Nikiforova in Russian++)

- We need to balance social and creative needs and the needs of broadcasters

- The proposed treaty could limit access to public domain materials

- We need to ensure that there be access to official documents and other public 
materials

- Broadcasting isn't creative and the protection is granted only on the basis 
of investment. But even the EC's controversial protection of investment in 
databases lasts only for 15 years.

- Copyright already covers the nominal purpose of the treaty

- The treaty appears to be limitless, since it adds a new 50 year period after 
each broadcast.

- The prohibition against formalities makes it nearly impossible for the public 
to discern the boundaries of the public domain.

- This treaty is against the interests of society -- even a compromise can't 
solve these problems

- Keep this away from the diplomatic conference

International Federation of Actors:

- Understand need for traditional broadcasters to fight signal piracy.

- Regrettable omission to clearly define object of protection. Define what a 
broadcast actually is. Such definition is necessary to define scope of treaty.

- Much of what's in here is about protection of content, not signal.  Granting 
broadcasters rights to exploit content, rather than to protect content-carrying 
signals harms other rightsholders.  Irrevocably compromise already imbalanced 
rights.

- WIPO must address protection of A/V performers before agreement can be 
reached here.

* FIAPF:

- Assoc of cinematographic and television film producers.  Signed common doc 
available outside, position of most NGO rightsholders here.

- As India said, this is about Piracy -- broadcasters say so too

- Our only objective here should be preventing non-authorized transmission of 
signals

- This treaty shouldn't be a way to take rights from rightsholders

- Today, A/V producers recoup their investments by selling to different 
economic partners, casters, video-on-demand.

- In future we hope that beneficiaries of the new treaties be clearly defined 
and perhaps closed off to avoid destabilization of business models

- The justification for protecting broadcaster (investment) seems to be 
exceeded. Specifically looking at Article 10 which deals with distribution of 
DVDs, VHS. We wonder about such an exclusive right being granted to 
broadcasters. Either the broadcaster has not purchased this right of 
distribution, in which case we don't understand what prejudice or injury he 
could have in terms of piracy. Or the broadcaster has acquired the right of 
distribution of a VHS, say a football match, which I know nothing about, and 
they would have the right to distribute the match on VHS.

- This problem of going beyond signal protection can be found in the right of 
making available.

- Piracy is the primary objective.

* FIJ International Federation of Journalists

- Protection should be given to public service broadcasters and full service 
broadcasters only. Not webcasters.

- Signal only.  Broadcasters should be given only rights necessary to fight 
piracy. Authors and performers should get similar rights.  Broadcasters should 
have to acknowledge others' rights.

- Contracting parties should first join WPPT, WCT (Article 24 AA)

- A/V protection should remain a priority

* International Federation of Musicians

- IFM concerned about several terms.

- We are cosigner to a rightsholder statement on the treaty.

- It has been expressed almost unanimously that extending protection to 
broadcasters is premature. We should delete the references in Article 3 to 
webcasting.

- Some confusion about terminology, or absence thereof. For example, it's 
amazing that "broadcasting" is itself not defined.

- The signal and the content may be physically distinct.

- The objective of the protection is to combat piracy without inhibiting 
exercise rights of rightsholders does not require Article 10 or 12.

- Article 9 should be limited to creating unauthorized fixation. - Article 11 
should be deleted.

- Article 6 as it stands would have harmful impact on exercise of rights by 
rightsholders.

- Implementation of new level of protection for broadcasting orgs without 
ensuring that we update rights of rightsholders of content would create a 
harmful situation. That's why we feel Article 24 could be maintained only in 
alternative AA. WPPT and WCT should be a condition of accession.

- Thank you to government delegations who supported returning to the A/V treaty 
discussion.  That continues to be our priority; don't defer A/V treaty with a 
diplomatic conference on this.

* IAWG. International Affiliation of Writers' Guilds

- We support principle of defeating piracy. But broadcasting organizations 
don't need to be protected against authors and creators or against society at 
large.

- Should not include right of distribution, making available, and 
retransmission, because these are connected with commercial exploitation and 
not with preventing privacy.

[ed: this is a really good, concise statement of the difference between an 
anti-signal-theft treaty and a treaty that gives a windfall to casters -cd]

- Danger that we will give rights to broadcasting organizations while creators 
are still waiting for their rights to be granted. [24 AA]

- There are significant differences between broadcasters and webcasters. 
Another measure is needed for webcasters.

* IFPI. International Federation of Phonogram Industry

- The chairman's draft is more like a basis for debate than a summary of the 
consensus to date

- Lots of people think that we need something like Brussels

- Rights to Broadcasters shouldn't overlap with or overreach the rights of 
creators.  Agree with China, India, GRELAC, and African region delegates.

- This text is not comprehensive in context of the state of the debate

- This is at odds with the preamble and article 1 -- to not prejudice other 
rights holders. You can't do this with general statements. You have to do this 
with specific drafting -- broadcasters shouldn't be able to design and shape 
business models related to the content rather than the signal, especially when 
we're talking about content whose creators have been expropriated or subject to 
a compulsory.

- Substantial redrafting of Article 6.

- Note substantial lack of consensus everywhere.

- We support the "right to reproduction and distribution" approach

- Article 24 AA should be included -- countries haven't ratified the WTC and 
WPPT and they don't give enough rights to holders of rights in the content. 
This is to the benefit of broadcasters, who don't care about WCT and WPPT 
adoption.

- To create a Broadcast Treaty without a WCT/WPPT obligation would b0rk 
rightsholders

- We're co-signers of the rights-holders' paper that you can get outside

* IMMF

- We believe in a signal-protection-based instrument, not a rights-based 
instrument. [cf. the NGO alternative treaty]

- Rights-based path: Which rights, for whom? How broad? Based on Rome, Berne, 
etc? How long a term?

- Signal-protection based approach much simpler to achieve for much greater 
protection, on basis more likely to endure.

- Parties to this treaty may be party to other instruments that cover 
broadcasting with different definitions, different breadth and scope. To 
transliterate the rights of this instrument were it to be rights-based they 
would have to reconcile their obligations under many instruments. Whereas if we 
use the provisions of the Satellite Convention in Article 2, it's much easier.

- A number of us have taken the consolidated text and reworked it on the basis 
of the Satellite Convention, article 2

- Some have said that Rome obligations mandate greater rights (Rome Article 2). 
 We submit that signal protection does provide that greater protection Rome 
requires.

- The signal approach avoids embarking on the slippery slope where one has to 
reconcile the agreement that there should be no prejudice the rightsholders 
over material in the broadcast, with the need to protect the signal.

- What's a fixed signal? What's it's reproduction?  Even if there is one it's 
not clear it has value.  The value is the material it carries.

* GIART

- This is a telecoms issue -- move this out of WIPO, it has nothing to do with 
copyright

- Protection for broadcasters should exclude webcasters except for simulcasters

- The impact on rightsholders here is negative

- We need to balance the protection of rights-holders with the protection of 
broadcasters

- Art 6 shouldn't go past the Rome Convention

- This should be based on prohibition, not exclusive rights, which would come 
at the detriment of rightsholders

- Making people join WPPT and WCT is OK, but we should also force them to sign 
onto the Rome Convention.  Protection of the signal is not more important than 
protection of the content.

* FIAD: International Federation of Cinema Distributors

- 13 NGOs have drawn up a text that has been distributed today -- we fully 
endorse it, bringing it up to 14.

- While it's vital to give broadcasters means to fight piracy, make it signal 
piracy, without impinging on copyright holders' rights. We are concerned about 
Art 6, 9, 10, 11, 12, 24 but there isn't enough time to elaborate.

* NAB-Japan

- REgarding scope, webcasting is very important for broadcasters and 
webcasters. But we can deal with the issue at a later stage. This should not be 
an obstacle to going on with the next stage.

- Time is ripe for diplomatic conference. NAB has been stressing need for 
instrument for over 6 years.  Need to fight against newly arising infringements 
in this digital environment.  Else our role as a fundamental medium of 
communication will be severely tarnished.  A tragedy not only for broadcasters, 
but also for the public.  P2P is killing us.

[ed. I can't quite believe that this is the first time we've heard mention of 
filesharing and its demons. -ws]

- We can imagine at this very moment filesharing is surely spreading like a 
wildfire. We must act now, before it gets too late. Whether we can go on to a 
diplomatic conference or not can make or break our effort. Now is the time.

[ed: The sky is falling! The sky is falling! -cd]

* DIMA

- As the representative of internet webcasters, it may seem counterintuitive 
that I thank delegates for their attention to webcasting.  Keep your minds open 
to the possibility of including webcasting.

- Last June presentation at informational session.  Technology and business of 
webcasting.  Major webcasters make substantial investments of time, money, etc. 
in making webcasts available. Contra radio stations with shrinking playlists, 
webcasters expose alternative playlists and genres.

- Whereas radio stations could not support niche formats to a local audience, 
internet webcasting finds affinities nationwide and internationally to a very 
hungry audience for music. Sitting in my office in Washington, DC or in my 
hotel here in Geneva I can listen to music from Nigeria, Jamaica, Cambodia, 
Germany. >From websites that originate in your countries.

[ed: only if he's staying in a fuller-featured hotel than we -ws]

[ed: Le Fleabag Du Geneve doesn't have WiFi yet -cd]

- Far from being the instrument of the digital divide, webcasting is a means of 
bringing the world closer. if you are concerned with spreading your culture and 
helping to commercialize your music and your artists, webcasting brings 
authentic culture to the rest of the world. It is the first truly international 
broadcasting medium.

- But it is also the easiest medium to pirate. Webcasts arrive at your computer 
and are very easy to transmit by pirates. The Yahoo rep explained that this 
company spends a lot of time and money trying to thwart internet piracy of 
Yahoo's signals. And technology alone was not enough. As we said in WCT and 
WPPT, technological means need to be supported by legal methods of enforcement.

[Ed: This line vastly overstates the complexity of digitizing an analog radio 
signal and the ease of retransmitting a digital signal -- is it harder to plug 
your radio into your PC than it is to break DRM? And how about the person who 
receives either a digitized or a cracked signal? Does she have a harder time 
putting a digitized file in her Kazaa cache than the person who receives a 
DRM-cracked version? -cd]

- This is represented in the proposal to protect simulcasts. If there's no 
threat of internet piracy, then why do you need protection? But if you 
acknowledge that if webcasting in any form requires protection from piracy, 
there is no principled basis on which you can say that the largest radio 
station on earth should deserve protection, but the largest webcaster should 
not.

[ed: Sure there's a basis.  If protecting over the air broadcasts doesn't break 
computers, but protecting webcasts requires trusted computing and pervasive 
DRM, that's good reason to distinguish between them and to stop short of 
protecting webcasts. -ws]

- An important principle is that copyright owners deserved to be paid. And 
members of my organization pay tens of thousands of dollars annually. They 
deserve compensation. But if our signals are pirated, there is no compensation 
going back to the artists and the creators. If you want to support a legitimate 
alternative to piracy on the internet then you have to give the consumer a 
lawful place to go to obtain content in a way that ensures payment to the 
creators. One of those ways is by supporting webcasting.

- Webcasting is here and has been here for many years. The time to protect 
webcasting is not later, but now.

- If you have questions about how the definition of webcasting should be 
written, the US has some good ideas on that.

- If you don't do this, you'll have a treaty that could have been written 20 
years ago.

- In principle the US has it exactly right. There is no basis to distinguish 
between technology if the acts are the same, if the investment is the same, if 
the threat of piracy is the same.

[ed: but of course, they're not the same. They're wildly different -- that's 
why different orgs are involved in webcasting than in traditional broadcast. 
Different technology, bizmodels, costs, and barriers to entry. Why should we 
expect measures designed for sat signals, cable, or broadcast TV to be 
appropriate for something as different as the asynchronous, unicast Internet? 
-cd]

* EDRi

- Signatory to NGO draft.  A number of concerns regarding consolidated text.

- Treaty should be signal-centric.  Support African group, against a new layer 
of rights that may conflict with copyright.

- Broadcast rights should not restrict the public domain. Works currently 
unprotected could be removed from user access.  Made worse by Article 16's TPM 
protection.

- Respectfully disagree with Chair that public domain materials are not 
protected by such measures.  Support Brazil that Article 16 should be removed.

- No rationale for 50-year term of protection.  Insufficient evidence that 20 
years under TRIPs isn't enough.  Support India that the terms should be much 
shorter.

- Webcasting should be out. No consensus. If necessary, separately tailored 
instrument.

* AFMA - representing content owners

- Protect signal, not broadcast content.

- Rightsholders exist long before the broadcast.

- Support FIAPF, FIAD, coalition of rightsholders draft.

- WIPO consolidated draft showed wide misinterpretation of several key terms.

- As Argentina pointed out in Nov. broadcasting is usually wireless.  
Cablecasts are not necessarily by the same operator. Retransmitter should not 
get rights.  Many countries have mandated collective rights for retransmission.

- Missing emphasis on primary broadcasters.  Only their rights should be 
covered by this instrument.

- Brazil opposes protection of cablecasters as though they were broadcasters - 
they're right but don't go far enough

- Cable isn't the issue, but a proper definition of simultaneous transmission

- On TPMs, limited rights to content may be encrypted. Several references to 
public domain, information that should be available to consumer without 
conditional access.  Such info would rarely be encrypted.  But there's still a 
right of access control.

[ed Here we hear both the sweat of the brow argument; on top of it an utterly 
unfounded supposition that public domain material is not encrypted. It's a neat 
tautology: no one encrypts public domain work unless it's been infused with so 
much sweat of the brow that it shouldn't be public domain -- IOW, if it's 
encrypted, it's not public domain -cd]

- Signatories should be required, per Article 24 AA, to have adhered to WPPT, 
WCT, protecting copyright and related rights.

- Don't ignore commercial imperatives to encourage production of information 
and ensure continued and expanding supplies of content.

[ed.  Where's the evidence??  If it's a business model that depends on harming 
the public more than benefiting that public, maybe it's a business we shouldn't 
support with legal buttresses.  Where are the basic economics? -ws]

* AIR

- The 1961 Rome Convention (1961) set out rights for three holders: musical, 
phonogram, broadcasters. We reject the fact that Rome set separate classes of 
related rights holders. All of us are protected under this umbrella.

- When we started coming to WIPO in 1992, the group of experts was discussing 
the updating of the Berne for authors and for the protection offered to 
phonogram producers and performers because of the need to bring protection into 
line with all of the changes that had occurred in technology, particularly 
digital technology.

- We were told broadcast protection was a bad idea because it could lead to 
difficulties with other draft treaties, so we decided to wait.

- 1996, the internet treaty was decided upon. We updated protection of other 
holders of neighboring rights (performers, producers of phonograms). It was 
decided that broadcasters would get an update.

[ed. They always talk about "updating." It's a much more innocuous way of 
saying "extending our powers." But who can challenge the benefits of 
"updating"? -dt]

- Everybody likes the treaty, except for webcasting, so let's take out 
webcasting and get this treaty passed.

- Don't link broadcasting to A/V treaty.  That'll just delay things, and 
there's no consensus there, nor any connection between them.  At least he 
wasn't' thanked for his "concise contribution"

* ACT -- Association of Commercial Television in Europe

- D-Day was really significant

- This is what broadcasting can do: unite viewers and let them participate 
together in a great public event

- There was skill, effort and resource necessary to make that happen

[ed to say nothing of the millions of war dead, possibly they should be in the 
treaty? -cd]

- First, the event itself, or the incidents from different locations which the 
broadcasters brought together are not capable of copyright protection.

- Nonetheless, the coverage gives a narrative shape to the event.

- Since the event was being transmitted live, there is no question of the 
coverage being protected as in the case of a film or sound recording.

- Even if there was a fixation, some jurisdictions wouldn't consider it a 
copyrightable, creative work.

- I suppose there would be wide perhaps almost universal consensus in this room 
that the signals that transmitted that coverage on Sunday should be protected 
against unauthorized fixation.

[ed. I would suggest just the opposite, that it's the public (including that 
earlier public many of whom gave their lives in the war) who made this event 
significant to broadcasters -ws]

- Those who seek to limit this to anti-piracy have to explain why the skill of 
a broadcaster should be less worthy of protection than the skill and investment 
that a record company puts into a successful session?

- A number of arguments have been advanced. One is that only content providers 
deserve protection. This airbrushes out the history of the Rome Convention over 
the last 50 years and ignores the fact that it has never been a condition of 
protection that broadcasts should have to be original. Those 50 years offer 
little if any evidence that the broadcast's fixation right (Art. 13 of Rome) 
has been exercised to the detriment of other rights owners.

- Finally: there is the unworldly view that broadcasters should be above the 
vulgar consideration of money. I speak for commercial companies with 
shareholders who sometimes operate pay TV services and who are appalled that 
the treaty has no protection against unauthorized decryption. It is a general 
truth that we all have to have a source of income to pay for our services.

- I'm not embarrassed by the fact that my members turn a profit, just like 
record companies]

[ed. Straw man arguments are convenient. -dt]

- Why should my members not be able to exploit the events of last Sunday's 
broadcast? Why not call the free-riders my members subsidize "pirates?"

[ed. talk about exploitation -ws]

* ABU

- Members are in 53 countries in Asia-Pacific region.

- I also own an FM station and low-powered television station in the 
Philippines.

- Regional broadcasters have been coming here forever, describing a litany of 
actual experiences where traditional broadcasters' signals were exploited 
without consent.  Interventions, presentations at regional meetings, 
distribution of proposals and explanations, etc.

- These were presented in meetings with government groups and local government 
officials.

- Webcasters and cablecasters are getting a free-ride on all our lobbying

[ed. This should be read as: If we had gotten this treaty when we should have, 
there would be no VCR, no tape recorder, and certainly no TiVo. -ws]

- Protection should only be granted to traditional broadcasters who have 
presented their name for protection.

- Broadcasters are only seeking updated rights, and not to the detriment of 
rightsholders.

- To NGOs: Thank you for recognizing that this is about protection of the 
signal, so we can continue our mandate of public service, including education 
and access to information.

- Fidel Ramos: Radio and TV helped restore democracy to the Philipines

- Unlike new forms of broadcasting, traditional broadcasters provide services 
to the public free of charge.

- After 10 years of work traditional broadcasters believe there is enough 
consensus to schedule a diplomatic conference next year. We appeal to this body 
for a fair deal for broadcasters.

* CISAC and BEAM

- 3 general principles:

    1) At stake is appropriate means by which broadcast orgs can
    protect their legitimate interests. We're heartened that many
    delegates think care should be taken in delineating
    broadcasters' rights, so as not to prejudice others' rights.
    Obvious lack of creativity in broadcast should restrict the
    protection granted by this IP instrument.

    2) Heartened by para 13 of introductory notes; importance of
    insuring that broadcasters not be more protected than
    traditional rightsholders.

    3) Delegates have consistently, clearly expressed preference
    for excluding webcasters.  We are not aware of important
    divergences necessitating inclusion of alternatives --
    exclude the webcasters.

- 3 specific points:

    1) preamble suggests benefits to authors, performers,
    phonogram producers.  Don't think members of creative
    community see those benefits.

    2) Alternative A to Art 1: why is this limited to intl
    conventions protecting performers and phonogram producers?
    Other intl conventions are mentioned only by implication,
    please make it explicit as in alternative B

    3) Article 1(2): Like the principle, want clarification: how
    will this not effect underlying rights? We suggest that the
    need for the auth of the underlying rights holder does not
    cease simply because you've got the caster's permission.

[ed: This won't help in the case of copyleft -- you've got the artist's 
permission but you need the caster's]

- Creators don't hate broadcasters, but we should protect their signals while 
respecting over 100 years of IP protection.]

* NAB. National Association of Broadcasters.

- 1. Continued concern re balance of rights.  Nothing is designed to affect 
others' rights. The preamble says so. The analogy b/t the content and the 
signal is not unlike the seed in a kernel of corn or a grain of wheat 
surrounded by the chaff.

If copyright holders want to distribute their material by other means they can 
circumvent the broadcast process and this treaty is not applicable to them. But 
if they decide to be part of the broadcast system, we become part of the 
process and are entitled to protection against the exploitation of the signal.

This has nothing to do with the content.

[ed: IOW: if you don't like it, don't broadcast your content. We're doing you a 
favor here. All your base, therefore, are very much belong to us. -cd]

[ed. The broadcasters continue to hit a strawman. Few are challenging the 
premise that any powers should be granted. We're challenging the extension. -dt]

It's true that some compulsory license schemes don't give content-owners 
control of inclusion in broadcast signal,  but that's a problem with national 
law and compulsories, not with this treaty.

- 2. Should this be an antipiracy treaty? Should we eliminate rights in the 
name of limiting this to treaty? Why aren't the rights to prohibit enough?

I agree with the delegations who say that this should be forward looking, a 
21st century treaty.

Most broadcasters have one channel and one revenue stream, available free over 
the air. They're in competition with multichannel delivery systems that have 
hundreds of channels and multiple revenue streams and are not available to the 
public (i.e. cable systems).

We know that broadcast is good for cultural enrichment, etc.

If you want to continue to recieve this kind of service and have continued 
viability in the future given the competition we face, broadcasters must have 
the flexibility for alternative business models that include the [string of 
rights] of their broadcasts. Again, this is not at the expense of content 
owners. If there is going to be exploitation at the backend that includes our 
signals, then we need, and we are not ashamed, that we may continue to need 
that kind of compensation at the end of the chain.

[ed. Ah, the old, you'll lose free-to-air content if you don't protect 
broadcasters.  We hear this a lot in the U.S. broadcast flag proceedings. -ws]

As examples, I submit the World Cup, the Superbowl. Very interesting events, 
but tens of millions of dollars of broadcasting rights submitted to these 
organizations that make these events at all viable.

If, for instance, in those settings there involved a joint arrangement that 
there needed to be agreement on the signal and the content, I'm trying to 
imagine someone who wants to make copies. They obtain rights from the Olympic 
committee. Then they come to NBC, and they offer to provide a right to 
prohibit. I suggest the entity that engages in that negotiation will not have a 
clue what an authorization to prohibit means.

- 3. Why do we need fixation, reproduction rights and distribution rights? If 
we have the right to fixation but not reproduction, we're screwed if we come 
across a warehouse full of pirated reproductions. If we catch a street vendor 
and we don't have the right to distribution, this is no help.

- 4. Removing article 16: There's a measure of fearmongering and conspiracy of 
obfuscation in some corner of this room.  It's claimed that TPMs will affect 
First Amendment rights, will impede education and libraries.

[ed: yes, that's it, we're just conniving conspirators of obfuscation.  Help, 
we've been uncovered. -ws]

The information is being distributed by the transmission. in almost all 
jurisdictions, copies are available for timeshifting. In most jurisdictions 
copies can be made in classrooms and libraries. What we submit is not needed to 
continue democracy is providing opportunities to make massive numbers of copies.

[ed. then provide a personal use exception -ws]

- 5. Art 24, we oppose Alternative AA. Each treaty should be judged on its 
merits. There is no similar nexus between the WPT and WCCT.

- 6. This is the eleventh session, 6 years, 10 proposal, regional conferences 
in Manila and Cancun [which non-commercial NGOs couldn't afford to attend, most 
likely -ws]  Those in the back corners of the room [ed: eg, EFF, etc -cd] 
should have been at those meetings, they're too late now.  Sorry, missed your 
chance.

* Public Knowledge

- Thanks for the opportunity to make this *brief* intervention

- PK's analysis of the text is available outside this room, and we signed onto 
the alternative mentioned earlier by IMMF and EDRI

- Will not repeat IMMF's comments on appropriate focus on signal.

- I wish to highlight the comments of Chile and India

- Focused attention on the vital need to ensure that the rights given to 
broadcasters don't diminish the rights of copyright holders and public access 
to information

- The current language doesn't respect the pleas of India and Chile, nor does 
it follow on the preamble

- Treaty needs to respect personal use and access to knowledge

- While we support prevention of signal piracy, this can be done without 
harming content owners and the public.

- As Brazil noted, the fact that some treaties use certain language does not 
mean that this body cannot reconsider the use of that language, especially when 
it will create serious harm and take us a step back.

* EBU - European Broadcasters Union

- Short discussion this morning indicates governmental consensus on all major 
points.  I have 4 brief points.

1. As was said this morning, [i.e., we lobbied effectively] broadcasters are 
locomotives of economic social and cultural development. Update existing signal 
protection under Rome convention.  Anyone who imagines that protection for 
broadcast will restrict the public domain confuses signal and content

2. The right to prohibit (as opposed to the right to authorize) also confuses 
signal and content

-What if there were only a right to prohibit.  A potential licensee has a 
license to the content, would you as broadcaster prohibit?  [ed. sure, why not, 
if you've said you need the right to authorize, isn't that the same choice to 
you? -ws]

3. We need to combat piracy, the same way that the 1996 treaties were supposed 
to

4. Has there ever been such a large number of treaty language proposals before 
any other diplomatic conference?

* AIPLA. Association of Intellectual Property Lawyers of America.

- Representing 16,000 IP attorneys. [ed. not this one -ws]

- Want to address article 16 and TPMs

- We've had these in the US for some time. During the past several years, more 
copyrights and more patents have been obtained than ever before.

- These measures have not directly or indirectly hurt creativity or the 
protection of content.  There has been no stifling on any large scale at all.

[ed. Define "large scale." -dt] [ed2.  It clearly doesn't include the hundreds 
of EFF members who submitted complaints in the second triennial exemption 
hearing, or the thousands who have supported HR 107, the Boucher-Doolitle 
DMCRA. -ws]

- In 2000 and again in 2003, the US Copyright Office held extensive hearings 
and determined that no further exemptions were necessary

[ed. hmm. Several exemptions were granted, which couldn't even be granted under 
the treaty's proposed language, which doesn't permit extra exceptions. -ws]

- In our experience public domain and fair use have adequately protected 
consumers and public at large

* ASPI - Sao Paulo Association for IP

- We need to enhance protection of broadcasters

- The rights this proposal affords to cablecasters and broadcasters are quite 
alarming

- Webcasting and cablecasters can't be classified as broadcasters -- they don't 
have the same social role as broadcasters

- There is a need for a more profound analysis of the issues here

- There is a human-rights interest in balancing the rights

- Thanks to the other delegates for discussing copyrights and not just 
investment-based concerns.

Chairman: We'll have a very different day tomorrow. Advise the delegates to 
pick up every document and study them. That makes the process more credible.

The floor is still open for government delegations to return to substantive 
issues after having heard the IGOs and NGOs.

The next stage will be to enter into discussion on further steps. Tomorrow 
morning I will make available a draft set of recommendations that should 
reflect, tentatively, the state of the art in the deliberations. I will try to 
formulate a description of the progress. We are well advanced but of course 
there are still many questions to be discussed.

That set of conclusions should include an element that should refer to the 
general assembly next Sept/Oct. The assembly should be informed and some kind 
of decision should be sought from the general assembly concerning the 
continuation of the work.

It appears that further work is still necessary on the level of this committee. 
Tentatively I will propose that there should be another session in this 
committee dealing with broadcasters' rights.

A revised consolidated text would be prepared. Some elements perhaps in the 
light of this discussion could be deleted. We don't know yet what could be 
added. I will try to streamline in cases where there could be a single 
provision and options removed.

The meeting should probably take place before the end of the year, second half 
of the autumn season.
</pre>

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