[DMCA-Activists] Day 3: WIPO Databases and Broadcasting

[Seth Johnson]

-------- Original Message --------
Subject: Day 3 and links to the full record
Date: Wed, 9 Jun 2004 13:57:54 -0400 (EDT)
From: address@hidden
To: address@hidden

Also available at http://www.public-domain.org/?q=node/view/41.

Scroll way down for the committee's final recommendations, as captured by
Wendy's on-the-fly editing.

A compilation of all three days is at
http://www.public-domain.org/?q=node/view/42 and
http://www.eff.org/deeplinks/archives/001599.php.

************************************

Notes from the World Intellectual Property Organization's
Standing Committee on Copyright and Related Rights meeting, day
3, 9 June 2004.

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

-- 

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On June 9, 2004, Cory Doctorow, Wendy Seltzer and David Tannebaum
(The Authors) dedicated to the public domain the work "Notes from
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-- 


======

[Draft document issued by Secretariat before the session began:

RECOMMENDATIONS

The Standing Committee on Copyright and Related Rights:

considering that the Standing Committee on Copyright and Related
Rights at its Tenth Session, from November 3 to 5, 2003,
recommended that the present session of the Standing Committee
should be convened to examine a consolidated text and to assess
progress of work with a view to a possible diplomatic conference
which would consider an international instrument on the
protection of broadcasting organizations,

considering that the work at the end of the present session of
the Standing Committee is well advanced, taking into account the
identification and analysis of substantive issues to be addressed
in the international instrument, the progress made in these
substantive issues during the deliberations in the present and
previous sessions of the Standing Committee; and considering that
the state of previous sessions of the Standing Committee; and
considering that the state of discussions concerning the
international instrument allows a diplomatic conference to be
prepared and negotiation to take place at that level,

having had an exchange of views and information regarding the
protection of databases,

unanimously agree on the following recommendations:

A. BROADCASTING ORGANIZATIONS

1. The WIPO General Assembly

the WIPO General Assembly should decide, at its September/October
session in 2004, on the convening of a diplomatic conference on
the protection of broadcasting organizations at an appropriate
time,

2. Twelfth Session of the Standing Committee

the Chair of the present session of the Standing Committee will
prepare, for the Twelfth Session of the Committee, a revised
version of the consolidated text in which the possible protection
of webcasting organizations and other proposals having received
very limited support will be indicated in square brackets. The
Twelfth Session of the Committee will take place from November 17
to 19, 2004,

3. Basic Proposal

based on the discussion at the Twelfth Session of the Committee,
the Chair shall prepare the Basic Proposal for the diplomatic
conference,

4. Regional Consultations

depending on the decision of the WIPO General Assembly under
Point A.1 above, the International Bureau shall organize regional
consultation meetings in Africa, the Arab countries, Asia and the
Pacific, Latin America and the Caribbean and in certain countries
of Eastern and Central Europe, and CIS countries, and
consultation meetings at the location of the diplomatic
conference immediately before its commencement.

B. DATABASES

The issue of protection of non-original databases will be
included in the Agenda of the Thirteenth Session of the Committee
and thereafter at appropriate intervals.]

[ed: the release of this document triggered a series of heavily
whipped -- by the committee executive -- hallway caucuses that
delayed the start of the session by more than two hours -cd]

======



Chair: [opening] Circulated a draft in several languages. We
have already consumed much of the morning with consultations.

Opened floor to governmental delegations, after NGOs were heard
yesterday, for substantive, not procedural discussion. No
discussion at this moment on future work and recommendation.

* India

- We reserve comment on your draft recommendations

- ACT's commercial TV argument regarding D-Day -- sounded compelling, and
we reflected on it.

- Certain events as a matter of deliberate policy have been
decreed noncopyrightable by various countries;

- It may be expensive to broadcast these things

- we are therefore clearly in an area where we should
instead use signal-based protection. If a country has
decided not to provide copyright protection, that decision
is not a capricious one.

- D-Day involves a lot of actors, not just TV crews, all
important. A whole lot of them, for sixty years, go back
to the time when the event occurred and people laid down
their lives in the event that was commemorated last Sunday,
the acquiescence of those people would have to be taken
before we could give to the broadcaster an IP right over
the work that he is seeking to get an IP right over. The TV
company plays a minor role in bringing this major event to
the viewers around the world. Clearly, they're far too
numerous to secure the agreement from, society decides that
this isn't a copyrightable event.

- The TV company's contribution isn't IP. The recording and
transmission of signals post-Marconi is not innovative --
it's a technical process which is rightly address in the
Brussels Convention or in the ITU.

- There is very little in that process qualified as
innovative exercise worthy of this org's protection
(i.e., WIPO).

- The ACT's example should fall entirely outside WIPO's remit

- Rights outside of signal rights are copyrights, if the work is
copyrightable. Even if the event was a program that had IP
protection, the act of the broadcaster qua broadcaster (not
as a producer -- a producer clearly has existing IP
protections) is something clearly technical and though
no-doubt the activity involves deployment of considerable
assets/investment, we aren't here to protect investment.

- We're here to protect IP, not investment. The Satellite
Convention should control her, of if that's inadequate, take
it to the ITU. Real IP protection is already covered. It's
unclear why WIPO should protect broadcasters' investments,
because worthy as they are, they're not IP

[ed: Another excellent intervention from the Indian delegation. -ws]

Turkey:

- Just noting our reservations on the proposed treaty.

Egypt:

- If there are no other substantive interventions re:
broadcasting, add a substantive remark on behalf of the African
group on database protection. African group followed Monday's
debate with interest and subsequently reached

- Issue of protection for nonorig databases is not ripe for this
committee's consideration in the near future. We need more time
and better understanding of the issue, particularly developmental
and socioeconomic aspects. As a matter of priority, Committee
should focus where progress can be achieved.

Chair: defer question on databases to a later meeting.

- [Broadcasting] Lots of progress has been made. We have
previously noted high degree of convergence. 11 written
proposals made. Lots of convergence, some divergence.
Consolidated text presents proposals, represents areas where
there are different proposals.

- Further progress in this discussion. Useful legal and
technical remarks were made. Many, if not all of them, have been
very useful. If we take those into account, at next meeting, the
basis for consideration will be further refined.

- There have been no comments that some options are missing from
the consolidated text, maybe with the exception of Article 16,
where something not found in the text was to be considered.

[ed Canada's substantial reworking of the consolidated text,
which focused on signal theft, not IP rights, was utterly
disregarded in the chairman's draft -cd]

[ed and Singapore's proposed shortened term. -ws]

- The tone and spirit of the discussion have been effective. One
or delegates have said they are flexible in their mind and are
willing to look at other delegates' proposals. That's most
important, because we need to solve things soon.

- As far as areas where there are diverging proposals,
delegations have essentially still maintained their positions at
this stage. The position that were already manifested and
recorded and made known in the proposals. And this is only
natural because this is not the negotiating forum. This is a
committee of government delegations and observers. This is a
place for exchange of information, a place to explain each others
positions, to put forward questions and arguments. Of course only
in the negotiation stage normally delegations are willing to show
their final flexibility in those questions that are most
important and most economically important.

[ed Chairman is spinning a justification for a diplomatic
conference -- this isn't where we negotiate, we negotiate at a
diplomatic conference, out of sight of the NGOs and the public
eye -cd]

[ed: (spin) that's right, lack of consensus here is a feature,
not a bug. -ws]

- We will continue to try to find common ground. This is a
necessity at this stage of the process.

- There is a proposal that a revised version of the consolidated
text could be prepared. The most important items shall be
considered and the concerns of stakeholders and interested
parties.

- How to proceed with webcasting. How to set the level of certain
rights, where there are options -- exclusive rights versus rights
to prohibit; how to set eligibility (who can become party to the
treaty); which model of national treatment shall be taken
forward.

[ed. No mention of TPMs, even though Brazil suggested the
deletion of Article 16. -dt]

- All 11 proposals from the government delegations are based on
related rights approach, built on well-known elements in existing
treaties. Those proposals attache and follow tradition of Rome,
WPPT, TRIPs. These rights look like IP rights.

[ed: only because Canada and Singapore's proposals were
disregarded holus-bolus -cd]

[ed: i.e. this committee/WIPO doesn't have jurisdiction over
signal theft. -ws]

- The basis and background must be that the government
delegations understand this kind of model. The many members of
the Rome Convention have given protection to broadcasters that of
course must be in accordance with the Rome Convention. TRIPs had
a requirement to provide protection, and followed the related
rights tradition which was once called neighboring rights.

- There is a tradition that protection of related rights protects
not only creativity but investment, effort.

- Satellite convention never became instrument for worldwide
protection.

- That's why we're in this situation. And of course this is a
message to those who are saying other kinds of models should be
considered. Yes we should consider this model, but also
appreciate this situation.

[ed: go away NGOs. It's clear we like related rights, not signal
protection, even after we've tried both. -ws]

- A draft for recommendations was distributed. [cf. document up
above] I would like to submit this for your consideration.

* India

- Before we start on the recommendations, some points:

- There are general consensus on issue of extending protection
to broadcasters, but still lots of differences on scope, term,
technological protections, etc.

- I wonder where we should proceed from here. There is a need to
sort out these differences and consensus needs to be evolved.
Especially for Article 15 which talks about term. Article 14
which talks about limitations. The broadcaster's article comes in
conflict with WPPT. And there is no need for this article which
is already in the Rome Convention.

- Preamble should also recognize need to protect rights of
copyright holders and maintain balance between them and
broadcasters.

- Similar on Article 16 we support Brazil and feel TPMs can be a
harm to society and to the right to information. And these
measures can in fact prove to be a big impediment to the
development of technology and access to the public domain.
Anticircumvention harms scientific and technological development
and protection of research. Any tech protection should therefore
not impede development and that should come out clearly in the
article.

- The text has totally tilted the balance against the copyright
holders and there is a need to look at the exclusivity of rights
that have been provided and restore some balance. And of course
the issues of objective and scope need to be considered before we
go on from here.

[ed Note that Indian uses "Rights Holder" and not "Copyright
Owner" -- go India! -cd]

Chair: your intervention was out of order, but of course as a
government you can speak.

- Singapore got its shorter term in explanatory comments, not as
an alternative because it was only a single voice.

[ed. Singapore is not a lone voice. India has pushed for 20
years. India pointed this out a few minutes later. -dt]

* Canada [speaking for the first time]

- You said that there were no options missing from the text,
apart from Art. 16, I believe that we put forward options that
were not reflected in the consolidated text

[ed: Canada had a very different take on the text that didn't
make it into the Chairman's draft -cd]

Chair: we are now prolonging the meeting on substance [ed: i.e.
hurry up, we all want to leave! -ws]

* Canada

- We're missing Canada's article 11 comments on para 22 regarding
transmission following fixation. We made comments in the last
meeting concerning the nature of protection in fixations, though
we didn't forward any treaty language.

* Chair: We see no big things missing.

* India

- We would like to respond to the Chair's statement

- We're a member of WTO and are signatory to TRIPs and believe
that we are fully in compliance with TRIPs -- we have no
obligation to expand on the rights in the framework of WIPO,
pursuant to our TRIPs obligations

- We have not yet acceded to Rome, but we are largely in
compliance, and again, we do not see anything obligating us, even
if we were a member, to address the issues that are before us
with a diplomatic conference.

- In other words, we don't believe that passing over a diplomatic
conference might somehow make us remiss in our TRIPs obligations

- You did mention that there was a solitary voice speaking in 20
year terms. It is true that one delegation submitted a written
proposal. That has been referred to but not incorporated into the
text of the draft before us. but there were many delegations
including us that have spoken in favor of the term of 20 years.
So it's not quite correct to say this was a single view.

- 20 years should be included as more than a passing reference in
the explanatory notes.

- We do not question prerogative of countries or groups to adopt
measures in support of various organizations or activities that
have not been addressed in WIPO framework, even if it's an IPR or
neighboring right type activity.

- Looking to see whether there's an overwhelming sense of a
compelling case for international agreement, that member states
can gain more by treaty than by national law.

- It's not clear to a vast number of delegations that there's any
value in an international treaty as compared to national laws

- International agreements should only come about to clearly
benefit all sides

- Not to say that India is per se opposed to a treaty, but we
need to fully understand the benefits and need for such a law and
an international convention and we think it's probably a little
bit premature to argue that we've assumed obligations in our
other agreements and that therefore this is a natural corollary
to TRIPs, etc.

Chair: Thank you for your analytic and helpful intervention.

* Brazil

- Go back to Canadian clarification with regard to omitted
options. Confirm that Brazil proposed a new option for Article
16, i.e., the deletion of that article. We expect that deletion
to appear as an option in any future version of that text.

* Chair: I already was planning to include your proposal. Now
return to the consideration of the draft recommendation.

[ed: now back to that consensus I was mentioning -ws]

- We're discussing new international instrument. Governments
would then have the option whether to accede to it. The
overwhelming majority believe there should be additional
protection for broadcasters, because in this international place
we need bridges between national legislation that harmonize the
treatment to a certain degree to those parties who deserve
protection. In some parts of the world national protections are
not enough and for this we need an international treaty.

* Nigeria [first intervention]

- Appreciate the draft. In light of the far-reaching conclusions
contained in the document, Nigeria would like to submit the
following comments:

- 11th session was convened to examine consolidated text and
examine progress. Divergent viewpoints have been heard on
all major points of the text. Diverse viewpoints have been
heard from govts, particularly notes views expressed by NGOs

- Should be compiled and studied before any further action
is taken. Not opposed in principle to diplomatic convention,
but this should not be done at the expense of further
consultation and deliberation. Need regional consultations
before any discussion of diplomatic convention. As Egypt
said for African delegates, reasonable time is required.

[ed. While some see regional conferences as helpful, others see it as a
chance for broadcasters to divide the regional groups. -dt]

[or maybe it's just delay -ws]

- Although we agree that work of SC is advanced and progress
has been made, Nigeria would like to see those areas of
progress clearly spelled out in chair's rec or any other doc
that comes out of this session.

- Nigeria would like to reiterate our desire for protection of
broadcasters, but would also like to see equal progress on
A/V performers' protection. Balance is indispensable.

* Japan

- issues have been extensively discussed since first session in
1998. We need an international instrument to harmonize
international treatment. We need to move forward to keep
momentum. Support the recommendation. Use square brackets often
at next SCCR to prepare for diplomatic conference.

* Mexico

- Need to work out the balance of broadcasters, performers and
authors

- There are still some differences, but we have the consolidated
text, includes many concerns. Therefore, we support the Chair's
recommendation for a diplomatic conference

- Mexico also supports that the Chair should prep a proposal
based on these discussions

- Also support holding of regional consultations.

* Chair: Thank you Mexico for again another very constructive and
considerate intervention.

* India

- There is no consensus.

- Lots of work needs to be done before we reach the point where
this committee can recommend to the assembly the possibility of
convening a diplomatic conference

- We've heard various points of view, some considerably deeper in
analysis of issues, some less so

- What has emerged is that there is considerable lack of
understanding of all the issues involved. Therefore, we need to
understand these implications, in the framework of this
committee.

- We're at a loss to understand the chair's conclusion that the
work here is "well-advanced"

- To a person who may have not attended this session of the
committee, reading this set of recommendations, he would be
forgiven for coming to the conclusion that there was near
unanimity, or at least a very broad measure of consensus. That is
rather different from the conclusions that this delegation has
drawn from the deliberations of the last two days.

[ed: I agree -- this isn't consensus, it's not agreement, it's
divergence -cd]

- Like Nigeria, it would be useful for us to have a more precise
indication of which issues the chair considers to be well
advanced either through the deliberations in this session or in
earlier sessions. Because it seems that what the chair had
engaged in was a collection of views. But since there are clearly
many views, including those that have not been included,
including those of Singapore concerning the term of protection,
there remains a considerable amount of work to be done before we
can request the Assembly to consider convening a diplomatic
conference.

[ed: that outline would be helpful to us too, as note-takers. We
haven't seen lots of points of consensus -ws]

- The second paragraph in the preamble to the proposal this
morning [that the work at the end of the present session of the
Standing Committee is well advanced] is premature and does not
reflect our sense of the past two days' deliberation

- Unanimity is more than a bit of a stretch -- the convening of a
diplomatic conference requires a considerable amount of prep and
we haven't gotten far enough for that

- Mr. Chair, you did mention earlier that this was not a
negotiation forum and it is really the run-up to the diplomatic
conference that would be responsible for the negotiations.
Formally speaking of course that is probably correct, but in
practice it would generally be unwise to approach a diplomatic
conference when there is such a measure of divergence in the
member states of this organization.

- We therefore think that we need to continue the process until a
point is reached where we can broadly say that all that remains
are a few technical issues to send to the diplomatic conference
for ironing out

- We did have occasion to refer to what we believe would be the
right approach - signal-protection based approach. We wonder if
it would be useful to the secretariat to prepare a detailed draft
of a signal-protection based approach. Given that draft document
at a later stage of the committee we can see which concerns that
are not clearly IP related or neighboring rights related should
be addressed.

[cf. the NGO alternative draft treaty]

- We think that there are many issues where there is no
consensus, such as webcasting, which evoked negative reaction
from many delegations

- If all we're doing is square bracketing, we're not reaching
consensus.

- How can there be square brackets where there has been no
negotiation and this body is deemed not to be a negotiating
forum? Square brackets would arise only if there has been
negotiation and a failure to reach consensus has resulted from
those negotiations.

[Ed IN-DEE-AH IN-DEE-AH IN-DEE-AH! -cd]

Chair: Virtually everything you've said is true. There is still
much work to be done. You asked about the convergence I was
referring to several times. Need of a treaty to be prepared,
scope, what rights to include, listing what elements should be
taken to the instrument and having delegations consider what
elements should be there. Main architecture of an instrument can
be seen already.

- Regarding the question on square brackets, the text on which we
are now working is not a basic proposal, it's just another
presentation of the delegations' proposals. Square brackets just
indicate very limited support.

* Brazil:

- We're Rome Convention members and therefore committed to
protecting broadcasters. We like the idea of updating their
rights. We support this process.

- We agree with you in your introductory remarks: we've made some
progress in recent meetings, with different proposals tabled and
an important consolidated text. This is a useful first round of
discussions.

- The meeting was perhaps shorter than some of us would have
liked, so we couldn't go beyond first round of discussion. Day
of intensive discussions yesterday made progress. We were able to
gauge the state of play at this point.

- We agree that there's common ground among many delegations
regarding some important aspects of this treaty, but the
discussion showed, unfortunately, that disagreements do persist
with regard to significant provisions of the treat, such as the
scope of application and others.

- We think that the best way to make progress and consider a
diplomatic conference for a treaty, is to really resolve our
differences and iron out problems that persists.

- Support paragraph 2. Now, we should consider a revised version
of the consolidated text.

- We agree with India: the consolidated text is a compilation of
proposals, not a draft treaty, so we don't need square brackets
or to single out proposals, all proposals are equally useful and
legit and should all be considered the same way. This text should
just be a compilation, in which case perhaps it would not be
necessary to go into this issue of whether to use square
brackets.

[ed. Why does the U.S.-only webcaster proposal get in with square
brackets, while other proposals don't make it in at all? -ws]

- We agree with the assessments of Nigeria and India: We regret
the persistent important disagreements and they should be ironed
out. This should be an important, high-priority issue in the
committee

- We question the convenience of having the committee recommend
the convening of a diplomatic conference. We understand that the
convening of such a conference should take place, hopefully in
the not too distant future. But currently we do not have
agreement on some very important and basic provisions of the
text.

- We understand the frustration over that fact, but we don't need
to be overanxious. We should take more time to discuss this
important matter. Why not consider proposing a diplomatic
conference in June of next year?

- To be fair to ourselves, we need to give ourselves time to sort
out our differences. If we were not to send a recommendation
now, that doesn't mean that the process would not continue. We
agree to continue the process, to consider a new version of the
consolidated text.

- Thankfully, the protection of non-original databases, which is
not a priority for us, will not be on the agenda.

Chair: (1:10) We have to break soon for lunch, then decide when
to meet in the pm.

* Nigeria

- Let me associate myself with the remarks of Brazil, especially
in recognizing your able leadership through the turbulent waters
of divergent opinions.

- Having paid my encomium to you in advance of the ending of this
meeting, I would like to make a clarification. The statement by
my delegation would seem to have preempted the statement by the
coordinator of the African group. We were under the erroneous
impression that the coordinator had spoken on the substance of
the treaty. We hope our remarks will not prejudice the submission
of the African group.

* EC

- Recall, it's the mandate of the SCCR to address and discuss all
IP matters which are of common interest and concern to the
International Community

- Issue of protection of broadcasters is not unknown territory,
solid basis in Rome, TRIPs, 1/4 of members of Rome are members of
EC.

- We here in the standing committee agreed years ago to prepare a
new broadcasting instrument.

- Now in this 11th session we have made good progress. I think
this is a fair assessment. Now any decision on our future work
must be based on the well reflected assessment of substance. And
this assessment has to continue. We certainly would not advocate
jumping to conclusions in any respect.

- One delegation has said it is not over--anxious. Neither are
we. We are not anxious to put just any instrument together. We
have to agree on substance.

- Transparency is needed in decision-making process; with
decision if conference should be convened, and with regard to the
timeframe for such a conference; and with regard to all of the
preparatory steps leading to a conference. Timeframe must be
reasonable and appropriate.

[ed. Note that a diplomatic conference is totally
non-transparent, with the negotiations taking place behind closed
doors -cd]

- Looking at the draft recommendations: they are very fair and
balanced [TM Fox Broadcasting]

- They do not prejudge any position. That's equally important.

- There are two key elements in the draft recommendations,
referring to the general assembly and the role of the 12th
session of the standing committee.

- With regard to the general assembly, it is the appropriate
forum to decide on the possibility to hold the diplomatic
conference. It must decide on the possibility, because if it
doesn't we don't have that possibility. I think it is as easy and
simple as this.

[ed. It's our understanding that this isn't a mere procedural
matter. A thumbs up from the general assembly would be a
significant step towards possible adoption. -dt]

- It is up to the 12th session of the standing committee to
assess the progress and it is possibly also up to subsequent
sessions of the committee, who knows, if our work is sufficiently
advanced.

- The preamble of your draft recommendations say in their second
paragraph say that the work is well advanced. I think that is a
fair statement, but it doesn't say that work is sufficiently
advanced, so as for example to decide whether we need a
diplomatic conference. We need more assessment on that very
question. We have to decide at some point whether work is
sufficiently advanced.

- From our viewpoint, these two key elements are well reflected
in the draft recommendations.

Chairman:

- You are right concerning the role of the general assembly. This
committee has already decided that at a given future meeting we
would assess the progress of the work. And we have said we will
consider whether to recommend a diplomatic conference and its
date.

- What's new since last November is the forthcoming series of
governing bodies of the WIPO next October; take advantage of
those meetings. Have General Assembly make its decision now, so
when this committee is ready to proceed with diplomatic
conference, it does not need to ask GA again.

- We could suggest recommending to GA to make provision at its
next meeting foor the possible convening of a diplomatic conf.
That would be the softer provision. Leave the executing of the
convening to a later date. We could make a document with this
revised paragraph available after lunch, probably in only one
language.

* Kazakhstan

- At this meeting, it would be useful to hear the views of all
the countries represented here. Constructive two days, despite
the fact that the consolidated text is not clear whether it's
just a draft or something else. Some proposals have been
endorsed by majority of delegates, others have not been the
object of wide consensus. To speak about the constructive
proposals, CIS general view, in spirit of consolidated text,
reflecting balance of views of majority of delegations.

- Better to speak about a *possible* convening of a diplomatic
conference.

- Re Sept/Oct deadline, we think that would be helpful

- So our general view is that these recommendations are in line
with the spirit of the discussions we have conducted over the
last 2.5 days. We support them and ask others to support them.

* Iran

- There have been positive achievements here -- diverse views and
concerns raised in compressed time.

- This was the first reading of the consolidated text, we
expected a revised text

- Ambiguity remains in certain articles

- Final provisions of this treaty have not been fully addressed

- We think a comprehensive treaty is more important than a rushed
and unexamined one in short time

- Holding a diplomatic conference is inevitable for this treaty.
Regarding the timing, we believe there is a rush in this regard.

- On subject matter: many delegations suggested removing
webcasting in order to reach conclusion. On other matters, there
was no consensus. The 12th SCCR meeting could be appropriate
time to evaluate progress.



* Chile

- Many areas remain lacking consensus.

Chair: We'll have another draft of our recommendation after
lunch. No dip conf convened until we're ready to recommend one.

[lunch break]

[Rev 1 of draft document issued by Secretariat after lunch break:

RECOMMENDATIONS

The Standing Committee on Copyright and Related Rights:

considering that the Standing Committee on Copyright and Related
Rights at its Tenth Session, from November 3 to 5, 2003,
recommended that the present session of the Standing Committee
should be convened to examine a consolidated text and to assess
progress of work with a view to a possible diplomatic conference
which would consider an international instrument on the
protection of broadcasting organizations,

considering that the work at the end of the present session of
the Standing Committee is well advanced, taking into account the
identification and analysis of substantive issues to be addressed
in the international instrument, the progress made in these
substantive issues during the deliberations in the present and
previous sessions of the Standing Committee; and considering that
the state of previous sessions of the Standing Committee; and
considering that the state of discussions concerning the
international instrument allows a diplomatic conference to be
prepared and negotiation to take place at that level,

having had an exchange of views and information regarding the
protection of databases,

unanimously agree on the following recommendations:

A. BROADCASTING ORGANIZATIONS

1. The WIPO General Assembly

the WIPO General Assembly IS RECOMMENDED TO MAKE PROVISION, at
its September/October session in 2004, FOR THE POSSIBLE
convening, AT AN APPROPRIATE TIME, of a diplomatic conference on
the protection of broadcasting organizations;

2. Twelfth Session of the Standing Committee

the Chair of the present session of the Standing Committee will
prepare, for the Twelfth Session of the Committee, a revised
version of the consolidated text in which the possible protection
of webcasting organizations and other proposals having received
very limited support will be indicated in square brackets. The
Twelfth Session of the Committee will take place from November 17
to 19, 2004,

3. ASSESSMENT OF THE PROGRESS OF THE WORK

AT ITS TWELFTH SESSION THE DISCUSSIONS OF THE STANDING COMMITTEE
WOULD BE BASED ON THE REVISED CONSOLIDATED TEXT AND THE COMMITTEE
WOULD ASSESS THE PROGRESS OF THE WORK. IN THE LIGHT OF THOSE
DISCUSSIONS AND THAT ASSESSMENT, THE COMMITTEE WOULD DECIDE
WHETHER TO DETERMINE THE DATES, AND THE NECESSARY PREPARATORY
STEPS FOR A DIPLOMATIC CONFERENCE

4. Basic Proposal

based on the discussion AND RECOMMENDATIONS at the Twelfth
Session of the Committee, the Chair shall prepare the Basic
Proposal for the diplomatic conference,


5. Regional Consultations

depending on the decision of the WIPO General Assembly under
Point A.1 above, the International Bureau shall organize regional
consultation meetings in Africa, the Arab countries, Asia and the
Pacific, Latin America and the Caribbean and in certain countries
of Eastern and Central Europe, and CIS countries, and
consultation meetings at the location of the diplomatic
conference immediately before its commencement.

B. DATABASES

The issue of protection of non-original databases will be
included in the Agenda of the Thirteenth Session of the Committee
and thereafter at appropriate intervals.]

[ed. Two major questions:

1) What is meant by "to make provision" in A.1? One possibility
is that this refers to a budgetary allocation for a diplomatic
conference. We've heard there is already such an allocation, in
which case this would be redundant. Another possibility is that
the General Assembly would give clearance to the SCCR for a
Diplomatic Conference at a time of SCCR's choosing. The EU
suggested this mechanism in the morning.

2) Section A.4 still says "the Chair *shall* prepare the Basic
Proposal for the diplomatic conference." While this proposal will
be "based on the discussion and recommendations of the
Committee," it is not conditional on them. -dt]

======

[4:30pmish]

Chair: I have distributed a new version of my recommendations,
Revision 1, for your consideration. I will prepare a revised
version of the consolidated text to present at the November
meeting.

The outcome of this meeting will be reported to the GA. The GA
is asked to make provision for a diplomatic conference at the
appropriate time, to make convenient the actual holding of
diplomatic conference. No date can be recommended to relevant
bodies now. Regional conferences. These are the steps proposed.

Up to the committee whether you would be able to approve these
recommendations.

* Egypt

- I tried to speak before lunch but you didn't see my flag

- This is a considerable improvement over the earlier draft

- I am speaking on behalf of African delegations

- I wish that before you submitted this that we'd had a
discussion about what the assessment should entail

- We don't know how to assess our progress here

- The last sentence in the second paragraph of the preamble is
redundant

- Also felt that word "unanimous" is uneccessary. It doesn't add
anything.

- Instead of "for the possible convening," "for the possibility
of convening" -- clearer language.

- Replace "is recommended to make provision" with something
clearer, the translations are really ambiguous, so it appears
that we don't know what this means

- Re paragraph 3: you don't need a separate paragraph 4; it
should be added to the end of paragraph 3.

- "preparations for a diplomatic conference including preparing
the Basic Proposal..."

- Regional consultations are valuable

* Russia:

- There has been considerable progress when compared to
preceeding sessions

- We have achieved main goal, vast majority of delegations have
no doubts about the possibility of achieving the approval of a
treaty at a diplomatic conference at the appropriate time

- The difference is on which provisions should be in the treaty

- At the November session, we should prep a more acceptable
decision regarding this draft treaty

- Regional consultations will also offer the possibility to
achieve agreement regarding the treaty

- So we can envisage the future adoption of this treaty.

- The document we've been given after lunch is fully acceptable
and we fully support it, and we would urge our colleagues to
accept the excellent proposals.

* Brazil

- We're unconvinced that it would be appropriate for the General
Assembly to decide at the next session to convene a diplomatic
conference

- We realize you have made a valuable effort to over some
compromise language that might bring us closer to a positive
outcome.

- We'd like to support Egypt's recommendations with respect to
paragraphs 2 and 4. Support deletion of last phrase of paragraph
2, and delete "unanimously" at the fourth preambular paragraph.
We would add "non-original" before databases.

- We're confused about "to make provision for" -- to clarify,
we'd suggest, "The WIPO General Assembly keep under consideration
beginning at the Sept-Oct session in 2004 the possibility of
convening at an appropriate time, a diplomatic conference"

- With respect to Para 3 and 4, we can go along with Egypt's
suggested changes, and add the term "possible" before "diplomatic
conferences", so the phrase would read, "and the necessary
perparatory steps for a possible diplomatic conference."

- WRT paragraph 5 on regional consultations. While we understand
that at times they can be useful, it is up to the states to
decide whether such conferences are appropriate. Was not
discussed at great enough length to decide in GRELAC.

- "Depending on the decision of the WIPO GA under point 1. a)
above and the recommendations off the SCCR, the international
bureau shall organize where appropriate and at the request of the
relevant regional groups regional consultation meetings."

* EC

- We welcome your revised version of the recommendations.

1. Re Brazilian recommendations: the situation with regard to
Europe may not be accurate, since May 1, the Baltic States are
member states in the EU. So it would not be appropriate to
refer to the baltic states in the summing up of regions. It
might be more appropriate to refer to regional consultations
without going into detail as to where.

2. I think one suggestion would get us consistency in the
text. In paragraph 3, last paragraph, we suggest replacing
"decide whether to determine" with "recommends," as in
paragraphs 4 and 5.

[ed. This would appear to take power away from the committee,
since they would only be recommending not deciding. -dt]

- In all we are very pleased with this text, and subject to
revisions I made we can go along with this paper.

* India:

- Thank you for incorporating some changes and ideas from
previous session. That's a good start for what could be an
eventual compromise.

- Like the Egyptian and Brazilian delegation, last phrase of
2d paragraph should be deleted "and considering the state of
discussions, etc"

- Third preambular paragraph insert "non original" before
"databases"

- Don't labor "unanimity" -- delete "unanimous"

- Regarding the first operative paragraph, we are slightly at
a loss contextually speaking what the word "provision" brings
to this paragraph. Is it budgetary? In which case we recall
that budgetary provisions are made in the context of
budgetary work and approved by the general assembly in a
usual fashion. We don't think there is a precedent for the
committee enabling a budgetary provision. The paragraph
should be modified as suggested by Brazil. That way we leave
the option to the Assembly, beginning at its session this
September and thereafter if it chooses not to take a decision
at this assembly. Leave open the *possibility* of a
Diplomatic Conference.

- Regarding paragraph 3, we agree with the EC that it would
be better to change "determine" to "recommend," and add
"*possible* Diplomatic Conference", so as not to preempt any
decision of the Assembly.

- Support Brazil on paragraph 4: Include "a possible" before
diplomatic conference.

- We also would support Brazil in the deletion of the last
part of paragraph 5. Such deletion would sidestep problem
with the incorporation of the Baltic states into the European
Union.

* Serbia & Montenegro

- Well-balanced recommendation. We might even strengthen it
a bit, not weaken it. In name of general consensus, 2 brief
comments:

- Re: paragraph 5, regional consultation, agree with Brazil

- Paragraph 2 of preamble, considering that the work is well
advanced -- this sentence should be kept.

* Iran

- In para 3, 4, 5, it seems like in the 12th session we will
have proposals and then regional consultations. But this
language is not what the delegation wanted this morning.

- We also have a reservation on unanimity, especially
regarding paragraph 2.

* Brazil

- We support EC proposal to replace "determine" in paragraph
three with "recommend"

* Chair: I am convinced that we will find some motions
concerning each of these proposals.

- Let's start with the technical proposals made by Egypt,
that have minor importance to the substance but are possibly
important in clarifying the decisions.

- Last sentence of second paragraph, 2.5 lines: delete it at
Egypt's suggestion and seconded by India and Brazil and
opposed by Serbia Montenegro. I don't know whether this
sentence would have such value that it should be absolutely
kept if there are delegations that want it deleted. I say we
delete it. What do you say?

* Serbia/Montenegro

- We said we thought this was good, but in the interest of
consensus, we agree to cut it

* Chair:

- Adding "non-original" -- it's agreed

- The last part of the chapeau of the preamble to delete
"unanimous" -- we delete it

- Leave A1 on the table for the moment

- Paragraph 3: EC suggested "decide whether to determine" to
replace with "decide whether to recommend," which India and
Brazil supported. Can we change this? Yes.

- Brazil and India suggested that "possible" be inserted
before "diplomatic conference" -- it's added

- Egypt suggested deleting 4, simplifying it and adding it to
the end of paragraph 3. It's done.

- Paragraph 5: EC delegation pointed out that some regions
have changed status, and Brazil suggested that the middle
part of the paragraph which refers to the names of the groups
and regions be replaced by "...where appropriate and at the
request of the relevant regional groups."

- Paragraph A1: Egypt suggested that "for the possible" be
replaced by "the possibility of" convening.

- Egypt, Brazil and India questioned what "make provision"
means. Does it mean budgetary? We should find a formula that
accounts for the reservations in the remainder of the
document, namely a strict criteria for further work and
assessment -- that we need real time and work.

- Can we replace "for the possible" with "possibility of"?
It's a softening -- it leaves to the decisionmakers in the
General Assembly the space to consider in an even more open
way. Is that OK?

* India

- We accept Egypt's change, speaking on behalf of Africa.
There is another phrase to be replaced -- "to make
provision."

* Chairman

- For now let's provisionally say we'll change it to
"possibility of," and then move on to the provision question.

* Uruguay

- Spanish translation already followed Egypt's "possibility
of convening" suggestion

Chair:

- Then it's carried -- it was in the air [giddy laughter]

- What is "making provision"?

- I tentatively suggest, at the behest of the legal experts
in the house, that we consider replacing "is recommended to
make provision" with "consider"

* Brazil

- Thank you for this new suggestion, but first consider the
suggestions that have already been made, including Brazil's:
"WIPO GA is recommended to keep under consideration,
beginning with the session in Sept/Oct in 2004 the
possibility of convening at an appropriate time, of a
diplomatic conference."

* Chair: I thought "consider" was simpler, and delegations
could agree.

* China

- All interested parties have expressed their views on the
Chair's proposal and on the major items, we've come to a kind
of consensus. All parties have made concessions in the
discussions and this is a very good thing.

- I like replacing "is recommended to make provision" with
"consider"

- The formula gives flexibility so it is easier for all
parties to accept. Thank you.

* Chair

- Would the 3 delegations supporting the longer version be
able to consider the simple word "consider"?

* Kazakhstan

- As China said, we recommend replacing "is recommended to
make provision" with "consider"

- We want to make progress and there might be commas and
words that are important and we want to produce a literate
doc and that's why we make our proposals.

- But if other delegations have changes, let's talk about
them.

* India

- Chapeau of the operative part has the word
"recommendations" and we wonder if it serves any useful
purpose to repeat this in the first paragraph

- We recommend "may wish to keep under consideration
beginning at its Sep/Oct conference 2004, etc..."

- This takes up Brazil's suggestion that "recommendation" not
be repeated

* Chairman

- These suggested formulations tend to make the paragraph
softer and softer and softer, but there is a limit.

- We should make it possible for the Director General who
normally prepares the documents for the Assembly to be able
to prepare meaningful reporting and meaningful proposal. If
one proposes that the body would wish to keep under
consideration, then of course there is no clear suggestion
what to do [laughter]. The word "consider" without any
qualification would serve as a concrete proposal from the DG
of this organization to the body of representatives of the
members states and ensure that the member states has ample
room to maneuver when consider. Can you consider "consider"?

[ed. The chair doesn't want to let go and keeps pushing his
language, despite the expressed opposition. -dt]

* Brazil

- In a constructive spirit, we're willing to consider
simplification

- The reason we're insisting on our proposal is that when we
made it there didn't seem to be any objection by the
delegations. But if you are concerned as chairman that we
have simpler language then perhaps we can work along those
lines.

[ed: There are other, better ways to make this less wordy.
-ws]

- We suggest as a compromise "The WIPO General Assembly may
wish to consider, beginning at its September/October Session
in 2004"

[laughter, murmurs, perhaps some hisses]

* Chair

- This line of discussion might make us late

- Nevertheless, I'll stop for a moment to consider India's
suggestion: "might wish to keep under consideration" -- this
would lead to a very open initial proposal on what to
consider and whether to consider at all

- It would be advisable to make provision for a proposal to
the General Assembly to consider in proper terms, *something*
-- can we adopt language that will make it possible to
suggest to the General Assembly that it consider what is
being proposed by the Director General?

* India

- We had pointed out why we thought "recommended" should be
deleted. We would like to hear from delegations that use
English in their daily course of business whether the term
"may wish to" is appropriate here.

- When a subordinate body like the SCCR submits to the
superior body like the General Assembly, it's implicit that
the subordinate is requesting of the superior body and
seeking its indulgence to consider matters -- whether we have
that or not in the process is a very gentle submission on the
part of the subordinate body that the superior body may do
certain things; it's up to the superior body to decide what
to do

- We do not in any way take away from the force of these
delegations strongly in favor of the diplomatic conference by
adding what seems to us a polite way of requesting the
assembly to do or consider certain things. We think it's
appropriate to keep "may wish to consider."

* Brazil

- We think it would be very useful if you would ask the
opinions of other delegations as well. But if you are
concerned that "may wish to" would weaken the text, then we
could go back to "is reccomend to consider beginning at the
September/October session in 2004."

* Chair

- Brazil, are you suggesting "is recommended to consider
beginning i.."

- That would be very near to the narrowest opening to this
situation.

[The chair appears to have adapted Brazil's suggestion.]

* Egypt

- The issues of databases is still important; the African
group says that the last paragraph doesn't change this much.
We're not looking for a long discussion here, but as a matter
of procedure if delegations want to share info or exchange
views, there's nothing that prevents a delegation from
raising it under "any other business" or request to have it
added to the agenda.

[i.e. Delegations don't need to keep "non-original databases"
on the agenda in order to share information about it. -ws]

- If there's still interest in a year or two or whatever, we
can revisit it.

- We think the last paragraph is redundant, other delegations
can bring this forward whenever they want to

* Chairman

- It's been suggested to cut the database item because it's
redundant, it can be raised later if necessary. Can we
consider how to conclude this item?

- We always have on the agenda "items for review," "other
matters". There is always the possibility for delegations to
raise before a meeting the possibility of adding other items
to the agenda.

* EC

- My delegation would like to keep B as proposed in your
draft.

[ed: quelle surprise -ws]

- The concerns of my Egyptian friend were taken into account
in this text which were a consequence of the discussion we
had on Monday regarding this issue.

* Chairman:

- What does Egypt say? Can we keep this as-is? Revisit it in
one year?

* Egypt

- I won't insist very much, this is a principled position. I
think there's the possibility of taking this into
consideration in your paragraph.

- Here's a minor drafting change: at the end of the
paragraph, add "and therefore at appropriate intervals, at
the request of interested delegations."

* Chairman

- Would this be acceptable to the EC? Yes.

* Brazil

- If the EC has agreed to this formulation we would prefer
not to interject. Thank you.

* Chair: I suggested this in our drafting session [gavel]

======

OTHER ITEMS FOR REVIEW

* Secretariat

- A new WIPO publication, "A Guide to Licensing on Copyright
and Related Rights" will be published very soon in English.

========

OTHER MATTERS

* None

=========

CLOSING OF THE SESSION

* Chairman:

- Special procedure to adopt the report

* Secretariat: We'll send out a draft report to all attendees
and observers inviting corrections to their reports,
deadlines in two months,

- When we get all responses, we'll send out the final report.

* Chairman

- Pleasant obligation: warmest thanks to deputy directory
general on my right hand side and to her international team
for all their knowledge, skill which make all this much more
feasible and possible.

- We see how sensitive these things may be in political, legal, and
technical sense. Thank you to all those in the room. Yesterday was a day
of record efficiency. Everyone was disciplined in sticking to time limits.

- Thanks also to the interpreters who had stressful moments when someone
was speaking very rapidly.

* Australia.

- Thanks.