[DMCA-Activists] Day 1: WIPO Special Committee on Copyright and "Related Rights"

[Seth Johnson]

> http://www.public-domain.org/?q=node/view/65


Broadcasters Locking Up the Public Domain, Day 1 

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


Click here for more info on the treaty and this meeting of the
copyright committee
at WIPO (http://www.public-domain.org/?q=node/view/65). 



12th Session of the SCCR, Geneva


Election of Chair and Vice Chair

Chair: Jukka Leides

17 November, 2004

Notes by:

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

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

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

Jamie King, address@hidden [JK]

Volker Grassmuck, address@hidden [VG]

--

Copyright-Only Dedication (based on United States law)

The person or persons who have associated their work with this
document (the "Dedicator") hereby dedicate the entire copyright
in the work of authorship identified below (the "Work") to the
public domain.

Dedicator makes this dedication for the benefit of the public at
large and to the detriment of Dedicator's heirs and successors.
Dedicator intends this dedication to be an overt act of
relinquishment in perpetuity of all present and future rights
under copyright law, whether vested or contingent, in the Work.
Dedicator understands that such relinquishment of all rights
includes the relinquishment of all rights to enforce (by lawsuit
or otherwise) those copyrights in the Work.

Dedicator recognizes that, once placed in the public domain, the
Work 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. --

Adoption of the Agenda

Proposal by Chile: (Other Issues) Limitations and exceptions
agenda item be taken up before the agenda item on Broadcasters
Treaty.


Chair: Wants one hour on L&E discussion today. Then on Friday, we
could have more discussion on the Chilean intervention.

Zambia: Requested a clarification on the programme of work.

Chair: We would discuss Chilean proposal for an hour to taken
into account certain delegations who came specifically for this
agenda item and will not be in Geneva later this week.

Chile: Education, libraries and disabled persons. The General
Council of Unesco said national legistlation should take into
account digital works with respect to libraries, disabled
persons. Want to limit copyright and related rights with respect
to disabled people's access to knowledge/culture, distance
culture. Want to talk about positive initiatives so that
libraries and educational institutions can be helped.

India: Proposal by Chile is important and interesting one. Idea
not to have blanket exceptions. Discuss nature and scope of these
exceptions with respect to Chile's proposals (education,
libraries, and disabled). Seek clarity.

Argentina: We think it is important to discuss the matter. "We
think this information exchange is positive." Not a norm-setting
exercise.

Paraguay: View Chilean proposal positively. Have exceptions for
the blind. In digital age, these exceptions are of paramount
importance for the blind.

Syria: Exceptiosn are nothing new in IP legistlation.

Uruguay: ?

Iran: Supports the discussion of Chilean proposal.

Brazil: Very interesting proposal. Support discussion along the
lines proposed.

Egypt: Attaches great importance to libraries, education, and
people with special needs.

Senegal: Requirements related to education, vulnerable citizens,
"Question". Do we have to adopt a document with only with
exceptions? He who talks about exceptions, also deals with
principles which are dealt with in international conventions.

Bangladesh: We support this, but would like to ask the Chilean
delegation if the discussion of these limitations and exceptions
deal with the content onf conventions which have already been
agreed upon?

Costa Rica: We think we should broach the subject -- we have some
general views on this in my country, but would value an exchange
of view.

Algeria: Thanks to Chile for making this proposal. This is a
matter of concern to us because we are a developing country --
but will Chile clarify the purpose of this proposal: is it to
re-examine international conventions, or to assess the
application of limitations and exceptions in existing
international instruments?

Dominican Republic: Would like to have this discussed here

China: This is an old problem: ever since copyright was created,
all countries main concerns has been the use and limitations of
the rights. Per article 27 of the Human Rights declaration,
copyright is a human right: members of society should share in
the benefits created by science and literature and have the right
to participate in society's cultural activities, and so authors
should be encouraged. This is also a new problem. How are the
rights given to producers limited? The law has not stipulated
exceptions. We should make sure that the general public will be
able to take part in educational and cultural activities. One
problem is the question raised by Chile: "Under this new tech,
how do we deal with traditional limitations and exceptions, give
them adjustment, find new balances. On the one hand the interests
of the authors won't be impeded and the rights of the public to
take part in education and other activities will be upheld. We
lack experience with this, like many developing countries, and we
hope to learn from the other developing countries and the
developed world, so that everyone can benefit from new
technology. The Chilean proposal is worth discussion. As to how
to discuss it, I have a question for Chile: do they want to make
this one item during our session, or should be have a special
meeting to discuss this?

Jordan: We support Morocco and Egypt in their question, and I
have another: there are several categories of disabled people
here? Is it just the blind, or other categories as well?

Chile: Thanks to those who shared interest and addresses queries.

Question: does this go further than existing WIPO agreements?
Answer: No, there's a great deal of flexibility in BERNE, TRIPS,
and the WIPO instruments, the goal is to uncover the minimal
excpetions to let the system work well internationally -- how can
we find the formulae by which all countries can find or use these
limitations.  Question: Who are the beneficiaries:  Answer: We're
talking about education and the disabled and all those who cannot
gain access by traditional means. As to disabilities, we're
thinking of the blind, deaf, paraplegics, who cannot gain access
by traditional means.  Question: How should the work proceed? 
Answer: We should gather international success stories so that we
can see which are essential for the good working of the system
and then find a formula to put these exceptions into effect in an
international setting. It's a major stride to be discussing this
here and today, and this should be a standing item on this
committee's agenda.

UNESCO: UNESCO has been addressing the issue of a fair balance
between the IP owners and the general public. We conducted a
study two years ago on the nature and scope of L&E's in light of
the key mandates of UNESCO. It has been a very useful
contribution to the international debate on this issue. WIPO's
Prof. Ricketson's study is also very useful for member states.
This is an important issue and worth discussing, and this
committee of WIPO is the best platform to address the issue. But
at the same time it seems very important to put the issue into a
framework. What is the ultimate objective of that discussion?
While deserving all the attention possible, especially in the
interest of the developing countries, the forum has to make its
direction clear. If it's just a matter of exchanging views, a
simple meeting would suffice. The objectives of the DDeclaration
of Human Rights and others is to promote the cooperation of the
developing and industrialized countries. This should be conducted
in light of the international conventions. An exchange of
opinions and practical experience would be very useful --
studying th epractical interpretation of the three step test by
courts and lawmaking bodies would be very useful. UNESCO is ready
to collaborate with WIPO if this remains on the agenda of the
standing committee.

Chair: Yesterday I was at a meeting where the limit on speaking
was two minutes, and the average of these interve

World Blind Union: Keeping this under two minutes will be a real
challenge. Fairness is at the heart of this issue -- restrictive
IP can stifle education and other sections of society. We need
advice from WIPO, training sessions and so forth.

International Publisher's Association: We represent 78
publishers' associations in regions and countries, including
Chile, Egypt, India, Brazil and many other countries here today.
We want a fair balance: but this is a sensitive issue. The key
isn't the extent of limitations and exceptions, but cooperation
between stakeholders to achieve solutions. We must discuss
cooepration. Publishers in many countries work with educators,
disabled groups, etc to achieve goals. We welcome the idea that
this isn't about modifying international treaties. For example,
look at the EU, which tried to achieve harmonized exceptions, and
produced naught but a list of exceptions and no harmonization.
This was acheived by countries with common economics and culture
-- it's inconceivable that this will be reached on an
international level. "Soft copyright laws" kill local publishing.
In the digital environment, cooperation is the only way forward.
IPO wants a proviso that it is impossible to harmonizing, don't
weaken copyright, but promote cooperation

Chair: We will continue this discussion on Friday. In my own
country we consider this discussion very important. I as the
Chair can say this is very important.

Now we have some treaties to conclude.

[ed. "to conclude"? -DT]


======

Discussion on the Broadcast Treaty


Let's talk now about the broadcast treaty, and have government
delegations make general observations. Tomorrow we'll talk about
the substantive items. Before the end of this afternoon I will
offer a tentative work program for tomorrow that may also extend
to Friday morning. Then we will assess the progress. We are here
to make progress.

The General Assembly in Dec made a clear declaration and request
to this committee that this committee should accelerate its work.
So we'll try to accelerate the work to make progress. Why
wouldn't we come here if we wouldn't come for progress? Then in
the end we will of course look at the necessary future steps.

[ed. There was some disagreement at the General Assembly on what
their recommendations to SCCR should be. Brazil and India
questioned the instructions that were eventually given.

We have a new draft and you've had some time to look at it. All
changes have been indicated in this text to make it clear to you
to understand what has happened. All additional text has broken
underlining. As promised and agreed in the June meeting, certain
items which have received extremely limited support have been put
within square brackets, and also indicated with underlining.

[ed. Except for Brazil's suggestion that Article 16 on technology
locks be deleted. For a complete guide to changes, see
http://www.public-domain.org/docs/comparison.pdf -DT]

Alternatives have been added, eg on term of protection. On the
basis of debates, additions have been made to the explanatory
comments. In the area of Arts 9, 10, 11, 12 regarding acts
following initial fixation, a different solution has been added
in footnotes. In many places in the document I have taken the
risk of adding one last paragraph in the explanatory comments and
indicated where there are areas where evidently a great majority
is in favor of one or another alternative. Of course there is
nothing binding. That is to indicate to you how the situation
looked after the debates of the June meeting.

Uruguay: We are pleased to see you again guiding our work and we
thank you for the work you've done in submitting this revised
version of the consolidated text.

Uruguay supports concluding a treaty as soon as possible.

Over the years the committee has made progress, and today we have
a very sound consolidated proposal. We imagine that consensus
exists

Algeria:

[missed]

Egypt: (on behalf of the African Group): We are supportive of the
work to update the protection of Broadcasting organizations,
culminating in a diplomatic confernece (conference). We want a
balanced approach that takes into account the interests of the
public and our policy objectives, such as access to knowledge.
TPMs are a complex issue which require further study. We are
satisfied to see the rich debate from different participants
among government delegations and others. The consolidated text
shows areas where we need to keep working. In conclusion, the
African group wishes to reaffirm the importance of taking into
account the needs and concerns of developing countries. There is
a technological and material gap between broadcasting
organisations in developing countries and developed countries,
particularly African countries. We need to be attentive to this
diffrence to get agreements with wide adherence.

Brazil: I have the privilege to speak on behalf of the group in
favor of a development agenda for WIPO. The last general assembly
asked SCCR to accelerate its work with a view to convening a
diplomatic conference in 2005. The group of cosponors of the
development agenda would like to reaffirm its conviction that
development concerns must be included in all WIPO activities,
including norm setting. IP protection should not be an end in
itself, nor should upward harmonization proceed irrespective of
countries' levels of development. Action is needed in all
countries to insure costs don't outweigh the benefits of IP
protection. New norms in the field of copyright and related
rights can have a serious impact on the development and social
policies of countries in several crucial areas. The provisions of
any treaty in this field must be balanced and taken on board the
interests of consumers and the public at large. Access to
information and knowleddge sharing are essential elements to
foster innovation and creativity in the informatin economy.
Adding new layeers of IP protection to the digital environmment
could seriously obstruct the free flow of info and scuttle
efforts to create new arrangemets to promote innnovation and
creativity.

The group also considers the controversy of using TPM's in the
digital environment to be of great concern. The group considers
that the development implications of the proposed treaty are
unclear and should be examined taking into consideration the
interests of consumers and of the public at large.

[CD: BRAAAAAAAZILLL!]

India: We have discussed our concerns, and we have taken serious
heed of the SCCR urging the acceleration of work. To that end we
have held consultations with all stakeholders on these issues. We
believe there are issues that need to be resolved by the
stakeholders in our country and internationally before we can
proceed.

We therefore feel that the questions before us and the articles
before us need to be look at carefully, especially those that
have caused difficulty in the past. We should narrow down the
articles and see how quickly we can move so that any diplomatic
conference convened could yield positive results. We don't want
to fail as we have in the past, because of one issue. We should
not rush into this before we are fully prepared.

We should not forget the development dimension and implications
of a broadcasters' treaty. We must be sensitive to the
implications it might have.

Education, health etc will be impacted by a broadcaster's treaty.
These should be investigated before any diplomatic conference.

Iran: This is the second attempt to narrow the views of the
delegations. This will be long and time-consuming. We need to
protect broadcasters but not at the expense of other
rightsholders. We're worried about access to information and
public interest. If we are going to accelerate this work, we
should put aside the controversial elements, especially
webcasting. The final clauses in the consolidated text shoudl
have an overall revision.

Morocco: We will be flexible and cooperate in order to get this
out the door in keeping with the general assembly's exhortation
to hurry up. We endorse Egypt's comments on behalf of the African
group to expedite, with a view to having a diplomatic conference.
We also think it's important to strike a balance and take
interests of all stakeholders into consideration, and to study
the limits and scope of protection. We also believe we are
required to take into consideration other aspects which could
assist us in accelerating our work.

Perhaps we could hold consultations outside the formal sessions
so to arrive at a consensus.

[DT: It's unclear whether Morocco is referring to regional
conferences, which have been used in the past as a tool to whip
countries into shape without troublesome debate on an
international level.]

Serbia: On behalf of Central European and Baltic states, we would
like to congratulate the chair. We are looking forward to
discussion.

Mexico: The scope of protection should be handled in due course.
There's consensus on the need for this, so we appeal to members
to ship a treaty.


European Community: On behalf of the EC and its 25 member states,
congratulations Mr. Chairman.

We believe that the new text gives a better overview of the
various opinions expressed in this committee over the last 3
years and a more precise view of the differences remaining.
Although it is a consolidate text, and not a basic proposal, we
are hopeful that on Friday the number of issues will be further
reduced.

There are still several issues to address. There are 2 in
particular that stand in the way of the conclusion of a treaty.
Issues that cannot be overcome by a mere vote at a diplomatic
conference.

First, the scope of application. Second, the nature of rights.

As regards scope, there seems to be consensus that transmission
by wire should be covered. But major differences still exist on
simulcasting and webcasting. In the opinion of the EC it would be
a poor result if 43 years after the Rome convention and despite a
technological revolution since then, cablecasting would be the
only new elements on which we could agree. We believe the time is
probably not right yet to include webcasting or webcasting
organizations in the scope of the instrument, but it would be
logical to give protection to broadcasting organizations for
simulcasting over the web of their own broadcasts. We still think
webcasting is important and needs to be addressed by this
committee.

As far as the nature of rights, according to the Rome convention
we give broacasters several exclusive rights. The protection of
broadcasters has been harmonized by the EU since 1992. In the EC
protecting broadcasters with IP is established and works well. We
don't want to go backwards. The footnotes in Article 9, 10, 11
and 12 might seem appealing and to allow each party to maintain
their own system. But it raises questions about the level of
harmonization we wil achieve and how the two systems will
interrelate. Do we need some clause on material reciprocity? A
new treaty should, from our perspective, include Rome-plus
elements and certainly shouldn't go below Rome.

We also believe that we have come a long way.

Ukraine: Article 3 in the consolidated text -- the scope of
coverage -- also covers cablecasters and so it's useful. We also
support alternative b to article 24, namely that the eligibilty
shouldn't be reserved to countries that have adopted WCT and
WPPT.

Japan: We should accelerate our work based on the revised
consolidated text and move to a diplomatic conference where we
can resolve the outstanding issues.

Senegal: The consolidated text puts us on the right track. The
SCCR [CD: Standing Committee on Copyright and Realted Rights,
i.e., this committee] has made a lot of effort but this matter
has been under discussion for many years. This document would
enable us to update the degree of protection for broadcasters.
There are one or two outstanding issues that are not
insurmountable. The basis for this is the Rome Convention. We
must focus our efforts on issues that would move us to a
Diplomatic Conference. Some questions might be more timely than
others. Our target is to improve the rights o the third category
of beneficiaries under Rome, namely broadcasters.

Bangladesh: Local situation -- private and public broadcasters
have a broadcast right that persists for 25 years from the date
of airing. We're reforming this rule for the new technological
environment. We want Webcasting dealt with in another treaty.

New Zealand: Congratulations to the Chair and thank you for the
new text.

New Zealand reserves its position on the substantive issues, but
it is apparent there is a high degree of consensus and few
substantive issues on which there is a meaningful division of
opinion.

Review of rights of broadcasters has been on the table for many
years. Rapid progress of technology gives needs to update legal
provisions. New Zealand copyright legislation gives same
protection to broadcast and able programs and literary works.
Protection is also provided for performers. We are not aware of
any conflict between broadcasters' rights and [missed]

No disagreement within committee that cablecasting should be
updated by another treating...

There remains significant opposition to the inclusion of
webcasting. At an international level it's prudent to deal with
broadcasters and cablecasters and deal with webcasters at a later
stage. Webcasting is important and should be dealt with in the
future.

States should be able to tailor their regulations.

All countries have an interest in ensuring they have a sucessful
broadcasting industry through which they can devlelop and share
their cultural life. This committee can usefully contribute to
that goal..

Norway: Thank you Chair, and thank you for the morning session on
A/V performances.

Goal of reaching an international agreement on these issues --
rights of performers / broadcasters.

We firmly support the goal of updating protection of
broadcasters, and it should focus on the pressing needs of
traditional broadcasters.

We now have an excellent text in front of us.  There is a great
deal of consensus here. More can be found in focussing on the
remaining issues.

United States: We need to promote and protect communication to
the public by all technological means, and every country needs
it, developing or industrialized. Exclusive rights will promote
investment in this important task. We must not forget the impact
of the development of technology, which means we have to include
all technological means including the increasingly important
matter of Webcasting. There's no good reason to exclude one
category of communicator from this instrument that we've taken so
long do develop merely because the means by which they make their
material available to the public. The rights afforded to
cablecasters, broadcasters and webcasters much be considered:
protection must be adequate to protect the legitimate interests
of casters without impinging on the rights of creators. We
shouldn't leave the new technology of webcasting behind to
languish in this process.

Russian Federation: Congrats etc. Success etc. Gratitude etc.

A sound basis for discussing individual provisions and articles.
We share the views expressed by those states who want to include
here the subject of webcasters' protection. Protection in cable
organisation is another apt topic. It is advisable to keep the
current terminology -- in particular with regards to
broadcasting. Further, the provision to cover traditional
broadcasting organisation and also include a provision concerning
protection in relation to signal _prior_ to broadcasting --
encrypted signals are included in the article; we believe there
is not sufficient reason to establish any other requirements.

[Didn't note speaker two.]

Chairman: Zambia will speak tomorrow. We will cover the remaining
issues in reverse-order of difficulty, so the Webcasting stuff
will come at the very end.