WIPO Standing Committee on Copyright and Related Rights, 14th Session, Day 2 May 2, 2006 Geneva Notes taken by: Thiru Balasubramaniam, thiru at cptech dot org, Consumer Project on Technology [TB] Teresa Hackett, teresa dot hackett at eifl dot net, Electronic Information for Libraries [TH] Gwen Hinze, gwen at eff dot org, Electronic Frontier Foundation [GH] Jason Pielemeier, jason dot pielemeier at yale dot edu, Yale Information Society Project [JP] [NOTE: This is not an official transcript. It's our best effort at providing a faithful set of notes of the proceedings. Any errors and omissions are unintentional and regretted.] -=-=-=-=- Copyright-Only Dedication (based on United States law) Except where indicated in relation to specific text in the following material, 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. -=-=-=-=- 10:20 am Informal Information Session: Professor Delia Lipszyc, Buenos Aires University, (Argentina) Professor Ande Lucas, Nantes University, (France) [Note we did not take notes of this session. Professor Lucas gave almost the identical presentation at the Group B regional consultation meeting on 13 September 2005 in Brussels. EFF's notes of that presentation are at: http://www.eff.org/IP/WIPO/broadcasting_treaty/notes_sept05.php] --- SCCR Formally reconvened. 3:25 pm Ukraine: Supports the inclusion of the appendix on webcasting. This is optional and can be acceded to at any time by Member States. This is very democratic. Otherwise, we have to return in the future and discuss the other issue again. Chile: Thanks WIPO Secretariat for automated TPM report and also for info session. Would like to see more info sessions with other experts eg economists and representing other points of view. We support the comments of Brazil on the fact that all the proposals were not in the main treaty document (Draft Basic Proposal - DBP) and put into separate Draft Working Paper. We'd like to emphasize that even if it were proper to draw a distinction between those proposals which have received support and those that have not, we think that Chile's and Brazil's proposals should be included in DBP b/c previously rececived support. Also want to support comments of Uruguay that we should have studies of likely impact of treaty. Lack of studies very evident in webcasting area, where lack of studies means we hve no way to evaluate proposal, particularly since no country appears to have adopted these sort of rights. We think that treaty should reflect rationale of creating IP rights, and that if necessary to have that refelected in this treaty, we should, have more meetings. Morocco: We have to remember the terms of reference from the General Assembly, to convene a Diplomatic Conference at the latest in 2007 in order to protect Broadcasting Organizations. SCCR therefore needs to step up its progress. We should develop a consolidated text to make rapid progress, to go through the document article by article. The Rome convention challenges and digitization encourage us to improve protection broadcasters. This should not be to the detriment of right owners (authors). This could prevent access to knowledge and culture. Therefore our text has to be flexible and has to look very cautiously to exclusive rights and signals must not be monopoly operations. We have to concentrate on conventional broadcast organisations.before we move on to any other organizations. The diplomatic conference is the right forum for the discussion of this issue. China: Under your leadership we believe this meeting will achieve its expected results. Moldova: I think there's a good spirit of cooperation which will continue for the purposes of creating a new treaty. We understand that the draft doesn't rresolve all existing problems but we believe we can resolve these now. We understand the concerns of some delegations but the study of this issue has already taken several years involving leading experts of WIPO showing how important it is to produce such an instrument. Furthermore, this is included in the domestic legislaton of many countries including our own. The appendix on webcasting moves with the spirit of our times. We support the DBP and that the Secretariat can start to look at the text article by article so that in 2007 we can have a d/c. Bangladesh: The driving force for the growth of our economy is increasingly changing from nat resources to IP, that is the knowledge economy. Most of the countries in the world, including Bangladesh, are facing acute problems of piracy. Copyright law was renewed in 2000 in order to harmonize copyright w/ the international community. It was further amended in 2005 to include TRIPS agreement substance including WCT, WPPT, software, database etc. We are planning on implementing a system to strengthen copyright enforcement. WIPO has been a persistent support (sic). First, we are not against the idea of drafting or concluding a treaty for the protection of the rights of broadcasting organizations. Second, we don't suffer from illusion that such a treaty is not achievable. However, the real quesiton is 'how do we approve it?'. Thirdly, our mandate is to 'agree' on substance for the treaty. We must take into account the common concerns of the majority of the delegations. Fourth, we must seek to include folklore and traditional knowledge. Fifth, it must be recognized that members have the right to protect TK in their country. W/ respect to Draft Treaty. Article 12 should be expanded. Article 13, term of protection is proposed to 50 years; our national legislation gives only 25; the commission should set base of 20 years. -Australia is still consdiering the implicataions of Article 13. -Otherwise Australia can agree to the proposal convening a d/c. Australia maintains its position that progress should continue towards convening of a dip con. Our general position: * Agree w/ confining protection in treaty itself to over-the-air broadcasters and cablecasters. We are still considering the optional appendix on webcasting. * Still prefer the option of confining beneficiaries of protection to those orgs that both transmit from and have headquarters in the same treaty member country. * Still concerned about implications of Art. 6 for its domestic retransmission arrangements. Still determining its position on Art. 6 and note that countries have discussed the possibility for reservation or other mechanism. [GH: Canada] * Still concerning Art. 11 on pre-broadcast signals and reserves its opinion on that. * Otherwise, we agree w/ the DBP. El Salvador: El Salvador would like to reserve the right to speak when it has a full delegation present. Phillipines: We support the statement of Thailand yesterday on behalf of the Asian group. In addition we'd like to put into the record some relevant excerpts from the regional meeting: * Agreed that the rights of br orgs have to be updated in the face of new technologies and that Rome Conv has been rendered inadequate to protect these rights. * Delegations reached informal consensus for most provisions. The Phillipines considers media as an important pillar in democratic communications. If democracy is indeed a gov't of the people for the people and by the people, people need to be able to participate. Toward this end we believe very strongly that a free media plays a crucial and very important role. Thus it is in our interests to have a free and open media. Thus we support a treaty that would insure the rights of broadcasting organizations if the treaty's scope is limited. We are not in the position to support any web or simulcasting. We should only consider items that we can agree on and carry forward to the GA. After more than 10 years we simply have to move on. Sri Lanka: We support the comments of the delegation of Thailand on behalf of the Asian Group. In Sri Lanka, B/O even in the public sector support the treaty while some user sectors do not support it. Japan: To discuss article by article is very time consuming, so we should discuss according to the 8 packages prepared by the chairman yesterday. Burkino Faso: Role of broadcasting has become more important thanks to the introduction of democracy. Broadcasting is a development tool. We recognize the importance of the protection of brod orgs in a balanced manner. Existing instruments should be updated immediately. In order to do that, we consider that it is extremely necessary for the WIPO to convene a dip conf. We don't have major objections to this document. As regards webcasting, we don't want to show a lack of solidarity w/ other countries that have spoken and in light of what was said at the lecture this morning, I think that there is a lot of concern regarding webcasting. We should take sometime to better understand this form of broadcasting. The hesitation surrounding this document are not without a precedent. International negotiations on the subject have always thrown up reservation. There is no doubt nonetheless that we need an instrument to protect broadcasting organizations. Indonesia: DBP should only focus on signal piracy. Unfortunately, we have some concerns about the treaty. my delegation has found that the language goes beyond Rome and TRIPS. May create adverse impact to A2K and access to material in the pub domain, and the rights of copyright holders. Broadcast can be an essential source of information (educational purposes). Process of any norm setting regarding broadcasting orgs shall not compromise those rules and the rights of public at large. Exceptions and limitations should be formulated in such a way that can be better used by developing countries. In this regard, we see the merit in the Brazilian proposal on the general public use clause. Any attempt to create new rights should take into account the larger public interest.As for how we should proceed in this meeting. We should use this meeting to forge common understanding and move closer. However, holding a Dip Con in the near future is too far given the complex nature of the subject. We call for more balance, transparency and simplicity in the work of the SCCR. All Member States' proposals should be treated on an equal footing. Singapore: We support the convening of a d/c and the conclusion of a treaty as long as the views of MS are taken into account and heard in the final outcome. European Community (Tilman Leuder): Would like to make three points: 1. We support the DBP and the working paper. 2. Also support inclusive debate on both documents. Excellent point of departure for structured debate. 3. We urge all the delegations to have a structured debate according to key topics that have crystallised themselves and not an article by article approach. There are key issues at core of broadcasting organizations' operations and business and should focus on that. Otherwise we wouldn't have time to get to the key issues. We do not come unprepared to these meetings following meetings in Brussels. Have a series of constructive ideas and proposals on limitations and exceptions, TPMs and their interplay, that want to bring along and raise for debate. Way to have constructive debate about how to have protection that does not erode scope of protection for broadcasters and for beneficiaries of exceptions and limitations. Should move forward on discussion of key topics, not time-consuming article by article approach. Ghana: Ghana passed new Copyright Act that took effect June last year. This meets the minimum requirements of WIPO treaties and TRIPS. Protects rights of B/O - including rt of reproduction, rt of making available. Limited to protection of signals. Phonogram producers have enhanced protection through WPPT over 10 years ago. Now time for enhanced protecion of broadcasters As decided by the last meeting of the GA, it is about time that the rights of b/o are enhanced against emerging technologies. CR and RR holders in content are protected, understand concerns expressed. DWP provides good basis for moving forward on discussions for new treaty. Reiterates its request that comments made at May 2005 meeting of part of Africa Group in Nairobi be made public as they may assist our deliberations. We identify with the view of the Nairobi meeting that linking webcasting with broadcasting is premature. Protection of webcasters may be a future agenda item but should not form part of this treaty. TPMS - since provided for in WPPT, should also be available to broadcasting organizations. Care must be taken to ensure that public broadcasting organizations not able to constrain or restrict broadcasting of info with TPMS We repeat that authors, performers have enhanced protection through the WCT and WPPT. It is therefore time to enhance the rights of broadcast organisations. Chair: That brings us to end of first part of Work Program, statements on Chair's text and new proposals. As I promised yesterday, I will offer some response to the comments, questions, remarks made in the interventions. First, and this has also been conveyed to me by several measures, a comment about stage of work. How do we characterise the level of the work? We are working on the technical level for the concluding part of the work for the d/c that will be convened. As a diplomatic conference is a rare thing, I've been asked to explain a little. We are preparing the basis for the final negotiations based on proposals by member states and groups of member states. Those proposals have been consolidated into one or in case of last two meetings, two documents in order to be able to negotiate on the basis of fewer draft articles on each issue than would have been the case if there were 15 or 20 proposals. For this purpose, process of consolidating proposals in to a text where all nuances are still to be found. The decision of the GA was to accelerte the work on the basis of the previous existing docs. That part of work took place last November, looking at docs that existed before then. The second task was to finalise a basic proposal for the GA next September to decide about the convening of a d/c. Probably finalized after this meeting. When we are satisfied that there has been progress and that we have a basic proposal then we will send along to the GA and it will set a date for a dip con in several months. Basic Proposal will then be studied and discussed at regional conferences. The Basic Proposal is a working paper [JP:?!]. Previous BP have included alternatives. Alternatives is the token of recognition of differing opinions. Alternatives may not satisfy all delegations, so may find new proposals drafted during DC. The d/c normally takes 2-3 weeks and all delegations can work then to get their interests recognised and obtain understanding for their proposals. Negotiation takes places in the plenary and in committess which may be convened on special topics e.g. single articles or different issues. DC may set up diff bodies to conduct consultations on diff issues, report back to DC. It is a very intensive isolated piece of universe and a lot of people engaged in day and night work within a short time. Everybody knows that this is the place where negotiation takes place. Usually the d/ c brings rresults and may adopt political declarations that explain the purposes of the objectives. High level declarations on eg intention not to harm rights of mankind. Many things can be solved. 1996 experience - was doubt about interpretation about particular Articles. so DC adopted Agreed Statements - binding part of package under Vienna Convention because adopted by same delegates, at some time [GH: Note that the US is not a party to the Vienna Convention]. Agreed statements are very important tool. The task of this committee is to finalise and agree the basic proposal to be prepared. There has been a debate about the expectation that everything should be agreed before we allow a dip conf to happen. This is an exaggerated expectation. Basic Proposal is just a working paper (JP: again!?). The ambition is that there would be as many articles as are not controversial. If and when there are differences of opinion then of course alternatives should be presented. The Draft Basic Proposal takes its origin from the General Assembly. The draft should be made better i would like to quote from Australian intervention, after listing a number of concerns, said otherwise we can agree on package in BDP. That doesn't mean that they agree on everything, but agree on framework, and can work out details at a DCon. There was the regret expressed that there should be one document. Yes indeed there should be one document. We should try to establish one document in which we have the basic proposal. There was the remark that the two documents on table are not transparent and inclusive enough. The intention is to be inclusive. All elements that have been included in discussions are in those two documents. That's inclusiveness. We could call the two documents the third consolidated document Every delegation, even those who are not ready to embark upon the convening of the dip conf, has expressed willingess to contribute in these deliberations. That's very promising, indeed.I propose that after the coffee break that we start on the delibrations on concrete specific items and address the concerns of those who have stated that they would like to consider particular issues. Of course, article by article consideraion time consuming and not possible b/c of time constraints. No of outstanding issues, and should focus on those. Brazil: I listened carefully to all interventions and to your last intervention just made in which you tried to sum up the mood of the plenary. My delegation is among those that believe that we cannot go along with view that we can't express a formal opinion on a draft text that doesn't include our proposal. The only way forward in this organisation is that points of view put forward by all delegations must be included in the document. We think at this point it doesn't look very promising for going forward to a DC, to be honest There are four issues of concern before we should proceed to examine specific elements of the document before us. Doesn't see much progress possible on discussion of draft that does not includes our proposal, but does include proposals on which there had not been general consensus. It is not an extremeist or radical reaction, but I have clear instructions not to proceed on work program that would put our concerns on a different footing. Having said that, 4 important issues: 1. We have taken note of considerable opposition to inclusion of webcasting in whatever draft document we've talked about. This has become a central issue that must be addressed before we move on. How can we discuss the extension of rights before we know about the scope of the rights? 2. Issue of non-inclusiveness of all proposals. Here we have to find a formal solution that would lead to the inclusion of all proposals into the DBP before we proceed. 3. I understand from a technical viewpoint, but want to note that there are repeated references to 1996 [Internet] treaties. My country is not a party to these and we cannot consider these as a reference point for our discussions or negotiations be it on a technical or political basis. Membership of those treaties is rather small and does not form basis of agreement on which to work within WIPO. 4. You have said that not necessarily everything has to be agreed upon before a dip conf can be convened. We need reliable basis of significance convergence before we convene a diplomatic conference. These events are politically high profile and very expensive for this organization. I would not recommend a dip conf unless we have certainty that we have consensus on a core basis of the issues. It would be irresponsible to jump to the final stage w/o coming to agreement on these basic issues. Brazil wishes to be positive and constructive, but to do so requires treatment of all members on equal footing. This is the least that can be expected from this organisation. Coffee break 4:45pm, Working coffee break to consult on how to proceed further. [TB: Secretariat just handed out SCCR/14/6-proposal by Peru] Coffee Break --------------------- 5:43 pm Chair: We should embark on phase two. I gave you my concluding remarks. I see that Brazil wants the floor. Brazil: We would like to propose that formal proposals from Brazil and Chile as contained in SCCR/14/3 are an integral part of the DBP and should form basis of discussions. I am speaking on behalf of Brazil and Chile only, because we have co-ordinated on this. Not intended to be exclusive proposal. Open to other delegations. Colombia: In connection with the proposal of Brazil, we the delegation of Colombia and in view of our proposal on TPMs, we request to consider incorporating it into the basic proposal as it already exists. Canada: We are less ambitious. We would like our propsal on retransmission [GH from SCCR 10] to be part of the working paper. Chairman: Thank you very much. Understood. India: We would also like to support the propositions placed before you now, that the two documents presented by Brazil and Chile are treated on par with the draft basic document that has been prepared. Senegal: We have a slight problem of coordination. I think the African Group after a regional meeting made a proposal. We would like this to be part of the basic proposal too. Chairman: All the proposals made by any African countries are in the treaty now. Treating them as on a par would remove what I call the problem that has been caused by having all proposals in the two documents, Peru: To support Brazil, Chile and Colombia, we would like to benefit from the same treatment in respect of our document. Chair: Thanks for the proposals. I was consulting with the Secretariat about how to proceed. I will proceed in the direction pointed out by Brazil and seconded by others. I extend the proposal of Brazil to cover all the substance of the working paper so that we would by this decision restore all the alternatives. Let's try to proceed in the way that all proposals are treated equally. Let's make a formal decision on that. That seems to remove a mental problem in the presentation of the proposals. Chair: We will now discuss the Peruvian proposal. We are on better ground by having had this series of exhaustive statements. There is a beautiful diversity of opinions. We have time for one intervention this evening, and we give floor to India. India: I want to once again draw your attention to the four points that were raised in the session before the coffee break. We have settled one issue-the inclusion of all proposals. Before we move on to actual debate about key issues that you have highlighted, one issue that we should look at it, which is becoming the subject of much acrimony and division. That is issue number one, webcasting. This has this very fundamental difficulty without first settling the nature of webcasting, and the kind of treatment that we would like to give webcasting in the proposed treaty. I would like to propose when we first meet, we consider the nature and the scope of webcasting and how it should be treated. The rest of the issues will fall out of that. Until and unless the issue of webcasting in its wide scope as it remains, and the almost unanimous views of ms has been that the issue of webcasting has to be limited or at least given up. If we do not address that issue, going into other issues will always be colorued by the overarching question of webcasting. We need to discuss the Scope, treatment and status of webcasting. Only then can we proceed on other issues. Chairman: We will consider that proposal overnight. The only reason that Scope of application is point 6 is because of the need to discuss that point in the breaks while we are here, to have more time. Now India proposes to discuss this point first on the agenda. We have to finish our work at 6pm sharp today and it is now 6pm sharp. We'lll reconvene at 10 am tomorrow. Croatia: Announcement CEE and Baltic States 13.00 in Room 127. Meeting ended 18:02