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TWN Info Service on Intellectual
Property Issues (Feb07/04) NO PROGRESS OVER NEGOTIATING TEXT FOR BROADCAST RIGHTS TREATY The first Special Session of the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO), that took place from 17 – 19 January 2007 ended without making any progress clarifying outstanding issues over a negotiating text for a treaty to protect the rights of broadcasting organizations. The proposed treaty on the protection of broadcasting organisations has been the subject of much controversy in WIPO for many years. Proponents (in particular the broadcasting industry in developed country) state that such a treaty is required to protect the investment made. However opponents/critics of the treaty, noting the extensive rights that are being sought fear that this new regime will create a new layer of rights (above the rights given to copyright holders), granting broadcasters “exclusive rights” over materials they broadcast even if the information broadcasted is in the public domain, thus undermining access to knowledge. The outcome of the first Special Session of the SCCR showed very little progress in Members reaching an agreement on the "objectives", "specific scope" and "object of protection" of the proposed treaty on the protection of the rights of broadcasting organizations, a task set by the 2006 General Assembly decision. Several
participants at the first Special Session attributed the lack of progress
to the Chairman, Jukka Liedes from At the end of the session, the Chairman said that he would prepare a new non-paper for the second Special Session. To facilitate this process, the coordinators of the regional groups, WIPO member states and the European Community have been invited to submit their comments. The 2006 WIPO General Assembly, in convening the Diplomatic Conference to negotiate a treaty for the protection of broadcasting organisations, decided to hold special sessions, as a compromise between those delegations that wanted to approve the recommendation of the 15th SCCR meeting for a diplomatic conference (11 July to 1 August 2006), with the Revised Draft Basic Proposal (SCCR/15/2) as the main negotiating text for the conference (See SUNS #6099, 15 September 2006) and others such as India, Iran, Indonesia, Chile, Canada, Uruguay and the US that were of the view that there was insufficient consensus on the draft text (SCCR/15/2) to guarantee a successful conference (see SUNS #6099 of 15 September and #6113 October 2006). The Special Sessions were mandated to "aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal (SCCR/15/2)". In effect, the WIPO GA approved the convening of a diplomatic conference from November 19 to December 7, 2007 but set conditions to be fulfilled before the conference can be held. According to the GA decision, if the special sessions fail to find consensus on the "specific scope", "objectives" of the proposed treaty and "object of protection" on a signal based approach, further discussions will be based on the Basic Proposal (para 4 GA Resolution). With permission, we reproduce two news reports on the first special session published in the SUNS. News reports on the past discussions and negotiations on the proposed treaty on the protection of broadcasting organization is available at http://www.twnside.org.sg/IP_wipo.htm With Best Wishes ---------------------------------------------------------------------------------- Chairman dominates discussions at Special Session on Copyright SUNS #6172, 19 January 2007 Geneva, 18 Jan (Riaz K. Tayob) - Chairman Jukka Liedes from Finland dominated most of the discussions on the proposed treaty on the protection of the rights of broadcasting organisations, taking place at the Special Session of the Standing Committee on Copyright and Related Rights (SCCR). The first of two Special Sessions mandated by the WIPO General Assembly began on 17 January and is due to end on 19 January. The second session is to be held in June 2007. The two Special Sessions have been mandated to "clarify outstanding issues" in relation to the proposed treaty. A diplomatic conference has been convened for December this year, but in effect is conditional on the clarification of issues in the Special Sessions. At this week's Special Session, the Chairman has sought to drive the discussions in the direction favoured by him by presenting three new non-papers reflecting his views, rather than the basic text which reflects the viewpoints of various groups of countries. The Chairman's presentation of the non-papers led to confusion as to which document is to be the basis for discussions at the 3-day Special Session. Several key delegations raised their dissatisfaction with the method of work of the Chairman, in particular, the 3 non-papers presented for discussion and stressed that the focus should be on the WIPO General Assembly (GA) decision which guides what the special session should discuss and the document that is to be the basis of discussion. The WIPO General Assembly (GA), in convening the Diplomatic Conference, decided to hold special sessions, as a compromise between those delegations that wanted to approve the recommendation of the 15th SCCR meeting for a diplomatic conference (11 July to 1 August 2006), with the Revised Draft Basic Proposal (SCCR/15/2) as the main negotiating text for the conference (See SUNS #6099, 15 September 2006) and others such as India, Iran, Indonesia, Chile, Canada, Uruguay and the US that were of the view that there was insufficient consensus on the draft text (SCCR/15/2) to guarantee a successful conference (see SUNS #6099 of 15 September and #6113 October 2006). The Special Sessions were mandated to "aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal (SCCR/15/2)". In effect, the WIPO GA approved the convening of a diplomatic conference from November 19 to December 7, 2007 but set conditions to be fulfilled before the conference can be held. According to the GA decision, if the special sessions fail to find consensus on the "specific scope", "objectives" of the proposed treaty and "object of protection" on a signal based approach, further discussions will be based on the Basic Proposal (para 4 GA Resolution). Many delegations at the Special Session say that the recommendation of the 15th SCCR meeting was the result of Chairman Jukka Liedes steamrolling over objections that it was premature to convene the diplomatic conference as significant divergences still existed among members. At the Special Session, with the introduction of the new non-papers, the Chairman seemed to be determined to lead discussions in a specific direction in spite of objections from several Members that this may not be the proper working methodology. The Draft Basic Proposal contains the views and alternatives presented over many meetings by delegations, while the three non-papers contain only the view of the Chairman. However, according to the Chairman, the non-papers were an attempt to stir debate and move the process forward during the Special Session. On
the methodology of work, The Chair, however, dismissed this view, retorting that the Basic Proposal should be referred to only when there is no other basis for debate. However, the Chair ignored these interventions and proceeded to discuss the non-papers. When
The Finnish Chair however said the GA decision was a "complex" one, which "demonstrates the diversity of opinions on how to proceed." The European Union also sought clarification on the working documents, and asked why the non-papers had not been distributed much earlier. The Chair's first non-paper, presented as a discussion paper, states that it "reflects only the understanding of the Chair and no Delegation is bound to the thoughts presented in it". It outlines the understanding of the Chair of a "signal-based approach", the "objectives", "the specific scope" and the "object of protection". On the "signal based approach", the non paper states that it refers to "something that is narrower than what has been laid down in the working documents up to now". It interprets the GA decision as focussing "on the protection of the "live signal", as this is the moment when the need for protection is most acute", but adds that in order to make protection "practicable and effective" it could "in some cases, extend beyond the live signal, to some post-fixation instances" and "by no means precludes granting some exclusive rights to broadcasting organizations." The Chair also said that this approach was the "ultimate signal-based approach." The paper adds that a "signal-based approach" and whether the protection is "rights-based or based on other legal means", are "actually different aspects or dimensions of the protection". It also proposed to narrow down the proposed treaty by regrouping the provisions on "rights" into new combined and condensed articles on "rights and protections". On "objectives", the non-paper outlines the main objective as providing "a stable legal framework for the activities of the broadcasting organizations" with a focus on "anti-piracy", providing "protection against competitors and unfair exploitation" and against free-riding. According to the non-paper, legal protection is given because of the investment made by broadcasters and the ease of exploiting the works in the new technological environment. The Chair said that delegations could consider making some of the provisions on protection applicable only against "acts that are committed for commercial purposes, for competitive uses, or for outright misappropriations ("theft of signals")". On the "specific scope", the non-paper states that the treaty "would provide a form of protection, consisting of related rights, and/or other specific protections that are not defined as rights" which are "independent and self-standing rights or protections in relation to rights of authors and other rights holders of the programme content". On this, the Chair added that delegations could consider "what elements are absolutely necessary to meet the objective of the treaty, and the need for an adequate and effective protection". On the "object of protection", the non-paper says that the "scope of the instrument is normally dictated by the definition of the object" which is the "broadcast". The term "broadcast" has not been defined in any international instrument - the TRIPS agreement and the Rome Convention. If it is "now defined, the term should ideally have the same scope in the other treaties, and in any case should not be narrower". It suggested that a technologically neutral definition of the "broadcast" be added to the proposed treaty possibly complemented by a definition of "signal". The second non-paper was on "Articles -Object and Definitions". It proposed specific text on the "object" as well as definitions of "broadcast", "signal", "broadcasting", "broadcasting organization", "communication to the public". While mentioning these terms, the non-paper did not present any specific text on "cablecasting", "re-transmission" and "fixation" (physical recording of the programme e.g. on a video). The "object" of protection of the proposed treaty has been and is a major question that emerges during any discussion on the proposed treaty and on which there is no consensus. In the past there have been differences of opinion as to what the term "broadcast" (if that is the object of protection) means, i.e. is it just the signal or does it also include the "content" carried by the signal. In any case, the approach taken by the Chair appears to be an approach that has been rejected by several delegations and non-governmental organisations in the past. The third non-paper "Articles on Rights and Protections" contains specific text on "Rights in Broadcast", "Protection of Uses Following Broadcast", "Protection of Encryption and Relevant Information" and on "Protection of the Pre-broadcast Signal". The rights proposed to be granted to broadcasters are the "exclusive right of authorizing", the "simultaneous or deferred re-transmission of their broadcasts by any means, including re-broadcasting, re-transmission by wire, and re-transmission over computer networks; and the fixation of their broadcasts". The text also proposes that following the broadcast, the organizations "shall enjoy adequate and effective legal protection in respect of (I) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts; (ii) the making available to the public of the original and copies of fixations (distribution) of their broadcasts, through sale or other transfer of ownership; (iii) the making available to the public of their broadcasts from fixations, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them; and (iv) the communication to the public of their broadcasts, if such communication is made in places accessible to the public against payment of an entrance fee, or using very large screens in places accessible to the public, or made in a profit making purpose." At previous meetings, several developing country delegations have objected to an "exclusive rights" approach as well as including any reference to "re-transmission over computer networks" and re-transmission by "any means". According to these delegations, the general understanding is that any transmission over the internet is outside the scope of the proposed treaty and will be dealt with on a separate track. These delegations also oppose "fixation" rights. However, the Chairman's text retains these aspects which have been the bone of contention in several past meetings. On "Protection of Encryption and Relevant Information", the text states that the "Contracting Parties shall provide for adequate and effective legal protection against unauthorized (I) decryption of an encrypted broadcast; (ii) manufacture, importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast; and (iii) removal or alteration of any electronic information relevant for the protection of the broadcasting organizations." This text appears to favour a certain approach although the Basic Proposal contains several options including the option of not having any obligations in relation to technological protection measures, an option that is much preferred by many developing country delegations that are concerned that it would impact access to knowledge. In
general statements during the morning session of the meeting, It also highlighted that provisions in the proposed treaty should not undermine the right to access knowledge particularly that in the public domain. A distinction should be made between the "signal" and the content of the broadcast as well as between the protection given to the copyright holder and that given to the broadcasters. The Chairman clarified that "webcasting" and "netcasting" were not abandoned and that two tracks were established. One track dealt with broadcasting in the traditional sense while another track dealt with the issue of "webcasting" and "netcasting". ------------------------------------------------------------------------------------------------------------ No progress over negotiating text for broadcast rights treaty SUNS #6174, 23 January 2007 Geneva, 22 Jan (Riaz K. Tayob) - The Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) ended Friday its first Special Session, without making any progress clarifying outstanding issues over a negotiating text for a treaty to protect the rights of broadcasting organizations. The outcome of the first Special Session of the SCCR showed very little progress in Members reaching an agreement on the "objectives", "specific scope" and "object of protection" of the proposed treaty on the protection of the rights of broadcasting organizations, a task set by the 2006 General Assembly decision. There was very little progress at this first Special Session, despite members holding long informal discussions well into Thursday night. At
the end of the session, the Chairman, Jukka Liedes of According to the Chairman, the focus of the non-paper will be on the "objectives, specific scope and object of protection". The non-paper is expected to be distributed by 1 May 2007. Participants at the first Special Session attributed the lack of progress to Liedes and his attempts to dominate the SCCR process and drive the outcome in a direction favoured by him (and the secretariat). The participants noted that instead of proceeding on the basis of the mandate from the WIPO General Assembly, the Chairman had at the beginning of the first Special Session tabled his own non-papers, and had insisted on using them as the basis for the discussions at the Special Session, claiming that they had been prepared to facilitate the discussion 'technically'. The WIPO General Assembly has convened a Diplomatic Conference to negotiate a treaty, with a signal-based approach to protecting the rights of broadcasting organizations. Though a Diplomatic Conference is being convened (17 November to 7 December), in effect this is conditional on clarification of some key issues by the SCCR, meeting in two Special Sessions. The first was held from 17 to 19 January. The second is set for June. Specifically, WIPO members have to agree at the Special Sessions on the "objectives", "specific scope" and "object of protection" of the proposed treaty on the protection of the rights of broadcasting organizations. According
to Mr. James Love, Director of CPTech, an influential In a blog posted at the very widely-read Huffingtonpost website, Mr. Love has noted that this new global legal regime would give companies that distribute information exclusive rights to prevent people from re-using it, "even when the information is in the public domain, or owned by someone else." It would be a "related" right, and would co-exist with other rights that might exist, such as copyright. This means that an additional permission would have to be obtained, from the company or broadcasting organization involved, before the information (even when it is in the public domain) could be copied, republished, re-mixed or re-used in other ways. In his blog post, Mr. Love says that the big winners from the proposed treaty will be companies like Paramount-CBS, Viacom, Comcast, Vivendi Universal, Bertelsmann AG, General Electric, Time-Warner, the Walt Disney Company, News Corp., Liberty Media and Viacom, who own dozens and dozens of leading "channels" of video programming. At the SCCR first Special Session, developing countries chastised the Chairman, and resisted conducting discussions on the basis of his non-papers and persistently insisted that discussions be conducted as per the General Assembly decision that mandated the convening of the two Special Sessions of the SCCR "to clarify the outstanding issues". They stressed that the GA decision clearly stipulated that the Special Sessions should "aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the diplomatic conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal (SCCR/15/2)." However, the Chairman simply brushed aside these protests and pressed ahead, promoting his non-papers as the working documents at the Special Session. Towards the end of the meeting, the Finnish chair attempted to obtain authorization from the Special Session for him to independently prepare a revised version of the "Revised Draft Basic Proposal" (SCCR/15/2). According to an initial document containing draft conclusions of the first session prepared by him, this 'revised basic draft', to be prepared by him, "would reflect the outcome of the discussion of the Committee in the first Special Session". However, this move was rejected by Member states. The initial draft conclusions also contained a list of matters and aspects that would be reflected in the revised document: (I) language/provisions on objectives added; (ii) further refinement of provisions on the relation of the proposed treaty to other treaties; (iii) clarification of signal protection in definitions; (iv) further clarification that the beneficiaries are limited to traditional broadcasters and cablecasters; (v) provisions on rights and protections; (vi) provisions on limitations and exceptions; (vii) provisions on term of protection; (viii) provisions on technological protection measures and rights management information. However, several developing countries objected to the list presented and rejected this initial document. They insisted that the process be "member driven" and that the Chair invite comments from members before finalising the "non-paper", and making clear that the non-paper should have no official status. However, WIPO Deputy Director General Michael Keplinger said that WIPO did not have the funds to support such an exercise. In
response, The Chairman's non-papers do not reflect the various inputs and alternatives presented by the WIPO members over the many years of discussions of the proposed treaty for the protection of the rights of broadcasting organizations. In fact, it is selective in its approach, even including text or approaches that have been rejected in past meetings. (see SUNS #6172 dated 19 January 2007). The Revised Draft Basic Proposal (SCCR/15/2), is itself a very contentious document, even creating doubts as to the maturity of discussions (on the proposed treaty on the protection of broadcasting organizations) to ensure a successful Diplomatic Conference. However, at least, it contained the formal alternatives and inputs of member states. Three of the non papers were presented by the Chair on the first day of the Special Session (i.e. a discussion paper on the Decision of the General Assembly, "Articles - Object and definitions", "Articles on Rights and Protection"- see SUNS #6172 dated 19 January 2007). Three others on "Limitations/Exceptions and Term of Protection,", "Articles - Framework Provisions" and a "Combination of the four non-papers on Articles" were presented on Thursday and discussed during the informal session. The non-paper on "Limitations/Exceptions and Term of Protection" contains specific text. It states that "contracting parties may in their national legislation, provide for the same kind of limitations or exemptions with regard to the exclusive rights of broadcasting organisations as they provide for in copyright legislation" and "shall confine any limitations or exceptions to exclusive rights... to certain special cases which do not conflict with a normal exploitation of the broadcast and do not unreasonably prejudice the legitimate interests of broadcasting organisations." The non-paper explains that "less limitations" are needed if more flexible standards of protection are adopted. It proposed a term of protection of 20 years from the end of the year in which the broadcast took place. The
non-paper does not reflect the proposals of The non-paper on "Framework Provisions" includes specific articles on the relation of the proposed treaty to other conventions and treaties, scope of application and on national treatment. The final non-paper, "Combination of the four non-papers on Articles", consolidated all non-papers containing specific text in one document, cross-referencing it to the specific articles of the Revised Draft Basic Proposal (SCCR/15/2). In response to these non-papers, a number of developing countries said that they were not in a position to make or provide feedback on these non-papers distributed by the Chair. The Brazilian delegate, spelling out its understanding of the proposed broadcast treaty, said that if no agreement was reached on these three core elements, then Members would have to fall back on to the "default" Basic Proposal (SCCR/15/2) as it now stands. Also,
said "If there is no agreement, any effort to launch into a revision of the Revised Draft Basic Proposal (SCCR/15/2) would be unnecessary and unhelpful." Developed
countries (Group B,
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