TWN Info Service on Intellectual Property Issues (June 07/07)

21 June 2007


Discussions on the WIPO Treaty on the Protection of Broadcasting Organizations are currently taking place at the Second Special Session of the Standing Committee on Copyright and Related Rights (SCCR) of WIPO.

It is chaired by Jukka Liedes from Finland, who presented a non-paper dated 20 April 2007. The paper seems to have contributed to more controversy, rather than to narrowing the differences.

This week's meeting may be the last opportunity to reach an understanding, as it will have to (according to the General Assembly decision of 2006), latest by Thursday, "agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection" of the treaty, as well as the text that will be the basis for negotiations at a diplomatic conference that is tentatively fixed to take place on 19 November to 7 December.

Please find below the full SUNS report, reproduced here with permission.


Best Wishes
Sangeeta Shashikant
Third World Network
Tel: +41 (0) 22 908 3550
Fax: +41 (0) 22 908 3551

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DEVELOPING COUNTRIES CRITICIZE CHAIR'S TEXT ON BROADCASTING TREATY

SUNS #6275 Wednesday 20 June 2007


Geneva, 19 June (Sangeeta Shashikant) -- A week-long meeting in WIPO to prepare for a possible diplomatic conference for a new treaty on protection of broadcasting organizations has run into trouble when many developing countries could not accept a Chairman's "non-paper" meant to be the basis for discussing the main provisions of the treaty.

A broad range of developing countries criticized the non-paper for not representing their views, and for attempting to broaden the scope of the treaty beyond what was mandated by the WIPO General Assembly last year.

Discussions on a possible WIPO treaty on broadcasting have taken place over the past nine years, but there has been deep divisions among Members on many key points, including the objectives, specific scope and the object of protection of the treaty.

The 2006 WIPO General Assembly decided that a diplomatic conference would be convened to finalise the treaty, but on condition that agreement on certain key points be reached, by this week's meeting.

The discussion on the WIPO Treaty on the Protection of Broadcasting Organizations is taking place at the Second Special Session of the Standing Committee on Copyright and Related Rights (SCCR) of WIPO.

It is chaired by Jukka Liedes from Finland, who presented a non-paper dated 20 April 2007. The paper seems to have contributed to more controversy, rather than to narrowing the differences.

Several developing country diplomats are frustrated that even after nine years of discussion, the Chairman seems unable to recognize the differences and on some occasions had tried to ignore the views of developing countries and to push through outcomes over the objections of these countries.

This week's meeting may be the last opportunity to reach an understanding, as it will have to, latest by Thursday, "agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection" of the treaty, as well as the text that will be the basis for negotiations at a diplomatic conference that is tentatively fixed to take place on 19 November to 7 December.

If there is no agreement at this meeting, members may recommend to the 2007 General Assembly either to continue discussions on the basis of Revised Basic Proposal (SCCR/15/2 ) - which is the text for the diplomatic conference prepared prior to WIPO General Assembly 2006 - or to discontinue discussions altogether.

If there is an agreement, a preparatory meeting will be held on Friday to prepare the necessary modalities of the Diplomatic Conference, such as procedural rules.

On Monday and Tuesday, developing countries voiced their dissatisfaction over the Chair's non-paper.

The criticisms included the paper's failure to take into account the comments made by Members; the dilution or elimination of important clauses (such as those on the public interest, cultural diversity and competition); the granting of IP type of "exclusive rights" to broadcasters and cable casters (in Article 7 of the non-paper); the granting of exclusive rights in Article 7 for "deferred transmission" of "fixed broadcast" "by any means"; its failure to reflect broader alternatives on limitations and exceptions; its inclusion of the controversial technological protection measures (TPMs); and the lack of definitions for "signal" and "transmission".

Following years of contentious discussions, the WIPO General Assembly had decided that the treaty be limited to a "signal-based approach", and to broadcasting and cable-casting activities. Many developing countries believed this to mean that the treaty would deal mainly with the problem of signal theft, and would exclude the granting of IP-type exclusive rights. They had also advocated several clauses for public interest flexibilities.

The Chair's non-paper failed to reflect this understanding or these concerns.

As a result of their lack of confidence in the Chair's non-paper, many developing countries including the African and Asian Groups, stressed that the Revised Basic Proposal SCCR/15/2 was still the main document for the SCCR process.

The Chair in introducing his non-paper said that the Revised Basic Proposal SCCR/15/2 is too complex to be presented to a diplomatic conference. The Chair had been asked to prepare the non-paper by the previous SCCR session in January.

The Chair said that thus there was no other possibility but to "start from scratch" with his non-paper.

He acknowledged that there is a broad range of opinions among members, with some stating that there should be a "small treaty" not based on "rights" and "IP", while others wanted a "rights" based treaty.

He added that the mandate from the General Assembly is that the basic proposal be "signal based" but said that there were different interpretations of what it means.

The Chair then proposed to conduct the meeting in a small-group informal mode that would discuss clusters of issues, perhaps to mimic the mode of negotiations at last week's meeting on the WIPO Development Agenda.

But this was opposed by several countries, including India, Brazil as well as the Asian Group, who successfully proposed that the non-paper be examined article by article in the plenary. However, the possibility of informal consultations later this week has not been ruled out entirely.

Prior to the last General Assembly, Member States agreed to a Draft Basic Proposal (SCCR/15/2) that contains all the proposals of member states.

However, several member states and the Chair felt that if that document proceeded to be the basis of the diplomatic conference, it would more likely fail due to the many differences over the objectives, specific scope and object of protection of the treaty.
Due to the insistence of some members, the General Assembly approved the convening of the Diplomatic Conference but subject to certain conditions, that two special sessions of the SCCR be held this year to clarify the outstanding issues, and to 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.

The Decision while limiting the scope of the treaty to "the protection of broadcasting and cablecasting organizations in the traditional sense" also mentions that "The Diplomatic Conference will be convened if such agreement is achieved. If no such agreement is achieved, all further discussions will be based on document SCCR/15/2."

According to its introductory note, the non-paper endeavours to lend full recognition to the "signal-based" approach, and to the focus determined by the General Assembly and the SCCR.

It says that representatives of the broadcasting organizations have made a very serious point that cannot be omitted. "If the Treaty is not based on some elementary and absolutely necessary rights, the process should be abandoned. Therefore, the non-paper now includes, as the main operative part of protection, specific related-rights-type rights in two instances where the protection of a signal is most relevant, namely re-transmission and deferred transmission."

The introductory note also states: "This represents the narrowest meaningful functional protection for broadcasting organizations. If Member States so wish, provisions may be added allowing for optional wider protection, notably of post-fixation rights or protection, which would enable international protection, linked to a clause on national treatment and reciprocity regarding optional rights or protection."

The non-paper also mentions that "the number of rights and protection clauses is reduced", adding further that as "the protection against retransmission and deferred transmission is confined to transmissions to the public only, the protection of broadcasting organizations would in no case interfere in the activities of the recipients in their private sphere, e. g. in the use of broadcasts in the home or personal network environment".

It further notes that "the indicative list of allowed limitations and exceptions" found in the previous draft non-paper (of March 8) has been deleted because there are no rights in relation to fixation and/or reproduction" present in the non paper. The note adds that the "Treaty would in no instance affect public interest, access to information, consumer interests or technology innovation."

The non-paper generated many criticisms. Bangladesh, on behalf of the Asian group, stressed that the document for the SCCR should adhere to the decision of the General Assembly applicable to the text, should be "signal based", restricted to the traditional mode and not include web-casting, simulcasting and computer networks.
It should not affect the rights of the right holders of the content contained in a broadcast, not impede free flow of and access to information, including through the use of Technology Protection Measures (TPMs) and other public policy objectives of the member states and finally that it should provide for a fair balance of protection of the broadcasting organization vis-a-vis the rights of the other holders and states.

Barbados, on behalf of the Group of Latin American and Caribbean states (GRULAC), said that all norm setting activities should take into account the interests and priorities of all member states and ensure the balance between the protection of broadcasting organizations and the rights of the copyright holders as well as the balance between public and private interest.

Algeria, on behalf of the African group, said that while the non-paper was a useful spring board, the document SCCR 15/2 underlies the discussions. It said that the scope of protection should reflect the balance between public and private interest and include the development dimension.

Algeria said that broadening rights that go beyond signal piracy would run counter to the treaty and the right to access knowledge. Limitations and Exceptions represent a special interest in reconciling public interest and gives space to developing and least developed countries. It added that the TPMs included should not limit access to knowledge.

It also highlighted that several important provisions such as general public interest clauses (Article 2 of SCCR 15/2), on the promotion and protection of cultural diversity (Article 3 of SCCR 15/2) and Defense of Competition (Article 4 of SCCR 15/2) had been transferred from the operational paragraphs into the preamble of the non-paper.

Raising the same issue, Brazil told the Chair that he had unduly transferred these Articles to the Preamble and diluted the language to near "irrelevance".

Brazil said that the Chair should be guided by the mandate of the General Assembly, which states that a text based on a signal-based approach should be finalized, otherwise one should revert to SCCR 15/2 and decision should be made whether to go to a diplomatic conference on the basis of that document. Brazil said the non-paper is not a "signal-based approach" text.

Brazil added that while the "text has become short", the "rights have become long", adding that the "rights" contained in the non-paper are "not precise".

It referred to Article 1 of the non-paper which states that "The objective of this Treaty is to provide effective and uniform international legal protection, on a signal-based approach, for broadcasting organizations against unauthorized use of their broadcasts". Brazil said that this article is not consistent with "signal-based" protection.

Brazil also maintained reservation to the definition of broadcast and broadcasting organizations. It said that they were not consistent with Brazilian national definitions, adding that "many doubts persist on scope and object of the treaty," particularly clarifying "the extent and correct reading" of the part of the non-paper which states that "The provisions of this Treaty shall not provide any protection to any person for transmissions over computer networks."

On taking an "exclusive rights approach", Brazil said that if "exclusive rights" is to be included, there should be options for other types of protection. It was referring to its previous proposal of an alternative language of "establish adequate and effective legal protection for the broadcasting organization" as an option instead of an "exclusive rights" approach.

Brazil said that the non-paper's proposed article on TPMs is "problematic". Brazil did not agree to its inclusion in the text, adding that the current language creates obstacles to legitimate uses, use of limitations and exceptions and access to public domain materials.

It advocated instead the mandatory application of the Limitations and Exceptions (L & E), adding that what has been included in the current text is limited to L & Es that apply to copyright holders and makes use of a three-step test that "limitations of or exceptions to the rights and protection provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the broadcast and do not unreasonably prejudice the legitimate interests of the broadcasting organization."

Brazil stressed that this test is not suitable for the treaty and is only for copyright. It added that a treaty on signal theft should not venture into the area of authors' rights.

It said that the non-paper's proposed article on enforcement is inconsistent with Articles 1.1 of the TRIPS agreement, adding that all enforcement matters should be left to national jurisdictions.

Article 1.1. of TRIPS states that "Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement" and that "Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice."

India said that the "specific scope is not stated positively" in the non-paper. It referred to Article 3 of the non-paper and said that it was broad enough to include activities not prohibited. Article 3 is about scenarios on which the "treaty shall not provide any protection".

India said that despite there being general agreement that the treaty should take a "signal-based approach", Article 7 goes beyond the mandate, and it thus had difficulty with the non-paper's approach.

India noted that the non-paper's Article 7 grants broadcasters "exclusive rights" of authorizing the re-transmission (the simultaneous transmission for the reception by the public by any means of a broadcast by a third party) and the deferred transmission by any means to the public of their fixed (such as video tapping) broadcasts.

India said that despite the members' understanding that simulcasting should not be included in the treaty's scope, yet it still appears in the non-paper's draft text, thus being in conflict with the mandate stated by the General Assembly.

India also made a proposal, similar to that of the Africa Group, that a number of Articles appearing in the operative paragraphs of SCCR/15/2, i. e. General Public Interest Clauses (Article 2), Protection and Promotion of Cultural Diversity (Article 3) and Defense of Competition (Article 4) be placed into the operative paragraphs of the non-paper instead of in the preamble of the non-paper.