November 18, 2004 | By Cory Doctorow

Blogging WIPO

I've been at the UN's World Intellectual Property Organization (WIPO) for the past two days, in Geneva, Switzerland, attending the negotiations over the Broadcasting Treaty, which has the power to lock up the public domain and break the web. There's a bunch of us copyfighters here, and we're methodically noting all the events and undertakings as they unfold. It's been full of drama -- all of the handouts set out by the "public interest" groups (e.g., us, civil society coalition, IP Justice, Union for the Public Domain) were repeatedly stolen and pitched into the trashcans in the bathrooms! Click through to get the whole story: the gory transcript of the nations of the world being duped into shafting their citizenry to defend the narrow interests of a few companies.

 12th Session of the SCCR, Geneva


Election of Chair and Vice Chair

Chair: Jukka Leides

17 November, 2004

Notes by:

Thiru Balasubramaniam, thiru@cptech.org, Consumer Project on Technology
[TB]

David Tannenbaum, davidt@public-domain.org, Union for the Public Domain
[DT]

Cory Doctorow, cory@eff.org, Electronic Frontier Foundation [CD]

Jamie King, jamie@jamie.com [JK]

Volker Grassmuck, vgrass@rz.hu-berlin.de [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.


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