June 9, 2004 | By Wendy Seltzer

WIPO Broadcast Treaty: Notes from the full Standing Committee meeting

Notes from the World Intellectual Property Organization's Standing Committee
on Copyright and Related Rights (SCCR 11)
meeting, Geneva, June 7-9, 2004

Over the past three days, the Standing Committee has been meeting to consider a treaty to protect broadcasters' rights. Thanks to Jamie Love, of the Consumer Project on Technology, an unprecedented number of public-interest oriented non-governmental organizations -- including CPTech, EFF, UPD, IP Justice, Public Knowledge, and EDRi -- attended and intervened at the meeting to raise concerns about preserving the public's rights in the face of expanded "broadcast protection."

The following is an impressionistic transcript by Cory Doctorow (cory@eff.org), Wendy
Seltzer (wendy@eff.org) and David Tannenbaum (davidt@public-domain.org).

These notes were written quickly, in the heat of the
session, and there may well be some errors and omissions. They
are by no means verbatim, but on the whole they are a
comprehensive record of the meeting.

Public-domain dedication:

On June 9, 2004, Cory Doctorow, Wendy Seltzer and David Tannebaum
(The Authors) dedicated to the public domain the work "Notes from the
June 7-9 WIPO Meetings on the Draft Broadcasting Treaty."
Before making the dedication, the Authors represented that they
owned all copyrights in the work. By making the dedication, the
Authors made an overt act of relinquishment in perpetuity of all
present and future rights under copyright law, whether vested or
contingent, in "Notes from the June 7-9 WIPO Meetings on the Draft
Broadcasting Treaty."

The Authors understand that such relinquishment of all rights
includes the relinquishment of all rights to enforce (by lawsuit
or otherwise) those copyrights in the Work.

The Authors recognize that, once placed in the public domain,
"Notes from the June 7-9 WIPO Meetings on the Draft Broadcasting Treaty"
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Meeting notes for the 11th meeting of the WIPO Standing Committee
on Copyright and Related Rights, 7 June 2004

    [ed. The session began at 3pm, and the first 40 minutes were
taken up with discussion on giving more control to non-original
database owners.]

Database copyright

* Previously, we agreed to keep non-original database protection
on the agenda, but not consider it at every meeting.  We had a
meeting without revisiting the question, now's the opportunity to
consider any developments in this field

* US: There've been minor developments on database protection in
the US: two bills in the House

        * DB And Collections of Info Misapprop Act: Protects databases from 
          misappropriation, with a private cause of action for entities that create 

        * Consumer Acess To DBs: Only FTC can bring suit.  Establishes a 
          misappropriation regime as opposed to property.
        Both are in committee.  Both are controversial.  No legislation has 
        been introduced term in the Senate. No database bill will pass into 
        law in this term.

* EC: Old issue, since 1996 the (c) people have been trying to
get a proposal to the dip conf, but time was too short.
Non-original dbs have protection in many countires on
sweat-of-the-brow. EU has harmonized IP protections for DBs.
We've stated many times that the EU resolution has been an
important incentive or the Euro database sector. A balanced
protection encourages production. It is beneficial for investors
and users alike. This has gone through court many times, four
cases are pending now before the ECJ. We want a db treaty ASAP.

* Brazil: We've been at this for ages. No real and substantive
discussions have taken place. There's no clear understanding of
the potential economic and social impact of database protection.
A study that was comissioned by WIPO on database copying in Latin
America indicated from the Latin American perspective that
regulation is premature. It's detrimental to innovation, science,
education, access, etc., particularily in developing countries.
In the light of this we want to question the usefulness and
convenience of maintaining this on the agenda. This isn't
unfinished business, the lacklustre engagement of the committee
tells us that this is business we don't want to engage in, and
this gets in the way of other business we might choose to
address. We ask to have this permanently deleted from the agenda.

* Jamie Love (Civil Society Coalition): This is a bad idea.  In
1996, there was tons of opposition to this, because it was a new
topic and there wasn't enough experience to ascertain the impact
on innovation. It was the beginning of the explosive Internet
tech growth. It is important now to take full stock of the
importance of the free flow of info in light of the success of
the internet in informing people and enhancing their political
power. The medicine and agribusiness database protection ideas
have been in a lot of bilaterals. 

* Intl pubs assoc: The need for info will become ever more
pressing. The problems we have perists even in the absence of db
protection. Regarding database protection at WIPO, lots of
countries have adopted this, Mexicao, Australia, South Korea,
South Africa, Canada, etc. It won't go away through
nondiscussion. We need a more in-depth understanding of the real

* ALA: The database protection issue in US Congress is
significantly controversial, highly unlikely to pass in this
Congress. Agree with Brazil, let's take this off the table here.
Congress called this a "Solution in search of a problem" --
there's more databases than ever, why do we need this.  We don't
see a consensus or a need for protection.

* Ecuador: On behalf of Latin American and Caribbean group, I
would like to make a general statement. We don't think that this
should be on the agenda now.

* India: Should everyone who produces work by sweat of the brow
come here for protection? This isn't creative labour.  There's no
allegation of widespread copying of non-original databases.  Even
if there were, the question relevant for this organization is
whether this body should be considering nonoriginal databases. 
Where there's no creativity, databases are assets;  that's the
apporpriate concern to address by misappropriation, but not
intellectual property.  Perhaps soem other rubric, some other
forum is appropriate.  Many entities need protection of sweat of
brow assets but we shouldn't have all of them approaching WIPO
for a remedy. 

If EU wants to protect nonoriginal databases, EU can.  It's
important to leave industry space to develop.  at this stage, we
need a more careful learning process, not laws that inhibit
industry rather than facilitate.  Database protection is
premature now.  Even in long term, it may not be appropriate for
WIPO. We recommend the issue be deleted from the Standing
Committee's agenda.

* Russian federation: We're legislating this at home -- it seems
to us that this might be good later in WIPO, but we're not ready
to discuss it here in any substance.

* US delegation: We think that this should remain on the agenda.
We need to exchange more information about what this is and how
it works where it's been adopted.

* China: We are not enthusiastic about discussing this. I
appreciate the Indian and Russian remarks. Some issues need to be
clarified. Should IP be used to protect non-original databases?
WIPO is here for IP and innovation. Non-original databases aren't
creative and are already in the public domain. We need to ask
whether it is contradictory to WIPO's objectives. In past
discussions and in the new treaties such as WCT and WTO treaties
on IP that are outside of WIPO, in all these treaties, only
creative or innovative works are afforded protection. Most
countries have accepted this. The principle for database
protection is to protect the labor of creators and the profit of
operators, which should happen, because without investment, we
get no innovation. Granting protection to them lets them get
return on investment. But should this be in WIPO? Some countries
have laws to resolve this problem. I think we should do this with
copyright, I think we should do this unfair competition law. This
doesn't need to be resolved immediately. Broadcasting is more
important that databases. Folklore protection is more important
than databases.

* Union for Public Domain/David Tannenbaum: The stated
justification for protecting databases comes from the idea that
proprietary rights are the best way to foster innovation. But
there is a contrary view that openness is the best way to foster
innovation. The opponents of a database treaty, including Union
for the Public Domain, believe that follow-on inventions that
come from open databases are more valuable that protecting

The decision of six major nations to publicly release the human
genome into the public domain shows that some do believe that
openness is beneficial to civil society. 

This comes down to an empirical question which requires objective
study. We woud like to suggest that WIPO hold an information
session on open source and collaborative models of innovation so
we can evaluate what the best path to innovation really is.

Chair: Let's table this until the end of the meeting.

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