Today at WIPO saw a flat-out disgraceful cooking of the deliberative process. The administrators of the meeting -- the chair and secretariat -- are pushing hard to make this treaty pass, even if no one wants it to. The solution to the deadlock is "regional meetings" in which countries that oppose the treaty can be isolated and arm-twisted into coming into line, and where few or no public-interest NGOs will be present. Some of the most populous countries in the world -- India and Brazil -- along with many others called for a better approach: any region that wants a meeting can have one, but the real action would be at an "inter-sessional meeting" held in Geneva, with all countries represented. Even though these countries presented a solution that would have given regional meetings to those who wanted them, the chair steadfastly refused to hear from them -- eventually, he used a straw poll to discard their proposal altogether, and then called it "democracy." (Oh, and even more of the public-interest group papers were stolen and trashed today)
DAY 3 Election of Chair and Vice Chair Chair: Jukka Leides 19 November, 2004 Notes by: Thiru Balasubramaniam, firstname.lastname@example.org, Consumer Project on Technology [TB] David Tannenbaum, email@example.com, Union for the Public Domain [DT] Cory Doctorow, firstname.lastname@example.org, Electronic Frontier Foundation [CD] -- [DT: These notes are spotty, as we were preparing for statements later in the day.] IFPA maybe???: [missed] Consumers seek access to work on any number of distribution systems, so we support systems that protect any method of distribution. We call for a separate instrument on webcasting. IP Justice (Robin Gross): IP Justice is deeply concerning about WIPO's rush to convene a Diplomatic Conference... At its recent General Assembly, WIPO adopted a Development Agenda. There is concern about IP's impact on education, civil liberties. Proponents of this treaty have yet to explain why existing regimes fail to adequately protect signal theft. We recommend stopping the treaty in toto, but in particular, anti-circumvention and Webcasting are very bad and dangerous. With regard to the web, this will create new rights, not harmonize those that already exist. Bypassing technological restrictions is necessary for consumers to exercise their rights, engage in research, and archiving. At the June SCCR meeting, numerous objections were made to the inclusion of webcasting in this treaty. The proposed right of retransmission in Art 6 by any means would give webcasting the power to regulate the internet. EDRI: We believe that this treaty should be signal-centric. We have a number of concerns over the current draft. What is the future of the public domain under the current treaty? Works that expire today would be subject to a new broadcast right. This would effectively remove them from the public domain. The sole source of this material is through broadcasting organizations. Article 16 is bad because it would give TPMS. Restrict access to materials in public domain. Article 16 should be removed from the text as Brazil proposed. Works would no longer fall out of protection since protection will be extended every time a work is broadcast. This is exacerbated by Article 16. We support Brazil's proposal to remove it. There is no rationale for a 50-year term. There's no evidence that TRIPS's 20 limit has resulted in a reduction of investment. We support Singapore's proposal. Union for the Public Domain (Shyamkrishna Balganesh): [DT: A slightly abbreviated version of this intervention was delivered in the interest of time.] The Union for the Public Domain is an international membership organization that works for the promotion and enhancement of the public domain in matters concerning patents, copyrights and other forms of government imposed ownership of knowledge and technology. This is our second time participating in the work of the Standing Committee and Copyright and Related rights, and we would like to thank the member states and secretariat for this opportunity. The Union for the Public Domain (UPD) continues to believe that the adoption of the new treaty is not in the interests of society and should be rejected. The proposed treaty to protect broadcasting organizations does not go nearly far enough in protecting the interests of society. Society relies on access to public domain materials for the promotion of education and the preservation of culture. By granting broadcasters almost absolute control over their transmissions, the treaty would curtail access to a broad range of public domain materials that are accessible only through broadcasts. As more and more vital information is captured and conveyed in broadcasts in our visual world, it becomes even more essential to protect the public domain from the monopoly powers broadcasters seek in this treaty. Moreover, by creating a new layer of proprietary controls over broadcast signals, the proposed treaty completely ignores the fact that creative processes are incremental and depend on access to material within the public domain. Even those few who don?t have any regard for the educational and cultural value of the public domain would be making a mistake to adopt this treaty because it will undermine the vital base of knowledge and culture that citizens, innovators and artists depend on for creating progress and innovation. For these reasons, the proposed treaty stands in direct opposition to the Development Agenda welcomed by the General Assembly last month. In specific, the Development Agenda places great emphasis on ?access to information? and ?knowledge sharing,? and explicitly warns against the dangers of adding new layers of copyright protection, which would obstruct the free flow of information in the digital world. The proposal to grant new and broad powers to broadcasting organizations ignores these prerequisites for closing the knowledge gap that separates wealthy nations from the poor. Many, if not all, of the objections raised at the last session by delegates and the Union for the Public Domain are valid today, since only incremental changes have been made in the latest draft. For example, Article 14 still fails to specify the limitations and exceptions with any level of detail. More importantly, it merely permits countries to include limitations, without specifically requiring them to do so. Given that the new monopoly privileges given to broadcasters are couched in mandatory terms and dealt with in great detail, the omission to do the same for provisions that accord use and access rights to consumers and the public, evinces a complete lack of regard for the public interest. As with the last draft, the public interest will also be threatened by the failure to include an upper limit on the duration of these monopoly powers. Since Article 15 provides that the only act necessary for the commencement of protection under the treaty is transmission, in effect a broadcaster could indefinitely extend the term of protection by merely re-broadcasting the same work. We note that such an anomaly is avoided in traditional copyright and patent law by their insistence on a requirement of originality or novelty for monopoly rights. These safeguards are completely absent in this treaty for the protection of broadcasting organizations. We would like to voice our deep concern over the continued inclusion of technology locks in Article 16, and the related digital rights management provisions in Article 17. We were surprised and sorry to find that the revised draft of the treaty (barring the explanatory comment) does not include any reference to the proposal by the delegations of Brazil and Chile to delete Article 16 altogether. The new Development Agenda makes express reference to technology locks and flags it as an issue of ?great concern?. Many countries, including the United States are beginning to see the undue restrictions that such measures impose on the rights of free speech and access to information and most developing countries have yet to introduce these measures in any form, out of concern for their effect on freedom of expression. As one of the few civil society representatives from the developing world, I would, on behalf of the UPD strongly urge this committee to reconsider its stand on Article 16 in the interests of information access, critical to developing countries? socioeconomic development. Lastly, we remind delegates that every mistake and error that this treaty makes will be far more important if the regime is extended to the Internet -- a publishing platform that is essential for access to knowledge and development. The webcasting industry representatives do not really need the provisions of the treaty (every problem they face can be solved under other treaties and laws), they are simply seeking to make a political statement that webcasting should be treated the same as broadcasting, so they can claim a level playing field in their commercial dealings. Under this logic, every group that competes in some way with broadcasters will ask for upward harmonization of rights. By including webcasting in the Treaty, the SCCR would introduce radical and untested legal protections that will harm the Internet. While the broadcasting organizations can claim that a new treaty would extend and expand the existing Rome Convention, there is no such instrument for Internet transmissions. The webcasters should first demonstrate that they can gain acceptance for new legal protections in national legislatures before they are permitted to assert such rights in a treaty that covers broadcasting organizations. For all of these reasons, and more, this proposed treaty to protect broadcast organizations will not protect the public?s access to knowledge and culture, and the Union for the Public Domain asks delegates to stand strongly against adoption of this treaty. [Performers Group]: Maintain balance between rightsholders and performers. FIM (musicians): ): We are a cosignatory of a statement, "Joint Position of Rightsholders..." [DT: A number of technical challenges to the draft treaty.] European Broadcasting Union: What comes to word when the word "balance" is used? Rome allowed three parties to live together. This treaty protects broadcasters against pirates and against third parties. Those who don't want broadcasters to have protection against circumvention that broadcasters may decide to use want access to the content. Other treaties deal with content. This treaty only deals with broadcasters' *signals*. Finally, a small technical point, as for future steps, the scope of the definition in Article 6 should correspond to the explanatory comment. FIAPF: The inventory of rights proposed in consolidated text, What type of beneficiaries are we dealing with and what is there function in the audio-visual economy? The right of distribution If the rights given to broadcasters encroach upon on the rights of content owners, this would not be an efficient way to deal with signal theft. We are worried about what people are saying today. They want to reduce the needs of developing countries to access. They have reservoirs of talent. Only proper protection of the rights of creators and entrepreneurs can maintain cultural diversity. We need exclusive rights plus a balance between right holders. We ant adequate TPMS on digital works. IMMF: Intervention by the IMMF on the Revised Consolidated Text for a Treaty on the Protection of Broadcasting Organisations delivered by David Stopps on Friday 19 November 2004 at the WIPO SCCR 12 held in Geneva As with other speakers I would like to warmly congratulate the chair on his re-election. He certainly has my sympathy for the formidable task he is facing. I am here representing the IMMF which stands for the International Music Managers Forum. We represent the featured artists, performers and creators, that you hear on the radio and see on your televisions. These are the creators and performers that represent over 95% of the income generated in the global music industry. We are not lobbyists, academics or even lawyers. We are entrepreneurs who have to deal with copyright and related rights as they affect us in practice on a daily basis. We have prepared, along with other NGO's an amended version of the Revised Consolidated Text. I have just been outside and see that they have all gone from the table so if anyone has not seen a copy please contact me and I will send or e-mail a copy to you. As we know it is some 40 years since the Rome Convention and the broadcasters now feel the time is right for a further extension of their rights. It is some 90 years since radio came in to being and yet still in 2004 performers are being paid nothing in the United States and some other countries when their performances are broadcast. So the broadcasters, who represent a multi-million dollar industry, have waited 40 years but performers have waited 90 years for the most basic global rights. In the Agreed Statement on Article 15.3 of the WPPT it states that this issue has been 'LEFT FOR FURTHER RESOLUTION', but here we are 9 years later and I see no sign of anything happening. So now to the proposed treaty before us and you will be pleased to know that I think we have the answer to all your problems. If we look at the Rome Convention Article 1 we see that it states that: PROTECTION GRANTED UNDER THIS CONVENTION SHALL LEAVE INTACT AND SHALL IN NO WAY AFFECT THE PROTECTION OF COPYRIGHT IN LITERARY AND ARTISTIC WORKS. CONSEQUENTLY NO PROVISION OF THIS CONVENTION MAY BE INTERPRETED AS PREJUDICING SUCH PROTECTION. So here we see that the broadcast signal and the underlying content are considered to be quite separate. If we then look at the WPPT ART 1.2 we see almost exactly the same wording. So here again we see a clear distinction between the object of protection and the underlying content. Many NGO's and many delegations have made the point that all broadcasters really need is strong signal protection to prevent piracy. Even the broadcasting lobby in their paper available on the table outside entitled '25 Questions and Answers' state on page 6 of that document: THIS TREATY IS ABOUT PROTECTING BROADCASTERS RIGHTS IN THEIR SIGNALS REGARDLESS OF WHAT OR WHOSE CONTENT IS BEING BROADCAST. So here we see that many NGO's, many delegates and even the broadcasting lobby want signal protection. So why we ask is this not reflected in the draft treaty, even though the delegagation of Singapore made such a suggestion in their official submission last January. Of course, we need a definition of a 'signal' but this could be easily achieved by adapting the definition of a signal which is to be found in the Satellite Convention. So here is the magic answer: If we turn to Page 19 of the Revised Consolidated Text Article 1 Item 2 all we need to add is 9 words after the words 'PROTECTION UNDER THIS TREATY' and these words are 'SHALL BE IN RELATION TO THEIR SIGNAL ONLY AND'. So Article 1 Item 2 on Page 19 would then read: PROTECTION GRANTED UNDER THIS TREATY SHALL BE IN RELATION TO THE SIGNAL ONLY AND SHALL LEAVE INTACT AND SHALL IN NO WAY AFFECT THE PROTECTION OF COPYRIGHT AND RELATED RIGHTS IN PROGRAM MATERIAL INCORPORATED IN BROADCASTS. This is a simple and elegant solution that should satisfy all parties and I recommend it to this committee. Thankyou very much. FIJ: The FIJ has three basic points. 1. We want to exclude webcasting from this treaty. 2. We feel that broadcast rights should only be to protect signal theft 3. We favor Alternative B in (Art 1) and Alternative AA in Article 24 of the Chairman's Consolidated Text. NAB Japan: Why have we been discussing this for 7 years? We unanimously agreed to update the rights of broadcasters because we recognize the need to update in accord with the digital environment. This is why we did WPT and WCCT. Protection for broadcasters was left behind. As digital technology has developed signal piracy has been snowballing. Broadcasters have played the role of indispensable communication. For instance, during a recent earthquake in Japan, we were the only people covering. Who else covers sports? Some claim that the new treaty will jeopardize access to information. That is absolute nonsense. After the treaty, people will still be able to access info. Public domain info is accessible through broadcasts. Without the broadcasters there wouldn't be access. The treaty does not ever affect content itself because it only aims to protect signals. Broadcasters could lose their power because of piracy. The very existence of broadcasters is under challenge now. We can tolerate this anymore. We cannot afford further delay before moving on to the next stage. If not now, when? After long discussion we've had convergence. We must move forward to the diplomatic conference without hesitation. In must be convened next year. AIR: Many delegations have warned that the balance between right holders and the public might be jeopardized by the adoption of this treaty. This treaty refers to the "Protection of Broadcasting Organization" which covers the neighboring right to authorize or prohibit their broadcasts. There is paramount need to update the Rome Convention in the context of the digital age. We need international and national legal protection. We need a fair balance. In the consolidated text there is no clause that calls for the appropriation of content. With this treaty we are closing the circle of international treaties that began in 1996 with the WIPO internet treaties. This treaty is important for developing countries. This treaty will consolidate and nurture our creativity. We want a clause included on technological protection measures. ACT: the argument that the treaty will block access to public domain is distinct from the concern that the treaty will block other rights holders. Broadcasters enhance access to the public domain and make more material available than would otherwise be the case. A legal framework to protect them is in public interest. Broadcasters exist to broadcast - for a commercial broadcaster, the size of an audience is critical; it is counter-intuitive to argue that broadcasters block public domain access. The claim is false; take the case of Renoir as a case in point. Most of his work is in public institutions and has immense public appeal. In 1875, he painted 'Summer' - now in Geneva. In order to display it, consent of the museum would have been necessary, since they own copyright in the postcard. What does it mean to say that the work is in the public domain? It only means that the artist's heirs have no exclusive right to reproduce the work, except for moral rights. The museum has the right to control access - it is a public institution to serve the public and fulfills this function by allowing access free of charge, but as a condition of entry it restricts photography of the paintings, since this a source of revenue for the museum. This gives it the necessary rights to generate revenue. behind the museum stand the citizens of Geneva, who have an interest in seeing the costs set off by revenue generation. Similarly, if a program maker is putting together a program on the artist - the maker is not free to include whatever works he wants; he will have to negotiate with the holders of copyright in the paintings. Museums do allow this, but access is never unconditional or unrestricted. behind this entire process is a process of bringing different stakeholders into an equilibrium. it is to distort and misunderstand the treaty to state otherwise. CISAC: The rights currently envisaged in the proposed broadcast treaty. are too far-reaching. We believe it would be premature to include webcasting in this treaty. IFPI: We've been in this since the beginning and we like to facilitate communications with developing countries. The catalog of rights afforded to broadcasters will have an impact on the rights given to other rightsholders. Exclusive rights for broadcasters don't in themselves conflict with other rightsholders'. But in the market, it's different. This isn't merely principle, it's grounded on real-world concern. In the case of some broadcasts, casters would be the sole rightsholders and hence the sole entities entitled to envision a new business model. Australia, NZ and EU might have broadcasting rights, but it'll be different on a global basis, because some countries that sign this might not have signed onto the 1996 treaties. Linking this to the treaties will solve this. We prefer a "right to prohibit" rather than a "right to authorize." We support 50 year terms. TPMs are key to this treaty. Casters and the public will benefit from this. The best TPMs are the ones not noticed under normal circumstances. Asian Broadcasters' Union: I speak for casters from the developing world. Here's an actual case that justifies this: In the Philippines, we had a FTA that paid a lot of money to air the Olympics. Without their consent, many establishments cashed in by receiving the sat feed and adjusting their biz hours in accordance with the games. Some restaurants set up additional sets. It cannot be denied that the reason for Communication to the Public in Rome was unjust enrichment like this. A clear-cut example today is large-screen broadcasts in bars and beer-tents set up to profit from customers. Is this what we mean by "balance of rights?" If there is anyone among all stakeholders who want a balance of rights, it's the casters, who didn't get new rights in WCT and WPPT. There has been exhaustive discussions and a litany of examples of actual piracy. Casters have already articulated their case, but the attempts here will tilt the rights against casters for no good reason -- we want the right to authorize, not just the right to prohibit. We want 50 years, not 20. We want article 16 and TPMs despite the fact that other rightsholders have similar protection. Under WPPT, other rightsholders have the right to be remunerated for communication to the public, so we should too. Private reception and broadcasts won't be affected. Signal piracy robs us of the motivation to innovate. Without an updated protection, casters will have difficulty providing a higher quality of programming and this will cost creative-sector jobs. Digital Media Assocation: [Pasted in from a transcript provided by DIMA rep, Seth Greenstein]: Statement of the Digital Media Association November 19, 2004 On behalf of the Digital Media Association, representing Internet webcasters, we agree with the United States: webcasting deserves treaty protection against signal piracy - now. It has been suggested by many that this treaty should meet the challenges posed by digital technological developments. To achieve that goal, the treaty must address the piracy facing all forms of media and all transmission modes, in a technology-neutral way. A treaty that merely grants additional rights for modes of transmission known for 50 or 90 years will be obsolete before it is implemented, and would retreat from the foresight shown by WIPO members in crafting what the European Union aptly called the "Internet Treaties." At the June 2003 Informational Session of the SCCR, representatives from DiMA and Yahoo! explained webcast "streaming" technology and the extensive business investments required to create and transmit webcast programming, and the reality of webcast piracy. And, how supporting lawful, royalty-paying Internet webcasting provides an effective antidote against unlawful Internet piracy. If you missed it, you can listen to it any time you want, because WIPO still offers those presentations on its Internet website, by webcasting. Last night, I conducted an experiment. I went to an Internet search engine and looked for the word "webcast" and the names of delegations that have spoken about webcasting. I found: Video programs from Chile. Music from Brazil. Music and video from the Russian Federation. Video news from India. 38 million people enjoyed webcast streaming of a series of soccer games in China. There have been audio webcasts of cricket games involving teams from Australia and New Zealand. In 2001, the first solar eclipse of the new millennium was webcast live from Zambia. Some are continuous programming webcasts, others single events. But remember, the first international webcast in 1995 was a single baseball game. Yet less than a decade later in the US, according to the leading broadcast analyst, Arbitron, * More than 50 million people enjoyed Internet webcast streaming each month * More than 30 million people in the last week * The top five Internet webcasters had a combined U.S. listenership approaching 11 million unique listeners per month. One of these webcasters comes from the United Kingdom * More than 50 % of the webcast audience is over 35 years old, and more than 70 % is 25 or older Consumers like Internet webcasting because it exposes a wide variety of music and culture and programming otherwise unavailable by broadcast radio. The increasing availability of high-speed "broadband" Internet in Europe, South America and Asia, and the growing number of webcaster services around the globe, demonstrate that these data are a paradigm of the trend worldwide: Internet webcasting is a mainstream activity that substantially contributes to the dissemination of world culture and entertainment. It is especially important to developing countries. If webcasting is not your reality today, it will be -- sooner than you expect. We note the press release distributed yesterday by the Cable and Satellite Broadcasting Association of Asia (CASBAA) supporting inclusion of webcasting in the treaty. The United States has the right answer, but we note with interest the innovative suggestions of the Russian Federation as interpreted by the Chairman. Both suggest that the 1000kg block has been mistakenly characterized as an impeding block of concrete. In fact, we should see it as a block of marble. Keep webcasting in the draft documents. With a bit of the creative genius that WIPO celebrates, this body has a historic opportunity to again pick up the tools of the legal artisan, and to fashion from this block a worthy successor and counterpart to the WIPO Internet treaties where WIPO saw the future, embraced it and helped to unleash the cultural force that the Internet has to offer. [CD: My fear is exactly this: " a worthy successor and counterpart to the WIPO Internet treaties where WIPO saw the future" -- in those treaties, the Internet saw the future and REJECTED it] FIAP: We acknowledge the concerns of traditional broadcasters and cablecasters with respect to signal theft. We share the concerns that these rights do not derogate from content rights. Any new treaty should be linked with the WPPT and the WCT. We are concerned that some rights requested by broadcasters will encroach on content. The two tier approach, "a la carte choice" in Article 9-13, does not favor available solution. We suggest that Use based on unauthorized fixations. We agree that webcasting should not be included in this treaty. We do not favor a compromise solution proposed by one delegation. NAB: We have documents from Cancun, documents from Minoa, and the reports of the first 5 or 6 sessions of this committee, where pretty much the sole focus was to establish the need for such treaties. On the issue of balance and a level playing field, we have heard nice rhetoric. But when you review the proposals, you see there is not balance, it is imbalance against the broadcasters and in favor of other neighboring rights holders. On the issue that the new rights in this treaty will overlap with other content providers, the distinguished delegation of the U.S. has listed this as the reason for requiring two tiers, and requiring assent to the WCT and WPPT. To assuage this we have Paragraphs 5 and 6 of the preamble which say that we won't compromise the rights of others, and stressing the rights of performers. In Art. 1 we have provisions saying this treaty will not prejudice other protections. We have the declarations from EC and New Zealand that they have for years had the parallel system of rights proposed here, and that no problems have been created. According to Latin American experts at least 10 countries there have the right of reproduction. So when IP Justice says the rights proposed here exist no where they are either misinformed or uninformed. [TB: In response, Robin Gross from IP Justice commented that the IP Justice intervention specifically noted that "anti-circumvention provisions for broadcasters and webcasting rights do not exist in national laws." After this intervention, one delegate took a copy of the IP Justice statement to the representative from NAB and noted that he made an incorrect assertion on IP Justice's statement.] On the issue of protection I find it bemusing that the countries that have proposed 20 years provide at least 50 years (Singapore, Chile, Brazil). On TPM's, Senegal has it exactly right that it makes no sense to create the vital organs of these rights and then leave them unprotected. If no TPM is included in the broadcast treaty but you have it in the WPPT or WCT, what does it tell the rest of the world? It tells them it's important that other have protection, but there is no need for broadcasters to have protection. That, I submit is a very wrong message to send, and it would be very detrimental to content holders in that it would remove a level of protection that would protect them. [CD: No, it tells them that we've discovered in the past ten years that TPMs don't work] To me the very crazy notion that broadcaster who depend on their livelihood would somehow want to inhibit public access. In my 13 years, the work of the last three days has been incredible. We submit that this committee has accomplished its committee. This committee used to be referred to as the committee of experts. Its role used to be to apply its expertise to the facts. We have done this. The next step is negotiation and diplomacy, what they call a "Diplomatic Conference." We are ready to move forward and ready to compromise. FIART: Does it help creators in developing countries to not give them effective protection? It is very desirable for broadcasters to fight against piracy of signals. That's why I'm astounded people are calling for the deletion of Art. 16. Paying channels can't work unless they can eliminate piracy. I think if we deleted Article 16, it would make the text totally useless. Regarding Article 24, seems odd to join this without people joining WPT and WCCT. It's putting the card before the horse. I notice the reluctance of many delegations on this issue. France Telecom put their telecast on a pirate site. We must do something to combat piracy. In schools there is racketing, rape but I don't think we should put everyone in jail for piracy NABA: [some missed] A treaty without TPMs would be empty words. Digital technology cannot be overlooked. The interests of governments differ, but digital technology crosses all borders. If we do not take a step for a diplomatic conference and the treaty I think people would lose interest in the treaty. UHRNA: [missed] JIARD: We think simulcasting should be included. What we are trying to avoid is piracy. Chair: We have come to the end of substantive interventions on issues related to broadcasting. We shall revisit some aspects of Agenda Item 4 later. We should continue the debate on the Chair proposal. We will include Limitations and Exceptions on the agenda for the next SCCR meeting. [DT: This is huge. Finally, a discussion on protecting users' rights.] [Brief discussion on TPMs, in which Brazil suggested that it would be more expedient to have an inter-sessional meeting in Geneva rather than regional consultations.] -- Break -- [India is given the floor after the meeting] India: After hearing the Brazilian delegation, we realized there was considerable merit in holding meetings where we can iron out differences before coming on to a diplomatic conference. We think that the idea of inter-sessional open-ended consultations will help us narrow the differences that exist and obviate the need for regional consultations. If there's one thing that's emerged is that within regions there's a remarkable degree of homogeneity, so therefore regional consultations would be quite unnecessary. Chair: Conclusion now. We're going to talk about the Broadcast Treaty and Limitations and Exceptions. Other announcements are permitted. My overall assessment: The Committee made considerable progress and reduced the substantial differences in the consolidated text. No final concessions on concrete points were made. Delegations want to maintain their positions for the next stage of the work. No progress will be made until the next phase starts. Concrete examples of progress are as follows: There is support for a new version of the consolidated text: Items in square brackets will not be retained in the next version (i.e. provision on webcasting and square brackets concerning TPMs) Rights on acts that follow fixation: we considered a two-tier model, which received growing expression of interest. A new alternative will be added to the text. The remaining single paragraph of Art. 16 will be included along with an alternative that no such provision will be included in the final version. Regarding becoming a party to the treaty, the alternative that requires joining WCT/WPPT will be put in square brackets. Delegations' attentions will be drawn to the need for further streamlining of the retransmission rights. (talking about alternative T) Less than 50 years' term alternative received support and will be maintained in the text. In order to make further progress and in light of the request of the General Assembly: [Powerpoint slides: 1. Documents to be prepared: * A second revised version of the Consolidated Text will be prepared by the chairman of the present session of the standing committee; * A working paper on alternative non-mandatory solutions on the protection of webcasting organizations including simulcasting organizations will be prepared to accompany the second revised version 2. Regional consultations * Regional consultation meetings will be organized by the International Bureau, as requested by the member states. 3. 13th session * The next session of the committee will take into account the progress made in the regional meetings. * The committee will, in light of the results of regional consultations consider the second version of the Consolidated Text and examine the working paper on alternative solutions on the protection of webcasting organizations; [TB: Who requested regional meetings?] B. EXCEPTIONS AND LIMITATIONS TO COPYRIGHT AND RELATED RIGHTS * Agenda on exceptions and limitations for libraries and disabled persons will be placed on the agenda of the Thirteenth Session] [CD: What about education??] Brazil: We're willing to engage in this discussion on these conclusions, but we would like a written copy. I think this is the standard procedure we follow when we discuss your conclusions. It would help us a lot to see this in written form in a printed format so that we could work on it as we discuss your suggested language. Chair: We do have a written version of the set of conclusions now shown by using the technical equipment available in the room [Powerpoint] in order to serve all language groups I could read this text again slowly to make this text perfectly accessible to everybody. This is a set of simple, soft, flexible conclusions and there should be no difficulty in following the content of the different elements. India: Before the lunch break I pushed you more for the floor more than I normally would. The reason was that I had a dental appointment. I realize my ideas may not have been clearly conveyed because my speech may not have been clear. I hope my speech is a little clearer now. What I was suggesting was that Brazil's suggestions for open consultations inter-sessionally were an eminently sensible idea. I would have thought that given the open ended consultations are wider in scope and the fact that the differences that emerged in this meeting were essentially differences across regions, it would be more beneficial to have an inter-sessional meeting which is precisely what we are now engaged in. Some meeting like this that brings regions together in inter-sessional consultations. But I see that none of that has been reflected. And since we believe our conclusions are those of the committee rather than the conclusions of the chair, we would request you to show some indication that our contribution has not been entirely dismissed out of hand. Thank you. Chair: Whups, yup, we got that proposal. I can't give you the proper reaction to this now. Let's hear from the other delegates and then we'll ask the international bureau and the secretariat to weigh in. I would not expect there to be consensus given yesterday's discussions. I tried to make this streamlined so those who have flights can catch them. India: Thanks -- those are indeed your conclusions but for them to be actionable means that they have to be accepted by the committee. Before we discuss these, I think my delegation has to sign on. If there's a conclusion from the chair without a requirement from the committee to sign on, then how can the secretariat do anything? I think it's the committee, not the chair, that is entitled to move us to action. Chair: We will listen to the comments of the other delegations and they will be presented in the report, and we will then see whether these can be actionable. Egypt, Speaking for African Group. The African Group thinks that Brazil's proposal is worth consideration. European Community: India made me painfully aware that I, too, need to go to the dentist's, soon. I don't want to talk about regional consultations, because we have these in Europe in the form of meetings in the Council Working Group. I'm puzzled, though, by how my messages in the past few days have been perceived. EU believes that Simulcasting is an option that should remain in the text, and Webcasting should also remain in the text. The working paper should deal with other possibilities to address this issue. I'm not talking about "Webcasting Organizations" or "Simulcasting Organizations," as we should clarify what these terms make. Can you clarify this, please? Also, PowerPoint slides are good. ? Zambia: My first point is that my delegation will be the first to support whatever my coordinator says because I am part of the African group. But also, where we don't agree or we have not discussed an issue as an African group, I am put in a corner. My understanding of my coordinator's statement about Brazil's proposal is that it is the Egyptian position and not an African group position. I am sorry to say this, but I want to be honest. My second point is that we have made a lot of progress. As far as my delegation is concerned, we believe it has been difficult for the Chairman to please everyone. Yesterday I suggested the U.S. drop its webcasting proposal so we can have consensus. They did not. Someone else brought a compromise that has brought us to where we are. I support the Chairman and hope we can proceed accordingly. I don't have time to go through each point, but this is the summary of our position. Senegal: I would like to thank the Secretariat for all the facilities they've provided for us. I would like to thank you first of all for your skills and your spirit of consensus. You have guided our discussions very skillfully. On behalf of my delegation I would like to endorse the conclusions you have put to us. I support wholeheartedly the idea of consultations. The request for these consultations requested by Morocco and endorsed by Togo is again topical because we believe that if we hold these inter-sessional consultations we will succeed in overcoming the difficulties easily and we will be in a position to go ahead to a diplomatic conference. Algeria: I would like to thank the Russian Federation for their proposal to protect broadcasting organizations on the web within a non-mandatory protocol which would guarantee a 3-tier protection. We believe that this proposal will help us arrive on consensus. My delegation supports this proposal. We have made great progress but there is still a great deal of work, and I think this will be done in a series of consultation meetings at a regional level, as proposed by a number of delegations, including Morocco, Togo, Senegal. Brazil: Thank you Mr. Chairman for your efforts to summarize our discussions this week. We want to get back to something that the distinguished delegate from India said. Clearly any decisions on future work with respect to this process must be accepted by this Committee. We have been proceeding under the assumption that this is a Member driven, not a Secretariat or Chair driven process. We concur with some of the delegations who spoke earlier, that they seem to constitute an honest effort to capture some of the ideas in our discussions, but they leave out some very elements that were brought up in the context of our debate. My delegation in fact made a specific suggestion regarding future work that we honestly offered as a constructive suggestion which we thought could seriously help enable this committee to make progress in discussions. That suggestion has received support from some of the members present in this room. You have chosen not to reflect this in the conclusions you are making, these proposed draft conclusions for reasons that frankly we fail to understand. The language you have suggested for regional consultations is frankly accurate because what it seems to suggest is that the members of the committee have agreed to convene these regional consultation meetings. In fact that hasn't happened. We understand that some members of the committee have raised this point in the course of the debate, and we respect and take full note of that suggestion. However, we feel that the appropriate way to proceed would be along the ways of the suggestions we have made. The fact is that we have had not time to discuss any of these suggestions, including the one on regional consultations. We would like to point out to you that this idea was in fact discussed in the last meeting of the standing committee when we negotiated, in a member driven way, the language of the recommendations that were forwarded to the general assembly on this important matter. This recommendations did include references on the matter of regional consultations. I would like to read the text: "Depending on the decision of the WIPO General Assembly under point a 1 above the decisions to convene or not to convene, and the recommendations of the standing committee, the international bureau shall organize regional consultations meetings where appropriate and at the request of the relevant regional groups.: We would like to point out that no regional group has lodged such a request in the course of this meeting. No regional group that I am aware of has supported this proposal or raised a formal request for the holding of such regional consultations. If there is an interest on the part of any region to have a regional consultation meeting we would not stand in the way of that. But in the course of the discussions we have had today no regional group has made that proposal and no group hap has requested a meeting. The group my country belongs to has certainly not asked for a regional consultations meeting. I ask that we stand by the decisions this committee has taken in the past. We believe it is late but we may still have time to have consultations on these issues and would be willing to have constructive conversations on those issues. It would be hard put for us to agree to a set of conclusions that does not reflect any kind of agreement that might have been arrived at between any members of this committee. Chair: I set earlier that these conclusions were simple. I don't understand how the regional consultations that have previously proved so useful, why it would be so difficult to consider regional consultations this time. So this element is in the set of conclusions. [CD: In other words: "Tough."] Morocco: My delegation approves all delegations that support the proposal at the beginning of this meeting concerning the organization of regional consultations in order to discuss the items still in abeyance. Because here we share your view, we believe we have made considerable progress. We still have work to do, but not very much, and through these consultations we'll be able to achieve a solution if everybody sincerely approaches these consultations and makes an effort to understand all the issues. There are of course divergences in abeyance and this is a good reason to hold regional consultations. Morocco tends toward the liberalization of all satellite transmissions. We approve regional consultations for the creation of new broadcasting bodies which will contribute to the organization of better and more modern levels of protection. Syria: We agree with your proposal to convene regional consultations with a view to convening a Diplomatic Conference. We want the regional consultations to focus on Article 16 and also on limitations and exceptions. Colombia: We appreciate your efforts. Re document on webcasting -- we have to take into account that article three has three objectives: traditional broadcasters, cablecasters and webcasters. When you say that this is an alternative proposal, we could also include simulcasting here. It's a special case, but it's independent. They do it either by wire or wireless and to talk about "web" in this connection would be an additional situation, another layer to be added to traditional broadcasting. As regards the convening of regional consultations, we've always proceeded in this way in WIPO, prior to any diplomatic conference there are regional consultations dealing with a given item. Regarding Brazil's comments, I take it that the venue will be Geneva, especially given the financial situation of the organization. We need to take into account the points made by India. This aren't discussions within a region, but from one region to another. This is similar to the situation in 2000, with the audiovisual performances treaty. The divergences are not within regions, but among regions. Uruguay: We appreciate your efforts. Generally speaking, Uruguay can support these conclusions even though they do not fully satisfy us. We should not lose the momentum and we should go on to the future stage We support a second version of the consolidated text. We are amenable to alternative non-mandatory solutions on webcasting but this must be done at a later stage. We are flexible on the subject of regional consultations. Whether or not they are regional, we think the proposal of an ad hoc inter-sessional meeting is really something that's very positive and I think it would be worthwhile to have an inter-sessional meeting because we're convinced that a further meeting of the committee even if it is inter-sessional or informal will make the process more dynamic. Mexico: We appreciate your work. We have enough consensus to continue. Bear in mind that we've already spent 12 sessions on a matter recognized as important by many countries, on updating rights already addressed by rome. We're talking about broadcasting organizations that provide knowledge and culture to our people. Mexico considers that the time is ripe for regional conferences, and possible for the holding of a diplomatic conference. Norway: We can support this constructive proposal by the chairman. We want to remain flexible in addressing this issue. Regarding the issue of exceptions and limitations we can fully support continued international discussion in this committee. Argentina: What is the relevance on having conclusions since we are discussing future work? This is a negotiating process between Members not between Members and the Secretariat. I think this position was set out in the Development Agenda set out by Argentina and many of the other delegations. So we do not believe this kind of procedure is really most appropriate. Regarding the text, it was clear from our discussions so far that we would keep 98% of the alternatives in the text. What we find surprising is that for one of the alternatives that got majority support you are proposing a different solution. Alternative V which was proposed by Argentina, it's the only alternative that would be removed from the text. Argentina does not withdraw its proposal on Article 16. We would like to see this alternative in the next text. On a working paper, which would be prepared and which would accompany the second version, we're not clear about the nature of that document. What would it mean to say that it would be prepared to accompany the second version. I think it's very obvious that there is great opposition to this subject. It's not necessary to have a second treaty or protocol on webcasting. There has been no mandate or discussion of a different instrument specifically on that subject. There were proposals here to include an alternative two-tier protection. This was what the EU said in its proposal today and there may also be another alternative with this 2-tier solution. I don't know if this would solve the problem, but if we have a working paper it should be asked for by the members. It should be discussed by the members in depth and there should be a request to the secretariat for the document. We support Brazil on the regional conferences issue. There should be regional meetings if they are requested, we have no objection to that. But we think an inter-sessional meeting of the committee might help us make more progress or discuss in more depth. In the last few sessions all we've done is look at various alternatives. Our delegation hasn't had an opportunity speak on Art. 4 but it doesn't mean that what isn't in square brackets has consensus. We don't know the state of things not in square brackets because we haven't discussed them. USA: Thank you Mr. Chairman. It is with regret that I find it dismaying that the proposal has been made to take webcasting and simulcasting off the consolidated text and put in some "other document." We found the proposal by the Russian Federation of a multi-tiered solution interesting. We've discussed these issues before, had educational sessions on the topic. The proper way is to leave webcasting in the text. It is, we believe, an important issue for the 21st century and we continue not to want to see it left behind. Russian Federation: Re the drafting of these recommendations. It's better to speak of the second document as a working document, containing an alternative solution to the problem of Webcasting and Simulcasting. The broader wording would make a better doc. Iran: We think an inter-sessional meeting is a better way of engaging all delegations. There should be a consensus on the work of the committee. We support the statements of Egypt, India and Brazil. Zambia: We are all the same members that have held previous meetings before, at the general assembly and with other portfolios. In other venues, we've adopted/supported the proposals of others when we'd initially said we wouldn't support them. You can't win all the time. Today you propose and your colleagues say yes, but they expect you to say yes to them, to die a little and give in, remembering that they supported you. Hey you other delegates, support regional meetings. We've held our noses and swallowed much more bitter compromises. Chile: We want a rewording of the text on regional consultations and include language on an inter-sessional working group considering that this will be more open. China: In general the Chinese delegation supports the Chairman's suggestions. We have a small suggestion. If it is possible, we suggest that consideration be made on the part of WIPO to include the experts from governments from developing and developed countries to exchange questions so that developing country experts could learn more about webcasting so that they can find out why they want webcasting in. We want to emphasize that these experts be from governments This will enhance our mutual understanding and it will be useful in preparing the second version of the consolidated text. Canada: We will refrain from commenting right now. El Salvador: We agree with the statement made by Uruguay. As other members have mentioned, there are some areas where we are concerned, however we think we should make progress on the definitions in the treaty. Serbia: Speaking in my national capacity, not as leader of the group. We support your conclusions as a whole as a compromise. Regarding your suggestions on slide "3. Thirteenth.." We should be careful in our suggestions to the secretariat given the financial considerations we have discussed. Honduras: This is my first time taking the floor, thank you Mr. Chairman. We support the proposal to have an inter-sessional meeting rather than a regional meeting, given the financial issues. We support the Chilean proposal. Colombia: I think you misunderstood me as regards regional meetings. Of course we support regional meetings and I think we have presented a number of comments and remarks and precisely to imply the recommendation we formulated in June of last year concerning the venues of the regional meetings. But we did not object to that at all. Togo: I would like to thank you for your very relevant conclusions which you have drawn after our 3 days work. I would like to note that the General Assemblies instructed the SCCR to accelerate its work. This was the guiding concern of the African Group. We support the regional consultations with a view to convening the Diplomatic Conference. Rita Hayes (Deputy Director General of WIPO): There is a precedent for regional consultations and it seems to be a good way of discussing the issues. In response to the distinguished delegate of Colombia, we will of course look into the financial aspects and the scheduling conflicts. We might ask the Chair if he could add to conclusions that there be other types of consultations. It was the request of many many delegations to have these regional consultations. [TB: The word "inter-sessional" was not directly mentioned in the intervention by the Deputy Director General] Chair: I suggest, changing the heading to "Regional and other informal consultations." And add, "regional consultation meetings and other types of informal consultation meetings." Brazil: The suggestions you are adding, following the suggestion of the rep of the secretariat could be useful, but we don't think the language captures the sentiment manifesting itself in the course of discussions on future work. Mr. Chairman, we did not hear many many many members support regional meetings. We heard several members, but similar a number a of countries have pointed out that they would prefer a different kind of consultation. As a committee we must decide on what the follow-up process of our work should be. I think I'll let you finish talking to the secretariat if that's OK with you. Mr. Chairman, as I was saying I don't think it should be so difficult for us to find a way forward given the goodwill in this room. Mr. Chairman we want to make clear again as we have before that if a specific region wishes to have a consultation and wishes to convey that request as a group to the request, Brazil certainly would not stand in the way of that region. But the fact of the matter is that we have yet to hear a regional group make such a request in this meeting. If that did happen, we would not stand in the way. In adopting a decision this afternoon, we must stand by the principles that we have agreed to in past meetings of the standing committee in discussing the preparations. Clearly in the last meeting we said the regional meetings would happen where appropriate at the request of regional groups. We insist that this process remain member-driven. Chair: I would ask all of you to be patient and understand we need to come to a speedy conclusion. We are running out of meeting time. [DT: 5:04pm] The wording I added was indeed intended to cope with all proposals made here, including your proposal. I should maybe turn to the legal counsel of the house and see if sees any problems in proceeding in this way. Legal counsel: [laughter] Mr. Chairman I think it depends on what the committee wants to adopt. My understanding is that you are providing a summary of the conclusions as you see them. THese are the chair's conclusions and the delegates have been invited to comment on them. This is not precedent setting, this is the standard practice in most of the committee meetings these days, especially for meetings that are less than a week. If the committee doesn't want to adopt these as the committee's conclusions they can be adopted as the chair's conclusions on the committee's work. India: Some of what I want to say has already been said by the representative of the Brazil. Namely that we should hold regional consultations where such consultations have been requested by the regional groups and we certainly think that's the basis on which we should proceed. And to that end modify the language that you have on the screen: "Regional consultation meetings, based on requests by regional groups, followed by an open inter-sessional intergovernmental consultation of the committee will be organized by the International Bureau as requested by the member states." Chair: Thank you very much India for your suggestion. Now it seems that the meeting starts again. Now we may have an endless discussion on details. Do we have consensus or not? If not we will have conclusions by the chairman in the report. I don't think we can now exactly define the form and order of business in organizing the consultations. Negotiations between the secretariat and possible host countries has to continue, discussion on possible inter-sessional meeting in Geneva has to continue. [CD: Brazil sticks its sign in the air, waits to be recognized by the chair] Brazil: Referring back to the comment legal counsel made on our deliberations. You are asking us to agree to conclusions with which we have not agreed to. We are surprised that you seem unwilling to allow us to agree on something which we seek to agree, rather than agreeing on a conclusion which you already know the committee does not agree on. The problem with your proposal is simple. It is up to the committee to decide on the follow-up process. You're asking us not to agree, and to leave it to the secretariat to decide what should be done. We have repeated that this is a member driven process, and we insist that it remain member driven. Serbia-Montenegro: Rule 14(1) of WIPO says that any delegation may raise a point of order, and may not speak on the substance. So if you make a point of order I think the delegation should refrain from speaking on the subtance. Zambia: Mr. Chairman I apologize, we should be making a conclusion. But Mr. Chairman I raised the flag to try and see how much more this delegation can contribute to the debate, and I more or less repeat the same point I had made. We should not set a trend which will be difficult to reverse in the future. Compromise is very important. If I agree to support you, at least look at me and support me. There seems to be a trend where one or two delegations are saying that there should be no regional consultations. Why is this such a do or die affair? We can make progress on regional consultations. This is deliberate, this is unnecessary. For you to force me to speak like this is unnecessary, I have never spoken like this before. I refuse to jump on the bandwagon because I'm small. Let's look at the reason. Surely if we have agendas the regional consultations will not spoil those agendas. This is not necesasry but we have been driven to speak like this. I am so sorry. When you quote the decision which we made youare quoting it as cast in stone. We are being rigid. Several African countries have suggested a regional meeting. Do you just want the coordinator of Africa group to say that yes, we have suggested. So many Africans have suggested. We are a region. This is not fair. I'm sorry. Thank you Mr. Chairman. Chair: I give the floor to everyone who is asking the floor we will run clearly over time. So we should admit at this stage, especially after the intervention by Brazil, that it is not proposal to have any conclusions to the meeting that would enjoy full support as to every detail by everyone in this room. That is the atmosphere now and that was the atmosphere yesterday. That is why now I would like to make it clear that the conclusions as presented and amended as I suggested add flexibility. Flexibility is the principle of the day. This will be under my responsibility. I would invite you to accept that we should come to the end of this debate. India (point of order): This is quite precisely a point of order. The reason why it is a point of order, as we were were reminded the delegate ofSerbia. [DT: lights turned up] Personally I thought that was very unhelpful because the spirit of WIPO is not rigid, hidebound. Flexibility is the order of the day, not recourse to the rulebook. Because if we did take recourse to the rulebook we wouldn't have been able to elect the chair. Because the rule says that the chair should not be elected back-to-back, but we have done it in the interest of flexibility. I try not to go by the rulebook because I think what we know is important is the spirit behind the rule, which is that we should advance our work. Since the rep of Serbia pointed out the rule, I do recall a rule that the chair should not be elected back-to-back. So is she going to say that we have overstepped the authority we have in electing you as the chair? Thank you. Chair: Thank you for your point. Legal counsel. Legal counsel: India's reference to the rule is correct, but this committee did decide to derogage from procedure and not stick to the rule that there should not be a repeat chair. India: I do not recall this proposal being put to the Committee. I seem to have missed when this special derogation was discussed. Legal Counsel: Just for information to the distinguished delegate of India this was at the 3rd session of the committee where we adopted a special rule of procedure. India: But that does not bind subsequent sessions of the committee. Each session of the committee is the master of its own rules. Secretariat (Jorgen Blomqvist): If I may inform the distinguished delegate of India, the secretariat noticed that in the two previous sessions the chairman had been elected back-to-back. That was seen as a de facto departure, so special rules of procedure for this committee only were established. India: Mr. Chairman I don't believve this satisfactorily addresses this question. Just as we don't like to have intergenerational tying down of populations, we don't like one committee session tying down another committee session. Unless the rules of procedure themselves are changed. Given that there is turnover, that human memory is perforce limited, that where we depart from the rules of procedure these should specifically be brought to the attention of the committee each time. Given that we don't think the 3rd session of the committee can tie down future sessions of the committee, which is the master of its own rules. [lights come on brighter] Chair: I think this week's session shows there is great flexibility but there are difficulties in arrivng at the joint conclusions. I ask for the last time that the debate not continue. I ask simply that you indicate whether you cannot join, and we will have only in the report the conclusions of the chair. Brazil: This is a point of order, since people have been referring to the rulebooks. We understand there are rules governing the general powers of the chair, and we're not aware that anywhere in the rules does it say that the chairman has the power to impose decisions on the committee. We would like the report to say that your conclusions are not endorsed by the committee and does not bind the committee. India: We need to still resolve the point that we raised. If we are working on the basis of consensus, it doesn't matter whether the chair has been elected according to the rules or not. But when we are going to depart from consensus, when an individual is going to give his personal views, then all these questions again resurface. Consensus is a beautiful thing. It sort of smoothes over a lot of rough edges. But absent that consensus they again raise their ugly heads. We have to bear in mind that there is no consensus. And for the rep from Finland to say and for WIPO to accept that these are the conclusions of the cahir and not the committee gives a special weight to the conclusion of the delegate to the conclusion of perhaps to one hundred and forty delegates in this room. Chair: As a way to measure the prevailing position in the committee, I invite those who would not be able to join the conclusions to give a show of hands. Five [Iran, Brazil, Egypt, India, Argentina]. Shall we continue this discussion? Who might be able to join the conclusions? [large show of hands] When the modern democracy was born, it was said that peole have a say. In many cases it is the majority whose opinion has to be respected. That is democracy. [applause, including broadcasters in the back row] [TB: The United States did not raise their placard] The debate is closed. The conclusions and observations of the chair are going to be taken to the report. Now ladies and gentlemen there has to be a specific procedure for the adoption of the report. There have been 1 or 2 cases where the report has been distributed a few weeks [missed]. I apologize for all the bad will that this debate may have caused. I deeply regret it because the willingness to deal with the substance has been so promising. The difficulties in finding the procedure in how to come forward was difficult. Are there any other announcements by the Secretariat? The session of the 12th session is now closed. [gavel] Thank you very much.