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 (email@example.com), Wendy
Seltzer (firstname.lastname@example.org) and David Tannenbaum (email@example.com).
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" 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. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ 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 databases * 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 issues. * 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 databases. 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.