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, 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] Jamie King, email@example.com [JK] Volker Grassmuck, firstname.lastname@example.org [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.